1 wp2739.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2739 OF 2011 Shriram Tukaram Chaudhari and another ..PETITIONERS -VERSUS- The State of Maharashtra and others. ..RESPONDENTS ..... Mr. Deelip Patil Bankar holding for Mr. A.A. Shelke, advocate for petitioners. Mr. S.K. Tambe, A.G.P. for respondent nos. 1 to 3. Mr. A.R. Kawade, Advocate for respondent no.4. Mr. M.M. Joshi, Advocate for respondent nos. 5 to 8. Mr. P.R. Patil, Advocate for intervener. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 13TH APRIL, 2011. PER COURT : 1. This Court has already issued notice for final disposal on 6th April, 2011 and accordingly, the matter is heard finally today. 2. It is not in dispute that for elections of the respondent no.4- Co-operative Society, there are separate constituencies like borrowers' constituency and non-borrowers' consistency. Bye-laws regulating the elections require nomination paper of candidate contesting from borrower category to be proposed and seconded by voters, whose names appear as voters for that constituency. 2 wp2739.11 Similarly, nomination paper of candidate contesting from non- borrowers' category is required to be proposed and seconded by voters, whose names appear in voters list for that constituency. These basic facts are not in dispute before this Court. 3. In the election programme published on 16.02.2011, it is also specified that there are two constituencies namely borrowers' and non-borrowers' constituency. 4. Respondent nos. 5 to 8 before this Court submitted their nomination papers from either borrower or non-borrower constituencies but then same were not proposed/seconded by voters of their own constituency i.e. by voters whose names appear in the voters list in which the names of these respondents figured. In view of this, the respondent no.3-Returning Officer rejected their nomination papers. The respondents then filed appeal under Section 152-A of the Maharashtra Co-operative Societies Act, 1960 before the respondent no.2-Assistant Registrar and the respondent no.2 has allowed that appeal after observing that the Model Bye-laws stipulating these two constituencies and above riders on the status of proposer or seconder were adopted only on 26.09.2010 and its adoption was not made known to the members of the co-operative society. He found that those alleged 3 wp2739.11 lacuna noticed was only of technical nature. 5. Advocate Mr. Bankar Patil contends that ignorance of bye- laws can not be the excuse and elections are to be conducted in accordance with the provisions contained therein only. 6. Advocate Mr. Patil for interveners-applicants and Mr. Arvind Kawade for respondent no.4 are supporting the petitioners in the matter. 7. Learned A.G.P. for respondent nos. 1 and 2 and Advocate Mr. Joshi for respondent nos. 5 to 8 support the impugned order. At the outset, they point out that stages in election programme upto allotment of symbols are already over and only poling is now left to be held on 30th April, 2011. Advocate Mr. Joshi has placed reliance upon the judgments of the Hon'ble Apex Court reported at "2002(2) Bom.C.R. 149" Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another V/s State of Maharashtra and others, "(2004)7 S.C.C. 492" Manda Jaganath V/s K.S. Rathnam and others and "2002(3) Mh.L.J. 863" Dadarao S/o Apparao Khatke V/s State of Maharashtra and others to contend that in such circumstances, interference in jurisdiction under Article 226 and 4 wp2739.11 227 of the Constitution of India is not permitted. He contends that prior to 26.09.2010, the voters from any category could propose or second the candidate and new requirement was not made known to all contestant as also to all voters. He therefore states that the view taken by the appellate Court is in accordance with law and calls for no interference. 8. Advocate Mr. Bankar Patil in replies has relied upon the judgment of the Division Bench of this Court reported at "2006(3) Mh.L.J. 592" Dalsing S/o Shamsing Rajput V/s State of Maharashtra and others to urge that when interference by this Court subserves or furthers process of election, the bar mentioned in the above mentioned judgments is not attracted. He further points out that the respondent no.6 was the Vice Chairman and the respondent no.8 was the Managing Director of the existing Managing Committee, and therefore, are very much aware of the adoption of new by-laws on 26.09.2010. 9. The adoption of new bye-laws as such from 26.09.2010 is not in dispute. The terms and conditions of bye-laws are also very clear. The appellate authority namely the respondent no.2 has found that adoption of bye-law was not communicated to ordinary members but then the Managing Committee members were aware 5 wp2739.11 of the same. This finding of the appellate Court itself is sufficient to show knowledge of these bye-laws even to the respondent nos. 6 and 8 who are the part of that Managing Committee. In any case, absence of knowledge of bye-laws is not sufficient when scheme of Section 13 of the Maharashtra Co-operative Societies Act, 1960 is looked into. The absence of knowledge or ignorance thereon relied upon by the appellate Court can not be legally an excuse at all. 10. The Division Bench of this Court in the above mentioned judgment in the case of "Dalsing S/o Shamsing Rajput V/s State of Maharashtra and others(supra)" has considered various binding precedents holding the field and then found that interference in matters where the same either furthers election process and subserves its interest is permissible. I have also taken same view while deciding the Writ Petition No. 251 of 2011 and 257 of 2011 on 2nd and 3rd February, 2011 here at Aurangabad. I therefore do not find it necessary to refer to all the judgments on which Advocate Mr. Joshi has placed reliance. 11. When facts show that election was for two separate constituencies and bye-laws mandated certain compliances, breach thereof was rightly noticed by the Returning Officer and nomination papers were rightly rejected. The appellate authority 6 wp2739.11 has interfered in the matter on the grounds which are not valid and relevant. 12. The appellate order dated 30.03.2011 is therefore quashed and set aside. The order of rejection of nomination papers passed by the respondent no.3-Returning Officer is restored. As a result, the nomination papers of the respondent nos. 5 to 8 stand rejected. Rule is made absolute accordingly. No costs. 13. Learned A.G.P. to intimate accordingly. The parties to act upon the copy of this order duly authenticated by the Court Shirestedar. 14. In view of the Judgment, application for intervention allowed. (B.P. DHARMADHIKARI) JUDGE gas/wp2739.11