The Collector vs Atul Gangadhar Ganyarpawar, The ...
2007 Latest Caselaw 721 Bom

JUDGMENT

C.L. Pangarkar, J.

1. Rule. Returnable forthwith.

2. Heard Finally with consent of parties.

3. Intervention applications in both the review applications are allowed.

4. By these two applications, both applicants seek review of the two orders passed by this Court in Writ Petition No.2283 of 2006 on 4/7/2006 and 17/7/2006.

5. A few facts may be narrated as follows

One Atul Ganyarpawar had filed a Writ Petition No.2283 of 2006 against the State Commissioner for Cooperation and the Collector Bombay. The petitioner Atul sought to challenge the cut off date as fixed by the General Order issued by the Collector, Mumbai on 6/11/2003 and Special Order dated 29/3/2006 for preparation of provisional list of voters. By this communication, the cut off date was fixed as 30/12/2002. In order dated 4/7/2002, it was observed by the court that fixing 30/12/2002 as cut off date was totally contrary to the provisions contained in the Act and the Rules and further observed that it should be 30/6/2002. The court directed the respondent to make a statement before it as to on what basis they proposed to fix the cut off date for preparing the voters list and why Administrator was not appointed. The matter as directed came up before the court on 17/7/2006. On 17/7/2006, the Collector i.e. respondent no.3 therein filed an affidavit that the cut off date would be 30/6/2002 for preparation of provisional list and Administrator has already been appointed. Since such affidavit was filed, the court disposed of the writ petition. On the basis of this order dated 17/7/2006, the Collector, Bombay again issued a special order on 21/7/2006 fixing the cut off date i.e. 30/6/2002 as per order of the court dated 17/7/2006. This order dated 21/7/2006 again came to be challenged before the Division Bench of this Court. The Division Bench, quoting the judgment in Dudhganga Society's case reported in 2006(5) SCALE, 250 directed the petitioner therein to file a review petition before the Single Judge. Accordingly, these review petitions are filed by Subhash Raghtate and the Collector.

6. Before adverting to the reasons, it would be necessary to narrate a few more facts which are not in dispute. The last election of the Maharashtra Cooperative Federation was held on 14/8/1998 and the body elected assumed charge on 9/9/1998. The Federation has a fixed term of five years. Accordingly, the elections became due on 9/9/2003. They were, however, not declared and held and Government granted extension of six months to the same body. It is no more res integra that inspite of extension granted, the term of the body elected is deemed to have come to an end on expiry of five years and the elections also are deemed to have become due on expiry of term of five years. In view of this, it is no more in dispute that the elections in this case became due on 9/9/2003.

7. The only question that is required to be determined is what should be the cut off date for preparation of the provisional list of voters. The learned Counsel for the petitioner herein straightway took me through the judgment of the Supreme Court in Dudhganga Vikas Seva Sanstha which is also extensively quoted in the judgment of the Division Bench. On basis of this judgment, Shri R.K.Deshpande, learned Counsel, sought to urge that Rule 4 of the Maharashtra Specific Societies Election to the Committee Rule does not at all fix the date as 30th of June and the Collector has power to fix the date. Before appreciating this argument, it would be necessary to quote here Sub section (3) of Section 27 of the Maharashtra Cooperative Societies Act and Rule 4 of the Rules which are known as Maharashtra Specific Societies Election to Committee Rules. Both are herein after be referred to as Act and Rules.

27(3)-A society which has invested any part of its funds in the shares of any federal society, may appoint one of its members to vote on its behalf in the affairs of that federal society; and accordingly such member shall have the right to vote on behalf of the society;

Provided that, any new member society of a federal society shall be eligible to vote in the affairs of that federal society only after the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society:

Provided further that, where the election is to a reserved seat under Section 73B, no person shall have more than one vote.

(3A) An individual member of a society shall not be eligible for voting in the affairs of that society for a period of two years from the date of his enrollment as a member of such society.

Rule 4 : Provisional List of Voters. -

(1) A provisional list of voters shall be prepared by every society for the year in which general election is due to be held. [The persons who have completed minimum period of two years as members from the date of their enrollment before] the 30th June of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of voters shall be arranged constituencywise as laid down in the bye-laws : [provided that, if in any case, the preparation of the provisional list of voters falls due after the expiry of a period of six months from the 30th June, the Collector, may in consultation with the Registrar in respect of the societies of the categories mentioned in Clause (i), (v), (vii) of Sub section (1) of Section 73(G), and in consultation with the District Deputy Registrar in respect of the societies of the other categories mentioned in Sub-section (1) of Section 73(G), by order, change the date of the 30th June and subsequent dates and fix revised dates for the purposes of these rules.

8. Now a bare reading of these two provisions would make it clear that there are two different types of eligibility criteria. The first criteria in Section 27 is about eligibility for exercising right as a Voter. It says that a new member of Society shall be eligible to vote only after completion of period of three years from the date of investing the funds in the shares of the federal society, while an individual member under Clause 3A becomes eligible to vote on completion of period of two years from date of enrollment. This is one part of the criteria. The second part is to be found in Rule 4. The second part relates to eligibility for being included in the provisional voters list. It says that for name being included in the voters list, the member must have completed minimum period of two years before 30th June. Obviously, at the cost of repetition, it has to be said that the first criteria relates to right to vote and second criteria relates to inclusion of name in voters list. It can be demonstrated how they are different. For example, a Society becomes member of Federal Society on 1/5/2002 and elections are to be held on 1/2/2005. On this date, as per Rule 4, the Society becomes eligible for being included in the voters list, since it fulfills a criteria of being included in the voters list. But inspite of the name being there in the voters list, the Society may not be able and eligible to vote, for it has not completed period of three years from the date of its becoming a member of the Federal Society. The Supreme Court in para no.12 of the Dudhganga Society's case has made following observations

12. Learned Counsel appearing on behalf of the State of Maharashtra as well as the intervenor submitted that under Rule 4, though there were no express words to that effect, the eligibility of a society for its name to be included in the provisional voters list has to be considered in the light of the provisions of Section 27 of the Act. It was, therefore, submitted that unless a society is a member of the specified society for a period of at least 3 years on the 30th of June of the year immediately preceding the year in which such election is due, its name cannot be included in the provisional list of voters. The Submission is wholly misconceived. Rule 4 of the Rules does not provide that a person whose name is to be included in the provisional list of voters should be one who has completed a minimum period of three years as a member as on 30th June of the year immediately proceeding the year in which election is due. In fact, the express words of Rule 4 provide that he should have completed minimum period of 2 years. To read Rule 4 in the manner suggested by the respondents would amount to rewriting the rules. It was submitted that Rule 4 must be read into Section 27 and so read there may be inconsistency between the Act and the Rules. In fact, the District Collector as well as the High Court took the view that the District Collector was found by the Rules and, therefore, it has rejected the claim of the appellant society. On a careful consideration of the provisions of the Act and the Rules, there is no inconsistency between 27 of the Act and Rule 4 of the Rules. Even if there was any inconsistency as argued by the respondents, the Act must prevail over the Rules.

The Supreme Court repelled the argument that even for purpose of inclusion of name in the voters list, period of three years as per Section 27 should be reckoned. I lay emphasis on the following sentence in para 12.

Rule 4 of the Rules does not provide that a person whose name is to be included in the provisional list of voters should be one who has completed a minimum period of three years as a member as on 30th June of the year immediately proceeding the year in which election is due.

Thus, the Supreme Court has also distinguished the criteria for the two. The main controversy before the Supreme Court was only in regard to inclusion of the name of the Society. The elections were to be held in April, 2006 and Society had become member on 30/12/2002. The cut off date was 30th June of proceeding year i.e. 30/6/2005. Obviously, the Society has not completed three years on 30/6/2005, as it had become member on 30/12/2002. But all the same, on cut off date it had completed two years membership. Therefore, its name were liable to be included in the voters list. quote here the observations of the Supreme Court in para no.10 to make the above facts more clear.

Rule 4 of the Rules provides for the preparation of the provisional list of voters. We may observe that while Section 27 of the Act lays down the eligibility condition of a new member of a federal society to vote in the affairs of a federal society, Rule 4 of the Rules only relates to preparation of a provisional voters list. The provisional list is required to be prepared by every specified cooperative society for the year in which general election is due to be held. According to Rule 4 persons who have completed a minimum period of 2 years as member from the date of their enrollment before 30th June of the year immediately preceding the year in which such election is due, shall be included in the said provisional list. The question is whether for inclusion in the provisional list of voters the appellant society fulfilled the conditions laid down therein, namely, that it had completed minimum period of 2 years as a member of such society as on 30.6.2005, since the election was scheduled to be held in April, 2006. There is no dispute about the fact that the appellant society was enrolled as a member on 30.12.2002, the date on which it invested its fund in the capital of the respondent No.2 federal society. We, therefore, find no difficulty in holding that in terms of Rule 4 of the Rules, which relates to preparation of the provisional voters list, the name of the appellant society had to be included in the provisional list. So viewed, under Section 27 of the Act the appellant society was eligible to vote in the elections to be held in April, 2006, and was also eligible to be included in the provisional list of voters to be prepared in accordance with Rule 4 of the Rules. That being the legal and factual position, we find no reason to reject the claim of the appellant society to cast its vote in the election scheduled to be held in April, 2006.

9. It is in this context, the Supreme Court held that the name of the Societies ought to be included in the voters list. The Supreme Court was not considering the question as to whether the cut off date as given in Rule 4 is mandatory or not nor was such question raised before it. In fact, the Supreme Court on the basis of the cut off date as given in Rule 4 determined the eligibility of the petitioners therein. It did not observe that the date could be changed or it was wrong date. The Supreme Court found that the Society had completed two years membership on cut off date i.e. 30th June and therefore, the Society was entitled to be included in the provisional list of voters. The Supreme Court held that the Society was entitled to vote in that case under Section 27(3). The elections were to be held in April, 2006 and Society had become member on 30/12/2002. It completed its tenure of three years as member on 30/12/2005. Obviously, it had completed three years and three months at least on the date elections were to be held. Section 27(3) says that the Society shall be entitled to vote after three years. Thus, on date of actual voting the Society should have completed three years term. In the Dudhganga case, the Society had completed more than three years in April, 2006 and therefore, it was held that it had a right to vote.

10. On careful consideration of the Supreme Court Judgment, it is clear to me that the Supreme Court never held that, date as given in Rule 4 can or could be changed. It is a date fixed by the Government while framing the Rules. There is, therefore, no question of it being allowed to be changed. The Supreme Court in Dudhganga case has not changed the cut off date at all. Shri Deshpande, the learned Counsel, also relying on a Rule 8 of the Maharashtra Cooperative Societies Act, 1969 submitted that the Collector has power to alter the date in any of the preceding rule including Rule 4. Rule 8 reads thus. Power to Collector to alter dates for list of voters -Notwithstanding anything contained in the foregoing rules, the Collector may, in the case of all or any of the societies of the categories mentioned in Clause (i),(v),(vi), and (vii) of subsection (1) of Section 73G in consultation with the Registrar, and in the case of all of any of the societies of the categories mentioned in other clauses of Sub-section (1) of Section 73G in consultation with the District Deputy Registrar, by general or special order, alter all or any of the dates prescribed therein and appoint such revised dates as he deems fit.

The rule cannot be read in the manner as suggested by Shri Deshpande. To my mind, what rules says is that the Collector has a right to change the date of general or special order. If the Government intended to give unfettered power to Collector to even change cut of date, it would not have itself fixed such date in rule 4. If it had intended to give such power, it would have said that the Collector may fix any date as cut off date in Rule 4 itself. This Court in Writ Petition No. 6196 of 1999 (Kuntinath Apparnna Nilapgol and Anr. v. The Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. and Ors. ) (at Bombay) has made following observations

5. An attempt was made on behalf of the petitioners to make out a case that Rule 8, as quoted above, has its own field of operation and it is totally uncontrolled by Rule 4 Sub-rule (1) and, as such, the Collector has power under Rule 8 to fix any date, of course, in consultation with the District Deputy Registrar. If that be so, in our opinion, it will create a very anomalous position and, moreover, the important part of Sub-rule (1) Rule 4, bearing reference to the order in which the general election is due, will be given a complete go- bye.

This Court did not approve the argument that Rule 8 overrides Rule 4 and Collector has unfettered or arbitrary power to fix any date as cut off date.

11. I, therefore, find that the Government has, by Rule, fixed the date 30th of June of previous year as cut off of date for election that may be held in the current year. The Collector cannot have power to change that date without there being change in Rule 4 itself. None of the orders therefore need any review. The court had rightly held in the order dated 4th July, 2006 that fixing of 30th December, 2002 as cut off date was wrong. Consequently, the second Order dated 17th July, 2006 wherein it was stated that 30th June be taken as cut off date was also correct. In view of this, both review applications need to be dismissed. They are so dismissed.

The Collector, Mumbai shall now declare the election programme within period of two weeks, with 30th June, 2002 as cut off date.