SHIVAJI GANGARAM DHOLE v. THE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND OTHERS
Case Details
( 1 ) wp6290.23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 5 WRIT PETITION NO.6290 OF 2023 SHIVAJI GANGARAM DHOLE VERSUS THE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND OTHERS Mr.Yuvraj V. Kakade, Advocate for the petitioner. Mr.D.R. Kale, Government Pleader for respondent/State. Mr.V.H. Dighe, Advocate for respondent Nos.2 and 4. CORAM DATED : : KISHORE C. SANT, J. 13.06.2023 PC :- 01.
Facts
Heard learned Advocates for the parties. 02. The challenge in this petition is to the order passed by the Appellate Authority i.e. the Joint Registrar, Co-operative Societies and Regional Joint Director (Sugar), Aurangabad, whereby he has rejected the appeal filed by the petitioner vide order dated 09.06.2023. 03. In the appeal the challenge was to the order passed by the Returning Officer i.e. respondent No.4, rejecting the nomination papers for non-fulfilling of bye-law No. 28(2) from sugarcane growers’ constituency. ( 2 ) wp6290.23 The bye-law No.28(2) requires that to become eligible to contest the election or to fill up nomination form a person should have supplied sugarcane atleast for three years during the preceding five years. 04. It is submitted that the petitioner could not supply sugarcane for three years out of five years. It is submitted that for the year 2019-2020 the sugar factory itself was closed and thus there was no question of supplying sugarcane to the factory. The reason for non-supplying of sugarcane to the factory in the year 2019-2020 was beyond control of the petitioner and thus no fault can be found with the petitioner. 05. The learned Advocate for the petitioner relied upon various judgments. First judgment is of the Division Bench of this Court at Principal Seat at Mumbai in the case of Yeshwant Khashaba Dubal Vs. Krishna Sahakari Sakhar Karkhana Ltd., reported in CTJ-1989-0-325. The Division Bench was dealing with section 79B of the Co-operative Societies Act. In that case it was held that when it is impossible for a member to comply with the condition, it will not preclude him from taking part in the election. For that non-complying of the condition should be voluntary and not by any compulsion and in that ( 3 ) wp6290.23 view of the matter, the said condition was read down and the rule was made absolute. In the case of Dhondiram s/o. Daulatrao Ghorpade Vs. The Collector, Ahmednagar, Writ Petition No.3707 of 2010, this Court also relied upon judgment in the case of Yeshwant (Supra). 06.
Legal Reasoning
This Court in the case of Sandipan s/o. Asaram Bhumare Vs. The State of Maharashtra & Ors., Writ Petition No. 5950 of 2016, while dealing with same bye-law No.28(2) relied upon judgment in the case of Yeshwant (Supra). In that case also in the year 2013-14 sugarcane could not be supplied as the sugar factory was not functioning during the said period and thus, there was no fault on the part of the members to fulfill condition of supplying of sugar-cane for three years during preceding five years. 07. The last judgment relied upon by the petitioner is in the case of Vaibhav Manohar Bhokare Vs. State Co-operative Election Authority, 2023 SCC OnLine Bom 133. In the said case this Court, relying upon earlier judgments, allowed the members to contest the election. 08. The learned Advocate Mr. Dighe for respondent Nos.2 and 4 ( 4 ) wp6290.23 vehemently opposes the petition. He relied upon judgment of this Court in the case of Ashok Pundlikrao Patil Vs. Shashikant Sidram Patil & Ors, Writ Petition No.2683 of 2011 and connected petitions. He submits that by considering the fact that in some cases the members may not supply sugarcane for the reasons beyond their control and by considering that the requirement to supply sugarcane is for three years during the preceding five years. It is not that period of three years should be consecutive. A care is taken while framing the rules that it may not happen that for continuous five years if sugarcane is not supplied for the reason beyond their control and for that a member looses a right. When such care is taken in the bye-law itself, there is no reason and no case is made out to give go-bye to said bye-law. He submits that in the case of Ashok Patil (Supra), it was a case that the nomination papers of the respondent were accepted and this Court had rejected receipt of nomination papers at the instance of the objectors. He submits that this judgment was delivered by relying upon judgment in the case of Yeshwant (Supra). He submits that judgment in Ashok Patil (Supra) this Court has considered all the aspects involved in the matter and is applicable to the present case. ( 5 ) wp6290.23 09. The learned Government Pleader also vehemently opposes the petition. His arguments are on the line of arguments advanced by learned Advocate Mr. Dighe. Both the respondents pointed out that as per election program, today was the date for withdrawal of nomination and thus the petition becomes infructuous. Now allowing the petitioner to come into fray would change the complexion of the election program. They further submit that it is well established that once election program is started, no interference at the hands of the Court is permissible. On merits it is submitted that when the appellate authority has rightly considered the provisions, this Court need not set aside the impugned order, unless the reasoning is found to be perverse. It is further submitted that the matters in respect of election are required to be considered strictly keeping in view the statutory provisions, as to contest election is statutory right subject to all statutory limits. 10. Having considered the submissions and the order passed by the Returning Officer and the Appellate Authority, this Court finds that certainly there is violation of bye-law No.28(2) as the petitioner has not supplied sugar cane for three years during preceding five years. Appreciating documents at this stage would be adjudicating on the facts of the case. At this stage it is not ( 6 ) wp6290.23 expected of this Court while exercising writ jurisdiction under Article 227 of the Constitution to go into the factual aspects and to find out as to whether the petitioner was relay unable to supply sugarcane or not that too when the stage of withdrawal of nomination has also passed by now. Allowing the petition certainly would affect the election program and for this reason this Court finds that no interference is possible at this stage. There is remedy of challenging election by raising dispute. The petitioner has still remedy open to ventilate his grievance. 11. For all these reasons, this Court finds that no interference is called
Decision
for in the petition. The writ petition is, thus, dismissed. snk/2023/JUN23/wp6290.23 [KISHORE C. SANT, J.]