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2022 Supreme(Bom) 1705
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SANDEEP V. MARNE, J.
Shivaji Bapurao Raut – Appellant
Versus
The Returning Officer, Vividh Karyakari Seva Sahakari Sanstha Marya – Respondent
Writ Petition No.10458, 10460, 10461 of 2022
Decided on : 11-10-2022
Advocate Appeared:
For the Appellant : Mr. Kamlakar J. Suryawanshi
For the Respondent: Mr. V.H. Dighe
The main legal point established in the judgment is that writ petitions challenging any intermediate stage of the election process are not maintainable, and the only remedy available to the aggrieved party is to file an election petition under Section 91 of the Act of 1960 read with Rule 78 of the Rules of 2014, unless the case falls within limited exceptions where the court may entertain a writ petition despite the availability of the election petition remedy.
Headnote:
Election - Rejection of Nomination - Maharashtra Cooperative Societies Act, 1960 - Rule 78 of the Maharashtra Cooperative Societies (Election to Committee) Rules, 2014 - [Section 91 of the Act of 1960, Rule 78 of the Rules of 2014] - The court discussed the maintainability of the writ petition in election matters and held that writ petitions challenging any intermediate stage of the election process are not maintainable, and the only remedy available to the aggrieved party is to file an election petition under Section 91 of the Act of 1960 read with Rule 78 of the Rules of 2014. The court also considered exceptions where writ petitions would be entertained despite the availability of the election petition remedy, such as when the order or action under challenge is patently and demonstrably illegal, or when the alternative remedy is demonstrably inefficacious or the petition asserts a clear violation of the principles of natural justice.
Fact of the Case:
The petitioner challenged the rejection of their objection for acceptance of the nomination of respondent no.3 in the election of respondent no.2 - Society, citing birth certificates issued by Anganwadi Sevika and Gramsevak.
Finding of the Court:
The court found that the writ petitions challenging the rejection of the objection were not maintainable and deserved to be dismissed, as the facts of the case did not warrant interference by the court in exercise of the writ jurisdiction. The court clarified that the observations made in the order are only prima facie and shall not influence the decision in any election petitions that may be filed by the petitioners.
Issues: The main issue was the maintainability of the writ petitions challenging the rejection of the objection for acceptance of the nomination, and the eligibility of respondent no.3 to contest the election.
Ratio Decidendi: The court held that the writ petitions challenging any intermediate stage of the election process are not maintainable, and the only remedy available to the aggrieved party is to file an election petition under Section 91 of the Act of 1960 read with Rule 78 of the Rules of 2014. The court also emphasized that the exceptions for entertaining writ petitions despite the availability of the election petition remedy are limited to cases where the order or action under challenge is patently and demonstrably illegal, or when the alternative remedy is demonstrably inefficacious or the petition asserts a clear violation of the principles of natural justice.
Final Decision: The writ petitions were dismissed without any orders as to costs, and the court discharged the rule. The petitioners were not precluded from filing election petitions under Section 91 of the Act of 1960 read with Rule 78 of the Rules of 2014.
JUDGMENT :
Rule. It is made returnable forthwith. Mr. V.H. Dighe, learned Counsel waives service of notice for the respondent no.1. At the joint request of the learned counsel appearing for the parties, the petitions are heard finally at the admission stage.
2. By these petitions, the petitioners have assailed rejection of their objection for acceptance of nomination of respondent no.3 in each petition for election of respondent no.2 - Society.
3. As the factual matrix in all the three matters is similar, facts in Writ Petition No.10458 of 2022 are discussed for the sake of convenience. The election of the Managing Committee of respondent no.2 - Society has been declared on 27.09.2022. The petitioner as well as respondent no.3 are the members of respondent no.2 - Society. The last date for submission of nomination form was 03.10.2022 and the scrutiny was to be conducted on 04.10.2022.
Respondent no.3 submitted his nomination form to contest the election from general category on 03.10.2022. His nomination was accepted on 06.10.2022 by respondent no.1 - Returning Officer. The petitioner raised objection to the nomination form submitted by respondent no.3 on the ground that he has three children viz. Shivaji born on 11.07.1999, Shalini born on 28.02.2002 and Shivam born on 13.01.2008. In support, the petitioner has relied upon the birth certificates issued by Anganwadi Sevika of village Ardhamasala, Tal. Georai, Dist. Beed. By order dated 06.10.2022, the Returning Officer has rejected the objection of the petitioner on the ground that as per the certificate issued by the Gramsevak, no child has been born after 13.09.2001. The petitioner is questioning the order rejecting his objection in the present petition.
4. At the outset, an objection was raised about maintainability of the petition in view of the judgment of this Court in Dattatray Genaba Lole & Others vs. Divisional Joint Registrar, Cooperative Societies and Others, (2022) 1 Bom CR 471 in which it has been held that writ petitions would not be maintainable challenging any intermediate stage of election process and that the only remedy available to the aggrieved party is to file election petition under Section 91 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the ‘Act of 1960’) read with Rule 78 of the Maharashtra Cooperative Societies (Election to Committee) Rules, 2014 (hereinafter referred to as the ‘Rules of 2014’).
5. Mr. Suryawanshi, the learned counsel for the petitioners submits that in Dattatray Genaba Lole (supra) this Court has carved out certain exceptions where writ petitions would be entertained despite availability of remedy of filing the election petition. He relies upon para - 46 and 79 of the judgment, which read thus :
‘46. The only circumstance in which the Courts would be inclined to interfere in a challenge to an election process at an intermediate stage would be when the order or action under challenge is patently and demonstrably illegal, such as, for example, by applying a non- existent rule or provision to the election process or failing to adhere to a mandatory provision. The intervention in such cases has been explained as enabling or assisting the process of the election rather than thwarting or stalling it. Also, one of the important aspects to consider is the precise stage of the election process and the delay, if any, in the filing of the petition.
79. Whilst coming to the conclusion that we are not inclined to entertain the Writ Petition because of the alternative statutory remedy available to the Petitioners under Section 91 of the Act read with Rule 78, we are conscious of the fact that the rule of alternative remedy as a bar to maintaining a writ petition under Article 226 of the Constitution of India is not absolute. It has been described as a rule of self-limitation or discretion. In certain situations, even if there is an alternative remedy, the Courts may entertain a writ petition under Article 226 of the Const
