1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10473 OF 2010 Devidas Janardhan Niware ...Petitioner Versus The State of Maharashtra and others ...Respondents ..... Mr. S.B. Ghatol Patil, advocate for the petitioner Mr. K.J. Ghute Patil, A.G.P. for respondent Nos.1 to 3. Mr. D.R. Kale, advocate for respondent No.4 Mr. K.N. Lokhande, advocate for respondent No.5 ..... CORAM: S. S. SHINDE, J. DATED: 22nd NOVEMBER, 2010 PER COURT:- 1 This writ petition takes exception to the judgment and order dated 4.11.2010 passed by the Additional Commissioner, Aurangabad in appeal No. Coop.Eln/Appeal/4/2010 and the order dated 24.10.2010 passed by the respondent No.3 rejecting the nomination form of the petitioner for contesting the election of respondent No.4 Sant Eknath Sahakari Sakhar Sugar Factory Limited, Paithan, scheduled to be held on 25.11.2010. 2 Counsel for the petitioner vehemently argued that since respondent No.4 Sugar Factory is leased out to respondent No.5 2 Sugar Factory. It is submitted that respondent No.4 Sugar Factory has leased out its interest to respondent No.5 Sugar Factory and the bye law of respondent No.4 Sugar Factory are applicable to the members of the sugar factory and the petitioner cannot be asked to supply the sugar cane to respondent No.5 Sugar Factory. Counsel further submitted that respondent sugar factory did not accept the sugarcane of the petitioner for the crushing seasons of 2007-2008 and 2008-2009, because of the political rivalry. According to counsel for the petitioner, when the petitioner is member of respondent No.4 Sugar Factory, rejection of nomination form on the ground that the petitioner has not supplied sugarcane for last three consecutive years to respondent No.5 Sugar Factory, is without application of mind. In fact, the petitioner is member of respondent No.4 sugar factory and since the respondent No.4 sugar factory is leased out to respondent No.5 sugar factory and no amendment in the bye law was carried out to that effect the condition to supply sugarcane to respondent No.5 sugar factory for last three consecutive years cannot be insisted upon. Learned counsel in support of his contention invited my attention to the reported judgment of this court in the case of Yashwant Khashaba Dubal and others Vs. Krishna Sahakari Sakhar Karkhana Maryadit and others, reported in 1989 C.T.J. 325. Relying upon the said case, Yashwant (supra) learned counsel would submit that if a member or person is unable to supply Agricultural Produce for a reason beyond his control or for good reason or justification, the 3 person/member should not be disqualified for contesting the elections. Learned counsel further placed reliance on the reported judgment in the case of Ramesh Rajaram Patil vs. The Additional Commissioner, Aurangabad Division, Aurangabad and others, reported in 1995 C.T.J. 123 and more particularly Head Note B of the said judgment and also para 13 and 16 of the said judgment and contended that if the disqualification or default is curable one, the said disqualification should not be read to disqualified the person to contest the elections. Learned counsel also invited my attention to the grounds taken in the writ petition and annexures thereto. Learned counsel further submits that since the bye law contemplates notice to the defaulter member and only after giving opportunity to put forth the contentions by the member, it is permissible for the authorities to hold that the persons is disqualified for contesting the elections. The sum and substance of the arguments advanced by counsel for the petitioner is that the factory is leased out to respondent No.5 and therefore, the condition to supply sugarcane for three consecutive years preceding the elections cannot be insisted upon. Secondly, if the circumstances are beyond control of the person or member to supply the sugarcane, the same conditions should not be insisted upon. In the instant case, out of political rivalry, the respondent No.4 sugar factory did not accept the sugarcane of the petitioner for crushing season 2007-2008 and 2008-2009. Thirdly, without giving any notice about the default in payment of remaining share capital 4 amount, no action of disqualification can be taken. 3 In pursuant to the notice issued by this court on 19.11.2010, the respondents Nos. 2 and 3 have filed affidavit in reply, in which it is stated that the Returning Officer has rejected the nomination form of the petitioner on the ground that the petitioner being defaulter of share amount of Rs.1800/- and seconder is also defaulter of an amount Rs. 306/-. It is further stated that the petitioner failed to supply sugarcane for three consecutive years and therefore, the Returning Officer has rejected the nomination form of the petitioner. It is further stated that the petitioner has supplied sugarcane to respondent No.5 Baidyanath Sahakari Sakhar Karkhana Limited in the year 2009-2010. It is further stated that crushing operations were going on at respondent No.4 sugar factory. Counsel for the respondents brought to my notice the contents of agreement entered into between respondent Nos. 4 and 5, which has been approved by the Commissioner of sugar, Pune. Learned A.G.P. further invited my attention to other parts of the affidavit. Counsel appearing for other respondents have invited my attention to the affidavit in reply filed on their behalf. 4 After taking into consideration replies filed on behalf of respondent Nos. 2 and 3 and bye law No. 31(4) (10) of respondent No. 4 Sugar Factory, it is not in dispute that the member of sugar factory, who desires or wish to contest the elections for the sugar factory 5 should have been member for a period of at least two years as on 30th June of the year, in which the elections are due as well as he/she should supply the sugarcane for three consecutive years to the said sugar factory, in which elections are due. The another ground on which the petitioner's nomination form is rejected is the ground of default in making payment of remaining share amount. Even if the mandate in bye law No. 31(4) (10) is taken into consideration, it is not necessary to go into other aspects of the matter, on which the Returning Officer has placed reliance. Suffice it to say that it is an admitted position that the petitioner herein has not supplied sugarcane to sugar factory for two consecutive years i.e. for the year 2007-2008 and 2008-2009. However, the petitioner has supplied sugarcane to the respondent No.4 Sugar factory in the year 2009-2010. Reliance placed by the counsel for the petitioner on reported judgment of this court in the case of Yashwant (supra) is wholly misplaced in the facts of this case. Nothing has been brought on record by the petitioner to show that out of political motivation, the respondent sugar factory did not accept the sugarcane of the petitioner during crushing seasons 2007-2008 and 2008-2009. Therefore, the net result is that the petitioner utterly failed to supply sugarcane for two consecutive years i.e. 2007-2008 and 2008-2009. As a result, he incurred disqualification for contesting the elections. So far as the second contention of the counsel for petitioner is that notice should have been given by the sugar factory, for asking the petitioner to pay remaining amount 6 towards the enhancement of share price and after that only disqualification should have been stipulated, is concerned, in my view, since the petitioner failed to supply sugarcane for the crushing seasons 2007-08 and 2008-09, there is no necessity to go into the other grounds. 5 Therefore, taking into consideration over all view of the matter and in view of the fact that the petitioner utterly failed to supply sugarcane to the respondent No.4 sugar factory for the crushing seasons of 2007-2008 and 2008-2009, as per the provision of bylaw No. 31(4) (10) has incurred disqualification for contesting the elections. 6 In the result, writ petition is devoid of merits, and the same stands dismissed accordingly. 7 Needless to mention that any observations made in this order should not be construed as an expression either to bar the petitioner from filing elections dispute/election petition or it should not came in the way of the petitioner while agitating the election petition on the available grounds. *****