1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1461 OF 2010 DEVANAND DHONDU PATIL ..Petitioner VERSUS STATE OF MAHARASHTRA & OTHERS ..Respondents ... Shri Ajeet B. Kale with Shri S.S.Sawargaonkar, Advocates for petitioner, Shri S.G.Nandedkar, AGP for respondents 1 to 3, Shri K.U.Choudhary, Advocate for respondents 4 and 5 & Shri S.R.Varma, Advocate for respondents 6 to 12. ... CORAM : S.B.DESHMUKH,J. Dated : 26.2.2010 PER COURT :- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith. 3. This petition takes an exception to the order passed by respondent No.4 dated 10.2.2010 (Exhibit 'D"). Respondent No.5 is an agriculture credit society registered under the provisions of the Maharashtra Cooperative Societies Act, 1960 ("said Act"). The election of the managing committee of respondent No.5 2 society was declared by the competent authority. Respondent No.4 is an Election Officer. Respondent Nos.6 to 12 have submitted their nominations to the Returning Officer. Election programme is at Exhibit A/15. 10.2.2010 is the date relevant for our purpose. As per the election programme, from 11 a.m. onwards on that day, scrutiny of the nomination papers submitted by the aspiring candidates was scheduled. Date, so also time is relevant. Time starts from 11 a.m. Ending hours of the exercise of scrutiny are not mentioned in the programme. The place of scrutiny is the office of respondent NO.5. Even though the closing hours of nomination are not mentioned in the programme, such time can be considered till the end of scrutiny of the nomination papers received by the Returning Officer or end of the ordinary working hours of the Government offices around 5.30 to 6.00 p.m. This fact, however, is not seriously disputed by the parties Exercise of the scrutiny has been undertaken by the Returning Officer on the scheduled date and time at the relevant place. 4. The parties are at issue on the point of power of the Returning Officer to grant time to deposit the alleged arrears. It is the contention of the petitioner that respondents 6 to 12 were in arrears of crop protection society, namely; Vitthal Sahakari Society, Chunchale ("crop society"). The nominations were submitted by respondents 6 to 12. They were objected by the petitioner on the ground that they were in default of payment of service charges to the crop society. Certificate was 3 submitted along with the objection before the Returning Officer. Factually, this is not disputed by respondents, more specifically the Returning Officer and respondents 6 to 12. Respondents 6 to 12 are, however, disputing the contents of the certificate. According to them, they have not availed the services allegedly extended by the crop society and therefore, there is no question of payment of any service charges and consequently, alleged non payment may not result into status of defaulter of respondents 6 to 12. 5. The Returning Officer, in his affidavit, which is filed today (Exhibit "X") makes a statement that oral request to grant time to rebut the objection raised by the petitioner was made by respondents 6 to 12. He, however, found that there is no substance in the objection and accepted the nomination paper. Consequently, he rejected the objection. Such a statement is made in paragraph No.5 of the affidavit. 6. Another affidavit is filed on behalf of respondents 6 to 12. It is also filed today. (Exhibit "Y"). 7. Learned counsel for the petitioner submitted that respondents 6 to 12 were disqualified on the date of scrutiny under section 73FF of the said Act. According to him, the scrutiny of nomination is contemplated under Rule 56-R of the Rules of 1961. He points out Rule 5 and submitted that there is no power and jurisdiction with the Returning 4 Officer to grant time or adjourn the process of scrutiny. He, therefore, submitted that the act of grant of time by the Returning Officer on oral request is illegal. He, further, submitted that the material on record, which was also produced before the Returning Officer could not have been accepted. He points out page No.73 of the compilation - Zerox copy of the counter of challan dt.10.2.2010. It appears that in the bank account of crop society amount of Rs.9282/- is deposited on that day. He commented that one does not know who deposited the said amount with the Bank concerned. Further according to him, account number is not given in this document. Page No.74 is commented upon by the learned counsel for the petitioner saying that the break up mentioned against the names of persons cannot be accepted for the proposition that the arrears were deposited by respondents 6 to 12 and their status as a default has been wiped out. 8. It would be appropriate to consider section 73FF, relevant portion, which is reproduced herein below :- " 73FF. Disqualification for membership of committee. (1) Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being member of a committee, no person shall be eligible for being appointed, nominated, elected, coopted or, for being a member of a committee, if he - (i) is a defaulter of any society; (a) ............................. 5 (b) ............................. (c) in case of any society, - (i) ........................... (ii) a member who has purchased any goods or commodities on credit or availed himself of any services from the society for which charges are payable; and fails to repay the full amount of such anamat or advance or pay the price of such goods or commodities or charges for such service, after receipt of notice of demand by him from the concerned society or within thirty days from the date of withdrawal of anamat or advance by him or from the date of delivery of goods to him or availing of services by him, whichever is earlier........" According to learned counsel for the petitioner this clause contemplates that a member who has purchased any goods or commodities on credit or availed himself of any services from the society for which charges are payable; and fails to repay the full amount of such anamat or advance or pay the price of such goods or commodities or charges for such service, is a defaulter. [Emphasis supplied]. In support of this submission he points out the certificate which is on record at page No.21. According to him, therefore, respondents 6 to 12 were the defaulters on 10.2.2010 and therefore, nominations ought not to have been accepted and time ought not to have been granted. 9. Learned counsel appearing for the respondent Returning 6 Officer, points out paragraph No.5 of his affidavit in reply. According to him, the Returning Officer, thus, possesses the power to grant time to rebut the objections. He supported the order passed by the Returning Officer. 10. Learned counsel for respondents 6 to 12 points out paragraph No.10 of the affidavit in reply, wherein, a statement is made that since many years, protection to crops was not provided by the crop society, there is no question of payment of services charges to the said society. 11. Crop Protection Society is not party to this proceeding. The certificate which is placed on record at page No.21 can be considered in support of the arguments advanced by the learned counsel for the respective parties. This certificate is dated 10.2.2010. It appears that the certificate has been signed by the Secretary. In the process of election under the provisions of the said Act, the date of eligibility pertaining to the process of election is the date of scrutiny of the nomination paper. In other words, candidate contesting the election to become a member of the managing committee of the society must be eligible for such an election i.e. for being elected, appointed or nominated on the date of scrutiny of the nomination. We are dealing with the case of election of the candidate and therefore, the date of scrutiny of nomination of respondents 6 to 12 i.e. 10.2.2010 is important, material 7 and significant. This certificate, produced on record, at page No.21 makes a mention that one Shri Jitendra Narayan Choudhary, is account holder of crop protection society and as of today (i.e. 10.2.2010) is in arrears of Rs.905/- and is a defaulter of the said society. Such certificates issued by the crop society pertaining to respondents 6 to 12 were submitted to the Returning Officer and also annexed with this writ petition. This default, mentioned in the certificate, according to the learned counsel for the petitioner is not on the date of issuance of certificate i.e. 10.2.2010 but it is uptil 31.3.2009. 12. Learned counsel for the petitioner relies upon two judgments. One in the case of Ravi Amrutrao Bagde Vs. Commissioner [ 2006(2) Mh.L.J. 33]. In this case, it was the election of the specified cooperative society conducted in accordance with the Rules of the Maharashtra Specified Cooperative Societies Election to Committee Rules, 1971. With the assistance of learned counsel for the petitioner, I have read the entire judgment. The facts are altogether different. Ratio of the said judgment has no concern with the case on hand. Another judgment cited by the learned counsel for the petitioner is of the learned Division Bench of this Court in the case of Dalsing Shamsingh Rajput Vs. State of Maharashtra [2006(3)Mh.L.J.592]. Here also the facts are distinguishable. The learned Division Bench was considering the grievance that respondent No.5 therein who was neither member nor eligible to contest the election was permitted and his 8 nomination was accepted. In paragraph No.2, the learned Division Bench recorded that the notice was issued to respondent No.5 for resolving the only contention that he was not member and did not remain present. The Court proceeded for the reason that submissions of respondents were pertaining to the power of the High Court to issue writ against the Cooperative Society. The learned Division Bench did not agree with the submissions and allowed the petition. This ratio has nothing to do with the facts with which we are dealing with. 13. In the case on hand, respondents 6 to 12 are totally denying the allegation of alleged service provided by the crop society. Said society is not a party to the present writ petition. Learned counsel for the petitioner has also questioned the omnibus payment of Rs.9282/-. It is not possible to accede to the submissions of the learned counsel for the petitioner. Grant of time, in the case on hand, is not a matter of days. Entire exercise has been completed on one single day i.e. on 10.2.2010. It cannot be said that Election Officer has exercised the powers not vested with him. For rebuttal, next day adjournment is permissible. Here in this case, time of some hours on the same day was granted. I do not see any perversity in the order passed by respondent No.4. 14. In the result, Writ Petition stands dismissed. Rule discharged. No order as to costs. 9 15. A request is made on behalf of the learned counsel for the petitioner that these observations should not come in the way of the Court in case Election Petition is filed. It is very difficult to make such observation. A meticulous attempt has been made by the petitioner to substantiate his contention by documentary evidence and submissions. This Court has heard all the parties and considered the submissions and thereafter passed this order. The grounds which are not raised in this writ petition, if raised, in accordance with the provisions of law in the Election Petition, in that circumstance, the forum concerned may consider the Election Petition on that grounds in accordance with the provisions of law. ( S.B.DESHMUKH, J.) ... akl