WP/13338/2022 of KIRANDEVI CHAMPALAL JAIN AND OTHERS Vs DISTRICT CO OPERATIVE ELECTION OFFICER AND DISTRICT DEPUTY REGISTRAR AND OTHERS on 28 December 2022

JUDGMENT :-

1. Rule. Rule made returnable forthwith. By consent ofboth the sides, these petitions are finally heard at the stage ofadmission.

2. In both petitions being aggrieved by the impugned

order dated 21[st] December, 2022 passed by District Co-operative Election Officer-District Deputy Registrar, Co-operativeSociety, Nandurbar, deleting their names from the voters lists inthe election of APMC for year 2022-2023, challenge is madethereto on grounds detailed in the petitions. The maincontention of the petitioners is that the Election Officer hasexceeded the jurisdiction and expanded scope of the enquiryunder Rule 7 of the Election Rules, 2017 and that ElectionOfficer only could have gone into the issue of correctness asregards particulars of voters like name, age, address etc. andought not to have deleted names of petitioners from voters list.

3. Respondents objected to the maintainability of thepetition by relying upon judgments of Division Bench of thiswp13338.odt6 of 13

Court in the case of Dattatray Genaba Lole and others Vs.The Divisional Joint Registrar, Cooperative Societies,Pune Division and others in Writ Petition No. 5878 of2021 decided on 26[th] November, 2021 and DigambarSadashiv Ghorpade and Ors. Vs. Election RegistrationOfficer and ors. in W.P. Nos. 1176 and 1868 of 2022decided on 01/11/2022. It is canvassed by learnedadvocates for respondents that since alternate remedy isavailable for the petitioners to challenge the election and sincethe present stage of the election process being intermediate,these petitions are not maintainable. They also relied uponfollowing judgments.

(a) Sarjerao Dattatraya Pachpute Vs. The State ofMaharashtra and others in Writ Petition No. 2783 of 2022decided on 24[th] February, 2022.

(b) Balasaheb s/o Digambar Gholap Vs. The State ofMaharashtra and others in Writ Petition No. 5 of 2022decided on 3[rd] January, 2022.

(c) Popat s/o Sambhaji Mane Vs. The State ofMaharashtra and others in Writ Petition No. 6 of 2022decided on 3[rd] January, 2022.

(d) Sandip s/o Balbhim Nagawade Vs. The State ofMaharashtra and others in Writ Petition No. 10 of 2022decided on 3[rd] January, 2022.

(e) Machindra Dada More Vs. The State of Maharashtraand others in Writ Petition No. 22 of 2022 decided on 4[th]January, 2022.

4. These submissions are countered by learnedAdvocate for the petitioner by stating that there is no completebar to maintain petition like one in hand even at this stage ofelection process. While taking his arguments further it issubmitted that in the present cases Election Officer hasexpanded the scope of the enquiry as contemplated by Rule 12of The Maharashtra Agricultural Produce Market Committee(Election to Committee) Rules, 2017 (for short ‘Rules’), and inview of Section 13(1)(b) of the Maharashtra AgriculturalProduce Marketing (Development and Regulation) Act, 1963(For short ‘Act’), the traders and commission agents holdinglicenses for not less than two years are eligible to be voters forthe election of committee and it is not permitted to read thesame as license held for period prior to two years of cut offdate, as done by election Officer. According to him ElectionOfficer while deciding the objection has exercised the powersnot vested in him under Rule 7, and hence present case is theone wherein the impugned order is patently illegal which comes

in the exception to the law laid down by the Division Bench andhence petition be entrained and the issue raised by thepetitioners be decided. To buttress these submissions reliance isplaced on Usha Bhaginath Bhagat and Others Vs. State ofMaharashtra and others reported in (2021) 2 AIR Bom R718, where this Court had granted relief on the basis of similarprovisions.

5. Before going into merit of petition, at the out setissue regarding maintainability needs to be addressed and onlythereafter contentions of petitioners raising challenge toimpugned order can be considered. Division Benches of thisCourt in the cases of Dattatray Genaba Lole and others Vs.The Divisional Joint Registrar (cited supra) and DigambarSadashiv Ghorpade and Ors. Vs. Election RegistrationOfficer (cited supra) have held that the writ petitionchallenging order which is part of intermediate stage of electionprocess is not maintainable for availability of alternativeefficacious remedy to challenge the election after its result.However, there is no absolute bar for entertaining of petition at intermediate stage of election, as observed in para 8.4 in thecase of Dattatray Genaba Lole and others, “8.4 The only circumstance in which the Courtswould be inclined to interfere in a challenge toan election process at an intermediate stagewould be when the order or action underchallenge is patently and demonstrably illegal,such as, for example, by applying a non-existentrule or provision to the election process or failingto adhere to a mandatory provision. Theintervention in such cases has been explained asenabling or assisting the process of the electionrather than thwarting or stalling it. Also, one ofthe important aspects to consider is the precisestage of the election process and the delay, ifany, in the filing of the petition.“

6. Thus, where Court finds that there is patent anddemonstrable illegality in order impugned such as nonapplication of rule to the election process or failure to adhere toa the mandatory provision petition can certainly be entertained.

Thus, where Court finds that there is patent and

7. There is no dispute about the fact that electionprogramme is published though in part but the election processhas commenced and the stage of declaration of the final list ofvoter’s is intermediate stage of the entire election process. It isnot case of petitioners that impugned order is passed without according any opportunity of hearing to them. There is also nodispute about power of Election Officer to publish final voter’slist after deciding objections raised to the provisional voter’slist. Prima facie consideration of relevant rules indicate that it iswithin power of Election Officer to entertain objections toprovisional voter’s list and to publish final list of voters, and thepower to remove the name of any person from final voter’s listis incidental and denial thereof would make relevant rule otiose.Apparently, there is no justification to say that there would beonly power to correct clerical/typographical error in provisionalvoter’s list, as it is responsibility of Election Officer to ensurethat only eligible voter casts vote during election, moreparticularly in view of provision of Section 13(1)(b) of the Act,which provides election by not all traders but those who fulfillcondition stipulated therein. It appears from judgment in caseof Usha Bhaginath Bhagat (cited supra) that as per relevantprovisions of Societies Act the register of member shall beprima facie evidence of date on which any person was admittedas member and the petitioners therein where denied right tovote for reason of not being active member, which was not

criteria for a valid voter. Therein voters were held to be deletedfrom list for no substantial reason. In the instant case havingregard to the criteria of eligibility of a voter, impugned order ispassed. Hence judgment in case of Usha Bhaginath Bhagatreferred above has no application to present case.

8. The exception to the Rule about the nonmaintainability of petition at this stage is that there should bepatent and demonstrable illegality committed by therespondent. Mere, making out arguable case cannot be equatedthe patent illegality or arbitrariness on the part of the authority.The correctness of interpretation of Section 13(b) which maybecome subject matter of petition after declaration of result ofelection would be not sufficient ground to entertain presentpetitions at this stage.

The exception to the Rule about the non

9. Since no patent illegality is demonstrated in theimpugned order passed by Election Officer, this Court is notinclined to entertain these petitions at this stage. It is clarifiedthat observations made herein above are for limited purpose for deciding maintainability of petitions and the same are not to beconsidered as opinion expressed on merit of case. In view ofabove discussion, the petitions are held to be not maintainableand stand dismissed. However, alternate remedy would remainopen for the petitioners. Rule discharged.

(R. M. JOSHI, J.)

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