Writ Petition No.251 of 2011,Writ Petition No.257 of 2011

3rd February, 2011

Petitioner Counsel: Mr. D. J. CHOUDHARI
Respondent Counsel: Mr. D. R. KORDE,Mr. S. K. TAMBE,Mr. N. R. PAWADE,Mr. V. D. SALUNKE

Cases Cited:
Ravi Amrutrao Bagde Vs. Commissioner, 2006(1) ALL MR 781=2006(3) Bom.C.R. 359 [Para 3,28]
Jagannath Pandharinath Rewaskar Vs. Minister of State for Co-operation, 2007(1) ALL MR 183=2007(1) Mh.L.J. 771 [Para 4,9,10,12]
Hanumant Ramchandra Yadav Vs. The State of Maharashtra, W.P. No.875/2010, Dt.:-23-06-2010 [Para 4,16]
Ishwar Bhagwan Gaikwad Vs. The State of Maharashtra, W.P. No.2622/2002, Dt.:-27-08-2002 [Para 4]
Ramesh Rajaram Patil Vs. The Additional Commissioner, Aurangabad, 1995(1) Mah.L.R. 380 [Para 8,22,23,25]
Narayan Gujabrao Bhoyar Vs. Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha Maryadit, 2009(6) ALL MR 674 (F.B.)=2009(6) Bom.C.R. 277 [Para 8,22,25,29]
Shri. Tukaram Hari Khamkar Vs. Shree Bharat Urban Co-operative Bank Ltd., W.P. No.2614/1982, Dt.:-07-12-1982 [Para 18]
Murlidar Bhaulal Malu Vs. Sudhakar Honaji Patil, 1987(3) Bom.C.R. 550 [Para 24,25]
Pundalik Vs. District Deputy Registrar, Co-operative Societies, Chandrapur, (1991)2 SCC 423 [Para 29]
Dalsing s/o. Shamsing Rajput Vs. State of Maharashtra, 2006(4) ALL MR 580=2006(3) Mh.L.J. 592 [Para 30]
Mayaraju Ghavghave Vs. Returning Officer, 2004(4) ALL MR 258=2004(5) Bom.C.R. 146 [Para 30]

JUDGMENT

JUDGMENT :- By these petitions filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order of respondent no.2/Election Officer, accepting nomination paper of respective respondent no.4 for the purposes of general election of respondent no.3/Co-operative Society. It is not in dispute that the said Society is registered under the provisions of Maharashtra Co-operative Societies Act, 1960 (For short, hereinafter referred to as "Act of 1960"). The respondent no.1 in both the matters is the State of Maharashtra through its Secretary in Co-operation and Textile Department. The respondent no.4 in Writ Petition No.251/2011 has submitted her nomination for post reserved for woman, while respondent no.4 in Writ Petition No.257/2011 is contesting election for open post.

2. Looking to the nature of controversy and earlier orders passed, the respective Counsel have been heard finally by making Rule returnable forthwith.

3. Advocate, Shri. D. J. Choudhari, appearing for the petitioner, has stated that respondent no.3 is a Notified Society and scrutiny of nomination papers has been conducted on 10-1-2011. In that scrutiny, petitioner raised objection and pointed out that respondent no.4 is defaulter as contemplated by Section 73-FF(1)(i) and hence, is not eligible to contest the election. That objection has been rejected after holding payment of loan arrears effected on 8-1-2011 as valid. It is his contention, that 7-1-2011 was the last date prescribed for filing of nomination papers and hence payment made thereafter cannot have the effect of curing the status as defaulter. He has relied upon the judgment delivered by me at Nagpur Bench and reported at 2006(3) Bom.C.R. 359 : [2006(1) ALL MR 781], in the case of Ravi Amrutrao Bagde Vs. Commissioner & others. He has further urged that unnecessarily a confusion about the nature of loan availed is being created and he points out loan disbursed to respondent no.4 is for maintenance of cotton and as per amended loan policy for the year 2009-10, it could have been disbursed up to 31st March, 2010. It was repayable by 28-5-2010.

4. Shri. V. D. Salunke, learned Counsel appearing for respondent no.4, has raised various objections. His first contention is, the matter must be filed before Division Bench of this Court and the Single Judge has no jurisdiction in this respect. He states that view taken by me at Nagpur and reported at 2007(1) Mh.L.J. 771 : [2007(1) ALL MR 183], in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Co-operation and others, is looked into by another Single Judge in Writ Petition No.875/2010 at Aurangabad (Hanumant Ramchandra Yadav and others Vs. The State of Maharashtra and others) and vide order dated 23rd June, 2010, it has been held that such challenge against the order of Returning Officer/Election Officer must be placed before Division Bench as that order cannot be read as a quasi judicial order. For the same purpose, he has also relied upon order dated 27th August, 2002 delivered by the learned Single Judge at Aurangabad in Writ Petition No.2622/2002 (Ishwar Bhagwan Gaikwad and others Vs. The State of Maharashtra & others).

5. His next contention is, the respondent no.3/Society is not a Notified Society. According to him, it is a simple or general Society and hence election to it is regulated only by its bye-laws. Therefore, the view taken at Aurangabad (supra) is squarely attracted here. To substantiate this contention, he has relied upon the order dated 6th September, 2001 issued by the Commissioner for Co-operation and Registrar at Pune. His contention is, whenever share capital of a Notified Society exceeds Rs.10,00,000/-, total 17 posts of Directors become admissible and election, therefore, has to be for 17 posts. Here, election is only for 13 posts and hence respondent no.4 is not a Notified Society. He has also invited attention to order of appointment of Election Officer, being pressed into service by the petitioner, and dated 27-1-2009, to urge that though District Deputy Registrar at Beed has mentioned that it is issued because of powers delegated to him, the delegation is not brought on record. His contention is, therefore, the respondent no.3/Society is not a Notified Society at all.

6. He further points out that as petitioner is not contesting from constituencies of respective respondent 4, he lacks necessary locus to maintain this writ petition. He has pointed out that only respondent no.4, whose nomination paper is accepted, has been joined as party respondent. According to him, in challenge of such nature, all contesting parties need to be joined and failure to implead all, therefore, must result in dismissal of Writ Petition.

7. On facts, Advocate, Shri. Salunke, has contended that the loan availed of by respective respondent no.4 is for crop of sugarcane i.e. under Kisan Credit Facility. That loan therefore, cannot be examined in the light of the "Rabi" policy for the year 2009-10 placed on record by the petitioner and it was not repayable by 28-5-2010. He has relied upon the extract of the register maintained in relation to applications for demand of credit loan to point out that at Serial No.55, it is expressly reflected therein that it was a Kisan Credit Loan. According to him, thus, nature of loan is seriously in dispute and unless and until it is resolved, the contention that the respondent no.4 is a defaulter cannot be accepted. He, therefore, prays for dismissal of Writ Petition even on that ground. According to him, in view of this position, loan was not repayable and it was not necessary to repay it even on 8-1-2011.

8. Lastly, by placing reliance upon provisions of Section 73-FF of the Act of 1960, the learned Counsel has urged that there has to be a notice of demand served upon by respondent no.3 on respective respondent no.4 and if after such demand, loan is not repaid, then only respondent no.4 can be labeled as defaulter. His contention is, in the present facts, it has not been demonstrated that any such notice of demand was served upon respective respondent no.4 at any point of time. He has relied upon the judgment of learned Single Judge of this Court reported at 1995(1) Mah.L.R. 380, in the case of Ramesh Rajaram Patil Vs. The Additional Commissioner, Aurangabad and others, to urge that unless and until there is such demand, the person cannot be labeled as in arrears and hence cannot be treated as disqualified. He has pointed out that this Court has found that disqualification prescribed under Section 73-FF(1) of the Act of 1960 is curable one. According to him, had there been such notice to respondent no.4 by respondent no.3, they could have repaid the loan amount and cured the disqualification. For the same purpose, judgment of Full Bench of this Court, reported at 2009(6) Bom.C.R. 277 : [2009(6) ALL MR 674 (F.B.)] in the case of Narayan Gujabrao Bhoyar Vs. Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha Maryadit & another, is also pressed into service. According to him, this judgment also holds that before declaring a person as defaulter, notice of demand must be served upon him and he must be given opportunity to cure the non-payment.

9. In his reply arguments, Advocate, Shri. D. J. Choudhari, has briefly reiterated his stand earlier. He has urged that the judgment of this Court reported in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Co-operation and others [2007(1) ALL MR 183] (supra), is in relation to ordinary or general or simple Society, while here, the election is of a Notified Society. He relies upon election programme and also upon the appointment of Election Officer for the said purpose. He states that no disputed questions of fact arise and the attention invited to the register (copy annexed) to urge that loan availed was of Kisan Credit, is misconceived. He has invited attention to the right hand part of the very same document to show that the current loan sanctioned for the year 2009-10 is for crop of cotton. He invites attention to other undisputed documents to show this nature of loan. The contention, that all contesting parties must be joined as necessary parties is also urged to be misconceived. The learned Counsel has relied upon the express language of Section 73-FF(1) to urge that separate notice for treating a person as defaulter is not contemplated thereunder. He has, therefore, urged that petitions, as filed, deserve to be allowed.

10. The first question to be looked into in the present matter is, about the jurisdiction of Single Judge of this Court. I had an occasion to consider this controversy directly in the judgment reported in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Co-operation and others [2007(1) ALL MR 183] (supra). Perusal of the said judgment, particularly paragraph 7 therein, shows that the question has been examined in relation to a Society which was neither specified nor notified. This Court has found that the Education Officer is appointed under the Act of 1960 and hence, he needs to be treated as public authority. The finding, therefore, recorded is in appropriate cases, writ can be prayed for against him by challenging the orders before Single Judge of the High Court. In view of the discussion undertaken therein detail, it is not necessary for me to again embark upon the same in the present matter.

11. The effort of Advocate, Shri. Salunke, is to point out judgment delivered in Writ Petition No.2622/2002 on 27th August, 2002 and to urge that in the present matter, order challenged is not a quasi judicial order. In Writ Petition No.2622/2002, the order challenged was under Section 88(3-C) of the Bombay Village Panchayats Act, 1958. It was urged there that Bombay Village Panchayats Act does not find place in any of the clauses contained in Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, and therefore, Single Judge cannot hear and decide the matter. The other side had contended that the ambit of Rule 18(3) of Chapter XVII cannot be cut down by any other clauses contained in Rule 18. In paragraph 5, this Court has found that if order is passed by quasi-judicial authority in any proceedings under any law, challenge thereto can be heard by a Single Judge. The preliminary objection was, therefore, rejected. It is not in dispute that Chapter XVII, Rule 18, Entry No.12, of the High Court Appellate Side Rules, mentions Maharashtra Co-operative Societies Act, 1960. The said judgment, therefore, has no relevance in the present facts.

12. The other order relied upon is in Writ Petition No.875/2010. In that order delivered on 23rd June, 2010, the challenge was to order of Returning Officer whereby objection of petitioners to list of voters was rejected. The learned Single Judge has noted that the matter can be placed before Single Judge only if impugned order is passed by judicial or quasi judicial authority who is empowered to adjudicate under the concerned statute. The learned Single Judge has found that the expression "concerned statute", as used in Sub-Rule 4 meant such authority must be duly appointed under the provisions of the statute and given power to adjudicate. In paragraph 3, it is noticed that election programme was of a ordinary Society and the appointment of Election Officer was not shown to be made under a particular provision of the Act of 1960 or Rules framed thereunder. The appointment is noted to be under bye-laws and at the request of the Society. Because of this, the learned Single Judge has found that order of such Returning Officer cannot be termed as an order rendered by the judicial or quasi judicial authority. The judgment delivered by me and reported in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Co-operation and others [2007(1) ALL MR 183] (supra), has been then noticed and it has been found that there, this distinction between type of Society did not fall for consideration there. It is, therefore, apparent that the learned Single Judge has distinguished the view taken by me at Nagpur, by holding that in that judgment, the nature of Society whose elections were being conducted, has not been gone into. The learned Single Judge, therefore, after noting that challenge before him was in relation to a Society which was neither specified nor notified Society, directed the Registry to place the petition before "appropriate Bench" and ordered its removal from his board.

13. The learned Single Judge, therefore, has not laid down any law for uniform application & relevant in this respect in present matter, in the said order dated 23rd June, 2010. On the contrary, it has been noticed that the election involved was not of a notified or specified Society.

14. Here, the petitioner has along with Civil Application Stamp No.2998/2011, produced an order dated 27-1-2009 issued by the District Deputy Registrar, Co-operative Societies, Beed, and District Election Officer for Notified Societies. It expressly refers to Rule 56-A(b) of 1961 Rules framed under the Act of 1960. The Election Officer has been appointed by referring to those Rules and after stating that as per powers derived under the said provision, the Election Officer is being appointed. The Election Officer has been directed to conduct election in accordance with provision of the Act of 1960 and also as per Rule 56-A of 1961 Rules framed thereunder. This was sought to be challenged by Advocate, Shri. Salunke, by contending that he received copy of that Civil Application belatedly and the notification of delegation to District Election Officer for notified Societies as contemplated by Rule 56-A(b) is not produced on record. He has also invited attention to the order dated 6th September, 2001 specifying number of Directors in a notified Society. The order dated 6th September 2001 is issued by Commissioner for Co-operation and Registrar for Co-operative Societies at Pune and it is on the subject of fixing the number of Directors and number of members of Managing Committee of Agricultural Credit Co-operative Societies. It states that if share capital of Society is beyond Rs.10,00,000/-, such number has to be 17. It is not in dispute before me that share capital of respondent no.3/Society is much more than Rs.10,00,000/-. However, that by itself cannot be said to be a material sufficient to rebut the documents produced on record by the petitioner.

15. The election programme dated 1-1-2011 clearly shows that it has been published with approval of District Deputy Registrar as per Rule 56-J of 1961 Rules and it is for filling in 13 posts. The communication appointing Election Officer already referred to above and issued on 27-1-2009 clearly shows that powers under Rule 56-A(b) in Chapter V-A of the Rules framed under the Act of 1960 are exercised for the said purpose. Procedure directed to be followed & being followed is also of elections of notified society. Thus, the material on record demonstrates that respondent no.3 is a notified Co-operative Society.

16. The judgment of learned Single Judge of this Court dated 23rd June, 2010 in Writ Petition No.875/2010 (supra), in paragraph 3 notes that the election there was not under a particular provision of the Act of 1960 or Rules framed thereunder. It is apparent that had the election been under the Rules framed under the Act of 1960, the learned Single Judge was inclined to take other view. In this view of discussion, I find nothing in the said judgment which will enable me to hold that the present Writ Petition also needs to be placed before Division Bench. The objection to jurisdiction of learned Single Judge raised by Advocate, Shri. Salunke, therefore, needs to be rejected.

3rd February, 2011

17. The objection of learned Counsel for respondent no.4, about locus of the petitioner and about non-joinder of necessary parties can be conveniently considered together. The challenge to locus is on the ground that respondent no.4 in Writ Petition No.251/2011 is contesting election from altogether different constituency. It is urged that the petitioner, who is contesting election from general or open category is, therefore, not entitled to raise challenge to her election. Similar contention is attempted to be advanced in Writ Petition No.257/2011, but then, there contesting respondent i.e. respondent no.4 is from the same category or constituency as that of the petitioner. The issue, therefore, needs to be examined only qua election of respondent no.4 in Writ Petition No.251/2011. Perusal of election programme, as filed, is sufficient to answer it in this respect. The Condition No.11 appearing therein permits all borrower members to vote in elections for other constituencies including the constituency for woman (reserved) in which respondent no.4 is contesting. There can be & is no challenge to this stipulation in election programme. It is, therefore, obvious that the objection, as raised, is mis-conceived.

18. The contention, that all contesting parties must be impleaded as party respondents, is sought to be advanced by relying upon an unreported judgment in Writ Petition No.2614 of 1982 with connected Writ Petitions (Shri. Tukaram Hari Khamkar Vs. Shree Bharat Urban Co-operative Bank Ltd. and others). The Division Bench of this Court on 7th December, 1982, has decided all those matters. Perusal of judgment in paragraph 6 reveals that the challenge was to rejection of nomination paper and in that background, contention that other candidates whose nomination papers have been accepted were not necessary parties, has been evaluated. The Hon. Division Bench found that those candidates were vitally interested in the outcome of challenge and hence the petition as filed without joining them was not maintainable. The consideration clearly shows that if rejection was to be set aside by Division Bench, a new candidate was being added to the list of contesting candidates. Thus, prospects of other candidates whose nomination papers were already accepted, were getting adversely affected because of said addition. Here, the effort of the petitioner is to remove candidate (respondent no.4) from the list of contesting candidates. As such, there is no question of the interest of any contesting candidate being adversely affected, if he succeeds in the petitions. The judgment of Division Bench, therefore, does not support the argument and the objection as raised. In view of this, I am not in a position to hold that the petition suffers from vice of non-joinder of necessary parties.

19. The other objection raised by the learned Counsel for respondent no.4 is investigation into disputed question of fact. The disputed question, according to the learned Counsel, is the nature of loan availed of by the respective respondent no.4. According to him, it is Kisan Credit, while according to the petitioner, it is crop loan. Perusal of document relied upon by respondent no.4, to allege that it is a Kisan Credit or then a loan for sugarcane crop reveals that it is a page from a register of District Central Co-operative Bank Ltd., Beed. Register perhaps contains details of applications received and loan disbursement to the members along with their signature. The columns on left hand side from Serial Nos.4 to 10 deal with amount recoverable and amount actually recovered i.e. about past loan. The columns from Serial Nos.13 to 19 deal with loan to be sanctioned and then last but one column deals with deduction from that loan amount towards previous outstandings. The last column then speaks of actual amount to be disbursed as loan. At the end, it also carries signature of the member. The name of respondent no.4 in Writ Petition No.251/2011 appears at Serial No.55 in this register. It is obvious that entries on left hand side dealing with earlier loan and its recovery or adjustment are hence not relevant. The words "K.K.", meaning Kisan Credit appear in this left part of the register at the top against the name of member at Serial No.46 and by putting sign ",," viz. "ditto", the said entry or remark has been carried till last but one entry i.e. Serial No.58. Against the name at Serial No.59, again words "K.K." are written. On right hand side, where the loan sanctioned is being looked into, these words "K.K." do not appear. On the other hand, the words at the top against Serial No.46, according to the petitioner, show "Ka" i.e. Kapus (cotton) as nature of crop. Again this entry has been carried till Serial No.58 and against Serial No.58, the word in Marathi "Ka" appears. On the strength of this document, respondent no.4 in Writ Petition No.251/2011 is trying to urge that she has received a loan for growing sugarcane. It is not in dispute between the parties, that if this loan is read as sugarcane loan, then it was not repayable on 28-5-2010. The only question is whether this document is sufficient to indicate that it is a loan for sugarcane and received in year 2010-2011.

20. The respondent no.4 has not invited attention to right hand side portion of the document and attention was only invited to left hand side portion where words "K.K." have been used. In reply arguments, when Advocate, Shri. D. J. Choudhari, pointed out that the entries against columns on right hand side of the document speak and show that the loan disbursed on 26/3/2010 is for cotton, the previous loan or its repayment are not relevant here at all & loan disbursement on 26/3/2010 is only required to be looked into. This argument has not been touched at all by the other side. There is no effort to explain the right hand side portion of this register by the respondent No.4.

21. Apart from this, the petitioner has pointed out that in loan application, as filed on 26-3-2010 by the respondent no.4, the purpose of loan is specifically stated to be for maintaining cotton crop for the year 2009-10. The ledger of Seva Sahakari Society Ltd., Bansarola, also shows that on 26-3-2010 has been disbursed to respondent no.4 for growing cotton. That document itself in the year 2006 expressly mentions disbursement of loan under head "Uspat-karj" i.e. sugarcane cash credit. The entry is of the year 2006 and, therefore, not relevant here, but then in contradiction, it clearly shows that on 26-3-2010, loan disbursed was for cotton. These documents produced by the petitioner, therefore, clearly establish that on 26-3-2010, loan disbursed to respondent no.4 was not for sugarcane cultivation but it was for maintenance of cotton crop as a Rabi crop for the year 2009-10. The disbursement appears to be because of the extended time limit for its disbursement as per circular dated 1-2-2010. These documents, particularly loan application bearing signature of respondent no.4 has not been even disputed during arguments before this Court. The loan register of Seva Sahakari Society Ltd., Bansarola, has not been also disputed before this Court. Thus, by inviting attention to rather irrelevant part of a register, attempt was made to show that a disputed question of fact arises for determination. The position in Writ Petition No.257/2011 is not different. The same observations apply with equal force even there. It, therefore, cannot be said that any disputed questions call for adjudication in the present matter. The said objection of Advocate, Shri. Salunke, also needs to be over-ruled.

22. Next contention is that respective respondent no.4 cannot be declared as defaulter unless and until there is advance notice to him of the said default and thereafter he fails to repay in pursuance thereof. The contention is, such default is curable default and hence, in the absence of service of any such notice upon respective respondent no.4, they were not obliged to pay the loan installment even on 8-1-2011. The effort is therefore, to show that said payment on 8-1-2011 has got no relation with the on going election process. Support is being taken from the judgment of learned Single Judge of this Court reported in the case of Ramesh Rajaram Patil Vs. The Additional Commissioner, Aurangabad and others (supra), and Full Bench judgment of this Court reported in the case of Narayan Gujabrao Bhoyar Vs. Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha Maryadit & another [2009(6) ALL MR 674 (F.B.)] (supra). He has also relied upon certain other judgments to urge that whenever action for disqualification is sought to be taken under Section 73-FF of the Act of 1960, previous notice is found necessary.

23. Perusal of judgment of learned Single Judge, in the case of Ramesh Rajaram Patil Vs. The Additional Commissioner, Aurangabad and others (supra) reveals that there, the disqualification was on account of non-payment of purchase price of the seeds. The Returning Officer found that relevant date for determination of disqualification on account of default under Section 73-FF of the Act of 1960 was 16-6-1994 and petitioner was defaulter on that date. The argument before this Court was, in the light of language used in Section 73-FF(1), a notice of demand should have been served on the petitioner and thereafter only the Returning Officer could have categorized him as defaulter. The other argument was, the dues were towards price of seeds purchased in the current year and the practice of Karkhana from whom seeds were purchased, was to adjust such dues against the amount of price of sugarcane supplied by the purchaser member to the Karkhana in the course of the year. In this background, the learned Single Judge in paragraph 11, has reproduced explanation (c)(ii) to Section 73-FF(1)(i) and then noted that there was no evidence before the Returning Officer to hold that payment was not made within 30 days of service of notice of demand. The reliance is obviously on express language of that explanation which contemplates default after receipt of notice of demand by him. The further discussion in paragraph 16 reveals that in the absence of specific date, having been prescribed in Section 73-FF(1) of the Act and in Rule 23 of the Specified Co-operative Societies Elections to Committees Rules, the date on which nomination papers are filed, was held not a date with respect to which eligibility of a member to contest was to be examined. Further discussion reveals that the learned Single Judge found because of this position, that disqualification contemplated under Section 73-FF(1)(ii) is a temporary disqualification for a particular election and hence, in paragraph 17, it is found that such disqualification is curable one. The reference to Section 73-FF(1)(ii) in the end portion in paragraph 16 of this judgment is obviously to explanation (c)(ii) in Section 73-FF(1)(i). It is not necessary to consider the discussion undertaken by the learned Single Judge in paragraph 16 in more details because in Division Bench judgment, relied upon by the learned Counsel for respondent no.4. There the Division Bench of this Court has found that the date relevant for examining such eligibility is the last date fixed for filing of nomination. 1987(3) Bom.C.R. 550 - Murlidar Bhaulal Malu Vs. Sudhakar Honaji Patil and another, is that Division Bench judgment and the observations in paragraph 12 therein by Hon. Division Bench does not require further consideration of above mentioned paragraph 16 of the judgment of the learned Single Judge.

24. This Division Bench judgment in the case of Murlidar Bhaulal Malu Vs. Sudhakar Honaji Patil and another (supra) considers challenge to validity of provisions of Section 73-FF(1)(i)(c) and negates it. Paragraph 2 of the said judgment reveals that Hon. Division Bench was mainly concerned with the said provision and Section 73-FF(1)(vi). Again, the challenge was in the light of scheme of Section 73-FF(1). Petitioner's contention was based upon inconsistency within the scheme of said Section. He urged that in the case of Primary Agricultural Credit Societies, the date of default is due date. In the case of term lending Society, the date of default is again the due date of installment. In the case of non-agricultural Credit Societies, again the date of default is the date on which installment is due. Thus, petitioners therein contended that in all these three categories, the due dates ordinarily would be fixed at the time when the advances were made. But in categories contemplated in Sub-Clauses (c) and (e), the due dates were entirely different. The contention was, there was no justification as to why the due dates under Sub-Clauses (a), (b) and (d) should have been the due dates of installment and the date of default under Sub-Clauses (c) and (e) should have been treated differently. The challenges springing from this arrangement have been addressed to by the Hon. Division Bench and the Hon. Division Bench found that the provisions required reasonable construction to avoid absurd results and undue and unforeseen hardship. This clause (c) is declared to be applicable to all the co-operative societies registered in the State of Maharashtra other than those referred to in clauses (a), (b), (d) and (e) of the explanation. The use of the words and expressions such as 'on credit' 'charges and payable', 'fails to repay the full amount' 'or pay the price of goods etc.', is held to mean that the clause where the price of goods or charges for services or the amount of anamat or advance are payable or refundable in cash. In other words if the payment of charges are to be adjusted in a manner other than payment in cash, Division Bench found that this clause will have no application. The further discussion in paragraph 9 shows that the Hon. Division Bench then found that the reasonable construction warranted upon said provision revealed that if there was default in making payment within period specified for the said purpose under the bye-laws or by the contract or within 30 days from the date of notice of demand by him from the concerned Society, whichever is earlier, the defaulting member would become a defaulter. The Division Bench has found that any other construction would frustrate the purpose of the statute. It also found that the provisions of Section 73-FF(1)(c) were not rendered either absurd or unworkable. It is, therefore, obvious that the Division Bench again has considered the provisions which expressly require an advance notice because of language employed in Section 73-FF(1)(c).

25. Thus, judgment of learned Single Judge reported in the case of Ramesh Rajaram Patil Vs. The Additional Commissioner, Aurangabad and others (supra), and the Division Bench judgment reported in the case of Murlidar Bhaulal Malu Vs. Sudhakar Honaji Patil and another (supra) does not deal with the scheme of provisions of Section 73-FF(1)(i) at all. The learned Counsel appearing for respondent no.4 has also relied upon the judgment of Full Bench reported in the case of Narayan Gujabrao Bhoyar Vs. Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha Maryadit & another [2009(6) ALL MR 674 (F.B.)] (supra), particularly paragraph 29, paragraph 46 and conclusions recorded in paragraph 56, to urge that such notice in writing ought to have been served upon respondent no.4. I have perused the entire judgment. Hon. Full Bench also finds it clear that the person who had taken anamat or advance does not ipso facto becomes a defaulter but it is only when he fails to repay the full amount of such anamat or advance or pay the price of such goods or commodities or charges for such service after receipt of notice of demand, he becomes defaulter. It also notes that such member has to, within 30 days from receipt of notice or from the date of withdrawal or taking the benefits, whichever is earlier, repay the full amount. Once he becomes a defaulter in terms of these provisions, he earns the disqualification and so will not be eligible for being appointed, nominated, co-opted as a Member of the Committee. Full Bench indicates that for being Member of any Committee, he must hold primary membership of the society. The primary membership of the society is not dealt with and cannot be the subject matter of disqualification and consequences stated in section 73-FF. Sub-section (2) of Section 73-FF states as to what will be the consequences of a Member of the Committee earning any of the disqualification under sub-section (1). It states that such Member shall cease to be Member of the Committee and his seat shall thereupon be deemed to be vacant. In other words, cessation is the result of disqualification earned on committing default as contemplated under sub-section (1) in relation to Member of the Committee. Hon. Full Bench points out that what the Member will lose is his status as Member of the Committee and nothing more. The limitation and life of such consequence is controlled by section 73-FFF which makes a person who has earned disqualification under clause (ii) of sub-section (1) eligible for reappointment or re-election as a Member of that very Committee after a specified period while sub-sections (1) and (2) of section 73-FFF deal with disqualification under clauses (ii) and (iii) of sub-section (1) of Section 73-FF respectively. The judgment nowhere lays down the law that a member does not become defaulter if notice of demand is not served upon him.

26. The Hon. Full Bench was required to consider the field of operation of Section 73-FF and Section 78 of the Act of 1960. It has been found that both the provisions operate in separate and distinct fields. In Section 78(1) of the Act of 1960, the provision for grant of opportunity is in-built. Such express provision is lacking in Section 73-FF and the Hon. Full Bench has found that such opportunity to show cause an opportunity of hearing is, therefore, warranted under Section 73-FF and has read that opportunity into said provision. Though the provisions of Section 73-FF does not in specific terms provide for grant of reasonable opportunity of hearing, but keeping in view the scheme of the Act, above provisions and the language of Rule 58, Hon. Full Bench held that principles of natural justice should essentially be read into the provisions of Section 73-FF. The person who is elected or nominated as a member to a committee is likely to lose that status, though temporarily, by means of cessation as the member might have earned the disqualification stated under Section 73-FF and therefore minimum compliance to the principles of natural justice would be essential as it has the effect of vesting member concerned with civil consequences. These observations do not mean that in the absence of such a notice of demand, a borrower of crop loan does not become defaulter or then if he makes payment after receipt of such notice, he ceases to be defaulter. The Full Bench has noticed that when such declaration, as defaulter, results in disqualification as contemplated under Section 73-FF(1), it needs to be made by minimum compliance to principles of natural justice. Thus, opportunity of hearing is after the default is committed and about the fact of default. It is not an opportunity extended to him to cure the said default. I, therefore, find that in present facts, the reliance on Full Bench judgment is also mis-conceived.

27. The express language of Section 73-FF(1)(i) states that a person can be a defaulter of any Society if he defaults in repayment of crop loan on due date or then he defaults in repayment of loan installment on the date on which the installment was due. This is apparent from explanations (a) and (b) appearing after said Clause (i) of Section 73-FF(1). Explanation (c) is not germane here. If the arguments of learned Counsel for respondent no.4 are to be accepted, one has to read into said explanation words which require service of notice of demand upon such member who has not paid the amount on due date. Arguments also imply that, if he fails to effect payment thereafter, then only he can be said to be a defaulter. That is not the scheme of Section 73-FF(1)(i)(a). Explanations (a) & (b) can not be construed on same line as explanation (c). It is settled principle of interpretation that words cannot be read into any statute when it is workable and does not lead to any absurd results.

28. The defaults by respondent no.4 here have been committed on 28-5-2010 i.e. date on which the crop-loan ought to have been repaid. Admittedly, the loan was not repaid then. 7-1-2011 was the last date prescribed for filing of nominations. Even till that date, the crop loan were not cleared by respective the respondent 4. The loan arrears have been cleared on 8-1-2011, while scrutiny has been undertaken on 10-1-2011. Hence, on the relevant date i.e. last date prescribed for filing of nomination papers, the said respondents were disqualified. Payment after last date does not wipe out the non-eligibility. The situation is considered by me in the judgment reported in the case of Ravi Amrutrao Bagde Vs. Commissioner & others [2006(1) ALL MR 781] (supra). Hence, it is not necessary for me to labour more on this aspect. The opportunity to show that they were not defaulter on the relevant date i.e. 7-1-2011 is already extended to respondent no.4 in the matter. Hence, there is no breach of principles of natural justice.

29. In order to show that a notice of demand was essential, Advocate, Shri. Salunke, had at the fag end of the arguments, invited attention to Bye-law No.60 and Bye-law No.70 of the model bye-laws which govern the affairs of respondent no.3 Society. Bye-law No.60 stipulates that date of repayment of a short term loan extended for crop should be within one year from the date of disbursement. But it should not be during the period when crops are still growing. For mid-term loans, the number of installments is specified to be not more than five annual installments. Bye-law No.70 stipulates that after the expiry of period specified for repayment of loan, if there is no repayment and there is no postponement of recovery, borrower and his guarantor shall be given a notice calling upon them to make repayment within specified time. It state that ultimately proceedings for recovery under Section 101 of the Act of 1960 can be instituted. Thus, this Bye-law No.70 is a mechanism of recovery of loan which is outstanding after due date. Hence, Bye-law No.60 or Bye-law No.70 have no bearing on the issue of "defaulter" or then provisions of Section 73-FF(1)(i) of the Act of 1960. Reliance upon these bye-laws is, therefore, unwarranted. The Hon. Apex Court in the judgment reported at (1991)2 SCC 423, in the case of Pundalik Vs. District Deputy Registrar, Co-operative Societies, Chandrapur and others, has dealt with very provision with which I am concerned here. Hon. Apex Court has held that failure to pay on due date results in default and it continues from day-to-day till the loan is repaid. There the default in repayment of loan prior to coming into force of amended S.73-FF but continuing thereafter & subsisting on the date of election, is held sufficient to vitiate the election. These observations apply even in the present facts. Here the defaults which occurred on 28-5-2010 continued thereafter and were in existence even on 7-1-2011 i.e. the last date prescribed for filing of nomination papers and relevant for the present dispute. This judgment of Hon. Apex Court is also relied upon by the Full Bench of this Court in Narayan Gujabrao Bhoyar Vs. Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha Maryadit & another [2009(6) ALL MR 674 (F.B.)] (supra).

30. The last contention about the scope of interference available to this Court in election matters now need to be considered. Again in the present facts, it is not necessary for this Court to labour more in view of Division Bench judgment of this Court reported at 2006(3) Mh.L.J. 592 : [2006(4) ALL MR 580], in the case of Dalsing s/o. Shamsing Rajput Vs. State of Maharashtra and others. There, the Division Bench has after considering entire case law on the subject, has found that when such interference subserves the election process without disturbing it, the jurisdiction under Article 226 of the Constitution can be exercised. Similar view is taken by Division Bench, in the judgment reported at Mayaraju Ghavghave Vs. Returning Officer - 2004(5) Bom.C.R. 146 : [2004(4) ALL MR 258] to which I am party. There this Court has held that under Article 226 of Constitution, Court is entitled to show indulgence only if it is satisfied that such indulgence would subserve progress of the election or facilitate completion of election and not otherwise and it necessarily shall depend upon facts and circumstances of each case. Where such indulgence accelerates the process of election rather than obstructs it, it will not be covered by the bar of Article 329(b) of Constitution. Here, as already noted above, both the respondent no.4 were aware of their defaults, have attempted to clear the outstanding loan only after last date and are keen on participating in election. Their participation is not countenanced by law. In view of the position emerging, it is apparent that their participation will not further the process of election but shall hamper it.

31. In the result, the petitions are allowed. The orders passed by the Election Officer (Respondent no.2) on 10-1-2011, accepting nomination paper of respective respondent no.4, in both the matters, are quashed and set aside.

32. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs.

33. The learned Assistant Government Pleader shall intimate this order to the respondent no.2, forthwith.

Ordered accordingly.