Anandrao Kawadu Joshi v. District Deputy Registrar, Co-Operative Societies, Gondia And Others

(1) 69wp1709.23

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1709 OF 2023 Anandrao Kawadu Joshi__ Vs. ___District Deputy Registrar, Co. Op Societies, and ors --------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Mr. A.M.Ghare, Advocate for the petitioner Ms. T.H.Khan, AGP for Respondent No.1 Mr. J.K.Matale, Advocate for the respondent No.4. CORAM :

AVINASH G. GHAROTE, J.

DATE : 20/03/2023 1] Heard Mr. Ghare, learned counsel for the petitioner, Ms. Khan, learned AGP for respondent no.1 and Mr. Matale, learned counsel for respondent No.4.

2] The petition seeks to challenge the order passed by the respondent no.1, who is the appellate authority under Section 152-A of the Maharashtra Cooperative Societies Act (for short "the MCS Act"), whereby the rejection of the nomination papers of the respondent Nos.4, 5, 6 & 7 by the Returning Officer, has been set aside.

3] Mr. Ghare, learned counsel for the petitioner by relying upon Baghele Narottam Gendlal vrs. State of Maharashtra, 2016 (4) Mh.L.J

(2) 69wp1709.23 353, submits that the requirement of proviso to Rule 21(3) of Maharashtra Co-operative Societies Election to Committee Rules, 2014 (for short "the Rules of 2014), of submitting a declaration is mandatory and since in the instant case the said declaration has not been signed by the respondent no.4, the requirement is not complied, as a result of which the impugned order cannot be sustained. 4] Though respondent nos. 5, 6 & 7 have been served, none appears.

5] Mr.Matale, learned counsel for respondent nos. 4 submits that under Rule 25(4) of the Rules of 2014, this was not a defect of a substantial character and therefore, it was not permissible for the Returning Officer to have rejected the nomination form and the Respondent no.1 therefore, in appeal, has rightly set aside the order.

6] Learned AGP appearing for respondent no.1 has supported the impugned order.

7] In Baghele Narottam Gendlal (Supra), while considering the same position, regarding non

(3) 69wp1709.23 submission of the declaration as contemplated by the proviso to Rule 21(3) of the Rules of 2014, it has been held that non submission of the affidavit-B/declaration (pg.23) is a defect of a substantial character and therefore, Rule 25(4) of the Rules of 2014 is not applicable. In the instant matter, the respondent nos.4, 5 & 6 have not signed the declaration as required by the proviso to Rule 21(3) of the Rules of 2014 (Respondent no.4/pg.25; Respondent no.5/pg.30 and Respondent no.6/pg.35). Rather on the contrary, in their appeal to the Respondent no.1, they have themself admitted that the declaration filed by them does not bear their signature and have sought to cure the defect by signing it before the Respondent no.1 (pg.49, 50 & 51).

In view of this admission, it is clearly apparent that the requirement of the proviso to Rule 21(3) of the Rules, 2014 has admittedly not being complied with. It is therefore apparent that the declaration as contemplated by proviso to Rule 21(3) of the Rules, 2014 , in absence of the signature of the respondent nos.4, 5,& 6 cannot be considered to be one which can satisfy the requirement of the aforesaid provision.

(4) 69wp1709.23 mandatory and the defect of this nature is also held to be of a substantial character, the same cannot be ignored by invoking Rule 25(4) of the Rules of 2014.

8] The learned respondent No.1 has in the impugned orders tried to lay the blame for such defect upon the respondent no.2, the Returning Officer by holding that it was his duty to have verified the nomination for any defect and thereafter to have accepted it, as a result of which the respondent nos. 4 to 6 have been deprived of the principles of natural justice. I am afraid, such a course of action is not available to the Returning Officer, while acting in such capacity, for the reason that while doing so, he is an independent person and does not have the right to advise any one whomsoever, as to any requirement of the relevant rules to be complied with. The respondent no.1 has also relied upon the provisions of Rule 25(4) of the said Rules, 2014 to upset the order of the rejection of Returning Officer, which was impermissible in view of what has been held in Baghele Narottam Gendlal (supra).

9] That being the position, it is apparent

(5) 69wp1709.23 that there is no declaration as contemplated by the proviso to Rule 21(3) of the Rules of 2014, which could be said to comply with the requirement of law in that regard, filed by the respondent no.4, 5 & 6 along with his nomination paper, as a result of which the Respondent no.2 was justified in rejecting their nomination.

10] In so far as the respondent no.7 is concerned, the nomination was rejected on the ground of in-congruence of her name in the caste certificate vis-a-vis name in the nomination form, which has been stated to be one and the same person, in view of which this would clearly be a case, which would be covered by Rule 25(4) of the Rules of 2014 and the impugned order so far as the Respondent no.7 is concerned, cannot be faulted with.

11] In the result the petition is partly allowed and the impugned orders in so far as respondent Nos.4, 5 & 6 are concerned are hereby quashed and set aside. The petition in so far as the order impugned vis-a-vis respondent no.7 stands dismissed. No costs.

(6) 69wp1709.23 12] Learned AGP to communicate this order to the Respondent no.2.

JUDGE Rvjalit Digitally sign byRAJESH VASANTRAO JALIT Location: