Bombay High Court
Amrutdhara Dudh Utpadak vs The State Of Maharashtra on 17 December, 2011
Bench: S.V. Gangapurwala
1 W.P. 9421.2011 - [ J ]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9421 OF 2011
1. Amrutdhara Dudh Utpadak
Sahakari Sanstha Dangar Budruk
Tal. Amalner, Dist. Jalgaon
Through its Secretary
Rajesh Sarjerao Wagh
Age : 34 Yrs., Occ. Agriculture,
R/o : Dangar Budruk, Tq. Amalner,
Dist. Jalgaon.
2.
Shetkari Sahakari Bagayatdar Sangh
Ltd. Amalner, Tq. Amalner,
Dist. Jalgaon
Through its Secretary
zRajesh Sarjerao Wagh
Age : 34 Yrs., Occ. Agriculture,
R/o : Dangar Budruk, Tq. Amalner,
Dist. Jalgaon. ..... PETITIONERS
V E R S U S
1. The State of Maharashtra
Through its Secretary
Co-operation Department
Maharashtra State,
Mantralaya, Mumbai.
2. The Collector, Jalgaon
Dist. Jalgaon and the
Returning Officer for
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the General Elections of
the Board of Directors
of Amalner, Tq. Shetkari
Sahakari Sangh Ltd.
3. The District Deputy Director
Co-operative Societies, Jalgaon
Dist. Jalgaon.
4. The Amalner Taluka Shetkari
Sahakari Sangh Ltd., Amalner
Dist. Jalgaon
Through its President. ..... RESPONDENTS
Mr. V.D.Salunke, Advocate for the petitioners.
Mr. K.B.Choudhari, Addl.Govt. Pleader for State.
Mr. S.R.Bharad, Advocate for Respondent No. 4.
CORAM : S.V.GANGAPURWALA, J.
DATE OF JUDGMENT : 17/12/2011
JUDGMENT :
1. Rule. Rule returnable forthwith. With the consent of the
learned counsel for the respective parties, taken up for final hearing.
2. The Petitioner - Societies are the Co-operative Societies. The
petitioners applied to the respondent no. 4 - Sangh for membership on
14/06/2002. They also paid share deposit amount and the entrance fee
3 W.P. 9421.2011 - [ J ]
on 14/06/2002.
3. On 21/10/2011, respondent no. 2 published the programme
for publication of the voters' list for the election of respondent no. 4 -
Sangh. The petitioners raised objection as the names of the petitioners
did not appear in the provisional voters' list. The said objection came to
be rejected by respondent no. 2. The said order is assailed in the present
Writ Petition.
4.
Mr. V.D.Salunke, the learned counsel for the petitioners
submits that even respondent no. 2 in its affidavit in reply has accepted
the fact that the petitioners have deposited the share deposit amount and
the entrance fee on 14/06/2002. There is no dispute in regard to the
payment of the share deposit amount and the entrance fees. In such
circumstances, Section 22 ( 2 ) of the Maharashtra Co-operative Societies
Act, 1960 [ For short, ' said Act ' ] would come into operation.
Respondent no. 4 never communicated to the petitioners that their
application for membershipis rejected. In view of the same, the
petitioners would be deemed members of respondent no. 4. The learned
counsel further contends that in view of Section 27 ( 3 ) of the said Act,
the Society which has invested any part of its funds in the share of any
federal society, may appoint any one of its member. The learned counsel
4 W.P. 9421.2011 - [ J ]
submits that in view of these provisions, the petitioners are entitled to be
enlisted in the voters' list.
5. The learned Assistant Govt. Pleader submits that there is
nothing on record to show that the petitioners were given membership of
respondent no. 4, though it is on record that they have paid the share
amount and the entrance fees. In view of that, the order passed by
respondent no. 2 is legal and proper.
6.
Mr. Bharad, the learned for respondent no. 4 accepts the fact
that on 14/06/2002, the share amount and the entrance fees has been
deposited by the petitioners along with application of membership.
7. Before adverting to the contentions raised, it would be
appropriate to refer to the relevant sections,
" 22. Person who may become member :
(1) Subject to the provisions of Section 24, no
person shall be admitted as a member of a
society except the following, that is to say -
(a) an individual, who is competent to
contract under the Indian Contract Act, 1872 ;
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(b) a firm, company or any other body
corporate constituted under any law for the time
being in force, or a society registered under the
societies Registration Act, 1860;
(c) a society registered, or deemed to be
registered, under this Act ;
(d) the State Government or the Central
Government
(e)
a local auathority ;
(f) a public trust registered under any law for
the time being in force fo the registration of such
trusts ;
(g) the depositor or the financial service user
".
" 27. Voting powers of members :
(1) Save as otherwise provided in sub-section
( 2 ) to ( 7 ), both inclusive, no member of any
society shall have more than one ote in its
affairs; and every right to vote shall be exercised
personally and not by proxy ;
Provided that, in the case of an equality of
votes the Chairman shall have a casting vote :
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(2) Where a share of a society is held jointly
by more than one person, [ the person whose
name stands first in the share certificate. If
present, shall have the right to vote. But in his
absence the person whose name stands second,
and in the absence of both, the person whose
name stands next, and likewise, in the absence of
the preceding persons the person whose name is
next on the share certificate, who is present and
who is not a minor, shall have the right to
vote ].
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 ".
8. The undisputed facts can be culled out as under :
(a) The petitioners are the primary level co-operative societies ;
(b) Respondent no. 4 is a federal society ;
7 W.P. 9421.2011 - [ J ]
(c) The petitioners have given an application for membership
along with share deposit amount and the entrance fees on
14/06/2002 ;
(d) Respondent no. 4 has never communicated the petitioners
that their application for membership is rejected.
9. The above factual matrix would make it abundantly clear that
the petitioners have deposited the share amount and the entrance fees and
respondent no. 4 has accepted the said share amount and the entrance
fees. Section 22 of the said Act lays down as to who may become a
member. There is no dispute about the eligibility of the petitioners to be
the member of respondent no. 4. When the respondent no. 4 has not
communicated the petitioners about the status of their membership, then
in such circumstances, by deeming fiction as is laid down in sub section
( 2 ) of Section 22 of the said Act, the petitioners would be deemed to be
the members of respondent no. 4 - Federal society. Sub section ( 2 ) of
Section 22 is clear and unambiguous. The moment the period as stated in
sub section ( 2 ) of Section 22 lapses and the federal society does not
communicate to the petitioner/societies, then the petitioner/societies shall
be deemed to have been admitted as the member of the society. It is by
fiction of law the membership vest in such a Society.
10. Even sub section ( 3 ) of Section 27 of the said Act lays down
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that the society which has invested any part of its funds in the shares of
the federal society, may appoint any of its members to vote on its behalf in
the affairs of that federal society. The said sub section ( 3 ) of Section 27
of the said Act does not warrant that a specific membership has to be
conferred on the society. It only mandates that the said Society should
have invested any part of its funds in the shares of any federal society. In
the present case, none of the respondents dispute the fact that the
petitioners have invested part of their funds in the shares of the
respondent no. 4 - Society. The only embargo put on the rights of such a
Society to vote is that it should have completed three ( 3 ) years from the
date of its investing any part of its funds in the share of any federal society
in view of proviso ( 3 ) to Section 27. In the present case, the petitioners
have invested their part of the funds in the shares of respondent no. 4 in
the year 2002. Even the said restriction laid down in proviso would not
apply in this case.
11. In view of the above conspectus of the matter, there was no
impediment to include the name of the petitioners in the valid voters' list
for the election of respondent no. 4 - Society.
12. In light of the above, the impugned order passed by
respondent no. 2 can not be sustained and as such is quashed and set
9 W.P. 9421.2011 - [ J ]
aside.
13. Rule is accordingly made absolute in terms of prayer clause A
and B. No costs.
[ S.V. GANGAPURWALA,J. ]
KNP/W.P. 9421.2011 - [ J ]
