Kamlabai Vitthal Rohankar vs Additional Collector And Ors.
2007 Latest Caselaw 271 Bom

JUDGMENT

More R.V., J.

1. Admit. Heard finally the learned Counsel for the parties by consent.

2. This Letters Patent Appeal under Clause 15 of the Letters Patent (Bombay) takes exception to the judgment dated 23.1.2007 passed by the learned Single Judge of this High Court in Writ Petition No. 278/07.

3. At the outset, the Counsel for the respondent No. 4 took preliminary objection regarding the maintainability of the Letters Patent Appeal against the order of learned Single Judge. Perusal of the Writ Petition discloses that the respondent No. 4 himself who was petitioner in the above Writ Petition has mentioned Article 226 of the Constitution of India in the cause title of the petition. Even para 6 of the petition reads as follows:

Petitioner has no other alternative efficacious remedy to file the present Writ Petition under Article 226 of the Constitution of India.

Therefore, it is apparent that respondent No. 4 herein/petitioner has filed above Writ Petition by resorting to the provisions of Article 226 of the Constitution of India. Be that as it may, the learned Single Judge in para 12(1) observed as follows:

Should the petition be entertained in view of alternate remedy available under Section 144T of the Maharashtra Cooperative Societies Act and whether this Court should interfere in the matter in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

Even para 20 of the impugned order shows that the learned Single Judge has exercised plenary jurisdiction available under Articles 226 & 227 of Constitution of India. In view of this, we are of the view that Letters Patent Appeal is maintainable and objection of the respondent No. 4 is required to be overruled.

4. By the impugned order, the learned Single Judge has quashed and set aside the order of respondent No. 1 Additional Collector passed on 12.1.2007 rejecting the objections of the respondent No. 4 (petitioner in the Writ Petition) and consequently, upheld the objections and included his name in place of appellant (respondent No. 4 in the Writ Petition) in the final voters' list prepared for the purpose of election to the Board of Directors for election of the Chandrapur Zilla Central Cooperative Bank Limited, Chandrapur, the federal bank.

5. The Collector, Chandrapur published programme for preparation of final voters' list under Rules 4 to 6 of the Specified Cooperative Societies (Election to Committees) Rules, 1971 (hereinafter referred to as the said Rules.), which is as under:

  Sr.        Event                         Date
No.
1          Publication of provisional    24-11-2006
           voters' list under Rule 4(2)
2          Inviting claims and object-   22-12-2006
           ions under Rule 6(2) to       to 1-1-2007
           the provisional voter's list
3          Decision on objections or     11-1-2007
           claims under Rule 6(4)
4          Publication of final voter's  15-1-20087
           list
5          Final date for written appl-  30-1-2007
           ication after publication of
           the final voters' list for
           inclusion of name in final
           voters' list under Rule 6(4)
6.         Finalisation of final voter's 7-2-2007
           list after modification, if
           any, under Rule 6(4) 
 

6. The following facts are not disputed by the either parties:

Dighori Seva Sahakari Sanstha, Dighori is a member society of the said Federal Bank and appellant as well as respondent No. 4 are the members of this society. The Managing Committee of Dighori Seva Sahakari Sanstha consists of six members. Meeting of Managing Committee was held on 18.10.2006 and was attended by 4 members. In this meeting, Chairman and Secretary of the society were not present. However, a Resolution came to be passed under which the respondent No. 4 was nominated as a representative/delegate of the Dighori Seva Sahakari Sanstha for the purpose of election to the Board of Directors of the federal society. Later on, another meeting of the Managing Committee of Dighori Seva Sahakari Sanstha was convened by the Chairman and Secretary. This meeting was held on 16.11.2006 and again subject of sending delegate was discussed and a Resolution was passed whereunder the name of the appellant was nominated as a representative or delegate. In pursuance of the Resolution passed by the Managing Committee of Dighori Seva Sahakari in this meeting, name of the appellant was sent to the Collector for inclusion in the provisional voters' list and in fact her name appeared in the provisional voters' list which was published on 24.11.2006.

7. The respondent No. 4 filed objections on 28.12.2006 taking exception to the inclusion of the appellant's name in provisional voters' list to represent Dighori Seva Sahakari Sanstha as a delegate. The main contention of respondent No. 4 was that his name was nominated by a valid resolution passed in the meeting of Managing Committee of Dighori Seva Sahakari Sanstha held on 18.10.2006. His further contention is that though he was legally nominated in a valid meeting to represent Dighori Seva Sahakari Sanstha, name of the appellant was sent and included in the provisional voters' list in pursuance of the illegal resolution passed in the meeting of the Managing Committee of Dighori Seva Sahakari Sanstha held on 16.11.2006. The Resolution nominating the appellant's name is illegal in as much as this meeting of the Managing Committee was attended by 3 members only though to constitute quorum, meeting is required to be attended at least by 4 members. In the abovesaid objections, respondent No. 4 prayed that the Resolution passed in meeting dated 16.11.2006 by the Managing Committee nominating appellant's name be cancelled and his name included in the final voters' list in place of appellant in pursuance of valid resolution passed in the meeting dated 18.10.2006.

8. It appears that the respondent No. 1 Additional Collector sent objections of the respondent No. 4 to the respondent No. 2 for his remarks. The respondent No. 2 gave report to the effect that meeting of Managing Committee of Dighori Seva Sahakari Sanstha was held on 16.11.2006. After perusal of the proceedings-book, he found that out of six members of the Managing Committee, 4 members attended the meeting. However, out of these 4 members which were shown to be present in the meeting, one member by name Ramdas Bhagu Ramteke filed an affidavit before Tahsildar that he was not present in the meeting of Managing Committee which was held on 16.11.2006. On the basis of this affidavit, he concluded that only 3 members were present and in order to constitute quorum, 4 members were required. Therefore, the validity of the meeting was doubtful and, therefore, earlier Resolution passed in meeting of the Managing Committee held on 18.10.2006 could not be changed. In pursuance of the above observation, the respondent No. 2 Assistant Registrar recommended substitution of the name of respondent No. 4 in place of appellant. Respondent No.3 on the report of respondent No.2 gave opinion that he has no objection for substitution of the respondent No. 4's name in place of the appellant.

9. The respondent No. 1 Additional Collector by the order dated 12.1.2006 rejected the objections of the respondent No. 4 on the ground that neither the Resolution nominating the appellant passed by the Managing Committee of Dighori Seva Sahakari Sanstha on 16.11.2006 is challenged in any Court of competent jurisdiction nor the same has been set aside. Consequently, the appellant's name was finalised in final voters' list which was published on 15.1.2007.

10. As stated above, the fourth respondent challenged the abovesaid order of the Collector by filing aforesaid Writ Petition on various grounds and the learned Single Judge by the order impugned in this Letters Patent Appeal sustained the objections of the respondent No. 4 and consequently, allowed the petition in terms of prayer Clause (A) thereby substituting the name of the respondent No. 4 in place of appellant.

11. We have heard the learned Counsel for the respective parties. The learned Counsel for the appellant submitted that the name of the respondent No. 4 though nominated in meeting dated 18.10.2006 same was never sent and included in the provisional voters' list. He submitted that the observation of the learned Single Judge that respondent No. 4's name was included in the provisional voters' list was factually incorrect. The member society is entitled to change the name of the delegate. Therefore, though the respondent No. 4's name was nominated in the resolution dated 18.10.2006, this nomination was validly changed by passing another resolution dated 16.11.2006 and in pursuance of this resolution, appellant's name was sent and included in the provisional voters' list which was published on 24.11.2006. The Additional Collector is not bound by the reports of Assistant Registrar or Deputy Registrar and, therefore, the Additional Collector's order is perfectly legal and Writ Petition under Articles 226 & 227 ought not to have been entertained by learned Single Judge.

12. Per contra, Mr. Bhandarkar, learned Counsel for respondent No. 4, submitted that firstly the impugned order in the Writ Petition is passed by the Additional Collector. Under the Rules, the objections are required to be decided by the Collector but in the present case, the objections are decided by Additional Collector who has no jurisdiction. Secondly, the report of the Assistant Registrar which was apptoved by the Deputy Registrar is binding on the Collector and no decision contrary to the report could have been taken. Thirdly, the Additional Collector has not given any reasons as to why he has not considered the report and fourthly, the Collector's order is non-speaking and passed on reasons which are extraneous and not recognised by law. In short, he supported the impugned order of learned Single Judge.

13. We have given our anxious thoughts to the submissions of learned Counsel. At the outset, we will consider the question whether member society is entitled to change the delegate/nominee. Rule 5(2) of the said Rules reads thus:

5(2) Where a society is a member of a specified Society, the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of the affiliated society, so as to reach it by the 2nd July. While communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society or its committee under which the delegate is so authorised. The specified society shall include in the list of voters the names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. In addition to the names of the delegates, the list shall contain the names of the affiliated societies, their registration numbers and addresses and the names of constituencies if any, to which they belong. A society which has communicated the name of the delegate shall by like resolution be permitted to change the name of its delegate not later than 7 days before the date appointed by the Collector under Rule 16 of said rules for making nominations.

On perusal of this Rule, it is clear beyond any doubt that the member society is entitled to change the name of the delegate not later than 7 days before the date appointed for making nomination in a programme under Rule 16 of the said Rules. In the present case, it is not in dispute that programme under Rule is not yet published.

14. The learned Counsel for the respondent No. 4 fairly admitted that the name of respondent No. 4 was never sent for the purpose of inclusion in the provisional voters' list though the resolution was passed on 18.10.2006 nominating his name. He does not dispute that the appellant's name was sent and was included in the provisional voters' list in pursuance of the resolution of the Managing Committee passed in a meeting held on 16.11.2006. The contention of the respondent No. 4 is that the resolution passed in the second meeting held on 16.11.2006 nominating the appellant is illegal, for want of quorum and, therefore, it cannot be said that society changed the nomination. Therefore, it was obligatory to substitute the respondent No. 4's name in place of appellant in pursuance of the earlier resolution of Managing Committee. On the contrary, the contention of the appellant that validity and legality of the Managing Committee meeting of the society cannot be gone into by the Assistant or Deputy Registrar much less the Additional Collector and, therefore, once the name of appellant was sent and included in the provisional voters' list, it cannot be cancelled. We find merit in the contention of the Counsel for the appellant. The report of the Assistant Registrar mentioned above shows that he has perused the proceedings of meeting dated 16.11.2006 which show that out of six members, four members were present. However, he recommended substitution of respondent No. 4's name in place of the appellant on the ground that one Ramdas Ramteke had filed an affidavit before Tahsildar denying his presence in the Managing Committee meeting dated 16.11.2006 and, therefore, he expressed doubts about the validity of this meeting. In our considered view, the Assistant Registrar or Deputy Registrar has no jurisdiction to go into the question of validity of the meeting of Managing Committee of the society. The validity of the meeting of Managing Committee can be challenged under Section 91 of the Maharashtra Cooperative Societies Act before the Cooperative Court. Even the Collector as a Returning Officer also is not empowered or entitled to go into the validity and legality of the meeting of the Managing Committee of cooperative society. The learned Assistant Registrar formed his opinion as stated above on the basis of affidavit of one Ramteke. We are of the considered view that the affidavit mentioned above could not have been the basis to decide the validity of the meeting especially when the record of the minutes of the meeting shows otherwise. In any case, if this course which is adopted by the Assistant Registrar is allowed, in that case, there will be utter confusion resulting in rival claims and multiplicity of the litigation. It is very easy for a member of the Managing Committee to attend the meeting and affirm later on that he has not attended the meeting, for ulterior considerations. Such affidavit also can be the result of changing the loyalties. In any case, the issue regarding the legality of the meeting and constitution of quorum are required to be decided under Section 91 by the Cooperative Court by leading evidence and not by the Assistant Registrar or the Collector and, therefore, we are of the opinion that the resolution of the Managing Committee which is acted upon by including the appellant's name in provisional voters' list cannot be ignored unless and until it is set aside by the Court of competent jurisdiction. Therefore, there is no doubt in our mind that Additional Collector rightly rejected objections of the respondent No. 4 and this order ought not to have been interfered with in the writ petition.

15. So far as the contention of the respondent No. 4 that a report of the Assistant Registrar or Deputy Registrar is binding on the Collector and if he does not agree with the report he must give reasons is concerned, same is devoid of any substance. Rule 6 of the said Rules reads as under:

6. Claims and objections to provisional list of voters: (1) When any provisional list of voters is published for inviting claims and objections, any omission or error in respect of the name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society.

(2) Every person making a claim or raising an objection shall do so by a separate petition, which shall be presented to the Collector on or before the 31st July, during office-hours,

(3) Every claim or objection shall be preferred in writing and state the grounds on which the claim is based or the objection is raised, as the case may be,

(4) The Collector shall, after considering each claim or objection, give his decision thereon in writing to the person concerned before the 10th August and take steps to correct the provisional list where-ever necessary. The list as finalised by the Collector after deciding all claims and objections shall be the final list of voters.

(5) Notwithstanding anything contained in Sub-rule 4, any person who is a member of the society as on the 30th day of June of the year immediately preceding the year in which such election is due or on such subsequent date as may be fixed by the Collector under Sub-rule (1) of Rule 4 and whose name is not included in the final list of voters prepared by the Collector under Sub-rule (4) and who is desirous of being registered as a voter may apply in writing to the Collector in Form 1-A within a period of fifteen days from the date of display of final list of voters under Rule 7.

(6) Every such application received by the Collector shall be forwarded by him within three days of the date of receipt by him to the District Deputy Registrar for enquiry. The District Deputy Registrar shall cause an enquiry to be made into the application and submit his report to the Collector along with his recommendations within 7 days from the date of receipt of the application by him from the Collector.

(7) The Collector shall after considering the application and the report of the District Deputy Registrar give his decision in writing to the persons concerned, before the first date fixed for making nominations. If the Collector decides that the name of the applicant should be registered as a voter, he shall accordingly modify the list finalised by him earlier under Sub-rule (4) and the list so modified shall then be treated as the final list of voters.

Perusal of Clause (1) of above rule contemplates objections to the provisional voters' list by any member of the society concerned or any delegate authorised to vote on behalf of such society and Clause (4) speaks about disposal of the objections by the Collector after considering the same. The Collector is obliged to finalise the list after deciding all claims and objections and said finalised list is called final list of voters under Clause (4). Thus, uptill the stage of finalisation of the final voters list under Clause (4), there is no provision which mandates Collector to call for the report of Assistant or Deputy Registrar and consider the same. The scheme of Clauses (1) to (4) does not contemplate the intervention of Assistant or Deputy Registrar of the Cooperative Societies. Therefore, we are of the considered view that in order to facilitate final decisions on objections, though the Collector has called reports from the Assistant or Deputy Registrar of Cooperative Societies, same is not binding on him and the Collector inspite of the particular report of Assistant or Deputy Registrar is entitled to decide the objections otherwise also. We are also of the opinion that in view of the scheme of Clauses (1) to (4) of Rule 6, it is not at all necessary for the Collector to give reasons as to why he is not adhering to the report of the Assistant or Deputy Registrar.

16. The scheme of Sub-rules (5) to (7) of Rule 6 is quite different. Sub-rules 5 to 7 come into picture after finalisation of final voters' list. Sub-rule 5 contemplates written application in form 1-A by person, who is a member of the society as on 30th day of July of the year immediately preceding the year in which election is due and whose name is not included in final voters list prepared by the Collector under Sub-rule (4). The written application under Sub-rule (5) is required to be sent to the District Deputy Registrar for enquiry and District Deputy Registrar is obliged to hold an enquiry and submit his report to the Collector along with the recommendation. Sub-rule (7) states that the Collector after considering the application and report of the District Deputy Registrar shall give his decision in writing. The scheme under Clauses (5) to (7) mandates the Collector to forward application to the District Deputy Registrar and call for the report. However, Clauses (5) to (7) come into picture only after finalisation of the final voters' list under Clause (4) of Rule 6. It is worthwhile to mention at this stage that the Collector is obliged under the scheme of Sub-rules (5) to (7) to consider the report of Deputy Registrar. Turning to the facts of the present case, respondent No. 4's objections were under Clause (1) of Rule 6 and he filed Writ Petition challenging Collector's order immediately after finalisation of final voters' list under Clause (4). Therefore, it is clear from the facts of the present Writ Petition that when the petition was filed the stages contemplated under Clauses (5) to (7) had not reached. The objections of the respondent No. 4 were not under Clause (5) and, therefore, same were not required to be forwarded to the Deputy Registrar calling for the report. The contention of the respondent No. 4 that Collector ought to have accepted the report or in any case if he was not agreeable to the report, he ought to have given reasons is devoid of any substance. We do not see any merit especially in view of the scheme of Sub-rule (6) mentioned above.

17. Now we will consider third objection of the respondent No. 4 that under the Rules the Collector is appointed as a Returning Officer and, therefore, his powers could not have been delegated to the Additional Collector, who in the present case disposed of respondent No. 4's objections. This contention of the respondent No. 4, in our opinion, is misconceived. Clause (k) of Rule 2 of said Rules reads as follows:

(k) words and expressions used in the Act and not defined in these rules shall have the meanings assigned to them in the Act.

The term "Collector" is not defined under the said Rules and, therefore, we have to take aid of Maharashtra Cooperative Societies Act. Chapter XI-A of the Cooperative Societies Act deals with the election of the Committees of Specified Societies like Federal Society in the present case. Clause 2(a) of Section 144-A defines Collector as:

(a) "Collector" means the Collector having jurisdiction over the local areas in which the registered office of the society concerned is situated and includes the Additional Collector and also any officer not below the rank of Deputy Collector appointed by the State Government to exercise the powers and to perform the duties of the Collector under this chapter.

Perusal of the above provision leave no doubt in our mind that the Additional Collector can exercise powers of the Collector. There is no question of delegation of the power to him. The Additional Collector can legally exercise powers of the Collector. Therefore, no fault can be found in rejection of respondent No. 4's objection on the ground of jurisdiction. We accordingly turn down the contention of the respondent No. 4.

18. As far as the last contention of the petitioner that Additional Collector's order is non-speaking or it is passed for reasons which are extraneous and not recognised by law is concerned, we find no force. Perusal of the order of the Additional Collector reveals that he refused to delete the name of the appellant and include that of the respondent No. 4 in final voters' list. The order discloses the reasons as to why he has taken the decision and according to us, correctly. Reason disclosed by the Collector is that the resolution dated 16.11.2006 nominating the appellant's name is not challenged by anybody in the Court of competent jurisdiction or same is not quashed and set aside by the Competent Authority. To our mind, the Additional Collector was perfectly justified in giving these reasons. The reasons given by the Collector are legal one and no fault can be found with it. In view of the discussion above, we are of the considered view that the contention of the respondent No. 4 that Additional Collector's order is non-speaking is not correct one and his further contention that same is passed for the reasons extraneous and not recognised by law is also not correct.

19. Having come to the conclusion that the appellant's name was nominated by the Resolution passed in meeting dated 16.11.2006 by changing earlier nomination of the respondent No. 4 and later on the appellant's name was sent and included in the provisional voters' list and though the respondent No. 4 objected inclusion of name of appellant and said objection was correctly overruled by the Additional Collector, we have no alternative but to allow this Letters Patent Appeal. Hence, we pass the following order:

The Letters Patent Appeal is allowed. The impugned judgment and order dated 23.1.2007 passed by the learned Single Judge in Writ Petition No. 278/07 is quashed and set aside and the Writ Petition No. 278/ 07 stands dismissed. There will be no order as to costs.

At this stage, learned Counsel for respondent No. 4, makes a request for stay of this judgment. In view of the findings given in the judgment, we do not find any merit in the prayer. Hence, the prayer for stay is rejected.

Copy of the judgment, authenticated by concerned P.S., may be supplied to the parties on payment of copying charges.