1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.188 OF 2010 IN WRIT PETITION NO.5284 OF 2010 Popatrao s/o Kautikrao Sonwane, Age 53 years, Occu.Agriculture and Service R/o Indave, Taluka Sakri, District Dhule .. APPELLANT (Original Respondent No.4) VERSUS 1. Dinkar s/o Uttamrao Patil, Age 35 years, Occu.Agriculture R/o Indave, Taluka Sakri, District Dhule 2. Pundlik s/o Raoji Pawar, Age 57 years, Occu.Agriculture R/o Samode, Taluka Sakri, District Dhule .. Orig.Petitioner 3. The State of Maharashtra, through Director of Marketing Maharashtra State, Pune 4. The District Deputy Registrar, Co-operative Societies, Dhule District Dhule 5. The Assistant Registrar, Co-operative Societies/ Returning Officer for the elections of Agricultural Produce Market Committee, Taluka Sakri, District Dhule .. RESPONDENTS Mr.V.D.Salunke, Advocate for appellant Mr.V.J.Dixit, Senior Counsel with Mr.P.D.Bachate, Advocate for respondents 1 and 2 Mr.K.J.Ghute Patil, Assistant Govt.Pleader for respondents 3 to 5 2 CORAM : P.V. HARDAS AND N.D. DESHPANDE, JJ DATE : 24th June 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. This letters patent appeal has been filed by the present appellant, who was respondent to the Writ Petition No.5284 of 2010 and questions the correctness of the judgment of the learned Single Judge in Writ Petition No.5284 of 2010, dated 18th June 2010. We, accordingly Admit this letters patent appeal and take up this letters patent appeal for final hearing forthwith with the consent of learned Counsel for the parties. We have heard Mr.V.D.Salunke, learned Counsel for the appellant, Mr.V.J.Dixit, learned Senior Counsel on behalf of respondents 1 and 2 and Mr.K.J.Ghute Patil, learned Assistant Govt.Pleader on behalf of respondents 3, 4 and 5. 2. Such of the facts as are necessary for the decision of this letters patent appeal may briefly be stated thus. Writ Petition No.5284 of 2010 came to be filed by the respondents 1 and 2 herein challenging the order passed by the Returning Officer in accepting the nomination form of the present appellant. The appellant had submitted the nomination form for the elections of the Agricultural Produce Market Committee, Sakri, 3 District Dhule, hereinafter referred to as “APMC” for the sake of brevity. The Returning Officer, by his order dated 31.5.2010 rejected the objection of the respondent No.1 – Dinkar by holding that since the name of the present appellant figures in the voters list and that the appellant had duly complied with the required conditions of filing the documents along with the nomination paper, the objection cannot be sustained. 3. At this juncture, it would be useful to refer to the objection raised by the respondent No.1 to the nomination form submitted by the appellant. The respondent No.1 submitted an application that the appellant was Secretary of Nanasaheb Uttamrao Patil Vividh Karyakari Seva Sahakari Society Ltd.,Indave, Taluka Sakri, District Dhule, hereinafter referred to as “VKSS Society” and by virtue of the rules of the Dhule District Supervisory Union, i.e. the Dhule Dekhrekh Sangh, the appellant could not contest the elections of the society, i.e. the Dhule District Supervisory Union. The third limb of the objection was that the name of the appellant had been included in the voters list on behalf of the society of which the appellant was the Secretary. Another objection was that the appellant had been prosecuted and had been sentenced to fourteen days judicial custody. As pointed out by us above, the Returning Officer by his order to which we have adverted to above, rejected the objection filed by respondent No.1. The 4 respondent No.1 thereafter, it appears filed an appeal before the appellate authority. At this juncture, we may not consider whether what was filed by the appellant constituted a valid appeal or not. In the light of the fact that the appellate authority by its order dated 14.6.2010 rejected the appeal on the ground that the appeal had not been presented in the form which was prescribed and no Court fee stamp were affixed to the memorandum of appeal. The respondent No.1 and respondent No.2 joined together in the filing of the said writ petition before the learned Single Judge. In the said writ petition, the respondents had prayed for issuance of a writ of certiorari for quashing and setting aside the order passed by the appellate authority and the order passed by the Returning Officer rejecting the objection of the petitioners and also further prayed that this Court may direct the rejection of the nomination form submitted by the present appellant fore the election of the APMC, Sakri from the society’s constituency as the respondent No.4 was disqualified for being member of the APMC Sakri from society’s constituency. It is also not disputed before us that the appellant is the Secretary of the Dhule Dekhrekh Sangh. It is also not disputed before us that the rules of the Dhule Dekhrekh Sangh which had been annexed by the respondents 1 and 2 herein to the Writ Petition contemplate that an employee of the Dekhrekh Sangh would contest the election of the Sangh with prior 5 permission/approval. It is also not disputed before us by the learned Counsel for respondents 1 and 2 that the appellant had submitted such a consent letter on behalf of the Dekhrekh Sangh to the Returning Officer. However, since the petitioner was representing the society’s constituency being the Director of the VKSS Society, the prior approval/consent of the Dekhrekh Sangh was immaterial. 4. Mr.Dixit, learned Senior Counsel on behalf of respondents 1 and 2 very candidly admitted that the objections raised by respondent No.1 were factually incorrect. It was, however, urged by Mr.Dixit, learned Senior Counsel for respondents 1 and 2 that the appellant is not an agriculturist, which is the requirement of Rule 38 of the Maharashtra Agricultural Produce Market (Regulation) Rules 1967. It is urged before us that the appellant does not fall within the definition of ‘agriculturist’ under the rules and, therefore, the appellant was incompetent to represent the said VKSS society in the election as its nominee. 5. The learned Single Judge, it appears proceeded on the footing that Section 73FF of the Maharashtra Co-operative Societies Act prohibited the appellant from representing the VKSS Society. The learned Single Judge has dealt elaborately with this objection. The aforesaid submissions are also reiterated before 6 us on behalf of the respondents. 6. Mr.V.D.Salunke, learned Counsel for the appellant has very rightly urged before us that the scope of the writ petition was confined to questioning the correctness of the order of the Returning Officer and the order of the appellate authority. It is also urged before us that the learned Single Judge could not traverse beyond the objections which were raised by respondent No.1 and resurrect an entirely new set of objections which were not contended before the Returning Officer. As pointed out by us above, the objections which the respondent No.1 had taken before the Returning Officer were factually incorrect and we have examining the factual aspect of the objections and we find that the objections were completely devoid of merit. If that was the case, according to us, the learned Single Judge could not have traversed beyond the limited scope of the writ petition, i.e. deciding the correctness of the objection and could not have come to the conclusion that the appellant was not an eligible candidate and his nomination form had been wrongly accepted by resurrecting or creating a completely new set of objections which were not taken before the Returning Officer. 7. Mr.Dixit, learned Senior Counsel on behalf of respondents 1 and 2 has urged before us that perusal of Rule 50 of the said 7 Rules empowers the Returning Officer to suo moto conduct an inquiry to determine the eligibility of the candidate and, therefore, the learned Single Judge was right in relying upon Section 73FF of the Maharashtra Co-operative Societies Act to ultimately hold that the appellant was not eligible to contest. We have perused the petition which had been filed before the learned Single Judge and we find that there are no pleadings at all to this effect. There is no pleading whatsoever either directly or even obliquely that the Returning Officer had failed to perform his statutory duty and, therefore, the petitioner therein had invoked the jurisdiction of this Court. It was also not pleaded in the said writ petition that the appellant herein was ineligible on account of the bar contained under Section 73FF. It is undoutedly true that the election or the eligibility of a candidate would be determined on the basis of the rules framed by the APMC. Ineligibility of a candidate on the basis of some other act could not have been relied upon to hold the appellant to be ineligible to contest the election of the APMC. Anyway, that is a question which need not be examined by us in the light of the fact that the objection which was taken by respondent No.1 was factually incorrect and unsustainable. 8. Mr.Dixit further placed reliance on the judgment of the Full Bench of this Court in Rajkumar s/o Laxmanprasad Kesarwani 8 Vs. The Returning Officer & Tahsildar Tirora, Taluka Tirora, District Gondia & 26 ors., 2006 (1) ALL MR 682 to urge before us that the Full Bench of this Court had held that a candidate in order to contest the election from the constituency under Section 13(1) (a) (i) and (ii) of the Agricultural Produce Marketing (Regulation) Act, 1963 is required to be a voter from the constituency apart from being an agriculturist as pointed out by us above. Such of the requirement is of Rule 38. Mr.Dixit, learned Senior Counsel on behalf of the respondents 1 and 2 has also referred to the judgment of the learned Single Judge of this Court in Hanumant @ Hemant Haribhau Thakre Vs. Deorao Sudamrao Kadu & Ors., 2010 (2) ALL MR 238, particularly the observation of the learned Single Judge at paragraph 9 of the said judgment. The aforesaid judgment as pointed out by us above, relates to the disqualification which a candidate incurs under Rule 41(1) of the Act. To reiterate again, apart from the objections taken before the Returning Officer, no other objections were taken before the Returning Officer to come to the conclusion that the appellant was ineligible. The objections before the Returning Officer were factually incorrect and devoid of any merit. Apart from the fact that there no pleadings in writ petition filed before the Single Judge in this behalf, Mr.Salunke, learned Counsel for the appellant has pointed out to us the requisite certificates, which were annexed by respondent No.1 to his 9 petition, to indicate that the appellant was an agriculturist. We find that even the 7/12 extract of the land holding in the name of the appellant was also submitted before the Returning Officer. Thus, this objection on behalf of the respondent, though taken in the letters patent appeal, for the first time, is devoid of any merit. 9. In a writ petition filed either under Article 226 or 227 of the Constitution of India questioning the rejection/acceptance of the nomination paper, this Court is not empowered to launch a roving inquiry to determine if the candidate whose nomination paper is accepted is an eligible candidate or not. Such probe or an inquiry is restricted to examining the merits of the objection taken by the objector. In the present case as has been pointed out by us above, the objections taken by the objector i.e. respondent No.1 were factually incorrect and lacked any substance/merit. In that light of the matter, therefore, according to us the learned Single Judge was in error in entertaining the petition and holding the petitionerr as disqualified under Section 73FF of the Maharashtra Co-operative Societies Act. We have, therefore, no hesitation in allowing the present appeal and quash the judgment of the learned Single Judge. 10. We, therefore, allow the present letters patent appeal filed by the appellant and quash and set aside the judgment of the 10 learned Single Judge. In the circumstances, therefore, there shall be no order as to costs. 11. Copy of this judgment duly authenticated by the Court Sheristedar of this Court be provided to the learned Counsel for the parties to act upon. ( N.D.DESHPANDE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/188.2010lpa)