Judgment:
ORAL
RULE. Rule made returnable forthwith.
1. The petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. By this petition, the petitioners impugn the order passed by the Collector, Yavatmal postponing the election to the respondent no.3 Society from the Cotton Growers Constituency. The Collector, Yavatmal had invoked the provisions of Rule 29 of the Maharashtra Specified Cooperative Societies Election to Committee Rules, 1971 as, one of the candidates, who had filed his nomination form, had expired on 08.03.2011.
3. The respondent no.2 had published the election program for electing the Board of Directors of respondent no.3Sut Girni. The petitioners and certain other persons had filed their nomination papers from Cotton Growers Constituency as seven directors were to be elected from Cotton Growers Constituency. According to the election program, the nomination forms were to be filed on or before 23.02.2011 and the dates for withdrawal of the nomination form was 25.02.2011 to 11.03.2011. Before the last date for withdrawal of the nomination, one of the persons, who had filed the nomination, namely Rajabhau Yenkar, expired on 08.03.2011. Though Shri Rajabhau Yenkar had expired before the list of contesting candidates was declared or before the last date of withdrawal of nominations, the Collector, Yavatmal, by exercising power under Rule 29 of the Rules of 1971 stayed and postponed the election from the Cotton Growers Constituency. The order dated 10.03.2011 is impugned by the instant petition.
4. Shri Parkhi, the learned counsel for the petitioners, took this Court through the provisions of Rule 26 and Rule 29 of the Rules of 1971 to canvas that Rajabhau Yenkar was not a candidate, whose nomination paper was finally accepted by the Returning Officer and, hence, he was not a "contesting candidate" within the meaning of the term under Rule 29 of the Rules of 1971. The learned counsel for the petitioners submitted that the provisions of Rule 29 could have been invoked by the Collector only if one of the "contesting candidates" died and a report of his death was received by the Returning Officer. In this case, according to the learned counsel for the petitioners, Shri Rajabhau Yenkar could not have been said to be a "contesting candidate" as he had expired before the last date of withdrawal of nominations. Hence, since his name did not appear in the list of "contesting candidates", as prepared by the Returning Officer, according to the learned counsel for the petitioners, the Collector, Yavatmal had no jurisdiction to stay or postpone the election.
5. Shri Dharmadhikari, the learned Assistant Government Pleader appearing on behalf of the respondent nos.1 and 2, submitted that Rajabhau Yenkar had filed his nomination form and since he was a "contesting candidate" till the date of his death on 08.03.2011, the Collector, Yavatmal rightly invoked the jurisdiction under Rule 29 of the Rules of 1971 to stay and postpone the elections. The learned Assistant Government Pleader sought for the dismissal of the writ petition.
6. Shri Narwade, the learned counsel for the respondent no.3, supported the case of the petitioners and submitted that the impugned order dated 10.03.2011 suffers from a jurisdictional error and the same is liable to be set aside.
7. On hearing the learned counsel for the parties and on a perusal of the Rules of 1971, it appears that the Collector, Yavatmal did not have jurisdiction to pass the order dated 10.03.2011 staying and postponing the election from the Cotton Growers Constituency. On a reading of Rule 26 of the Rules of 1971, it is clear that the list of contesting candidates is prepared on the date succeeding the last date fixed for withdrawal of the candidature and this list includes the candidates, whose nomination papers have been finally accepted. In the instant case, the name of Rajabhau Yenkar could not have been included in the list of "contesting candidates" as he expired on 08.03.2011, before the list of contesting candidates was declared by the Returning Officer on 12.03.2011. Shri Rajabhau Yenkar was, therefore, surely not a "contesting candidate" as he had expired before the last date of withdrawal of nomination and his name could not have appeared in the list of contesting candidates. A reading of Rule 29 shows that the provisions of Rule 29 can be invoked by the Collector for postponing or for declaring the new election program only if a "contesting candidate" dies before the commencement of poll. In the instant case, no doubt, Rajabhau Yenkar had died before the commencement of poll but, he was not the "contesting candidate" as his name did not appear in the list of contesting candidates, declared by the Returning Officer on 12.03.2011. Since Rajabhau Yenkar expired before the last date of withdrawal of nomination and since his name did not appear in the list of contesting candidates, the Collector, Yavatmal did not have jurisdiction to stay or postpone the elections by invoking the provisions of Rule 29 of the Rules of 1971. The impugned order dated 10.03.2011 suffers from a jurisdictional error and is, therefore, liable to be quashed and set aside.
8. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order passed by the Collector, Yavatmal on 10.03.2011 is quashed and set aside.
Rule is made absolute in the aforesaid terms. No order as to costs.