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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 2683 OF 2011
Ashok Pundlikrao Patil, Age : 56
years, Occ : Agriculture, R/o Jalkot,
Tq. Tuljapur, Dist. Osmanabad.
..PETITIONER
-VERSUS-
1. Shashikant S/o Sidram Patil, Age : 56
years, Occ : Agriculture, R/o
Lohgaon, Tq. Tuljapur, Dist.
2.
Osmanabad.
The Returning Officer For the
election of Shri. Tuljabhavani
Sahakari Sakhar Karkhana Ltd.,
Naldurg, Tq. Tuljapur, Dist.
Osmanabad.
3 The Collector, Osmanabad, Dist.
Osmanabad.
4. Shri Tuljabhavani Sahakari Sakhar
Karkhana Ltd., Naldurg, Tq. Tuljapur,
Dist. Osmanabad, Through its
Managing Director.
RESPONDENTS
WITH
WRIT PETITION NO. 2684 OF 2011
Gokul S/o Vishvanathrao Shinde,
Age : 52 years, Occ : Agriculture, R/o
Tuljapur, Tq. Tuljapur, Dist.
Osmanabad.
..PETITIONER
-VERSUS-
1. Ashok S/o Trimbak Patil, Age : 51
years, Occ : Agriculture, R/o
Khemwadi, Tq. Tuljapur, Dist.
Osmanabad.
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2. The Returning Officer For the
election of Shri. Tuljabhavani
Sahakari Sakhar Karkhana Ltd.,
Naldurg, Tq. Tuljapur, Dist.
Osmanabad.
3 The Collector, Osmanabad, Dist.
Osmanabad.
4. Shri Tuljabhavani Sahakari Sakhar
Karkhana Ltd., Naldurg, Tq. Tuljapur,
Dist. Osmanabad, Through its
Managing Director.
RESPONDENTS
ig WITH
WRIT PETITION NO. 2695 OF 2011
Khandu S/o Maroti Umbare, Age : 56
years, Occ : Agriculture, R/o
Kalegaon Post Arali, Tq. Tuljapur,
Dist. Osmanabad.
..PETITIONER
-VERSUS-
1. Anil S/o Nagnath Giram, Age : 58
years, Occ : Agriculture, R/o
Katgaon, Tq. Tuljapur, Dist.
Osmanabad.
2. The Returning Officer For the
election of Shri. Tuljabhavani
Sahakari Sakhar Karkhana Ltd.,
Naldurg, Tq. Tuljapur, Dist.
Osmanabad.
3 The Collector, Osmanabad, Dist.
Osmanabad.
4. Shri Tuljabhavani Sahakari Sakhar
Karkhana Ltd., Naldurg, Tq. Tuljapur,
Dist. Osmanabad, Through its
Managing Director.
RESPONDENTS
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WITH
WRIT PETITION NO. 2680 OF 2011
Gokul S/o Vishvanathrao Shinde,
Age : 52 years, Occ : Agriculture, R/o
Tuljapur, Tq. Tuljapur, Dist.
Osmanabad.
..PETITIONER
-VERSUS-
1. Prabhu S/o Narayan Raut, Age : 58
years, Occ : Agriculture, R/o
Kakramba, Tq. Tuljapur, Dist.
Osmanabad.
2.
election of
The Returning Officer For the
Shri. Tuljabhavani
Sahakari Sakhar Karkhana Ltd.,
Naldurg, Tq. Tuljapur, Dist.
Osmanabad.
3 The Collector, Osmanabad, Dist.
Osmanabad.
4. Shri Tuljabhavani Sahakari Sakhar
Karkhana Ltd., Naldurg, Tq. Tuljapur,
Dist. Osmanabad, Through its
Managing Director.
RESPONDENTS
.....
Mr. V.D. Salunke, Advocate for petitioner in all matters.
Mr. N.B. Khandare, Government Pleader for respondent nos. 2 and
3 in W.P. no. 2680 of 2011 and Mr. S.K. Tambe, A.G.P. for
respondent nos.2 and 3 in other matters.
Mr. G.V. Patil, Advocate for respondent no.4 in all matters.
…..
(CORAM : B.P. DHARMADHIKARI, J.)
DATED : 19TH APRIL, 2011.
ORAL JUDGMENT :
1. Heard Advocate Mr. Salunke for petitioner, learned A.G.P. for
respondent nos.2 and 3 and Advocate Mr. G.V. Patil for respondent
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no.4.
2. Acceptance of nomination paper of respondent no.1 in
election of respondent no.4-sugar factory by returning officer by
one word order thereby overruling the objection of respective
petitioner is questioned in present matters.
3. By inviting attention to the provisions of bye-laws no. 17-A
r/w 27-A and 29-GH, Advocate Mr. Salunke has contended that
supply of sugar cane by aspirant continuously for three years prior
to holding of election is must to cloth him with eligibility to contest
the election. Here, he points out that respective respondent no.1
has not supplied sugar cane to respondent no.4 in the year
2007-2008 and he relies upon certificate issued by the Managing
Director of respondent no.4 for said purpose. He points out that
sugar factory did not function in 2008-2009 and 2009-2010 season
and hence, even if it is presumed the respondent no.1 did supply
sugar cane in those two years, his failure to supply it in the year
2007-2008 is itself sufficient and his nomination paper ought to
have been rejected. He has invited attention to the fact that the
order accepting the nomination paper does not disclose any
reasons and the respondent nos. 2 and 3 have for the first time in
reply affidavit attempted to introduce such reason. He relies upon
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the judgment of the Hon’ble Apex Court reported at “A.I.R. 1978
S.C. 851″- Mohinder Singh Gill and another V/s The Chief
Election Commissioner, New Delhi and others” to contend that
such affidavit or supplying separate reasons needs to be ignored.
He further points out that there is absolutely nothing on record to
show that alleged reasons recorded separately by the Returning
Officer on 23.03.2011 were communicated to any of the petitioner
and for that purpose he also invites attention to the alleged
reasons which are recorded and its alleged communication issued
to Shri. Gokul V. Shinde one of the petitioner. According to him, as
there is proper affidavit in this respect, the said contention in
defence can not be accepted.
4. Judgment of this Court reported at ” 1989 C.T.J. 325″-
Yeshwant Khashaba Dubal and others V/s Krishna Sahakari
Kakhar Karkhana Maryadit and others and unreported judgment
dated 28th September, 2001 in Writ Petition no. 4948 of 2001
delivered at Bombay are relied upon, to urge that this eligibility
condition in bye-laws is mandatory and it forms part and parcel of
the conditions prescribed in the election and its breach therefore
can not be overlooked. He contends that the said condition could
have been complied with in the year 2007-2008 and as that has
not been done, the nomination paper ought to have been rejected.
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5. Mr. Patil, learned counsel appearing for respondent no.4
states that on the request of respective petitioners position of
working of sugar factory was communicated to them and in
2007-2008 respective respondent no.1 had never supplied sugar
cane for crushing to respondent no.4.
6. Learned A.G.P. at the outset states that in Writ Petition no.
2617/2011 similar question was involved and same is already
allowed to be withdrawn on 07.04.2011 as certain disputed
questions arose. He contends that even in season 2007-2008 the
crushing started in respondent no.4 late i.e. 06.01.2008 and
crushing continued only till June, 2008. Normally quantity of sugar
cane crushed in current year (still to be completed) is 1,72,000
M.T. and as against this in 2007-2008 it was only 1,54,260 M.T. In
previous year it was 2,25,816 M.T. He further contends that as
season began belatedly and crushing was discontinued on
04.06.2008, the said season and supply of sugar cane during it
was also not looked into by the Returning Officer and the condition
in bye-law of supplying sugar cane for three years continuously
was therefore relaxed.
7. This Court has issued notice for final disposal on 6th April,
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2011. Respondent no.1 in Writ Petition no. 2684 of 2011 and 2695
of 2001 are served and have chosen not to appear. Respondent
no.1 in Writ Petition no. 2682 of 2011 has refused to accept the
service. The petitioner has accordingly submitted report to the
Registry and as there was no appearance for any of the
respondents on 18th April, 2011, the matter was adjourned to 19th
April, 2011 and on 19th April, 2011 as there was no service report,
the matter has been adjourned to today. Today, the Registry has
certified service even upon the respondent no.1 in Writ Petition no.
2683 of 2011.
8. Perusal of the reported judgment of Hon’ble Division Bench
of this Court in the case of Yeshwant Khashaba Dubal and
others V/s Krishna Sahakari Sakhar Karkhana Maryadit and
others (supra) reveals consideration of similar condition. Bye-law
interpreted there required member to supply sugarcane between
the period commencing from the last election to Board of Directors
till the current elections and the Hon’ble Division Bench has found
that it will not cover the period prior to the last election. In this
background in paragraph no.2 it is observed that a member is not
expected to comply with a conditions which is impossible of
compliance and hence, it will not cover a case where member was
unable to supply Agricultural Produce for a reason beyond his
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control and then for good reason. If the sugarcane is grown then it
will have to be supplied to the Karkhana and not others nor it could
be used for purpose of manufacturing Jaggery. The bye-law there
contemplated registration of area in which the sugarcane was to be
grown with Karkhana and same was to be supplied to Karkhana
itself. Similar view is taken in unreported judgment dated 28th
September, 2001 in Writ Petition no. 4948 of 2001, wherein
paragraph no.4 it has been found that compliance with such bye-
law is necessary unless and until the said bye-law is inconsistent
with the provisions of the Act. The Division Bench judgment
referred supra is also relied upon for the said purpose. In view of
this discussion, it is not necessary to consider the judgment
reported at “2002(1) Mah. L.R. 377”- Purushottam Yashwant
Patil and others V/s State of Maharashtra and others or then
“1996 C.T.J. 226”- Sambha V/s The State of Maharashtra, cited
by the learned counsel for petitioner.
9. Here, the facts clearly show that sugarcane could not be
supplied to respondent no.4-Karkhana in the year 2008-2009 and
2009-2010 as Karkhana itself was not functioning. The election
programme is published on 14.03.2011 and the tenure for which
the body is to be elected is 2011-2016. Hence, the period of three
years relevant in this respect is from 2007-2008, 2008-2009 and
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2009-2010.
10. As Karkhana itself could not function, no member could
supply the sugarcane to Karkhana in later two years. However, it is
not in dispute that Karkhana functioned in the year 2007-2008 and
hence, as per the provisions of bye-law 17A(2) r/w Byelaw No.
29GH(1), the respondent no.1 ought to have supplied his
sugarcane at least in first year i.e. 2007-2008 to Karkhana.
Respective respondent no.1 could not supply the sugarcane
accordingly and certificate issued by Karkhana in this respect is not
in dispute. The record shows that in the year 2007-2008, the
crushing operation started on 06.01.2008 and continued till June,
2008. Moreover, the respondent no.1 has not given any
explanation in this respect and has not pointed out any
unavoidable circumstance or then just and sufficient reason
expressing inability to supply sugar cane to factory.
11. Returning Officer has while rejecting some nomination
papers filed along with Writ Petition passed the reasoned order.
Here, he has accepted the nomination paper and therefore, he has
not passed the reasoned order but then before this Court it is
urged that reason for rejection of objection of the respective
petitioners were separately recorded on 23.03.2011. The Returning
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Officer has on 23.03.2011 passed the order (alleged to be
separately recorded) mentioning that as Karkhana was closed in
the year 2008-2009, 2009-2010, the condition of supply of
sugarcane for three years contemplated by bye-laws can not be
looked into. The communication of rejection of his objection filed at
Exhibit-R-4 is also dated 23.03.2011 but then it does not
communicate these reasons to the addressee namely Gokul V.
Shinde. That communication only mentions letter dated 23.03.2011
by Regional Joint Director (Sugar) Nanded and communication
dated 22.03.2011 by Chief Managing Director of Respondent no.4.
12. The communication dated 23rd March, 2011 by Regional
Joint Director (Sugar) Nanded is produced at Exhibit-R-3 to reply.
Perusal thereof again shows exercise of jurisdiction not vested in
him by the said authority. That authority is not returning officer and
could not have asked Returning Officer to ignore the provisions of
bye-laws.
13. It is apparent that being Returning Officer, the respondent
no.2 was duty bound to implement the provisions of bye-laws and
had no jurisdiction to hold that the provisions of bye-laws need to
be ignored. The reason recorded by him as alleged on 23.03.2011
is therefore beyond his jurisdiction and unsustainable. It was
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obligatory for respective respondent no.1 to show that supply of
sugarcane in the year 2007-2008 to respondent no.4 or then to
point out reasons beyond their control as envisaged by Division
Bench of this Court. The respondent no.1 has neither supplied the
sugarcane nor come up with any justification for not supplying it. In
view of these findings, I am not considering the question of
necessity of recording of reasons by returning officer while
accepting nomination paper by rejecting objection to it or the
requirement of its communication. Returning officer ought to have
recorded reason of impossibility of compliance with bye-law no.
29(gh)(1) or then attempted to find out compliance therewith to the
extent possible. In any case decision to overlook that eligibility
condition ought to have been reached beforehand and should have
been published for advantage of all concerned as part of election
programme. Such norm can not be changed or deleted at the time
of scrutiny thereby acting to the prejudice of others who may not
have submitted nomination paper due to that condition. Fair play
obliges respondent no.2 and 3 to make such relaxation/deletion
public to enable all members to take its advantage. It would have
also oblivated occasion for such objection by petitioners.
14. I therefore find the impugned orders and action of the
respondent no.2 accepting the nomination papers of respective
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respondent no.1 unsustainable. Those orders are accordingly
quashed and set aside. The nomination paper of respective
respondent no.1 are rejected. Rule made absolute accordingly. No
costs.
15. The parties to act upon the copy of this order duly
authenticated by the Court Shirestedar.
(B.P. DHARMADHIKARI)
JUDGE
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