( 1 ) wp7503.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7503 OF 2010 Ramdas s/o. Trimbakrao Kawarkhe .. Petitioner Versus The Additional Commissioner, .. Respondents Aurangabad Division, Aurangabad & ors. Shri V.D. Hon, Advocate for the petitioner. Smt. V.A. Shinde, A.G.P. for respondent Nos. 1 & 2. Shri S.N. Rodge, Advocate for respondent No. 4. Shri S.S. Deshmukh h/f. Shri M.S. Deshmukh, Advocate for respondent No.5. CORAM : B.P. DHARMADHIKARI, J. DATED : 29.03.2011 P.C. :- 1. Rule. Rule made returnable forthwith. Heard finally with consent. 2. Heard Adv. Shri Hon for the petitioner, learned A.G.P. Smt. Shinde for respondent No. 1 & 2, Adv. Shri S.S. Deshmukh h/f. Adv. Shri M.S. Deshmukh for respondent No.5 and Adv. Shri Suresh Rodge for respondent No.4. 3. Short contention of Adv.Shri Hon is, the Additional ( 2 ) wp7503.11 Commissioner while deciding Election Petition under Section 144-T of the Maharashtra Co-operative Societies Act, 1960, has not followed proper procedure. According to him, the issues were not framed and the matter was not fixed for recording evidence. He contends that respondent No.5 has been elected by margin of only one vote, but then he happened to be defaulter and the documents showing his name in the list of top 100 defaulters supplied by respondent No.4 Co- operative Society was very much filed before the Additional Commissioner, but the same has not been looked into. According to him, thus there is failure to exercise jurisdiction. 4. Learned A.G.P. for respondent Nos. 1 to 3 is supporting the impugned order. 5. Adv. Shri S.S. Deshmukh h/f. Adv. Shri M.S. Deshmukh for respondent No.5 contents that present respondent No.4, before respondent No.1 was not shown with correct name. The steps taken to correct description of respondent No.4 failed and ultimately its written statement was also not ( 3 ) wp7503.11 looked into. In this situation, joining of respondent No.4 in present petition is not legal. 6. On merits, he states that list of top 100 defaulters is not supplied by the specified co-operative society and it does not bear signature of competent authority. He invites attention to documents on record to urge that said society gave reply to the petitioner informing that provisions of the Right to Information Act are not applicable to it and hence contention of the petitioner that he got said chart under the provisions of said Act is misconceived. 7. In this background, according to him, the finding of respondent No.1 that there is no material and proof on record before him to show that present respondent No.5 is a defaulter is therefore correct and calls for no interference. He also points out that the petitioner never requested the Additional Commissioner to frame issues and then fix the matter for recording of evidence. He contends that said grievance being made for the first time in present petition ( 4 ) wp7503.11 is unsustainable. 8. After hearing respective parties, I am satisfied that there is failure to exercise jurisdiction on the part of respondent No.1. Respondent No.1 functions as Election Tribunal under Section 144-T of the Maharashtra Co-operative Societies Act. The election can be assailed before it on various grounds and those grounds are given in Rule 81 of the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971. The grounds contemplated are the returned candidate being not qualified to be chosen on the date of his election, indulgence in corrupt practice, improper rejection of nomination paper or then result of election insofar as returned candidate is concerned being materially affected. It is apparent that when there is contrary stand by returned candidate and the election petitioner before said forum, the grounds need to be proved by leading appropriate evidence and otherwise factual dispute cannot be resolved. Such an opportunity to substantiate the stand taken, therefore, needs to be extended to both sides and forms an integral part of the jurisdiction of any fact ( 5 ) wp7503.11 finding authority. Here the petitioner attempted to contend that respondent No. 5- returned candidate was not qualified on the date of election being a defaulter of a specified society. 9. Whether the chart relied upon by him for said purpose could not have been looked into or not or whether said chart was forged or fabricated or was not supplied to him under the Right to Information Act by said society, are all the questions which cannot be answered without recording of oral evidence. 10. Respondent No.1, therefore, while functioning as a Tribunal adjudicating validity of an election has to fix the matter for recording of evidence and thereafter can proceed further with the Trial. Before that it is necessary to frame issues so as to enable the parties to understand the scope of scrutiny being undertaken in the matter. Here neither issues are framed nor the matter was fixed at any time for recording of the evidence. ( 6 ) wp7503.11 11. Though it can be said that the petitioner did not insist for framing of issues and then did not insist for fixing the matter for evidence and is making grievance after losing before respondent No.1 Commissioner, still that by itself is not sufficient to hold that respondent No.1 has acted correctly in exercise of jurisdiction available to it. 12. By not framing the issues as required and by not fixing the matter for recording of evidence, I find that respondent No.1 has failed to exercise the jurisdiction available to it in accordance with law. 13. Accordingly, the election petition has been dismissed by order which is running into about 8 typed pages. Said order up to first paragraph on its page No. 7 shows the rival contentions and pleadings in brief. The entire consideration is in last two paragraphs. In first paragraph it is noted that there was no record or proof filed by the petitioner that present respondent No.5 is a defaulter of respondent No.4. In last paragraph it is observed that the petitioner never raised any objection before the returning ( 7 ) wp7503.11 officer in this respect. 14. It is, therefore, clear that the material produced on record like alleged chart of top 100 defaulters is not appreciated by said authority. The reply given by the Cooperative Society to the petitioner informing that provisions of the Right to Information Act are not applicable to it is also not evaluated either way. Hence, I find the impugned order unsustainable. 15. For these reasons, the order dated 14.06.2010 delivered by respondent No.1 in election petition No.28 of 2009 is quashed and set aside. That election petition is restored back to the file of the Additional Commissioner, Aurangabad, for taking afresh decision in accordance with law. 16. Rule made absolute accordingly. No costs. [B.P. DHARMADHIKARI, J.] ( 8 ) wp7503.11 snk/2011/MAR11/wp7503.11