(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1526 OF 2011 Maroti Kushabrao Patil, Age : 40 years, Occupation : Agriculture & Service, R/o. Borgaon (A), Taluka : Loha, District : Nanded. .. Petitioner. versus 1. The State of Maharashtra, Through its Assistant Registrar, Cooperative Societies, Loha, Taluka : Loha, District : Nanded. 2. The Election / Returning Officer, Seva Sahakari Sanstha Ltd., Borgaon (Aa.), Taluka : Loha, District : Nanded. 3. Narsingh Govindrao Patil, Age : Major, Occupation : Agriculture, R/o. Borgaon (Aa), Taluka : Loha, District : Nanded. 4. Seva Sahakari Sanstha Ltd., Borgaon (Aa.), Taluka : Loha, Dist. : Nanded, Through its Secretary. (2) 5. Shankar Nagari Sahakari Bank Ltd., Nanded, Branch Loha, Taluka : Loha, Dist. : Nanded, Through its Manager. .. Respondents. ....................... Mr. Vijay B. Patil, Advocate, for the petitioner. Mr. S.K. Tambe, Advocate, for respondent nos.1 and 2. Mr. E.P. Sawant, Advocate, for respondent no.3. Mr. M.P. Kale, Advocate, for respondent no.4. Mr. U.B. Bilolikar, Advocate, for respondent no.5. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 9TH MARCH 2011 ORAL JUDGMENT : 1. Heard learned Counsel for respective parties. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. The order passed by respondent no.1, in appeal, (3) accepting nomination paper of respondent no.3 is questioned before this court by the petitioner who is also candidate at that election. The election is scheduled on 13-3-2011. 4. Adv. Mr. V.B. Patil, appearing for the petitioner, points out that 15-2-2011 was last date for submission of nomination paper. Respondent no.3 submitted his nomination paper on 15-2-2011 and he was defaulter of respondent no.5 / Bank on that date. An objection was raised by the petitioner on 17-2-2011 during scrutiny and after giving time to respondent no.3 to meet it, Returning Officer accepted that objection and rejected his nomination paper. That rejection was questioned by respondent no.3 in statutory appeal under Section 152A of the Maharashtra Cooperative Societies Act, 1960, and respondent no.1 has by the impugned order dated 25-2-2011 directed its acceptance. Adv. Mr. Patil points out that reliance has been placed on alleged certificated 14-2-2011 issued by respondent no.5 to show that respondent no.3 had cleared all his arrears on 14-2-2011. He invites attention to communication issued by respondent no.5 subsequently i.e. on 17-2-2011, to urge that the loan liability was cleared 17-2-2011. He has also invited attention to affidavit filed on record by respondent no.5 to show that no certificate as relied upon by appellate authority was issued in favour of respondent no.3 on 14-2-2011. He has urged (4) that loan has been cleared on 17-2-2011 only and that being the position, the order of Returning Officer ought to have been maintained. 5. Learned AGP Mr. Tambe, appearing for respondent nos.1 and 2, on the other hand, has urged that as per the certificate issued by respondent no.5, it was found that loan liability was cleared on 14-2-2011 i.e. before scrutiny and hence the appellate authority has correctly allowed the appeal. 6. Adv. Mr. Bilolikar, appearing for respondent no.5, has supported the cause of petitioner. He states that loan liability has been cleared on 17-2-2011. About the certificate dated 14-2-2011, be contends that undated certificate was issued and date "14-2-2011" has been inserted in it by respondent no.3. According to him, therefore, loan liability has been cleared for the first time on 17-2-2011. 7. Adv. Mr. E.P. Sawant, appearing for respondent no.3, has placed reliance upon judgment of Division Bench of this court reported at 2007(2) Bom.C.R. 20, in the case of Vijay Rambhau Babhare & others Vs. State Election Commission & others, and judgment of learned Single Judge of this court reported at 2006(3) Mh.L.J. 420, in the case of Geeta Shirish (5) Chaudhari Vs. State of Maharashtra & others, to urge that statutory remedy of filing petition challenging election is efficacious and as some disputed questions of fact arise, that remedy is the only appropriate remedy. He, therefore, urges that in such circumstances, when practically all stages in the election are over, and only polling is left, this court should not interfere. In the alternative and without prejudice, by placing reliance on unreported judgment dated 20th January 2006, in Writ Petition No. 173 of 2006 (Ashokkumar s/o. Tatyasaheb Shinde Vs. The State of Maharashtra & others), he contends that as all contesting candidates are not party respondents in the present petition, the petition is not maintainable. He further argues that the question whether respondent no.3 is or is not disqualified cannot be looked into by the Returning Officer for the first time and there ought to have been a previous declaration as required under Section 78 of the Maharashtra Cooperative Societies Act, 1960 (For short, "1960 Act"). As there is no such declaration, the respondent no.3 cannot be treated as defaulter. He has taken court through various observations as made in the said unreported judgment to substantiate his contention. 8. Perusal of documents filed before this court reveal that effort of respondent no.3 is to show that loan amount was repaid by him to head office of respondent no.5 at Nanded on (6) 14-2-2011 and that head office has transferred that amount to its Branch office at Loha on 17-2-2011. In view of this specific defence, yesterday, the matter was adjourned to today to enable respondent no.3 to produce any document showing said repayment at head office. Today, upon instructions, Adv. Mr. E.P. Sawant has stated that because of pendency of present petition before this court, head office at Nanded has refused to issue any such document. 9. It is apparent that if loan amount is repaid, respondent no.3 must have some receipt of repayment or deposit slip and could have filed it with Appeal or in this Court. There is no such attempt & no question of respondent no.3 approaching head office for procuring that document again. 10. The documents produced by petitioner show that "no dues certificate" has been issued to respondent no.3 on 17-2-2011 at about 4.40 in the evening. The certificate states that loan of Rs. 1,50,000/- disbursed to respondent no.3 has been cleared by him. Respondent no.5 has also produced undated certificate (photostat copy) which shows that no date has been placed on Outward No. SNSB/Loha/2/1196/2011. It uses word "today" implying that on that day, there was no outstanding and hence "no dues certificate" was issued. Today, during hearing, (7) Counsel for Bank has produced carbon copy from which photostat has been produced before this court. The carbon copy does not bear any date. Adv. Mr. Sawant has produced original with same outward number and the original carries date 14-2-2011. After perusal, both documents are returned to respective Counsel. 11. The Bank has also produced a communication dated Nil addressed by respondent no.3 to it. In that communication, respondent no.3 has himself mentioned that loan of Rs. 1,50,000/- obtained by him for his concern, Gurukrupa Trading Company, has been cleared on 17-2-2011 and he has obtained "no dues certificate" accordingly. He has further mentioned that for some other work, he required a copy of that "no dues certificate". At the end, he has added that he is going to use that certificate for court purposes. This communication by respondent no.3 to respondent no.5 has not been disputed. The communication itself is obviously after repayment & shows that loan amount has been cleared on 17-2-2011. If respondent no.3 had already obtained a "no dues certificate", why he had sought another "no dues certificate" is not clear. It is also not clear why a responsible officer like Branch Manager has issued undated certificate to him. If loan was repaid on 14-2-2011, respondent 3 would not have mentioned 17-2-2011 as date of repayment. (8) 12. Thus, respondent no.3 could not produce before this court, any document to show that he repaid entire loan amount at head office (Nanded) on 14-2-2011 or then head office transferred that amount to its Branch at Loha and then Loha Branch took entry of the repayment on 17-2-2011. There is no reason for respondent 5 to file false affidavit before this Court. 13. The extent of jurisdiction available to this Court in election matters is considered by me in more details in the judgment delivered by me, dated 2nd February 2011 and 3rd February 2011, in Writ Petition Nos. 251/2011 and 257/2011. After considering various judgments of this Court, including judgment of Division Bench of this Court, reported at 2006(3) Mh.L.J. 592, in the case of Dalsing s/o. Shamsing Rajput Vs. State of Maharashtra and others, I have taken a view that when intervention by court subserves process of election, the courts can pass appropriate order. Here, it is apparent that respondent no.3 is anyhow trying to contest the election though he is not elligible and hence it is in the interest of all that he is prohibited from doing so. 14. The contention that all contesting candidates are necessary parties cannot be accepted. The observations in the (9) judgment of learned Single Judge of this Court, in the case of Vijaysingh Krishnarao Parbat Vs. Returning Officer, Janta Sahkari Bank Ltd. 2003 (2)Mah.L.J.485, on which Adv. Mr. Sawant has placed reliance, are made in a challenge to an order of rejection of nomination paper. Thus, if the Writ Petition was to be allowed, it would have added a candidate to the fray. Here, by deleting a candidate from the list of contesting candidates, no prejudice is caused to anybody. This angle is also considered by me at length in unreported judgment dated 2nd February 2011 and 3rd February 2011, in Writ Petition Nos. 251/2011 and 257/2011. 15. Reliance placed by Adv. Mr. Sawant upon unreported judgment of this Court in Writ Petition No. 173 of 2006 (supra), dated 20-1-2006, is also not very relevant. There, provisions of Section 11 of 1960 Act and removal of member of Cooperative Society in the light of Section 78(1) of 1960 Act has been looked into. It is settled law that no previous declaration of status as defaulter member is necessary & contemplated. Declaration of disqualification which results in removal from office as executive committee member or director is entirely a different concept. 16. In the result, the petition is allowed. (10) The impugned order dated 25-2-2011, passed by respondent no.1 in Appeal No. 1/2011, accepting nomination paper of respondent no.3, is quashed and set aside. The order passed by the Returning Officer on 17-2-2011 rejecting nomination paper of respondent no.3, is restored. 17. Rule is made absolute accordingly. No costs. 18. Authenticated copy of this order, duly signed by Court Shirastedar, be supplied to the parties requesting therefor. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp1526