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IN THE HIGH COURT OF BOMBAY
Ravi Amrutrao Bagde
Versus
Commissioner, Amravati Division, Amravati
Decided On : (October 27, 2005) 2006
Maharashtra Co-operative Societies Act, 1960 - Section 73-FF - Maharashtra Specified Co-operative Societies Election Committee Rules, 1971, Rule 23(5) - Election - Scrutiny of nomination papers - Word ’rebut’ - Rule 23(5) - Rebut means to refute, disprove accusation, to meet in argument - No guarantee that such objection to fully true - It only admits that objection was raised - Granting additional time by Returning Officer to cure disqualification not contemplated by proviso of Rule 23(5) of Rules. - It is apparent that no time has been granted and, therefore, reliance on this provision by respondent No. 4 in defence is misplaced. Even otherwise, the time is to be given to rebut the objection that respondent No. 4 was not disqualified on the date when he submitted his nomination paper or on last date prescribed for submission thereof. Thus curing or removal of disqualification by making amends/payments is not contemplated. The time is given only to show that objection raised is incorrect and the candidate was not disqualified on last date of nomination. Word ’rebut’ means to refuse or to disprove an accusation, to meet in argument or proof, to drive back or to return an answer. To make payment after taking time to rebut would not be showing that the objection raised is either incorrect or false. It would constitute an admission that objection raised was correct. Granting of time by Returning Officer to cure such disqualification is not contemplated by proviso of Rule 23(5) of the Rules.
MAHARASHTRA SPECIFIED CO-OPERATIVE SOCIETIES ELECTION TO COMMITTEE RULES, 1971 - Rule 23(5) Proviso and Maharashtra Co-operative Societies Act (24 of 1961), Section 73-FF - Election - Scrutiny of nomination papers - Grant of time to the candidate to rebut any objection - Does not permit him to take steps to cure the defect discovered during scrutiny. - Scrutiny is of nomination as filed and Rule 23(4) of the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971, only requires that the nomination paper cannot be rejected on defects which are not of substantial nature. Character/ineligibility of candidate as defaulter or otherwise is a defect which is of substantial nature and this is substantiated by requirement of Rule 23(5) which permits candidate time to show that he was not disqualified. Rule 23(5) does not permit candidate to take steps to cure the defect discovered during scrutiny. The time is given only to show that objection raised is incorrect and the candidate was not disqualified on last date of nomination. Word ’rebut’ means to refute or to disprove an accusation, to meet in argument or proof, to drive back or to return an answer. To make payment after taking time to rebut would not be showing that the objection raised is either incorrect or false. It would constitute an admission that objection raised was correct. Granting of time by Returning Officer to cure such disqualification is not contemplated by proviso to Rule 23(5) of the Rules. The respondent No. 4 was disqualified on the last date of filing of nomination paper under Section 73-FF of the Act. Subsequent payment will not cure or wipe out that disqualification which crystallised for the election then scheduled. However, he is not disqualified permanently and in subsequent election if he is not in arrears on the last date of nomination, he can very well contest. The impugned order passed by respondent No. 1 is unsustainable and also without jurisdiction. The same is therefore quashed and set aside. 2003 (2) Mh LJ 485 and 2004 (5) Mh LJ 205 : 2005 (4) All MR 318 - Relied on.
( 1 ) AS per election programme last date of submitting nomination was 9-8-2005, date of scrutiny was 11-8-2005 and date of publication of List of valid nominations was 12-8-2005. Respondent No. 4 submitted three nomination papers in said election from reserved constituency for scheduled castes, scheduled tribes etc. It is his contention that during scrutiny objection was raised that he was defaulter under section 73-FF of Maharashtra co-operative Societies Act and returning officer gave him time of one-day to point out that he is not defaulter and accordingly on 12-8-2005 he produced no due certificate and still his nomination paper came to be rejected. The said error is corrected on 25-8-2005 by Divisional commissioner in appeal under section 152-A of Maharashtra Co-operative Societies Act. The petitioner has approached against this appellate order contending that no such time till 12-8- 2005 was given to said respondent by returning officer and in any case, 09-8-2005 was the last date for filing of nominations and therefore, said respondent has to demonstrate that he was not disqualified on 09-8-2005. Petitioner points out that payment of arrears i. e. amount in default has been made on 12-8-2005 and said payment cannot wipe out the disqualification already incurred. This court has passed interim orders and stayed election only from this constituency as it was found that there was some deliberate mischief to accommodate respondent No. 4 in the matter. It is in this background that the writ petition is taken up for final hearing at the stage of admission itself by consent of parties. Hence, rule is made returnable forthwith.
( 2 ) I have heard Advocate Naik for petitioner, Advocate Kaptan for respondent no. 4 and learned AGP Adv. Thakre for respondent Nos. 1, 2 and 3.
( 3 ) AFTER pointing out the facts in brief as stated above, advocate Naik has raised two points for attaching the impugned appellate order :-" (1 ). Last date of nomination i. e. 9-8-2005 is the relevant date for finding out whether respondent No. 4 was qualified or not. Subsequent payment by him either on 11-8-2005 or 12-8-2005 is not relevant and does not save the situation for him. The appellate order passed by Divisional Commissioner is therefore without jurisdiction. (2 ). Returning officer (respondent No. 2) did not grant any time to respondent No. 4 on 11-8-2005 and all his nomination papers were rejected on 11-8-2005. No nomination paper has been rejected on 12-8-2005. "
( 4 ) TAKING the second point first, learned advocate for petitioner invites attention to affidavit reply filed by respondent No. 2 returning officer in which he has expressly stated that he rejected all three nomination papers of respondent No. 4 on 11-8-2005 and he did not grant time to anybody, including respondent No. 4 till 12-8-2005 to remove the disqualification. He states that respondent No. 4 did not request for grant of such time at all. He has also pointed out that returning officer has maintained a register in which he has kept details of candidates to whom time was given and in it name of respondent number 4 does not figure. Advocate Naik points out the List of valid nominations was published at 3 PM on 12-8- 2005 while respondent No. 4 submitted no due certificate to returning officer at 3. 25 PM on that day. He points out that these events are apparent from record and there is no scoring or overwriting to cast any doubt about it. He states that Divisional Commissioner in his affidavit before this court has stated that while considering/hearing appeal of respondent No. 4 he made oral inquiry and Assistant Returning officer disclosed in open court before divisional Commissioner that he (assistant returning officer) granted time till 12-8-2005 to respondent No. 4. He states that Divisional commissioner while acting as appellant authority is supposed to act on basis of records of returning officer and not on the basis of some oral information de hors the record. In an
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