1 W.P.No. 3707.10. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO. 3707 OF 2010 1] Dhondiram S/o Daulatrao Ghorpade, Age 62 years, Occupation agriculturist, and Advocate R/o Mandavgaon Ta. Shrigonda, District Ahmednagar .. PETITIONER V E R S U S 1] The Collector, Ahmednagar. 2] The Returning Officer, Kukadi Sahakari Sakhar Karkhana Ltd. Pimpalgaon Pisa, Ta. Shrigonda, District Ahmednagar. 3] The Divisional Commissioner, Nashik. 4] Kukadi Sahakari Sakhar Karkhana Ltd., Pimpalgaon Pisa Ta. Shrigonda, District Ahamednagar, Through its Managing Director. 5] Subhash S/o Bhausaheb Dange, Age 52 years Occupation agriculture R/o Shrigonda, District Ahmednagar Through its Managing Director. 6] Shri Avinash S/o Jyotiba Walak,Aged 40 years Occupation agriculture R/o Thite Sangvi,Tq.Shrigonda, District Ahmednagar. 7] Rajendra S/o Kashiram Zarad, Aged 29 years Occupation agriculture R/o Belwandi Kothar Tq. Shrigonda, District Ahmednagar. 2 W.P.No. 3707.10. 8] Ashok S/o Dhondibhau Shitole,Aged 45 yeas, Occupation Agriculture, R/o Bhangaon Ta. Shrigonda, District Ahmednagar. 9] Bhausaheb S/o Anandrao Dhumre, Aged 43 years,Occupation agriculture, R/o Bhangaon Tq. Shrigonda, District Ahmednagar. 10] Rajendra S/o Ramdas walake,Aged 39 years Occupation agriculture R/o taradgavan, Ta. Shrigonda, District Ahmednagar. 11] Navnath S/o Bhagchand Doke, Aged 40 years Occupation Agriculture, R/o Taradgavan Tq. Shrigonda, District Ahmednagar. 12] Shankar S/o Bapurao Dharkar, Aged 37 years Occupation Agriculture R/o Deolgaon, Tq. Shrigonda, District Ahmednagar. 13] Avinash S/o Jyotiram Walke,Aged 54 years Occupation Agriculture, R/o Thite Sangvi,Tq.Shrigonda, District Ahmednagar. 14] Pravinkumar S/o Kisan Takle, Aged 35 years Occupation Agriculture, R/o Bhangwaon Tq. Shrigonda, District Ahmednagar. 15] Tanaji S/o Sambhaji Borude, Aged 56 years, Occupation Agriculture R/o Ghorgaon Tq. Shrigonda. 16] Balasaheb S/o Bapurao Ugle, Aged 37 years Occupation agriculture R/o Ghogargaon, Tq.Shrigonda, District Ahmednagar. 3 W.P.No. 3707.10. 17] Mohan S/o Bajirao Kundade, Aged 35 years Occupation Agriculture R/o Bhangaon , Tq. Shrigonda, District Ahmednagar. 18] Ghanshyam S/o Prataprao Shelar, Aged 56 years Occupation Agriculture R/o wadali Tq. Shrigonda, District Ahmednagar. 19] Arjun S/o Ramchandra Shelke, Aged 40 years Occupation Agriculture R/o Thite Sangvi,Tq. Shrigonda, District. Ahmednagar. 20] Madhukar S/o Maruti Takle, Aged 40 years Occupation agraiculture R/o Bhangwaon Tq. Shrigonda, District Ahmednagar. 21] Shitole S/o Bhausaheb Tukaram Aged 45 oyears Occupation Agriculture R/o Bhangaon Tq. Shrigonda, District Ahmednagar. 22] Janardhan S/o Balasaehb @ Babasaheb Kohtare,Aged 37 years Occupation Agriculture R/o Belvandi-Kothar,Tq. Shrigonda, District Ahmednagar. 23] Sulochana W/o Sambhajui Berad, Aged 40 years Occupation Household, R/o Taradgavan, Tq. Shirgonda, District Ahmednagar. 24] Nana S/o Khandu Kale, Aged 35 years,Occupation agriculture R/o wadali tq. Shrigonda,District Ahmednagar. 4 W.P.No. 3707.10. 25] Kantilal S/o Chandrabhan Kothare, Aged 42 years Occupation Agraiculture, R/o Belvandi-Kothar, Tq. Shrigonda, District Ahmednagar. 26] Nanasaheb S/o Dnayndeo Aghav, Aged 45 years Occupation agriculture R/o Bhangaon, Tq. Shrigonda, District Ahmednagar. 27] Dattatrya S/o Namdeo Kanherkar, Aged 40 years Occupation agriculture R/o Bhangaon, Tq. Shrigonda, District Ahmednagar. 28] Balbhim S/o Bhagwan Pathare, Aged 42 years Occupation Agriculture, R/o Banpimpri Tq. Shrigonda, District Ahmednagar. 29] Gangaram S/o Bhanudas Manche, Aged 49 years Occupation agriculture R/o Takli, Tq. Shrigonda, District Ahmendagar. 30] Diliprao S/o Namdeo Gaikwad, aged 56 years., Occupation Agriculture R/o Deolgaon Tq. Shigonda, District Ahmednagar. 31] Kantilal S/o tatyaram Kothare, aged 48 years Occupation Agriculture R/o Belvandi-Kothar, Tq. Shrigonda, District Ahmednagar. 32] Balasaheb S/o Bapurao Ugle, aged 40 years Occupation agriculture R/o Taradgavan, Tq. Shrigonda, District Ahmednagar. 5 W.P.No. 3707.10. 33] Mansing S/o Dhondibhau Shitole, aged 59 years Occupation Agriculture R/o bhangaon Ta. Shribonda District Ahmednagar. RESPONDENTS ... Mr. S.S.Choudhari ,Advocate for Petitioners Mr. V.B.Ghatge,A.G.P. for respondent-State Mr. R.N.Dhorde Advocate holding for Mr. N.V.Gaware,Advocate for respondent NO.4. ... CORAM : V.R.KINGAONKAR, J. DATE : 28TH APRIL, 2010. ORAL JUDGMENT : 1] Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties the petition is being disposed of at the stage of admission. 2] By this petition, the petitioner challenges the orders rendered by the Scrutiny Officer,and the Appellate Authority, whereby his nomination form and Appeal, respectively, were rejected. He had filed nomination form, for the elections, which were declared as per scheduled programme of elections for Kukadi Sahakari Sakhar Karkhana Ltd. Pimpalgaon Pisa, Ta. Shrigonda. The petitioner filed his nomination form, from Bhangeaon constituency. The scrutiny was to be effected on 9th April, 2010. The Returning Officer scrutinized his nomination form and pointed out to him that there was deficiency in view of the non-compliance of Rule 16 of the Maharashtra 6 W.P.No. 3707.10. Co-Operative Societies Election to Committee Rules, because he had not supplied sugar cane crop for the period of three years, preceding the period of election. The petitioner explained to the Returning Officer that he could not cultivate the sugar cane crop due to drought like condition. He submitted his written explanation that there was no water storage available in the well situated in his agricultural land, and as such he could not cultivate Sugar cane crop in the relevant years. The explanation was rejected, so also his nomination form came to be rejected. He had preferred Appeal No. 20 of 2010. It has been dismissed by the learned Additional Commissioner Nashik, Division Nashik by impugned judgment and order dated 19th April, 2010. 3] Being dissatisfied with the said impugned judgment and order the petitioner has filed this writ petition. 4] Heard learned counsel for the parties and learned Assistant Government Pleader. 5] It is pointed out by learned counsel-Mr. Choudhari that explanation was furnished by the petitioner immediately, prior to given time, and the same ought to have been duly considered by the Returning Officer, but without verification of the correctness thereof, the nomination form has been rejected. He would submit that if the non compliance of Rule 16, is found to be intentional one, then only rejection could be justified. Still, however, according to Mr. Choudhari, if the non compliance is due 7 W.P.No. 3707.10. to circumstances beyond control of the candidate, the rejection would be improper and incorrect. 6] In Yeshwant Khashaba Dubal and others Vs. Krishna Sahakari Sakhar Karkhana maryadit and others and others reported in 1991 CTJ 230 the Division Bench of this Court considered similar the fact situation. It is observed in para No. 2: “The other part of the bye-law will have to be read with the substantive provisions of the Act including Section 79-B. A member is not expected to comply with a condition which is impossible of compliance. Therefore it will not cover a case where member was unable to supply Agricultural Produce for a reason beyond his control or for good reason or justification. If for a good reason, which is not voluntary, he was not able to cultivate sugar cane, then such a case is not covered by the said bye-law. However, if the sugar cane is grown then it will have to be supplied to the Karkhana and not to others, nor it could be used for purpose of manufacturing Jaggery.” 7] Perusal of the above observations, would make manifestly clear that the compliance is required to be made with bye-laws of the Co-operative Sugar Factory. If it is within the possible resources available to a member. However, strict compliance of the bye- law may not be necessary when the member of the Co-operative Sugar Factory is unable to comply with the conditions due to circumstances, over which he could have no control. Non cultivation of sugar cane crop due to paucity of the 8 W.P.No. 3707.10. irrigation facility could be attributed to calamity which occurred in the drought prone area. It is, therefore, clear that non compliance of the condition was due to vis-major. It is worthy to be mentioned that such bye-law is required to be construed having regard to the object of the provisions of the Maharashtra Co-operative Societies Act. Purposive construction would show that the bye-law is aimed to achieve more co-operation of the members, which is basic foundation of the Co-operative Law. The dis- entitlement of a member to contest election is founded on principle of disapproving his non co-operation. The member who cultivated the sugar cane crop, if does not supply the sugar cane to the sugar factory, of which he is a member, is not allowed to contest the election for the reason that, he can not be given benefit of his wrong. 8] Considering the explanation given by the petitioner, it was necessary for the Returning officer to verify the fact situation. Unfortunately, the Returning Officer did not verify the facts situation and did not consider the explanation at all. The Appellate Authority too did not consider the legal position in the context of the explanation. The explanation was rejected for the reason that sugar cane crop did not depend on the rains and absence of rain could not be the proper explanation. The Appellate Authority observed that canal water is available in Shrigonda, therefore such explanation could not be accepted. The real question is, as to whether such irrigation facility was available, to the petitioner. The entries in the 7/12 extract would show that he did not 9 W.P.No. 3707.10. cultivate the sugar cane crop for the relevant period of three years. It does not stand to reason that though irrigation facility was available the petitioner would have avoided to utilise water resources without any justification. 9] In view of the foregoing discussion, I am of the opinion that the nomination form of petitioner Dhondiram was erroneously and illegally rejected. The elections are yet to be held. As per the scheduled programme the elections will be held on 10th May,2010. It is true that normally the Court would not interfere in the election process and the election process can not be upset in the midest of it. However, when it is explicit that the election itself is likely to be subject matter of challenge and success of such election petition is prima facie probable from the record, instead of allowing further complications to be continued or instead of allowing multiplicity of litigation, it would be appropriate to permit the petitioner to contest the election without prejudice to the rights of other candidates. 10] In the result, the petition is allowed. The petitioner shall be permitted to contest the election by immediately considering his candidature and following due procedure within a period of one week and adding his name as candidate in the constituency from which he has filled up his nomination. Rule is made absolute in above terms. Petition is accordingly disposed of. 10 W.P.No. 3707.10. 11. Mr. Gaware the learned Counsel for the respondent no.4 urges to stay the effect of this order. Since the elections are in the offing the request is rejected. Sd/- ( V.R.KINGAONKAR, J. ) MTK