PRUTHWIRAJ PARMESHWARLAL JAISWAL Vs. SHRUNGAS SHIVLAL THAKARE

JUDGEMENT

(1.) POINTS of some importance arise in this petition by a person whose election as a member of Market Committee constituted under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (the Act) from agriculturists' constituency under Section 13(1)(a) of the Act has been set aside by the Collector on the ground that petitioner No. 1 Pruthwiraj Jaiswal is not an agriculturist as defined under Section 2( 1 )(b) of the Act in an election petition filed under Rule 88 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (the Rules) filed by his nearest rival Shrungas Thakare, respondent No. 1.

(2.) UNDISPUTED factual background is this. The petitioner No. 1 owns land in the village, is a liquor trader and his father runs a ration shop. The nomination paper of petitioner No. 1 was filed in Co -operative Societies as well as Village Panchayat Constituencies. Nomination paper for a seat in Village Panchayat Constituency was accompanied by a certificate of the Talathi to the effect that petitioner No. 1 owns land in the village. No certificate accompanying the nomination paper for a seat in the Cooperative Societies' constituency was filed. Both the nomination papers were accepted by the Returning Officer in a scrutiny since there was no objection. But petitioner No. 1 withdrew the nomination from the Village Panchayat Constituency. No appeal as provided under Rule 51 of the Rules against the order of the Returning Officer accepting the nomination paper was filed before the Collector. There was a contest between petitioner No. 1 and respondent No. 1. Respondent No. 1 lost and he filed an election petition under Rule 88 inter alia on the ground that petitioner No. 1 was not an agriculturist and was, therefore, not qualified to contest the election of 10 seats covered by Section 13(1)(a). The Collector upheld the contention, set aside the election and aggrieved thereby the present petition is filed.

(3.) THE first point is whether the points which were raised or could have been raised at the time of scrutiny of nomination papers before the Returning Officer or in an appeal against his decision before the Collector, can be agitated in an election petition in view of the finality attached to the decision of the Returning Officer by Rule 51(2). It seems to us that the answer has to be recorded in the affirmative despite somewhat confusing language used in Rule 51(2) and the first impression created thereby to the contrary.