Bombay High Court
Murlidhar Rangrao Gaikwad vs State Coopertive Election Authority … on 2 April, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:15083
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4072 OF 2025
ATUL Murlidhar Rangrao Gaikwad,
GANESH
KULKARNI Age 69 years, Occupation Agriculture
Digitally signed
by ATUL GANESH
KULKARNI
residing at Vathar Kiroli,
Date: 2025.04.02
14:23:47 +0530 Taluka Koregaon, District Satara ... Petitioner
V/s.
State Co-operative Election Authority,
Maharashtra, through it's
Chief Executive Officer, having its
office at Mantralaya Extension,
Madam Cama Road, Mumbai 400 032
& others ... Respondents
Mr. S.S. Patwardhan with Ms. Mrinal A. Shelar for the
petitioner.
Mr. Deelip Patil Bankar, Senior Advocate i/by Dilip
Bodke with Ms. Pooja Deelip Patil for respondent
Nos.1, 2, & 3.
Ms. Savita A. Prabhune, AGP for the State.
Mr. Girish S. Godbole, Senior Advocate with Mr.
Shailendra Kanetkar i/by Mr. Shivraj Patne for
respondent No.5.
CORAM : AMIT BORKAR, J.
RESERVED ON : APRIL 1, 2025
PRONOUNCED ON : APRIL 2 , 2025
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JUDGMENT:
1. By way of the present Writ Petition preferred under Article
227 of the Constitution of India, the petitioner has assailed the
legality, validity, and propriety of the order dated 17th March 2025
passed by respondent No.2 in Appeal No.12 of 2025, whereby the
said authority, in exercise of its appellate jurisdiction conferred
under Section 152A of the Maharashtra Cooperative Societies Act,
1960 (for short, “the MCS Act“), has been pleased to allow the
appeal preferred by respondent No.5. The said appeal had been
preferred by respondent No.5 assailing the rejection of his
nomination for election to the Managing Committee of respondent
No.3-Society, inter alia, on the ground that as on the date of
scrutiny of nominations, i.e., 6th March 2025, respondent No.5
stood as a defaulter of a cooperative bank and was, therefore,
disqualified to contest the said election.
2. The factual matrix giving rise to the filing of the present
petition is succinctly set out hereunder:
Respondent No.1, in its capacity as the competent authority,
published an election programme for conducting the election
to the Managing Committee of respondent No.4-Society. As
per the said programme, the last date for filing nomination
papers was fixed as 5th March 2025; the scrutiny of
nomination papers was scheduled for 6th March 2025, and
the final list of validly nominated candidates was to be
published on 7th March 2025.
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3. In pursuance of the said election programme, both the
petitioner and respondent No.5 submitted their respective
nomination papers for contesting the election to the Managing
Committee of respondent No.4. However, the petitioner raised an
objection to the nomination of respondent No.5, contending that
respondent No.5 was disqualified from contesting the election as
he was a defaulter in respect of a loan obtained from Karad Urban
Cooperative Bank. The said objection was lodged by the petitioner
on 6th March 2025, i.e., the date of scrutiny. In response to the
said objection, respondent No.5 submitted a written reply, inter
alia contending that the objection was politically motivated; that
reliance placed upon a newspaper report to establish default was
untenable in law; and that the petitioner had failed to produce any
certificate of default from the Karad Urban Cooperative Bank or
any notice issued by the said Bank calling upon respondent No.5 to
repay the outstanding dues. It was the specific case of respondent
No.5 that he was not a defaulter and hence, not disqualified from
contesting the election.
4. Upon considering the objection raised by the petitioner as
well as the reply submitted by respondent No.5, and after
affording an opportunity of hearing to both parties, respondent
No.3, by a reasoned order dated 6th March 2025, upheld the
objection raised by the petitioner and rejected the nomination of
respondent No.5. The said decision was founded upon the
proceedings initiated by Karad Urban Cooperative Bank under the
provisions of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (for short,
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“the SARFAESI Act“).
5. Aggrieved by the rejection of his nomination, respondent
No.5 preferred an appeal under Section 152A of the MCS Act on
10th March 2025. The petitioner entered appearance in the said
appeal and filed a reply opposing the same. Respondent No.2,
upon hearing both sides and considering the material on record,
was pleased to allow the said appeal by order dated 17th March
2025. In doing so, respondent No.2 observed that reliance placed
on the newspaper publication regarding initiation of proceedings
under the SARFAESI Act could not be treated as admissible
evidence. Further, respondent No.2 found that no documentary
material had been placed on record to establish that any notice
had been issued by Karad Urban Cooperative Bank to respondent
No.5 for recovery of any outstanding dues. Consequently, the
appellate authority set aside the order of rejection and allowed the
nomination of respondent No.5. It is in this backdrop that the
petitioner has approached this Court by filing the present writ
petition.
6. This Court, by order dated 21 March 2025, was pleased to
issue notice for final disposal of the petition to all the respondents,
making it returnable on 25 March 2025. In addition to the
petitioner’s independent efforts to effect service on the
respondents, this Court directed respondent No.3 – the Returning
Officer – to ensure that service of notice was effected upon all the
respondents. In compliance with the said direction, respondent
No.3 has filed an affidavit on record, affirming that on the date
fixed for withdrawal of nomination papers, he had served the
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notice of the present writ petition upon the candidates who were
present on that day at the election office. Additionally, it is stated
in the said affidavit that a public notice regarding pendency of the
present proceedings was also published in a widely circulated local
newspaper, thereby ensuring wider dissemination of information
about the proceedings.
7. On 25 March 2025, respondent No.5 appeared through his
Advocate, and at the joint request of the parties, the matter was
directed to be placed on 26 March 2025. On the said date, the
learned Advocate for the petitioner tendered on record an affidavit
of service, inter alia indicating that private service of the writ
petition had been effected on all respondents through electronic
means, including messaging applications such as WhatsApp.
Furthermore, respondent No.3, the Returning Officer, also
produced a copy of the newspaper publication evidencing issuance
of a public notice informing all contesting candidates about the
pendency of the present writ petition.
8. On 1st April 2025 the petitioner filed an affidavit stating
that, in compliance with the directions of this Court, another
public notice came to be published in two leading daily
newspapers, having the widest circulation in the area wherein
respondent No.4 is operating. The petitioner has further averred
that, in addition to the publication of the public notice, the local
advocate representing the petitioner caused transmission of
individual notices to the concerned respondents through the
electronic messaging platform, namely WhatsApp. In support of
such service, the petitioner has placed on record printed
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screenshots of the messages so transmitted, which are annexed
and marked as Exhibit-‘D’ to the said affidavit. Furthermore, the
petitioner has also annexed at Exhibit-‘E’ copies evidencing the
physical delivery of notice to certain respondents, thereby
indicating compliance with the requirement of effecting service by
physical mode as well.
9. It was submitted that, given the fact that the total number of
respondents exceeds 200, personal service through court process
on each respondent within the limited time available was not
practicable. Considering the nature of the issue involved, which
pertains to the acceptance of a nomination paper and the
consequential impact on the electoral process, and in view of the
urgency arising from the schedule of voting fixed on 5 April 2025,
it becomes imperative that the matter be adjudicated on merits
prior to the conduct of voting.
10. This Court is satisfied that all reasonable and diligent steps
have been taken to bring the pendency of the present petition to
the notice of the concerned respondents. The record discloses that
the petitioner has published notice of the writ petition on two
occasions in a local newspaper, and the Returning Officer has
separately caused publication of a notice once, in addition to direct
service effected by the petitioner through electronic means, as
evidenced by the affidavit filed on record.
11. In light of the above, and having regard to the urgency of the
matter, the limited time available before the scheduled date of
polling, and the efforts undertaken both by the petitioner and the
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Returning Officer to ensure wide circulation of notice, this Court is
satisfied that due service of notice of final disposal has been
effected on most of the respondents.
12. Mr. Patwardhan, the learned advocate appearing for the
petitioner, invited the attention of this Court to the provisions of
Rule 8 of the Security Interest (Enforcement) Rules, 2002 and
submitted that the proviso to sub-rule (6) of Rule 8 mandates
publication of an auction notice in two local newspapers, where
action is initiated under Section 13(4) of the SARFAESI Act against
a defaulter. He submitted that such notice, issued by Karad Urban
Cooperative Bank, was duly published in the local newspaper and
the original copy of the said publication was placed before the
Returning Officer at the time of scrutiny of nominations.
Additionally, the learned advocate submitted that a certificate
issued by the said Bank declaring respondent No.5 to be a
defaulter was also produced before the Appellate Authority.
However, the said Authority, for reasons best known to it, refused
to consider or attach any evidentiary value to the said certificate.
Reliance was placed on the judgment of this Court in Jagdish Labu
Badhe v. State Cooperative Election Authority & Ors., reported in
(2001) 1 HCC (Bom) 90, wherein a Coordinate Bench had held
that where a certificate issued by a society indicates eligibility or
qualification under its bye-laws, such documentary material is
relevant and can be relied upon for determining eligibility of a
candidate.
13. The learned counsel further drew attention to the reasoning
assigned by the Appellate Authority while allowing the appeal
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preferred by respondent No.5. He submitted that the Appellate
Authority proceeded on an erroneous premise that the petitioner
had failed to produce cogent and admissible evidence to establish
that respondent No.5 was a defaulter of the concerned Cooperative
Bank, or that any notice was issued by the said Bank to respondent
No.5 for recovery of dues. The Appellate Authority further
observed that the certificate issued by the Bank dated 1st March
2025 did not spell out any particulars evidencing default on the
part of respondent No.5. In support of such findings, the Appellate
Authority placed reliance on the decisions of this Court in Kerbaji
Maroti Rao Shinde v. State of Maharashtra & Ors. , 1988 Mh.L.J.
157 and Keshavrao Narayanrao Patil v. District Deputy Registrar,
Cooperative Societies, Akola & Ors., 1987 Mh.L.J. 709, wherein it
was held that unless a person’s disqualification is adjudicated upon
by a competent authority, such person cannot be deemed
ineligible.
14. Refuting the said line of reasoning, the learned advocate for
the petitioner placed reliance on the authoritative pronouncement
of the Full Bench of this Court in Narayan Gujabrao Bhoyar v.
Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha
Maryadit, Yeotmal & Anr., reported in 2009 (6) Mh.L.J. 500. It was
contended that the said Full Bench decision had overruled the
earlier view taken in Keshavrao Patil (supra), and held that the
provisions of Sections 73FF and 78 of the MCS Act operate
independently in their respective spheres. The Full Bench
categorically held that a declaration of default under Section
73FF(1) can be made by a society or the competent authority after
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following the principles of natural justice, including issuance of a
show-cause notice to the concerned member. Furthermore, the
invocation of Section 78(1) for removal of a member is not a sine
qua non for attracting disqualification under Section 73FF(2).
15. The learned counsel also referred to the findings recorded by
the Returning Officer while rejecting the nomination of respondent
No.5. It was submitted that the Returning Officer, upon perusal of
the original newspaper notice produced before him, had rightly
come to the conclusion that Karad Urban Cooperative Bank had
initiated proceedings under the SARFAESI Act against respondent
No.5. The Returning Officer was of the view that publication of
such notice in a widely circulated local daily was sufficient
compliance of the requirement for determining default. It was
further submitted that respondent No.5 did not dispute the
existence or legality of such publication or the proceedings
initiated by the said Bank. Thus, the Returning Officer, after due
application of mind and upon considering the relevant material,
rejected the nomination of respondent No.5 on justifiable grounds.
16. The learned Advocate for the petitioner placed reliance on
the authoritative pronouncement of the Hon’ble Supreme Court in
Jyoti Basu and Others v. Debi Ghosal and Others , reported in
(1982) 1 SCC 691, wherein the Apex Court has categorically held
that the right to elect, the right to be elected, and the right to
dispute an election are not fundamental rights nor common law
rights, but are purely statutory rights. It was further observed by
the Hon’ble Supreme Court that outside the provisions of the
statute, there exists no inherent right to contest an election or to
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challenge its outcome. Inviting attention to the provisions of
Section 82 of the Representation of People Act, 1951, learned
counsel submitted that where a petitioner seeks not only to have
the election of the returned candidate declared void but also seeks
a declaration that he himself be declared elected, it is mandatory
to implead all the contesting candidates as parties to the election
petition. The Hon’ble Supreme Court, while interpreting Sections
82 and 86(4), held that the concept of ‘proper parties’ is foreign to
election disputes under the Representation of People Act, 1951,
and only those persons enumerated in the said provisions may be
joined as respondents. It was further held that the provisions of the
Code of Civil Procedure, 1908, are not wholly applicable to such
election disputes. Drawing a parallel with Section 36 of the
Representation of People Act, 1951, learned counsel submitted that
Rule 25 of the Maharashtra Cooperative Societies (Election to
Committee) Rules, 2014 is pari materia, which mandates that
objections to the validity of nomination papers must be raised at
the time of scrutiny. It was, therefore, submitted that only an
objector who raises an objection at the time of scrutiny, resulting in
rejection of a candidate’s nomination, can be treated as a
necessary party in an appeal arising therefrom; no other person
qualifies as a necessary party. In support of his contention that it is
not mandatory to implead all contesting candidates in an appeal
under Section 152A of the Maharashtra Cooperative Societies Act,
1960, the learned counsel placed reliance on the judgment of this
Court in Asarm Patilba Gorde v. State of Maharashtra & Ors.,
reported in 1997 (2) Mh.L.J. 860. In the said decision, a
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Coordinate Bench of this Court specifically negatived the
contention that non-joinder of all contesting candidates renders
such an appeal untenable.
17. Further reliance was placed on the decision of this Court in
Madhav Atmaram Sahakari v. Aselmo Furtado and Others ,
reported in 2018 (2) Mh.L.J. 258, wherein the Coordinate Bench
repelled the plea of non-joinder of necessary parties. It was
observed in that case that no provision had been pointed out
which mandates the impleadment of other candidates whose
nomination papers were rejected by the Returning Officer. The
Court held that in absence of any such statutory requirement, the
objection based on non-joinder could not be sustained and,
accordingly, rejected the same.
18. The learned counsel then invited this Court’s attention to the
provisions of Section 152 (A) of the Maharashtra Cooperative
Societies Act, 1960, to contend that the said provision does not
stipulate or prescribe the nature of parties who must be impleaded
in an appeal filed under Section 152A. He, therefore, submitted
that in the absence of any express statutory mandate, a
requirement to implead other candidates cannot be read into the
provision by implication, especially in matters concerning rejection
of nomination papers. According to him, in such cases, the only
necessary parties are the objector and the candidate whose
nomination is rejected.
19. On the aspect of judicial interference at the interlocutory
stage of the election process, learned counsel placed reliance on
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the judgment of the Division Bench of this Court in Pandurang
Hindurao Patil v. State of Maharashtra and Others , reported in
2023 (3) Mh.L.J. 95. In the said decision, the Division Bench, after
considering the celebrated judgments of the Hon’ble Supreme
Court in N.P. Ponnuswami v. Returning Officer [(1952) 3 SCR 218]
and N.B. Khare v. Election Commission [1957 13 ELR 112], held
that while ordinarily the election process must not be interfered
with by the High Court under Article 226 of the Constitution of
India, an exception can be carved out where the decision of the
Returning Officer is manifestly erroneous, patently illegal, or
suffers from jurisdictional error. In such circumstances, it would be
wholly unjust to require the aggrieved person to wait until the
culmination of the election process and thereafter initiate an
election dispute under Section 91 of the MCS Act, which is a time-
consuming and cumbersome remedy. It was observed that the High
Court cannot abdicate its constitutional jurisdiction under Article
226 in appropriate cases where grave illegality or violation of
fundamental principles of election law is demonstrated.
20. The learned counsel further placed reliance on another
decision of the Division Bench of this Court in Chandrakant
Mahadev Patole & Anr. v. State of Maharashtra & Ors. , reported in
2009 SCC OnLine Bom 2486 : (2010) 1 AIR Bom R 427, wherein
similar principles as laid down in Pandurang Hindurao Patil
(supra) were reiterated. He also relied on the Division Bench
decisions in Dattatray Genaba Lole & Ors. v. Divisional Joint
Registrar & Ors., reported in 2022 (1) Bom.C.R. 471; Vaibhav
Manohar Bhokare v. State Cooperative Election Authority, Pune &
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Ors., reported in 2023 (3) Mh.L.J. 95; and Mohd. Tallib v. Dr. A.S.
Kuchewar, reported in 2007 (4) Mh.L.J. 557. He submitted that
these decisions uniformly recognize that in cases of patent
illegality or jurisdictional error in the election process, this Court is
not rendered powerless and may exercise its extraordinary writ
jurisdiction to remedy the manifest injustice. He, therefore, urged
that in the present case, since the order passed by the Appellate
Authority is based on an erroneous appreciation of law and ignores
relevant material placed on record, this Court ought to exercise its
writ jurisdiction and quash the impugned order.
21. Per contra, Shri Godbole, the learned Senior Advocate
appearing on behalf of respondent No.5, has strenuously opposed
the maintainability of the present writ petition as framed and filed,
inter alia, on the ground of non-joinder of necessary parties.
Inviting the attention of this Court to an unreported judgment of a
Division Bench in the case of Tukaram Hari Khamkar v. Shree
Bharat Urban Co-operative Bank Ltd. & Ors. (Writ Petition
No.2614 of 1982 and connected matters), the learned Senior
Advocate submitted that the Division Bench has categorically held
that in an appeal preferred under Section 152A of the Maharashtra
Cooperative Societies Act, 1960, all candidates whose nomination
papers have been accepted and whose rights may be affected by
the outcome of the appeal are necessary parties.
22. He further placed reliance on the judgment of a Coordinate
Bench of this Court in Vijaysingh Krishnarao Parbat v. Returning
Officer, Janata Sahakari Bank Ltd. & Ors., reported in 2003 (2)
Mh.L.J. 485, wherein it was observed that all contesting
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candidates must be made parties to an appeal or challenge in
election matters, since the outcome of such litigation may directly
affect their rights and interest. In support of this proposition, he
also relied upon the unreported decisions of this Court in Ugustion
Mascarenhas v. State of Goa & Anr. (Writ Petition No.2 of 2012,
decided on 12 January 2023), and Nashik District Labour Contract
Co-operative Societies Federation Ltd. v. Bhimrao Kondaji Jejure &
Ors. (Writ Petition No.5218 of 2005, decided on 30 August 2010),
to contend that unless all the contesting candidates are made
parties to the election dispute or appeal, no effective and binding
relief can be granted.
23. It was submitted that in the present case, certain candidates
whose nominations were found valid have subsequently
withdrawn from the election process, and if the impugned order is
interfered with at this stage, it may adversely affect the rights of
such candidates who acted upon the list of validly nominated
candidates. Shri Godbole submitted that the election is being
conducted from multiple constituencies and respondent No.5 is
contesting from a specific constituency, namely, the “Individual
Sugarcane Purchasers” panel. Any interference with the acceptance
of his nomination would disturb the composition and equilibrium
of candidates representing that constituency, thereby prejudicing
the interests of other panel members who are not before the Court.
24. The learned Senior Advocate further submitted that the
candidates who have withdrawn their nominations did so based on
the final list of validly nominated candidates. At this belated stage,
any reversal of the nomination acceptance would not only affect
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the settled rights of such withdrawn candidates but may also
render the entire election process vulnerable to challenge. He
submitted that the only remaining stage of the electoral process is
the casting of votes, and it would be inequitable and legally
impermissible to derail the election at this advanced stage.
25. It was further contended that the law recognizes a material
distinction between the rejection of a nomination paper and
acceptance thereof. While rejection of nomination is viewed as a
substantial denial of a candidate’s right to contest and hence
subject to immediate judicial scrutiny, acceptance of a nomination
–even if irregular–is considered curable and can be challenged
only by way of an election petition.
26. Referring to the SARFAESI Act, the learned Senior Advocate
contended that reliance on a newspaper publication to declare a
person a defaulter is legally unsustainable, particularly since there
exists a possibility of rival candidates orchestrating such
publications to disqualify competitors. He pointed out that the
scheme of the SARFAESI Act permits a secured creditor to initiate
proceedings under Section 13 thereof even in cases where default
is disputed, and hence such initiation alone cannot conclusively
establish that a person is a defaulter.
27. It was submitted that unless there exists cogent and
conclusive proof of default, such as a certificate under Section 101
or an award under Section 91 of the MCS Act, a candidate cannot
be disqualified merely on the basis of newspaper publication. In
this regard, the learned Senior Advocate placed reliance on the
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following decisions to assert that this Court has consistently held
that interference in the election process must be exercised
sparingly and only in cases of exceptional illegality:
28. i) Nashik District Labour Contract Co-operative
Societies Federation Ltd. v. Shri Bhimrao Kondaji Jejure &
Ors., Writ Petition No.5218 of 2005, decided on 30th August
2010;
ii) Avinash Tukaram Patil v. Returning Officer, Kolhapur Zilla
Sahakari Dudh Utpadak Sangh Maryadit Kolhapur (Gokul) &
Ors., 2015 SCC OnLine Bom 5388;
iii) Karmaveer Tulshiram Autade & Ors. v. State Election
Commission & Ors., AIR 2021 Bom 90;
iv) Sarjerao Dinkarrao Mane v. Returning Officer, Shri
Chatrapati Rajaram Sahakari Sakhar Karkhana & Ors. , Writ
Petition No.5228 of 2023, decided on 12th April 2023;
v) Shaji K. Joseph v. V. Viswanath & Ors. , Civil Appeal
No.1629 of 2016 (arising out of SLP (C) No.22902 of 2011),
decided on 22nd February 2016.
29. On the basis of the above submissions, Shri Godbole
contended that the present writ petition suffers from non-joinder
of necessary parties, and that all contesting candidates–especially
those whose interests are likely to be affected–have not been
served. Therefore, no final relief can be granted in the present
proceedings. He submitted that the prayer for interim stay of the
impugned order amounts, in substance and effect, to grant of final
relief, and would thereby constitute direct interference in the
ongoing election process. On this ground as well, he prayed for
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dismissal of the writ petition.
30. Shri Bankar, the learned Advocate appearing on behalf of
respondent Nos.1 to 3, placed reliance on the judgment of the
Division Bench of this Court in Pandurang Laxman Kadam &
Others v. State of Maharashtra & Ors. , reported in (2016) 1 ABR
336, to buttress the submission that the statutory remedy provided
under Section 91 of the Maharashtra Cooperative Societies Act,
1960 is comprehensive and efficacious for redressal of grievances
arising out of the election process. Referring to the said decision,
the learned Advocate submitted that the Division Bench has
categorically held that an election dispute under Section 91
encompasses all facets of the election process, including but not
limited to the wrongful acceptance or rejection of nomination
papers.
31. It was further submitted that the Division Bench, while
interpreting the scheme of Chapter XI of the MCS Act, observed
that once the election process has commenced and reaches an
advanced stage, such as after publication of final list of validly
nominated candidates, it would not be appropriate for the writ
court to exercise its extraordinary jurisdiction under Article 226 or
supervisory jurisdiction under Article 227 of the Constitution of
India so as to interrupt or stall the democratic process of election.
Any irregularity or illegality in the acceptance or rejection of
nomination papers, according to the said decision, is amenable to
challenge by way of an election petition under Section 91, wherein
all relevant issues can be adjudicated upon by leading both oral
and documentary evidence.
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32. Shri Bankar, therefore, urged that the petitioner, if aggrieved
by the order passed by the appellate authority under Section 152A
of the MCS Act or by the acceptance of nomination of any
candidate, is not without a remedy and can avail of the statutory
recourse under Section 91 of the Act after the conclusion of the
election. He submitted that entertaining the present writ petition
at this stage would amount to permitting pre-election interference
in contravention of the well-settled legal position laid down by this
Court and the Hon’ble Supreme Court in a catena of decisions.
Accordingly, it was submitted that the writ petition is not
maintainable and deserves to be dismissed on this ground alone.
33. The rival submissions of the learned counsel appearing for
the respective parties now fall for determination. The central
question which arises for consideration in the present proceedings
is whether the impugned order dated 17 March 2025 passed by
the Appellate Authority under Section 152A of the MCS Act suffers
from illegality or perversity so as to warrant interference in the
limited supervisory jurisdiction of this Court under Article 227 of
the Constitution of India.
34. With the assistance of the learned advocates for the parties,
this Court has perused the documents placed on record,
particularly those annexed to the writ petition and produced
during the course of hearing. It is an admitted position on record
that the list of validly nominated candidates for the election to the
Managing Committee of respondent No.4-Society was published
on 24 March 2025 and the election is scheduled to take place on 5
April 2025.
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35. It is, therefore, imperative to first consider whether
respondent No.5 was a “defaulter” within the meaning of Section
73CA of the MCS Act as on the date of scrutiny of nominations.
Section 73CA(1) of the MCS Act lays down that a person shall be
ineligible to be elected, nominated or appointed as a member of
the committee of a society if he is a “defaulter” of any society. The
explanation appended to the said sub-section clarifies that the
term “defaulter” includes defaults committed in respect of any
society, including a term lending cooperative society. It further
states that a person who has failed to repay the installment of a
loan as per the terms and conditions agreed upon would fall
within the ambit of a “defaulter”.
36. It is not in dispute that Karad Urban Cooperative Bank is a
cooperative society registered under the MCS Act. The record
indicates that the petitioner, while raising objection to the
nomination of respondent No.5, had produced before the
Returning Officer an original newspaper publication issued under
Rule 8(6) of the Security Interest (Enforcement) Rules, 2002, read
with Section 13(4) of the SARFAESI Act. The said notice
unequivocally named respondent No.5 as a defaulter and declared
that the secured creditor had taken possession of the mortgaged
property on 14 July 2023. The publication further disclosed that
the upset price of the mortgaged property was fixed at
₹2,02,50,000/- and the auction was scheduled to be conducted on
17 March 2024. The most significant aspect of the notice is the
statement of arrears as on 26 February 2025. It records that the
dues under one loan account stood at ₹10,91,904/- plus interest,
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and the total arrears amounted to ₹6,52,52,922.68/-.
37. On the date of scrutiny, i.e., 6 March 2025, the petitioner
filed a specific objection before the Returning Officer asserting that
respondent No.5 had defaulted in repayment of multiple loans
availed from Karad Urban Cooperative Bank, and that recovery
proceedings under the SARFAESI Act had been initiated due to
persistent default, thereby rendering respondent No.5 disqualified
under Section 73CA.
38. In response, the reply filed by respondent No.5 is noticeably
vague and evasive. Other than making a bare denial that he is not
a defaulter and is not disqualified under Section 73CA, respondent
No.5 failed to furnish any material particulars as to whether he
had availed the loan in question, whether the loan was repaid in
full, or if the notice published in the newspaper was unauthorized
or fabricated. The absence of specific rebuttal lends credence to
the objection raised by the petitioner.
39. Thus, the documents on record, including the SARFAESI
notice issued under Rule 8(6), prima facie establish that
respondent No.5 was in default of significant sums owed to a
cooperative society. Consequently, his disqualification under
Section 73CA(1) of the MCS Act was squarely attracted.
40. It is further necessary to examine the legal correctness of the
reliance placed by the Appellate Authority on the decisions in
Kerabaji Maroti Rao Shinde (supra) and Keshavrao Narayanrao
Patil (supra). A perusal of the impugned order indicates that the
Appellate Authority, while allowing the appeal filed by respondent
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No.5, has drawn support from the ratio laid down in the
aforementioned judgments to hold that unless the disqualification
of a candidate is determined by a competent authority through a
formal adjudication, such person cannot be held to be ineligible for
contesting elections.
41. However, this reasoning of the Appellate Authority does not
withstand judicial scrutiny in light of the authoritative
pronouncement of the Full Bench of this Court in Narayan
Gujabrao Bhoyar (supra). In the said decision, the Full Bench was
specifically called upon to consider the interplay between Section
73FF and Section 78 of the Maharashtra Cooperative Societies Act,
1960, and whether invocation of Section 78 is a precondition for
attracting the disqualification under Section 73FF(2). Upon an
exhaustive consideration of the statutory framework and the
previous precedents, including Keshavrao Patil (supra), the Full
Bench categorically held that the provisions of Sections 73FF and
78 operate in distinct and independent spheres, and that the
declaration of default under Section 73FF(1) is not contingent
upon prior removal under Section 78(1). The Court observed that
disqualification under Section 73FF(2) for ceasing to be a member
of the committee follows upon the failure to repay dues to a
society despite issuance of a show-cause notice, and such cessation
does not depend upon adjudication or removal proceedings under
Section 78. The Full Bench, after overruling Keshavrao Patil and
judgments following it, including Kerabaji Shinde, held that
reading an additional requirement of formal adjudication into
Section 73FF would undermine the legislative intent of providing
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automatic cessation in cases of financial default. The judgment
clarified that the disqualification under Section 73FF is self-
operative upon compliance with the principles of natural justice,
namely, the issuance of a show-cause notice. Therefore, the
reliance placed by the Appellate Authority on Kerabaji and
Keshavrao–both of which have been specifically overruled by the
Full Bench in Narayan Gujabrao Bhoyar–is clearly misconceived
and legally untenable. Once a binding Full Bench judgment
declares the law on a subject, it is incumbent upon all subordinate
forums and authorities to follow the law so laid down. The
principle of judicial discipline demands that where a coordinate or
larger Bench has settled the position, the same ought to be given
effect to without deviation. Thus, the Appellate Authority, by
overlooking the ratio of the Full Bench in Narayan Gujabrao
Bhoyar and by relying upon decisions which stand impliedly and
expressly overruled, has committed a serious error apparent on the
face of the record, warranting interference in exercise of
supervisory jurisdiction.
42. Therefore, prima facie, this Court is of the considered view
that respondent No.5 appears to fall within the category of
“defaulter” as defined under Section 73CA of the Maharashtra
Cooperative Societies Act, 1960, on the date of scrutiny of
nomination papers. The material placed on record, including the
statutory notice issued under the SARFAESI Act and the absence of
a cogent rebuttal from respondent No.5, collectively support such
a conclusion at this stage.
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43. Additionally, the petitioner produced before the Appellate
Authority a certificate issued by Karad Urban Cooperative Bank
dated 12 March 2025, which explicitly states that respondent No.5
had availed a term loan of ₹3.50 crores on 13 February 2015 with
a repayment term up to 31 March 2019. The certificate records
that the outstanding dues against this loan alone, as on 12 March
2025, exceeded ₹6.06 crores. It is further revealed that respondent
No.5 had obtained five different loans from the said bank, and
although a payment of ₹50 lakhs was made on 7 March 2025, the
total dues remained substantial and stood at ₹7.29 crores as of 12
March 2025. However it is necessary to adjudicate whether it is
legally permissible for a person to place new documents on record
in an appeal under Section 152A of the Act to prove a candidate’s
eligibility or ineligibility.
44. The Maharashtra Cooperative Societies Act, 1960, lays down
a clear legal framework for dealing with objections to nomination
papers during elections to cooperative societies. While Section
152A of the Act provides for a limited right of appeal against the
decision of the Returning Officer who rejects a nomination paper,
Section 91 gives a broader remedy of filing an election petition
before the Cooperative Court. Section 152A offers only a limited
and summary remedy. The appellate authority under this provision
does not re-examine the full facts or conduct a fresh inquiry. Its job
is only to check whether the Returning Officer followed the correct
legal process, acted reasonably, and did not violate any rules of
natural justice. This type of limited scrutiny may be called limited
appellate review, where the court or authority checks the process
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followed, not the merits of the decision.
45. It is well settled that in some rare cases, a serious factual
error that affects the fairness of the process may also be reviewed.
However, this does not mean that new documents or evidence can
be introduced during the appeal under Section 152A. Limited
appellate review is meant to supervise whether legal powers were
used correctly — it is not a full-scale appeal on facts. Therefore,
allowing new evidence would go beyond the legal limits of this
summary appeal.
46. The Act has made a clear distinction between two types of
legal remedies:
Section 152A is meant for a summary appeal — a quick and
focused examination of the Returning Officer’s decision, only
on legal and procedural grounds.
Section 91, on the other hand, allows for a detailed election
petition where full evidence can be led, witnesses can be
examined, and questions like a candidate’s eligibility or other
issues affecting the election can be properly investigated.
47. If new documents are allowed to be brought in during an
appeal under Section 152A, it would upset the entire scheme of
the Act. A simple and quick appeal would turn into a full trial,
something which the legislature never intended. The law has given
Section 91 as the correct forum for such detailed inquiries.
Ignoring that would amount to bypassing the legal process.
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48. In general legal practice, courts do not allow new documents
or evidence to be filed at the appellate stage unless it is clearly
shown that such evidence could not be discovered earlier, even
with due care. This principle has been followed even in civil cases
under Order XLI Rule 27 of the Civil Procedure Code. Even when
courts do allow new evidence at the appellate stage, they do so in
rare and exceptional situations. This is because the first forum —
in this case, the Returning Officer — is considered the proper
authority to look at the facts first.
49. There is no provision in Section 152A which allows the
appellate authority to take on record new documents that were not
before the Returning Officer. Allowing this would not only reduce
the Returning Officer’s role to a mere formality but would also
delay the decision of appeal, which is supposed to be completed in
ten days period. The courts have time and again emphasised the
importance of timely elections. Permitting new evidence at this
stage would also cause legal confusion, overlapping proceedings,
and unnecessary delays. It would blur the line between the two
legal remedies — a summary appeal and a full-fledged election
petition — which the law has carefully separated.
50. Therefore, if a person genuinely believes that a candidate is
factually ineligible, then the proper course is to file an election
petition under Section 91. That forum is meant for such serious
and detailed factual matters. This Court is of the view that
allowing a person to bring new documents in an appeal under
Section 152A would go against the legal framework of the Act,
disturb procedural fairness, and lead to misuse of the appellate
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process.
51. I am therefore of the opinion that it is not legally permissible
for a person to place new documents on record in an appeal under
Section 152A of the Maharashtra Cooperative Societies Act, 1960,
to prove a candidate’s eligibility or ineligibility. If such documents
were not produced before the Returning Officer at the time of
scrutiny, they cannot be considered now in the appeal. If a person
wishes to rely on such material, the only correct remedy is to file
an election petition under Section 91 before the Cooperative
Court. This interpretation preserves the legislative scheme,
respects the election timeline, and maintains the fairness and
efficiency of the electoral process.
52. The next issue which arises for consideration is as to
whether, in an appeal preferred under Section 152-A of the
Maharashtra Co-operative Societies Act, 1960, challenging the
rejection of a nomination paper, all validly nominated candidates
are necessary parties to such appeal. In this context, it is pertinent
to refer to the decision of the Division Bench of this Court in Kishor
Rajaram Sawant vs Returning Officer in LPA No.142 of 1996,
decided on 26th July 1996, wherein reliance was placed on an
earlier Division Bench judgment in Tukaram Hari Khamkar v. Shree
Bharat Urban Co-operative Bank Ltd. & Ors. (Writ Petition
No.2614 of 1982 and connected matters). In the said judgments,
the Division Bench has categorically held that in an appeal
preferred under Section 152A of the MCS Act, challenging the
rejection of a nomination paper, all validly nominated candidates
are necessary parties to such proceedings.
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53. The reasoning adopted by the Division Bench is rooted in the
statutory scheme of Section 152A. Sub-section (1) thereof declares
that the list of validly nominated candidates shall be final and
binding, subject only to the outcome of an appeal under sub-
section (2). The Division Bench observed that if the statutory
finality attached to the list of nominated candidates is to be
rendered subject to appellate scrutiny, and the result of such
appeal can alter or disturb the said list, then all those whose
names are included in the final list acquire a legal interest in the
outcome of such proceedings. It was further held that rejection of
the nomination of a particular candidate results in a corresponding
right accruing to the remaining candidates of not having to contest
against the rejected candidate. Thus, those who remain in the fray
as a result of such rejection would be vitally interested in the
adjudication of the validity or otherwise of the rejection order.
54. In this backdrop, it has been recognized that finalization of
the list of candidates is not merely a ministerial act but has
implications on the legal standing and strategic positions of the
other contestants. Any subsequent alteration in the list would
directly impinge upon their rights and legitimate expectations.
Therefore, the appellate forum–while exercising jurisdiction
under Section 152A–is required to afford an opportunity of
hearing to all those likely to be affected, including validly
nominated candidates, before reversing or modifying the decision
of the Returning Officer.
55. In my considered view, however, the reasoning adopted by
the Division Bench of this Court in the case of Tukaram Hari
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Khamkar (supra), warrants a reconsideration on certain significant
grounds which touch upon the fundamental principles of election
law and the interpretation of statutory remedies under the MCS
Act.
56. It is well-settled in law that the right to be elected to a public
office, as well as the right to question an election, are not
fundamental rights nor common law rights, but are purely
statutory rights governed strictly by the provisions of the statute
creating them. The legal position in this regard stands
authoritatively settled by the Hon’ble Supreme Court in Jyoti Basu
(Supra), wherein it has been held that outside the four corners of
the statute, there exists no inherent right either to contest an
election or to challenge its outcome. The scheme of the statute
providing for election disputes, including appeals and petitions,
must be construed and applied strictly in accordance with its
terms. Doctrines and concepts familiar to common law, equity, or
general procedural jurisprudence remain strangers to election law
unless expressly incorporated by the statute.
57. In Jyoti Basu (supra), the Hon’ble Supreme Court examined
in detail the provisions of Section 82 and Section 86(4) of the
Representation of People Act, 1951, and categorically held that the
contest in an election petition is statutorily designed to be confined
to the candidates who contested the election, and none else.
Section 82 mandates that a petitioner shall join as a respondent
any candidate against whom allegations of corrupt practice are
made. The Court observed that the concept of “proper parties” is
alien to election jurisprudence under the said Act and that only
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those individuals who are expressly mentioned in the statute may
be joined as respondents. It was further held that although the
Civil Procedure Code may be applicable to the extent provided, its
provisions are subordinate and subject to the scheme of the
Representation of People Act, and cannot be invoked to enlarge the
category of parties or to override specific statutory mandates.
58. The Hon’ble Supreme Court thus held in unequivocal terms
that no party other than those permitted under Section 82 or
86(4) of the Representation of People Act, 1951 may be joined in
election petitions. The purpose behind such restriction is to
preserve the limited and structured nature of election litigation
and to ensure its expeditious disposal, free from the complexities
of general civil procedure. This principle, by necessary extension,
applies to statutory election disputes under other legislations such
as the MCS Act, which also confer and regulate election rights
through specific statutory provisions.
59. On a plain reading of Section 152A of the MCS Act, it is
evident that sub-section (2) merely declares that the list of validly
nominated candidates published under sub-section (1) shall be
subject to the decision of the appellate authority under sub-section
(1). In my considered view, the purpose behind making the
published list subject to the outcome of the appeal is to ensure that
the appellate authority’s decision–particularly in cases where it
holds that a nomination was wrongly rejected–can be effectively
implemented. Such implementation may require the Returning
Officer to update or modify the list in light of the appellate order.
The provision is intended to protect the efficacy of appellate
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remedy under Section 152A, and not to create any independent or
accrued right in favour of other validly nominated candidates to
participate in the appeal proceedings.
60. It must also be noted that Section 152A does not prescribe
any condition requiring the impleadment of all validly nominated
candidates as parties to an appeal. In the absence of such a
mandate, and applying the reasoning of the Hon’ble Supreme
Court in Jyoti Basu (supra), it is impermissible to expand the scope
of parties to the appeal on the ground of equity, policy, or potential
impact on third parties. Election law must be construed strictly,
and unless the statute mandates the presence of particular persons,
courts cannot read into it procedural obligations that are not
expressly provided.
61. Moreover, Section 152A(1) mandates that the Appellate
Authority shall decide the appeal within ten days. In a case such as
the present one, where the number of validly nominated
candidates is 207, a requirement to serve and hear each candidate
would render the statutory timeframe wholly unworkable,
defeating the very purpose of a time-bound appellate mechanism.
Such an interpretation would effectively frustrate the statutory
remedy and make the appellate process nugatory.
62. In view of the above discussion, the judgment of the Division
Bench in Tukaram Hari Khamkar (supra), and the subsequent
decision in Kishor Rajaram Sawant (Supra), which appear to have
read into Section 152A an implied requirement of impleadment of
all validly nominated candidates, need reconsideration. The issue
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strikes at the core of maintainability, scope, and workability of
election appeals under the MCS Act. While procedural safeguards
must be respected, they cannot be expanded so as to defeat the
purpose of the statute or impede access to remedies.
63. Mr. Godbole, the learned Senior Advocate appearing for the
respondents, placed reliance on various authoritative
pronouncements of the Hon’ble Supreme Court and of this Court,
which have consistently held that once the election process has
been set in motion, the writ jurisdiction of this Court under Article
226 of the Constitution of India ought not to be invoked, except in
rare and exceptional circumstances. In view of the aforesaid
submission, it becomes necessary to examine the legal position
governing the scope of judicial interference under Article 226 of
the Constitution of India in matters concerning elections under the
MCS Act, particularly when the process of election has been set in
motion.
64. A useful reference in this regard can be made to the
instructive observations of the Division Bench of this Court in the
case of Pandurang Hindurao Patil (Supra), wherein the Court
delineated the contours of judicial intervention in election matters.
The Division Bench held that when a petitioner invokes the writ
jurisdiction of the High Court under Article 226 challenging the
electoral process, including acceptance or rejection of nomination
papers, two distinct considerations arise. The first is whether the
writ petition is maintainable and the second is whether, in the facts
of the case, the Court ought to exercise its discretion. The Division
Bench observed that the general principle remains that judicial
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interference in election matters is not warranted once the election
process has commenced. However, to this rule, the Court carved
out certain exceptions. It held that in cases where the order of the
Returning Officer is patently erroneous or passed without
jurisdiction, it would be improper to compel the petitioner to await
the conclusion of the entire electoral process and thereafter invoke
the remedy of election petition under Section 91 of the MCS Act,
which is a time-consuming and protracted remedy. In support of its
view, the Division Bench relied upon the judgments of the Hon’ble
Supreme Court in N.P. Ponnuswami (supra) and Dr. Narayan
Bhaskar Khare (supra), wherein the principle has been reiterated
that the bar on judicial intervention is not absolute and that in
cases involving jurisdictional error or violation of fundamental
legal norms, the High Court may exercise its constitutional powers.
65. The Division Bench further observed that while it is true that
the election process should not ordinarily be stalled at the instance
of an individual grievance, in cases where the grievance is brought
before the Court well in advance of the polling date, and where
the issue raised is capable of being decided expeditiously without
derailing the electoral schedule, judicial interference may not only
be warranted but also desirable. The Court specifically noted that
if the Returning Officer rejects a nomination paper on a ground
which is wholly inadequate or demonstrably erroneous, it would
subserve the larger public interest and prevent unnecessary
expenditure, hardship and inconvenience to rectify the illegality at
the earliest stage. The Division Bench cautioned, however, that
such interference must be sparing and must not become a routine
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course of action. Each case must turn on its own facts and must be
examined through the lens of whether interference is necessary to
uphold the sanctity of the electoral process or to prevent manifest
injustice. The principle that elections should proceed unimpeded
must be balanced against the imperative that the process is
conducted fairly, lawfully, and without arbitrary exclusion of
eligible candidates. Thus, the settled position of law is that while
the High Court must ordinarily refrain from interfering once the
election process has commenced, such restraint is not an inflexible
rule, and in appropriate cases where there is clear and
demonstrable illegality apparent on the face of the record,
particularly where there is a jurisdictional error or violation of
statutory provisions, this Court is not powerless to act. In such
cases, judicial intervention prior to the conduct of polling may be
permissible, provided it does not result in undue disruption of the
election programme.
66. The aforesaid view taken by the Division Bench of this Court
in Pandurang Hindurao Patil (supra) has been followed and
affirmed by another Division Bench of this Court in the case of
Chandrakant Mahadev Patole (supra). In the said decision, the
Division Bench reiterated the principle that in the event the Court
is satisfied that the order passed by the Returning Officer or the
step taken in the course of the election process suffers from a
patent error or is vitiated by lack of jurisdiction, it would not be
just, fair or reasonable to compel the petitioner to await the
conclusion of the entire election process and thereafter initiate
proceedings by way of an election petition under Section 91 of the
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Act. In arriving at the said conclusion, the Division Bench in
Chandrakant Mahadev Patole (supra) placed strong reliance upon
the judgment of the Hon’ble Supreme Court in the case of
Ahmednagar Zilla S.D.V. & P. Sangh Ltd. v. State of Maharashtra ,
(2004) 1 SCC 133, wherein the Apex Court dealt with a challenge
to the preparation of an electoral roll that was based on bye-laws
which were held to be illegal. The contention raised therein, that
the preparation of the voters’ list being an intermediate stage of
the electoral process, the same could not be challenged under
Article 226 of the Constitution, was specifically rejected by the
Hon’ble Supreme Court. The Court categorically held that when
the electoral roll is prepared on the basis of non-existent, invalid,
or illegal bye-laws, it vitiates the entire process, and such illegality,
going to the root of the matter, justifies interference under Article
226. The Hon’ble Supreme Court further observed that to permit
such an illegality to continue, on the pretext that it forms part of
the election process, would be to render the constitutional power
of judicial review under Article 226 illusory and nugatory. The said
judgment was subsequently quoted with approval in the case of
Pundlik v. State of Maharashtra, (2005) 7 SCC 181, where similar
issues arose in the context of preparation of voters’ lists based on
inapplicable rules. It is pertinent to note that in both Ahmednagar
Zilla (supra) and Pundlik (supra), the Hon’ble Supreme Court
considered and distinguished the earlier decision rendered in Shri
Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha v. State of Maharashtra, (2001) 8 SCC
509. It was clarified that Sadguru Janardan Swami (supra) did not
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lay down an absolute bar to judicial interference at the pre-
election stage, and that it would be open to the Court to interfere
where the illegality is glaring and ex facie apparent, and where
grave injustice would be occasioned if such action were to be left
uncorrected.
67. At this stage, it is also necessary to consider the binding
pronouncement of the Hon’ble Supreme Court in Election
Commission of India v. Ashok Kumar & Ors., (2000) 8 SCC 216. In
the said case, while considering the maintainability of writ
petitions under Article 226 of the Constitution after the
commencement of election proceedings governed by the
Representation of the People Act, 1951, the Apex Court delineated
the scope of judicial review in such matters. It was held that
though courts should ordinarily refrain from interfering once the
election process has commenced, the jurisdiction of the High Court
under Article 226 is not completely ousted and may still be
exercised in exceptional cases, provided a dual test is satisfied:
(i) That the relief sought from the Court does not have the
effect of retarding, interrupting, protracting or stalling the
counting of votes or the declaration of election results,
especially if that is the only remaining stage; and
(ii) That a clear case of mala fides or arbitrary exercise of
power by the Election Commission is made out warranting
judicial scrutiny.
68. The Hon’ble Supreme Court emphasized that though the
power vested in the Election Commission is to be exercised as a
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quasi-judicial or constitutional trust, instances may arise where
such power is exercised arbitrarily, capriciously, or in breach of
statutory provisions. In such cases, judicial review cannot be ruled
out. The Court further observed that judicial intervention may be
warranted if it is sought not with a view to stall or delay the
electoral process, but rather to smoothen or streamline it — for
instance, to remove obstacles, or to preserve vital evidence that
may otherwise be destroyed or lost by the time the election results
are declared. However, the Supreme Court also issued a note of
caution that such intervention must not become a means to delay
or disrupt the conduct of elections, which is a function of
constitutional importance. Courts must exercise circumspection
and ensure that judicial interference is not misused to serve
partisan ends or to frustrate the electoral schedule. It was held that
while the sanctity and continuity of the electoral process must be
preserved, the Court’s jurisdiction under Article 226 remains
available to correct glaring illegalities or to prevent injustice,
provided that the relief sought does not cause disruption to the
ongoing electoral process.
69. In the light of the settled legal position as discussed
hereinabove, the issue that arises for consideration in the present
case is whether this Court, in exercise of its writ jurisdiction under
Article 226 of the Constitution of India, ought to interfere with the
action of the Appellate Authority in accepting the nomination
paper of respondent no. 5 , particularly when the election process
under the Maharashtra Co-operative Societies Act, 1960 is already
underway and has reached an advanced stage. It must be
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reiterated that the power of judicial review under Article 226, even
in the domain of elections, is not entirely excluded. However, it is
governed by the strict parameters laid down by the Hon’ble
Supreme Court and by this Court in a catena of decisions. As held
in Pandurang Hindurao Patil (supra) and Chandrakant Mahadev
Patole (supra), where the impugned action of the Returning
Officer, either in accepting or rejecting a nomination paper, is
shown to be vitiated by a patent legal infirmity, or is ex facie
without jurisdiction, or if the action is arbitrary or actuated by
mala fides, the High Court may step in to ensure that the purity
and legality of the electoral process are not compromised. It is a
settled principle that the process of election must conform not only
to the letter of the law but also to its spirit. Acceptance of a
nomination paper is not a mere ministerial act; it is a quasi-judicial
function to be exercised in accordance with the applicable
statutory provisions, rules, and bye-laws. An error at this stage–
particularly one that results in permitting a person who is
statutorily disqualified or otherwise ineligible–has the potential to
vitiate the entire process and defeat the mandate of a free and fair
election. As such, while the general rule, as propounded in N.P.
Ponnuswami (supra), is that disputes relating to elections must be
addressed post-election by way of an election petition, that rule is
not without exception. In this regard, it is pertinent to refer to the
judgment of the Supreme Court in K. Venkatachalam v. A.
Swamickan, (1999) 4 SCC 526, wherein the Apex Court carved out
a category of cases where, despite the bar under Article 329(b),
the High Court’s jurisdiction under Article 226 was held to be
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available, particularly where the person whose election is
challenged is demonstrably not qualified to be elected, and yet his
name is included in the electoral roll or his nomination is
improperly accepted. The Court held that such inclusion
constitutes a fraud on the Constitution, and in such cases, the High
Court can intervene without waiting for the election petition
mechanism to be triggered.
70. In the present case, if the Appellate Authority has accepted
the nomination paper of respondent no. 5 despite the existence of
an apparent disqualification under the MCS Act or the relevant
Rules or Bye-laws–say, for instance, arrears of dues to the society,
or violation of specific eligibility conditions–the petitioner cannot
be relegated to a post-election remedy under Section 91 of the
MCS Act, particularly when the said acceptance is shown to be
without application of mind or contrary to statutory provisions. In
Pundlik (supra), the Hon’ble Supreme Court emphasized that
where the process is vitiated due to fundamental illegality–such
as reliance on invalid bye-laws or non-existent eligibility criteria–
the error cannot be allowed to survive merely on the ground that
the electoral process is ongoing. Similarly, in Ashok Kumar (supra),
the Court observed that judicial intervention is justified where the
Court is called upon not to stall the election process, but rather to
rectify a grave illegality before it culminates into an irreversible
wrong. Thus, if the petitioner has approached this Court promptly
and the issue raised pertains to an error apparent on the face of
the record in the acceptance of a nomination paper which, if not
corrected, would render the entire election process vulnerable to
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challenge and result in avoidable expense, hardship, and
multiplicity of proceedings, the Court would be justified in
entertaining the writ petition and granting appropriate relief.
However, such intervention must be exercised with circumspection
and only when the facts clearly demonstrate that the error is not
one which can be resolved through disputed questions of fact or
extensive evidence but is apparent from the record, and the relief
sought can be granted without disturbing the larger electoral
timeline or causing prejudice to the democratic process.
71. The Hon’ble Supreme Court in the case of Deoraj v. State of
Maharashtra & Ors., (2004) 4 SCC 697, authoritatively expounded
the scope and ambit of the power of the High Court to grant
interim relief in cases where denial of such relief would virtually
result in rendering the final relief infructuous. The Court observed
that although an order granting interim relief may not be a fully
reasoned one, the classic tripartite test of a strong prima facie case,
balance of convenience, and irreparable injury generally operates
in the background. It was further held that there may arise
extraordinary situations where withholding interim relief would
amount to defeating the ends of justice and effectively result in a
denial of the very relief sought in the writ petition. In such
circumstances, the Court is not precluded from granting interim
relief which may have the effect of granting final relief itself,
provided the case falls within the rare and exceptional category.
72. In paragraph 12 of the judgment, the Supreme Court
observed:
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“Situations emerge where the granting of an interim relief
would tantamount to granting the final relief itself.
Conversely, there may be cases where withholding of interim
relief would render the petition itself infructuous. In such
cases, the availability of a very strong prima facie case — of
a standard much higher than a mere prima facie case —
coupled with considerations of balance of convenience and
irreparable injury so compelling as to tilt the balance entirely
in favour of the applicant, may justify the grant of such
interim relief.”
73. The Court further emphasized that in such rare instances,
the withholding of interim relief would prick the conscience of the
Court and do violence to the sense of justice. Judicial conscience
cannot permit injustice to be perpetuated pending the hearing of
the main petition, particularly where the Court, at the end of
proceedings, may find itself powerless to undo the damage already
caused. Therefore, in such compelling cases, the constitutional
remedy under Article 226 is wide enough to provide interim
protection necessary to preserve the substratum of the lis.
74. In the light of the above pronouncement of the Hon’ble
Supreme Court in Deoraj (supra), and the principles laid down in
Pandurang Hindurao Patil (supra), Chandrakant Mahadev Patole
(supra), Ahmednagar Zilla (supra), Ashok Kumar (supra), and
Pundlik (supra), the legal position that emerges is that in election
matters governed by the Maharashtra Co-operative Societies Act,
1960, where the Court is satisfied that the impugned action of the
Returning Officer — whether in acceptance or rejection of a
nomination paper — is ex facie illegal, patently erroneous, or
vitiated by a jurisdictional infirmity, the High Court would be
justified in invoking its extraordinary writ jurisdiction under
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Article 226 of the Constitution. Such interference is permissible
even at an intermediate stage of the election process, so long as it
does not require postponement or disruption of any stage of the
election. The object of judicial intervention in such cases is not to
interfere with the democratic process, but to uphold its sanctity by
preventing grave illegality that may otherwise vitiate the entire
election and render post-election remedies illusory. This principle
is in consonance with the well-established legal proposition that
the right to contest an election must be exercised in accordance
with law, and any action by the Returning Officer that violates
statutory requirements — such as failure to consider material
disqualification or non-compliance with mandatory provisions of
the Rules or Bye-laws — is amenable to judicial scrutiny at the pre-
election stage.
75. In the facts of the present case, this Court is satisfied that the
petitioner has demonstrated a case of such exceptional nature as
would warrant interference at this stage. The material on record
indicates that during the scrutiny of nomination papers, a specific
objection was raised by the petitioner pointing out that respondent
no. 5 had defaulted on a substantial financial liability amounting
to over Rs. 6 crores, as evidenced by a public notice issued by the
secured creditor, published in a widely circulated newspaper. The
original publication was duly produced before the Returning
Officer during the scrutiny proceedings. Despite this, the Appellate
Authority, relying on overruled judgment and ignoring original
newspaper containing notice under rule 8(6) of rules, proceeded
to accept the nomination paper. In such circumstances, the
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omission on the part of the Appellate Authority to give due
consideration to a prima facie case of disqualification, which was
supported by unimpeachable documentary evidence, constitutes a
patent error apparent on the face of the record. The action is not
only arbitrary but is also contrary to the mandate of law which
obligates the Appellate authority to confirm order of rejection of a
nomination where a candidate is disqualified under the statutory
scheme. In view of the compelling facts and strong prima facie
material placed on record, the withholding of interim relief at this
stage would indeed prick the conscience of this Court and amount
to permitting the perpetuation of an illegality. If the election is
allowed to proceed with the inclusion of an ineligible candidate,
the entire process would be liable to be set aside at a later stage,
resulting in wastage of public time and resources, and causing
irreparable injury to the petitioner. Accordingly, the case falls
squarely within the category of rare and exceptional circumstances
envisaged by the Hon’ble Supreme Court in Deoraj (supra),
warranting grant of interim relief notwithstanding the advanced
stage of the election process.
76. In view of the foregoing discussion and upon a careful
consideration of the factual matrix and the applicable legal
principles, this Court is of the considered opinion that the
acceptance of the nomination paper of respondent no. 5 by the
Appellate Authority suffers from a patent error and is contrary to
the statutory scheme governing the elections under the
Maharashtra Co-operative Societies Act, 1960. The challenge
raised by the petitioner is not merely an individual grievance, but
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touches upon the core issue of legality and propriety of the
electoral process. The objection raised by the petitioner regarding
disqualification was substantiated by credible and unimpeachable
documentary evidence, which has been disregarded by the
Appellate Authority without any application of mind. In such
circumstances, relegating the petitioner to the remedy of an
election petition under Section 91 of the Act would result in grave
injustice and render the entire exercise nugatory. The facts of the
present case warrant judicial interference at this stage, not to stall
the electoral process, but to ensure its purity and fairness.
77. Since the Division Bench of this Court has already taken view
to implead all validly nominated candidates as a party and in
absence of conclusive proof of service on them, it is not possible to
dispose of the petition finally despite coming to the prima facie
conclusion that respondent No.5 is defaulter. In my opinion,
proper course is to serve all necessary parties through process of
the Court. Consequently, this Court finds it just, proper and legally
sustainable to exercise its writ jurisdiction under Article 226 of the
Constitution of India to grant appropriate relief in the interest of
justice.
78. I, therefore, pass following order:
(i) Rule.
(ii) During pendency of petition, there shall be interim
relief in terms of prayer clause (c).
79. In the present case, upon careful examination, the following
question of law of substantial importance arises for consideration
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of this Court:
“Whether in an appeal preferred under Section 152A of the
Maharashtra Cooperative Societies Act, 1960, challenging
rejection of a nomination paper, it is mandatory to implead
all validly nominated candidates as necessary parties to the
appeal?”
80. To consider this question in its proper perspective, it would
be appropriate to invoke the provisions of Rule 8 of Chapter I of
the Bombay High Court Appellate Side Rules, 1960 and direct that
the papers of this case be placed before the Hon’ble the Chief
Justice, so as to consider whether the present writ petition can be
more advantageously heard and decided by a Bench of two or
more learned Judges.
81. At this stage, learned Advocate for respondent No.5 prays for
stay of this judgment. In view of the reasons assigned in the
judgment, request for stay is rejected.
(AMIT BORKAR, J.)
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