( 1 ) RULE. Rule made returnable forthwith. By consent of the parties, taken up for hearing.

( 2 ) THIS petition is directed against the judgment and order passed by the divisional Commissioner, Konkan Division Mumbai in Appeal No. Desk/eln-194 of 2005 dated 14-9-2005.

( 3 ) BRIEF facts necessary for deciding the issue are stated as under : the petitioner contends that the elections to the Managing Committee of maharashtra State Co-operative Milk Mahasangh Limited Mumbai were to be held. According to the election programme, the filing of nomination paper was started from 5-9-2005. The scrutiny was to be held on 8-9-2005. The date of withdrawal of nomination was 23-9-2005 and the polling was scheduled on 11-10-2005. The petitioner - Sow Geeta Shirish Chaudhari filed her nomination paper. Respondent No. 6 - Mahendrasing Nimba Pawar also filed his nomination paper with the Returning Officer - respondent No. 3 herein. The petitioner contends that respondent No. 6 has been held to be disqualified as per the provisions of section 73ff read with section 78 of the Maharashtra Co-operative societies Act, 1960 (hereinafter referred to as "the Act 1960") by the Assistant registrar Co-operative Societies (Dairy), Jalgaon as he was held to be a defaulter on 31-3-2003 for an amount of Rs. 50,550/ -. An order was passed by the assistant Registrar Co-operative Societies (Dairy) Jalgaon on 25-8-2005 disqualifying respondent No. 6 from the Managing Committee of respondent no. 5 - Warkhede (Bk) Dudh Utpadak Co-operative Society Limited Warkhede (Bk), Taluka Chalisgaon, District Jalgaon. It was further contended that the secretary of respondent No. 5 - Society certified that respondent No. 6 had committed default in payment of an amount of Rs. 25,000/- of the goods purchased from the said Society and thus respondent No. 6 is defaulter for the said amount. It is the contention of the petitioner that the Returning Officer, after going through the objection raised by the petitioner and the relevant order and documents produced along with the objection, was pleased to pass order on 9-9-2005 holding that respondent No. 6 is disqualified as he was a defaulter of respondent No. 5 society. It is contended that the Returning Officer has also considered the order passed by the Assistant Registrar Co-operative Societies (Dairy) Jalgaon wherein respondent No. 6 was held to be disqualified by resorting to the provisions of section 73ff of the Act, 1960. Based on these pleadings, the petitioner submitted that respondent No. 6 is disqualified to contest the said election.

( 4 ) THE Returning Officer by an order dated 9-9-2005 rejected the nomination paper of respondent No. 6. Being aggrieved by the rejection of the nomination paper respondent No. 6 preferred an appeal to the Divisional Commissioner konkan Division Mumbai under section 152-A of the Act, 1960. The appeal came to be allowed by the Divisional Commissioner and the order passed by the returning Officer was quashed and set aside. The Returning Officer was directed to take necessary steps to include name of respondent No. 6 in the list of the contesting candidates. This order came to be passed on 14-9-2005. Present writ petition under Article 227 of the Constitution is filed against this order of the divisional Commissioner allowing the appeal of respondent No. 6.

( 5 ) IN response to the notice issued by this Court, the Assistant Returning officer filed affidavit-in-reply on 20-9-2005 and further affidavit-in-reply was filed by the Deputy Collector and the Returning Officer on 6th October, 2005. Respondent No. 6 filed his affidavit-in-reply to the petition to which affidavit-in-rejoinder is filed by the petitioner.

( 6 ) THE learned counsel for the petitioner Shri. Hon submitted that respondent No. 6 was disqualified to contest the election as he had incurred disqualification enumerated under section 73ff of the Act, 1960 and the secretary of respondent No. 5 Society submitted a certificate that respo

Click Here to Read the rest of this document