JUDGMENT R.M.S. Khandeparkar, J.
1. Heard.
2. Rule.
3. By consent, Rule is made returnable forthwith.
4. The petitioners challenge the orders passed by the authorities under the Maharashtra Co-operative Societies Act, 1960, (hereinafter referred to as "the said Act") terminating their membership of respondent No. 4 society and consequently, resulting in the failure on the part of the Collector to include the names of the said members as the voters for election to the Board of Directors of respondent No. 4 society.
4A. Few facts relevant for the decision are that:
A voters list came to be published on 1-3-1999. On exclusion of 1070 members therefrom by an order dated 10-2-1999, a revision application came to be filed before the State Government. The said revision application was allowed by the State Government by order dated 26-4-1999 and the order dated 10-2-1999 was set-aside and the matter was remanded for re-consideration. The authority, however, without issuing notice to the concerned members proceeded to decide the matter by its order dated 18-12-2001 and held that the concerned members were not entitled to continue to be the members of the respondent No. 4 society on account of their failure to supply sugar-cane. The said decision was communicated to respondent No. 4 with a direction to communicate the said order to the concerned members and further to take appropriate action in accordance with the provisions of law comprised under Sections 25A and 38 of the said Act.
5. The matter was carried in appeal before the State Government by two of the members namely : Kashinath Kamuji Roopnar and Sanjay Khanderao Memane. The appellate authority by its order dated 22nd March, 2002, dismissed the said appeal confirming the order passed by the lower authority on 18-12-2001.
6. One of the appellants by name Kashinath Kamuji Roopnar, being dissatisfied by the said order, preferred Writ Petition No. 5223 of 2004 which came to be heard by the learned Single Judge and was dismissed by the order dated 29-4-2003.
7. On 1-11-2004, a provisional voters list was published by respondent No. 5 Collector for holding the elections to the Board of Directors of respondent No. 4. Having noticed that the names of the petitioners (excluding petitioner No. 13) and other 390 members were not included in the said voters list, the petitioners raised an objection before the Collector. Simultaneously, the petitioners also filed the present petition.
8. It is the contention of the petitioners that neither they were notified nor they were heard by the authority under the said Act before passing the order dated 18-12-2001 nor they were parties to the appeal before the appellate authority. It is their further case that neither the order dated 18-12-2001 of the authority acting under the said Act nor the order dated 22-3-2002 of the appellate authority was ever communicated to the petitioners or the concerned members. It is their further contention that they came to know about the said orders pursuant to the exclusion of their names from the voters list which was released on 1-11-2004. The orders dated 18-12-2001 and 22-3-2002 having been passed in contravention of the statutory provisions as well as in breach of the basic principles of natural justice, according to the petitioners, the same need to be quashed and consequently, a relief for inclusion of their names in the voters list is required to be granted. It is their contention that but for the orders dated 18-12-2001 and 22-3-2002 the names of the petitioners would have figured in the said voters list.
9. While assailing the impugned orders the learned Advocate for the petitioners has drawn our attention to the said orders dated 18-12-2001 and 22-3-2002 and submitted that the said orders ex facic disclose that neither the petitioners and other affected members were notified and were heard in the matter nor the order was sought to be communicated to the petitioners and other affected members. He has also referred to various other copies of the documents on record to contend that those disclose that respondent No. 4 has continued to treat the petitioners and other persons as the members of the respondent No. 4 society issuance of the voters list in the year 2004. According to the learned Advocate for the petitioners, therefore, the orders, terminating their membership having been passed without giving them an opportunity of being heard and even without communicating the decision as regards termination of their membership and as a result thereof their names are sought to be excluded from the voters list, are contrary to the statutory provisions and same are required to be quashed and consequently the relief is to be granted to the petitioners as well as the other aggrieved members. For that purpose, the writ petition should be considered as a representative writ petition.
10. The learned Assistant Government Pleader has submitted that the orders passed in the matter were on remand of the case and therefore, there was sufficient knowledge to the petitioners and other aggrieved members about the proceedings and further that the society was specifically directed to communicate the order passed by the authority to all the concerned members. In this regard, attention is also drawn to Section 25A of the said Act. Once the society was directed to communicate the order to the concerned members, according to the learned Assistant Government Pleader, no fault can be found with the authority for not communicating the said order to the concerned members by the authority itself.
11. The learned Advocate appearing for respondent No. 4 has sought to raise a objection to the maintainability of the writ petition. By placing reliance on the decision of the Apex Court in the matter of Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. , the learned Counsel has submitted that since the challenge is essentially to the voters list and the election process having already been commenced the efficacious remedy available to the petitioners is by way of election petition and in such circumstances, interference by the Court is not warranted. Whatever grievance the petitioners have, they may agitate the same in the election petition. He has further submitted that the petitioners or other members did not produce any evidence regarding supply of sugarcane during the relevant period and particularly prior to the passing of the order dated 18-11-2001 and therefore, even on merits there is absolutely no case to the petitioners. On that count also, there is no case made-out by the petitioners for interference of this Court at this stage. Reliance is also placed on the decision of the Apex Court in Aligarh Muslim University and Ors. v. Mansoor Ali Khan .
12. He has further submitted that the copy of list of the members with postal stamps placed on record today along with the copy of the bye-laws of the society discloses that the orders were duly communicated to the members pursuant to the directions given by the authority. Being so, according to the learned Advocate for respondent No. 4, there is absolutely no substance in the grievance of the petitioners and the entire petition is filed merely to obstruct the election process. He has also drawn our attention to Section 23 of the said Act and Rule 19 of the Rules made under the said Act.
13. The learned Advocate appearing for the Intervenors has submitted that there is a collusion between the petitioners and the respondent No. 4 society and same is apparent from the manner in which the petition is filed just to block the election process. The petition does not deserve consideration. He has sought to rely in the decision in the matter of Ramchandra Ganpat Shinde and Anr. v. State of Maharashtra and Ors., . According to the learned Counsel for the intervenors, there is ample evidence to disclose the failure on the part of the petitioners to justify their claims for continuation of membership as they have totally failed to establish that they had supplied sugarcane for the relevant period to the Karkhana.
14. Section 79B(1) of the said Act provides that where any producer -member of a processing society fails to supply his agricultural produce to the society in accordance with the provisions of bye-laws of the society, the Registrar may, on complaint made by the society or suo motu, issue a notice to the member to show cause within a period specified in the notice, why for such failure he should not be removed from the membership of the society. Subsection (2) thereof provides that after holding such inquiry as he thinks fit and giving a reasonable opportunity of being heard to the member, if the Registrar is satisfied that the member has failed, without any good reason or justification, to supply his agricultural produce to the society in accordance with the provisions of the bye-laws, the Registrar may by order remove the person concerned as a member of the society with effect from such date as may be specified in the order and thereupon the person shall cease to be a member of the society on and from that date. Any order made by the Registrar under this section shall be final.
15. Section 25A of the said Act provides that the Committee of a society shall remove from the register of its members the name of a person who has ceased to be a member or who stands disqualified by or under the provisions of this Act for being the member or continuing to be the member of a society, provided that if the society does not comply with the requirement of this section, the Registrar shall direct such society to remove the name of such person, and the society shall be bound to comply with such direction.
16. Plain reading of Section 79B of the said Act, therefore, would reveal that the Registrar, before issuing any order directing removal of the member for his failure to supply sugarcane produce to a processing society, has to give a reasonable opportunity of being heard to such a member and should consider whether the member, without any good reason or justification, has failed to supply sugarcane to the society in accordance with the provisions of the byelaws. The provisions of law, therefore, make it mandatory for the concerned authority to hear the aggrieved person before arriving at any decision for termination of his membership on the ground of his failure to supply sugarcane produce to the processing society. It is not only the basic requirement for compliance of the principles of natural justice that an aggrieved person is required to be heard before passing an order prejudicial to such person but the said principle is found to have been incorporated and given statutory recognition in Section 79B of the said Act in relation to an issue pertaining to the termination of membership of the processing society on the ground of failure to supply sugarcane produce by such member. The provision in that regard is obviously mandatory in nature and any failure on the part of the authority to comply with the said provision would be fatal in the sense that the order passed without compliance thereof would be ab initio bad in law and, therefore, a nullity. It is not a matter of mere irregularity but it would result in denial of valuable right of a member to continue to be a member of the society. It does not relate to an issue of new enrolment of membership of the society. It relates to the right of a person to continue to be a member of the society. Being so, a member cannot be denied of an opportunity to put forth his say before being divested of his valuable right to continue as the member of the society. Being so, the mandatory requirement of giving an opportunity of being heard having not been made available to the petitioners any order passed in such circumstances would be totally illegal and the aggrieved party would be entitled to raise issue of nullity of such an order even in collateral proceedings or whenever such an order is sought to be pressed against him.
17. In the case in hand, it is not disputed that before passing the order dated 18-12-2001 no notice was given either to the petitioners or other members for whose benefit or safeguard of interest, the present petition has been filed. Undoubtedly, the matter had come up for hearing before the authority pursuant to remand thereof. Merely because the matter had appeared before the authority on remand, that would not lead to a conclusion or inference that the parties who were before the authority on whose order the matter was remanded would have knowledge about the dates of hearing of the matter before the concerned authority to which the matter was remanded. Besides, as already observed above, the provisions of Section 79B(1) of the said Act make it mandatory for the authority to hear the member against whom an adverse order is to be passed. Being so, before arriving at any decision as was arrived under the order dated 18-11-2001, it was necessary for the concerned authority to hear the aggrieved persons and only thereafter to pass an appropriate order. Failure in that regard certainly renders the impugned order dated 18-12-2001 to be bad in law.
18. It cannot be disputed that the said order has consequences of divesting the petitioners and other aggrieved members from their right of membership of the respondent No. 4 society. Being so, such an order, which has been passed in contravention of the statutory provisions of law, cannot be sustained and is required to be quashed and set-aside.
19. As regards the order dated 22-3-2002, undoubtedly, it was passed in an appeal filed by two of the members who are not the petitioners in this petition. One of the appellants namely, Kashinath Kamuji Roopnar, being dissatisfied with the appellate order, had carried the matter in Writ Petition No. 5223 of 2002 which came to be dismissed on 29-4-2003. The grievance of the petitioner therein was that he was wrongly held as not being entitled to be a member of the society on the around that he had never supplied sugarcane from 1993 to 1997. The grievance of the petitioner therein was not regarding failure on the part of the authority to comply with the provisions of Section 79B of the said Act. Considering the same, the learned Single Judge had rejected the said petition. Obviously, so far as Kashinath Kamuji Roopnar petitioner in Writ Petition No. 5223 of 2002 and one of the co-appellants in appeal before appellate authority - is concerned, the decision of the competent authority passed on 18-12-2001 would be final for all purposes. But that finality would not affect the rights of the petitioners, as, the case of the petitioners relate to the failure on the part of the authority to comply with the mandatory provisions of Section 79B(1) of the said Act relating to requirement of hearing to be granted to the petitioners and other affected members before entering into merits of the case.
20. It was also sought to be argued on behalf of the respondents that the order of remand dated 26-4-1999 pursuant to which the matter came up before the authority and was disposed of on 18-12-2001 was in relation to the five appellants before the appellate authority and it does not apply to other members. The contention is that the order dated 26-4-1999 was passed in an appeal filed by five persons only and therefore, the order of remand was restricted to the appellants in the said appeal namely, Prabhakar Madhav Malik, Somnath Chandrabhan Dalve, Ramdas Shivaji Hon, Subhash Nivrati Gade and Balnath Veshwant Lute and it cannot enure to the benefit of others including the petitioners. The contention is totally devoid of substance. The order dated 26-4-1999 clearly states that the earlier order dated 10-2-1999 was set-aside in its entirety and all the applicants were required to be given an opportunity of being heard before passing the order by the competent authority. Obviously the matter was remanded essentially because the proper opportunity of being heard was required to be given to all the concerned members and thereupon a decision was required to be taken. Even otherwise, once the order dated 10-2-1999 was set-aside in entirety, any issue relating to the membership and termination thereof could not have been resolved or adjudicated without hearing the aggrieved persons in view of the provisions comprised under Section 79B(1) of the said Act. In other words, even if there is no specific direction in that regard in the appellate order dated 26-4-1999 it was the statutory duty of the competent authority under Section 79B of the said Act to hear all the aggrieved members. The contention that the remand order was restricted to the applicants in the said appeal and therefore, only five appellants in appeal were entitled to be heard is also devoid of substance. If the contention of the learned Counsel for the respondents in that regard is accepted, it would virtually amount to holding contrary to the statutory obligation of the competent authority under Section 79B of the Act. First of all, the question of interpreting the order of the appellate authority does not arise because it is not a statutory provision. Besides, the order itself nowhere mentions that hearing ought to have been restricted only to the appellants therein. The reference to the word "Arjadar" cannot be construed to defeat the very purpose behind Section 79B of the said Act. When a statute gives certain powers to an authority and also provides for methodology for exercise of such power, the authority cannot choose to by-pass the said methodology while exercise such power; and in case, it chooses to do so then the exercise of such power would be bad in law and the decision arrived at would be unenforceable.
21. The factual matrix having knitted in the legal frame, we shall now proceed to deal with the objection sought to be raised on behalf of respondent No. 4 regarding maintainability of the writ petition on account of availability of the remedy of election petition.
22. The Apex Court in Shri Sant Sadguru's case (supra) after considering the provisions of the Maharashtra Specified Co-operative Societies Election to Committees Rules, 1971, held :
"In sum and substance the argument is that since the breach of rule in preparation of the electoral roll cannot be questioned in an election petition before the election tribunal, therefore, the writ petition challenging the preparation of the electoral roll could not have been dismissed on the ground that the appellant had an alternative remedy of filing an election petition."
Having considered the arguments and the provisions of law and particularly Rule 81(d)(v) of the Rules, which deals with one of the grounds for declaring an election to be void and which provided that in case of non-compliance with the provisions of the Act or any rules made thereunder, the Commissioner could declare the election of the returned candidate to be void, It was held that:
"If the contention of the appellant is that if there was a breach of rule or certain mandatory provisions of the rules were not complied with while preparing the electoral roll, the same could be challenged under Rule 81(iv)(d) of the Rules by means of an election petition. In view that, the preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal."
(emphasis supplied)
23. The above decision of the Supreme Court, therefore, at once discloses that the point which was sought to be canvassed before the Apex Court was in relation to "the breach of rule or certain mandatory provisions of the rules in the process of preparation of electoral roll". There was no issue relating to the right of a person who had been already a member of the society, to continue as a member of such society. It was not a case of non-inclusion of hundreds of names in the electoral roll on the ground that they ceased to be the members of the society on the basis of an order passed under Section 79B of the said Act. A dispute relating to mere non-inclusion of a name of a person who is already a member of the society is different from the dispute pertaining to the right of a person to continue to be a member or relating to illegality on the part of the authority in deciding the issue pertaining to the right of membership in contravention of the mandatory provisions under the statute in that regard. In the case in hand, the dispute does not merely relate to non-inclusion of the names of the members in the voters list. The dispute basically pertains to the action on the part of the statutory authority which is taken contrary to the statutory provisions divesting the petitioners and others from their right to continue to be the members of the respondent No. 4 society. Non-inclusion of the names of the petitioners in the voters list is merely a consequence of the said order. The dispute essentially relates to the said order. The moment the said order ceases to have existence or becomes unenforceable, undoubtedly the consequences thereof would be the inclusion of names of those persons in the voters list. This being so, the issue which was before the Apex Court in Shri Sant Sadguru 's case, while deciding the question about restraint which the Court had to observe once the election process commences, was totally different than the issue being dealt with in the matter in hand. The said decision would not, therefore, justify the contention of the learned Advocate for respondent No. 4 that the present petition is not maintainable or will have to be dismissed in limine. Besides, in the said matter before the Apex Court, the election process had already been concluded and the only result was to be declared and it was withheld on account of specific directions in that regard issued by the Apex Court. That is not the case in the matter in hand. Being so, the respondents would not be entitled to non-suit the petitioners on the basis of the decision of the Apex Court in Shri Sant Sadguru's case particularly in the facts and circumstances of the case in hand. The objection in that regard is, therefore, rejected.
24. So far as the decision of the Apex Court in Aligarh Muslim University's case (supra) is concerned, it was based on admitted or undisputed facts. That is not the case in the matter in hand. It is nowhere admitted by the petitioners that they had failed to comply with their obligations as regards supply of cane to the society. The contention of the learned Counsel for respondent No. 4, however, is that there are no pleadings or materials placed on record to disclose that the petitioners and other alleged aggrieved members had in fact supplied sugarcane as was otherwise obligatory for them in terms of the bye-laws of the society. It is too premature for us to consider the said contention as we have already held above that there was no opportunity given to the petitioners and other persons in that regard by the competent authority before deciding the said issue by the impugned order. In the absence of adjudication of the said issue by the competent authority in accordance with the provisions of law, it is not necessary for the petitioners to plead and disclose the said fact in the petition. In the circumstances, merely because the petitioners have not disclosed those facts that would not be a justification to non-suit the petitioners. That apart there are some copies of documents produced on record to reveal prima facie that respondent No. 4 has all throughout continued to treat the petitioners as its members. However, on this aspect we do not want to express any final opinion. It will be for the competent authority dealing with Section 79B of the said Act to decide the said issue and it would be too premature for us to express any opinion in that regard without the competent authority adjudicating the said issue.
25. The learned Counsel for respondent No. 4 society, relying on the decision of the Apex Court in the matter of Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, AIR 1985 SC 1233, has submitted that the petition in representative capacity is not maintainable as the voting right is to be exercised personally and not by proxy and therefore, the petition in the capacity of proxy is not maintainable. The Apex Court in Lakshmi Charan Sen's case (supra) had ruled that the right to be included in the electoral roll or to challenge inclusion of any name in the voters list is a right conferred on an individual and not upon a political party. In fact, this ruling itself would justify rejection of the contention sought to be raised on behalf of respondent No. 4. The Apex Court in the said decision in no uncertain terms had ruled that the petition in representative capacity is maintainable when the identity of the persons for whose benefit the petition is filed can be ascertained from the petition, though such a petition would not lie when identity of such persons for whose benefit it is filed is not known or is not disclosed in the petition. In the case in hand, identity of persons for whose benefits the relief is sought for is made very clear and therefore, there is no substance in the contentions sought to be raised on behalf of respondent No. 4. The decision sought to be relied on, rather than assisting the respondent No. 4, justifies the view we are taking in the matter.
26. As regards the contention raised on behalf of the intervenors that there is collusion between the petitioners and respondent No. 4 society, that no interference is called for and the petition is liable to be dismissed, is also devoid of substance. The intervenors have not pointed out any material on record which would disclose any such collusion. In order to draw an inference about collusion, the facts revealing such collusion are to be established. In the absence of such facts being disclosed from the record, the question of rejecting the petition on that ground does not arise. The decision in Ramchandra Shinde's case has, therefore, no application to the matter in issue once we hold that the material on record nowhere discloses any collusion between the parties to obtain any relief from this Court.
27. The learned Advocate for the Intervenors has also raised the point of laches. It is sought to be contended that the orders sought to be disputed are dated 18-12-2001 and 22-3-2002, whereas, the petition was filed in March, 2005. As already observed above, the petitioners have disclosed in their petition that they were not aware of the said orders till the voters list was released in November, 2004. Being so, it cannot be said that the writ petition suffers from unexplained delay or laches.
28. For the reasons stated above, therefore, the writ petition succeeds. The impugned orders dated 18-12-2001 and 22-3-2002 are quashed and set-aside so far as they relate to the petitioners and other members of the respondent No. 4 society on whose behalf and for whose benefit the petition has been filed and except so far as they relate to two persons namely; Kashinath Kamuji Roopnar and Sanjay Khanderao Memane. The authorities to comply with the directions issued under order dated 26-4-1999 of the State Government in accordance with the provisions of law and bearing in mind the observations hereinabove. Rule is made absolute accordingly in above terms as well as in terms of prayer clauses (B), (C) and (D) with no order as to costs.
29. At this stage, the learned Counsel for respondent No. 4 prays for stay of this order for a period of five weeks. The prayer is objected. We are, however, inclined to suspend the order for a period of five weeks. Order accordingly.