Shri Prakash Son Of Vitthalrao ... vs Resident Deputy Collector, ...
2007 Latest Caselaw 930 Bom

JUDGMENT

A.H. Joshi, J.

1. Rule. Rule is made returnable forthwith. Heard respondent nos. 1 and 2. Respondent No. 3 is not a party required to be heard, as its interest is being espoused by petitioner himself.

2. The programme for preparation of a Voters' List of the Respondent No. 2-Society had commenced, initially by order dated 17th November, 2006, and the Voters' List was finalized. The elections, however, could not be held due to general orders issued by the Government postponing the elections till the end of 31st March, 2007. Thereafter, Collector issued a fresh programme dated 5th April, 2007 for preparation of a Voters' List. The last date fixed for this purpose in the said programme was 30th May, 2007.

3. In the meantime, the petitioner herein filed a Writ Petition bearing No. 3808 of 2007 and during pendency of the said petition, the Collector, Amravati, issued the election programme dated 27th July, 2007.

4. According to the petitioner, the respondent No. 3Society had adopted a resolution changing the name of the representative who should vote for and on behalf of the respondent No. 3, and would be entitled to submit nomination etc. for being elected to Committee of Respondent No. 2.

5. According to the Petitioner, under Rule 5 [2] of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 [hereinafter referred for brevity as "the Rules"], the Member-Societies, like respondent No. 3, are entitled to pass a fresh resolution and nominate a different person as a representative, and upon application being made, name of such representative newly nominated is required to be recorded in the Voters'List.

6. According to the petitioner:

[a] A resolution changing the name can be passed any time till the last date fixed for nomination in the election programme under Rule 16 reaches, and the communication thereof is permissible after fifteen days of declaration of final voter-list under Sub-rule [7] of Rule 6 of the Rules.

[b] Since election programme dated 27th July, 2007 came as a surprise to the parties, because it was prepared and published suddenly, it is open to the Societies to furnish the name based on the resolution and request that the name of the representative be changed.

[c] The resolution was furnished on 27th August, 2007 along with an application in Form-IA prescribed under said Rules, however, Collector did not even receive it on the ground that the election programme has already progressed. Soon thereafter, i.e., on 29th August, 2007, present petition has been filed.

7. The petition is opposed by respondent No. 1 as well as by respondent No. 2 on the grounds, namely that:

[a] the application under Sub-rule [2] of Rule 5 is liable to be filed seven days before the stage relating to nomination fixed in the programme under Section 16, which, in the present case, is 3rd September, 2007 and, therefore, it ought to have been before 27th August, 2007, however, it was not so filed;

[b] that the contention that the application is tendered, but not received, is not factually correct, since it is an allegation made which can be very conveniently made without support of facts;

[c] moreover, the claim relating to petitioner in case of Kasbegavan Society was already before this Court in Writ Petition No. 3808 of 2007. In that petition, it was not disclosed if any effort was made to file an application as contemplated by Sub-rule [2] of Rule 5. No explanation is offered as to why till 24th August, 2007, the application under Rule 5 [2] was not filed. Any whisper about attempt of filing of such application was not made when said Petition was argued and withdrawn on 28th August, 2007. In fact, only after the petition was withdrawn, by way of sheer afterthought and coining new ideas, the story of having tendered an application on 27th August, 2007, but not accepted, is agitated;

[d] Rule 6 of said Rules has no application to the category covered by Rule 5 [2];

[e] Rule 6 applies to individual members, whose names are recorded in provisional voter list as well as for those members of the category who do not belong to a category covered by Rule 5 [2]. The stage of Sub-rule [5] of Rule 6 commences after the Voters' List has been finalized for fifteen days thereafter, while the stage of Sub-rule [2] of Rule 5 is available up to seven days of the date, i.e. till last date, fixed under Rule 16 for the purpose of filing of nominations. Thus, Rule 5 [2] is an independent provision liable to be read in exclusion to Rule 6 [5], and petitioner's submission to contrary is fallacious.

8. Learned Advocate then placed reliance on following judgments:

[a] Shivnarayan Amarchand Paliwal v. Vasantrao Vithalrao Gurjar and Ors. 1992 Mh. L.J. 1052, and

[b] Pundlik v. State of Maharashtra and Ors. 2005 [5] ALL MR [SC] 1082, and

9. This Court has considered the submissions advanced, the reply and rules involved.

10. On facts, this Court finds that the story brought forward by the petitioner not only raises disputed question of fact, namely as to whether and when resolution was adopted by respective Societies, and why was it communicated so late, i.e., as allegedly on 27th August, 2007, when the election programme already announced on 27th July, 2007 had substantially progressed.

11. If at all the application was actually tendered on 27th August, 2007 and the respondent No. 1 orally refused to accept it, why it was not immediately mailed by Registered Post mentioning therein that when tendered, respondent No. 1 orally refused to receive the application. Sum effect of the behaviour of the petitioner leads to an irresistible conclusion that the entire story seems to be of cock and bull.

12. Moreover, the name of the representative member of a Member-Society who was sought to be replaced by the petitioner who is the affected person, is also not arrayed as respondent.

13. There could be Specified Societies of which other Societies are also members. Whenever other Societies are members, they have to nominate their representative who would be a voter. The class of such Member-Societies is governed by Sub-rule [2] of Rule 5. Such of the members, who are not Society-Members, would be governed by Rule 6.

14. Modalities, as emerged from plain reading of Rule 6, lead to a conclusion that the final voter-list, as far as individual members are concerned, is open until the programme for finalizing the voter-list is in force, and fifteen days thereafter, while correction of voter-list for the member-Societies is open till seven days prior to the last date fixed for nomination, i.e., the date so fixed under Rule 16. In this background, we reject the petitioner's legal submissions that even after announcement of programme till last date of voting, or even after the last date fixed for nominations is crossed, the name of the representative of Society can be changed under Rule 5 [2].

15. In the result, we dismiss the petition being without any merit. Rule is discharged with costs.