Bombay High Court
Madhusudan vs The Assistant Registrar For ... on 18 January, 2002
Bench: R Mohite
JUDGMENT
1. Heard the learned counsel for the
parties.
2. The brief facts of this petition, are as
under :-
The respondent no.16 is not specified
society. Under its bye-laws any person, who holds a
share of Rs.100/- is entitled to become a member.
Under its by bye-laws its election to the Managing
Committee are to be held in accordance with the
Election Rules, which are required to be framed.
Admittedly, such Election Rules were approved by the
Assistant Registrar-respondent No.1 on 23.8.2000. In
the Election Rules a person a member was entitled to
file his nomination provided he owned two shares of
the value of Rs.200/-. On 14.11.2001, the election
programme of respondent no.16 society came to be
published. Under the Election programme, the dates
for filing of nomination were between 10.12.2001 and
14.12.2001. The last date for raising objection was
18.12.2001. The date for scrutiny was on 20.12.2001.
It is not in dispute that on the date fixed for
scrutiny, the Returning Officer- respondent no.2,
rejected nomination of present respondents No.3 to 15,
on the ground that they were not owners of two shares,
which was a pre-requisite condition under the Election
Rules, as stated hereinabove.
3. Being aggrieved by the rejection of the
nomination the respondents No.3 to 15 filed an appeal
before the Assistant Registrar of Co-operative Society
under section 152(a) of the Maharashtra Co-operative
Societies Act, 1960. The said appeal was decided by
respondent no.1 on 13.1.2001. While deciding the
appeal, he accepted the contention of the respondent
to the effect that the nomination had been rejected,
in view of clear provision of Election Rules, which
required a person seeking nomination to own two shares
worth Rs.200/-. He further held that had respondents
No.3 to 15 been given an opportunity of hearing, then
they would have removed the objection. In
consequence, he gave a direction that if respondents
No.3 to 15 remain present, then respondent no.16
society should accept the amount of Rs.200/- and
continue their nominations, as valid.
4. This order of respondent no.1 passed, as
aforesaid on 31.12.2001 is the subject matter of the
present Writ Petition. It is the contention of the
petitioner that once the Election Rules, admittedly
framed under bye-laws clearly provided the ownership
of two shares of the valuation of Rs.200/as a
pre-requisite condition to the filing of nomination,
within Election Rules, which were approved by
respondent no.1 himself, it had binding force and the
Returning Officer had rightly disallowed the
nomination of respondents No.3 to 15, who did not have
the requisite two shares. It was further contention
of the petitioner that the respondent no.1, having
accepted that two shares were necessary under the
Election Rules, exceeded its power under section
152(a) of the Maharashtra Co-operative Societies Act,
1960, by giving a direction to the society to accept
the amount of Rs.200/- from respondents No.3 to 15, if
they remain present. The argument was that such
direction beyond the scope and ambit of Section
152(a)
of the Maharashtra Cooperative Societies Act,1960.
5. On behalf of respondents 3 to 15, it was
contended that the Election Rules as framed by
respondent no.1 are unreasonable. It is further
contented that it is beyond the scope conferred by the
Managing Committee to frame the Election Rules.
6. The Society in question is not a
specified society. Once it is admitted that the
Election Rules have been framed and provide for
requirement of two shares for filing a valid
nomination, any grievance relating to the manner, in
which the present Election Rules have been framed,
must necessarily lie, within the ambit of a dispute
under Section 91 of Maharashtra Co-operative Societies
Act,1960. It may be noticed that the Election Rules
were framed and approved on 23.8.2001 by respondent
no.1. There was ample time and opportunity for
respondents no. 3 to 15 to challenge the same by
filing a dispute, if they so desired. Further
argument is that it is open for respondents No.3 to 15
to raise contention of unreasonableness, arbitrariness
and validity of the election bye-laws for the first
time even in reply to the present Writ Petition. I am
not inclined to accept this argument. The Election
bye-laws are not under direct challenged in this
Court. Respondent NO.3 to 15 have not filed
proceeding challenging byelaws. Therefore, validity
of bye-laws cannot be gone into this writ petition and
it is always open hereinafter for respondents no.3 to
15 or any other aggrieved person to file dispute under
section 91 of the Maharashtra Co-operative Societies
Act,1960, to challenge the same.It appears to me that
the respondent no.1, has exceeded his power under
section
152(a) by giving untenable direction to
respondent no.16 to accept the share value to the
extent of Rs.200/- from the respondents no.3 to 15.
The only question that he ought to have considered was
whether nomination was correctly rejected by the
Returning Officer and as to whether the respondents
No.3 to 15 were disqualified on the date that the
nomination were rejected.
7. In the result, this Writ Petition must
succeed.
8. Rule is made absolute, in terms of
Prayer Clause (a).
9. There shall be no order as to costs.
10. Copy of this order signed by Steno will
be made available to the parties and A.G.P. will
communicate the operative part of this order to the
respondents No.1 and 2 forthwith.
