Writ Petition No.2683 of 2011,Writ Petition No.2684 of 2011,Writ Petition No.2695 of 2011,Writ Petition No.2680 of 2011

19th April, 2011

Petitioner Counsel: Mr. V. D. SALUNKE
Respondent Counsel: Mr. N. B. KHANDARE,Mr. S. K. TAMBE,Mr. G. V. PATIL

Cases Cited:
Mohinder Singh Gill Vs. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 [Para 3]
Yeshwant Khashaba Dubal Vs. Krishna Sahakari Sakhar Karkhana Maryadit, 1989 C.T.J. 325 [Para 4,8]
Purushottam Yashwant Patil Vs. State of Maharashtra, 2002(2) ALL MR 829=2002(1) Mah.L.R. 377 [Para 8]
Sambha Vs. State of Maharashtra, 1996 C.T.J. 226 [Para 8]

JUDGMENT

JUDGMENT:- Heard Advocate Mr. Salunke for petitioner, learned A.G.P. for respondent nos.2 and 3 and Advocate Mr. G.V. Patil for respondent 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 the judgment of the Hon'ble Apex Court reported at "AIR 1978 SC 851"- Mohinder Singh Gill and another Vs. 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 Vs. 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.

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, 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 Vs. 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 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" : [2002(2) ALL MR 829] - Purushottam Yashwant Patil and others Vs. State of Maharashtra and others or then "1996 C.T.J. 226"- Sambha Vs. 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 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 Bye-law 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 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 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 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.

Petition allowed.