Bombay High Court
Lahudas Ramrao Munde vs The State Of Maharashtra And ... on 22 August, 2016
Bench: T.V. Nalawade
1 WP 8406 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.8406 of 2016
* Lahudas s/o. Ramrao Munde,
Age 55 years,
Occupation : Service,
R/o. Ambajogai, Tq. Ambajogai,
District Beed. .. Petitioner.
Versus
1) The State of Maharashtra
Through its Secretary,
Co-operative Department,
Mantralaya, Mumbai - 32.
2) The Maharashtra State
Cooperative Election Authority,
Pune.
3) District Co-operative Election Officer
& District Deputy Registrar,
Co-operative Societies, Beed.
4) The Assistant Registrar
(Cooperative Societies)
Ambajogai, Tq. Ambajogai
District Beed.
5) The Returning Officer,
Vij Kamgar Sahakari Patsanstha Ltd.
Ambajogai, Tq. Ambajogai,
District Beed.
6) Vij Kamgar Sahakari Patsanstha Ltd.
Mukundraj Colony, Ambajogai,
Taluka Ambajogai, District Beed.
Through its Secretary.
7) Arjun Vishnupant Ambad,
Age : Major, Occupation Retired.
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8) Pralhad Bapurao Etekar,
Age : Major, Occupation Retired.
9) Bhagwan Narharrao Kadam,
Age : Major, Occupation Retired.
10) Pralhad Pandurang Kamble,
Age : Major, Occupation Retired.
11) Gangadhar Rajaram Kothule,
Age : Major, Occupation Retired.
12) Pandurang Baburao Kichme,
Age : Major, Occupation Retired.
13)
Namdeo Ramrao Gayake,
Age : Major, Occupation Retired.
14) Sheshrao Namdeorao Gundare,
Age : Major, Occupation Retired.
15) Sambhaji Manaji Gitte,
Age : Major, Occupation Retired.
16) Narhari Limbaji Chaudhari,
Age : Major, Occupation Retired.
17) Harichandra Narharrao Dhawale,
Age : Major, Occupation Retired.
18) Arjun Dhondiram Thorat,
Age : Major, Occupation Retired.
19) Pathan Nazir Ahmed Haji Usman Khan,
Age : Major, Occupation Retired.
20) Angad Nivrutti Fad,
Age : Major, Occupation Retired.
21) Mohd. Masud Ali,
Age : Major, Occupation Retired.
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22) Balbhim Chaburao Mane,
Age : Major, Occupation Retired.
23) Jivraj Annasaheb Munde,
Age : Major, Occupation Retired.
24) Dnyanoba Bajirao Machave,
Age : Major, Occupation Retired.
25) Pandhari Patloma Munde,
Age : Major, Occupation Retired.
26) Sopan Vishwanath Yadav,
Age : Major, Occupation Retired.
27)
Laxminarayan Rajligam Yelmelkar,
Age : Major, Occupation Retired.
28) Babu Ganpati Waghmare,
Age : Major, Occupation Retired.
29) Uttam Govindrao Waghmare,
Age : Major, Occupation Retired.
30) Baliram Ramrao Wakde,
Age : Major, Occupation Retired.
31) Ashok Gunajirao Wahul,
Age : Major, Occupation Retired.
32) Shaikh Mustafa Shaikh Nabisab,
Age : Major, Occupation Retired.
33) Shankar Digambar Sakhare,
Age : Major, Occupation Retired.
34) Prakash Rambhau Sathe,
Age : Major, Occupation Retired.
35) Manik Vitthalrao Saware,
Age : Major, Occupation Retired.
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36) Manik Annasaheb Shirsat,
Age : Major, Occupation Retired.
37) Dilip Vitthalrao Solanke,
Age : Major, Occupation Retired.
38) Limbaji Khelba Sontakke,
Age : Major, Occupation Retired.
39) Ramling Gangadharappa Burande,
Age : Major, Occupation Retired.
40) Sahebrao Manikrao Newal,
Age : Major, Occupation Retired.
41)
Gopal Hariprasad Sharma,
Age : Major, Occupation Retired.
42) Khandu Maroti Vaidya,
Age : Major, Occupation Retired.
43) Pandit Limbaji Tekale,
Age : Major, Occupation Retired.
44) Bharat Gundiba Sitap,
Age : Major, Occupation Retired.
45) Dagadu Shivram Kamble,
Age : Major, Occupation Retired.
46) Manohar Shivram Lange,
Age : Major, Occupation Retired.
47) Dashrath Irappa Kamble,
Age : Major, Occupation Retired.
48) Sopan Kundlik Chimale,
Age : Major, Occupation Retired.
49) Kalidas Amrutrao Sarange,
Age : Major, Occupation Retired.
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50) Venkat Pandurang Karad,
Age : Major, Occupation Retired.
51) Suryakant Rangnath Panchal,
Age : Major, Occupation Retired.
52) Fulchand Ramrao Suryawanshi,
Age : Major, Occupation Retired.
53) Manmath Vishwanath Swami,
Age : Major, Occupation Retired.
54) Dilip Baburao Abhange,
Age : Major, Occupation Retired.
55)
Shrikant Nagnathrao Khindare,
Age : Major, Occupation Retired.
56) Kishan Patloba Gitte,
Age : Major, Occupation Retired.
57) Sopan Dagadu Gagane,
Age : Major, Occupation Retired.
58) Vasant Dhondiba Gagane,
Age : Major, Occupation Retired.
59) Shansank Subhashrao Jewalikar,
Age : Major, Occupation Retired.
60) Shobha Ulhasrao Tak,
Age : Major, Occupation Retired.
61) Baburao Ramji Dhakne,
Age : Major, Occupation Retired.
62) Umesh Panditrao Duse,
Age : Major, Occupation Retired.
63) Pundlik Kondiba Pachpinde,
Age : Major, Occupation Retired.
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64) Eknath Sakharam Panchal,
Age : Major, Occupation Retired.
65) Dhananjay Bhagwanrao Moholkar,
Age : Major, Occupation Retired.
66) Sadashiv Raosaheb More,
Age : Major, Occupation Retired.
67) Devidas Digambar Mandlik,
Age : Major, Occupation Retired.
68) Gulab Dashrath Lokhande,
Age : Major, Occupation Retired.
69)
Mahadu Nilkant Shinde,
Age : Major, Occupation Retired.
70) Limbaji Raghoji Surwase,
Age : Major, Occupation Retired.
71) Prabhuling Vaijnath Swami,
Age : Major, Occupation Retired.
Respondent Nos.7 to 71 through
respondent No.6 - Secretary,
Vij Kamgar Sahakari Patsanstha
Ltd. Ambajogai,
Taluka Ambajogai, District Beed. .. Respondents.
--------
Shri. S.K. Chavan, Advocate, holding for Shri. S.J.
Salunke, Advocate, for petitioner.
Shri. A.P. Basarkar, Assistant Government Pleader, for
respondent Nos.1 and 4.
Shri. S.K. Kadam, Advocate, for respondent Nos.2,3 and 5.
Shri. V.D. Salunke, Advocate for respondent No.6.
Shri. A.R. Tapse, Advocate, for respondent Nos.18, 35, 38,
41 and 44.
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7 WP 8406 of 2016
CORAM: T.V. NALAWADE, J.
DATE : 22 AUGUST 2016
JUDGMENT:
1) Rule. Rule made returnable forthwith. Heard
both sides by consent for final disposal. Notice of the
present petition was published in news paper to give
opportunity to respondent Nos.7 to 71 as the proceeding
mainly is
against them. One learned counsel filed
appearance for respondent Nos.18,35,38,41 & 44. As
everything is the matter of record and the election
process is going on this Court asked both sides including
the learned counsel representing some of the contesting
respondents to argue the matter for final disposal. The
learned counsel for society strongly opposed the petition.
2) The petitioner is member of respondent no.6, a
credit cooperative society which was initially formed by
the employees of Maharashtra State Electricity Board.
Now the employer of the members of the society is a
Corporation.
8 WP 8406 of 2016
3) The programme of election is declared of the
aforesaid society by the Assistant Registrar, Cooperative
Societies, Beed. The provisional voters list was published
on 5-7-2016 and persons interested were expected to take
objection or make claims prior to 14-7-2016. The present
petitioner took objection that there were 68 voters shown
in the provisional list who were not eligible to vote as they
were retired employees of the Corporation and as per the
bye-laws they were not active members. The objection was
also taken before the District Deputy Registrar even prior
to the declaration of the election and said representation
was sent to the Assistant Registrar, Cooperative Societies
for consideration and decision. Along with the application
the list of the retired persons, respondent Nos.7 to 71 was
supplied and the date of retirement was also informed. It
is not disputed that these respondents have retired. The
Returning Officer accepted similar representation from
present petitioner on 14-7-2016. By order dated 19-7-2016
the Returning Officer rejected the application by giving
reason that the society had still shown these persons as
member and the amount of share capital was not returned
to them by the society.
9 WP 8406 of 2016
4) The aforesaid decision of rejection of the
application filed before the Returning Officer is under
challenge. The learned counsel for the Returning Officer
and the learned Assistant Government Pleader have also
supported the order made by the Returning Officer.
5) The learned counsel for the petitioner took this
Court through the bye-laws of the aforesaid society. The
bye-laws show that any person of the aforesaid institution
who is permanent employee can apply to become member
of the society (bye-law No.D.1.1.1). In the same bye-law,
the definition of active member is given and the definition
shows that the member must have attended at least one
general body meeting during last 5 precedent years and
he ought to have taken loan at least on one occasion
during last 5 preceding years and he ought to have
deposited the amount in his account of the society in the
proportion shown in this bye-law. This bye-law further
shows that if member was not active member as defined
in this bye-law, then he will not have right to vote. The
other portion of the same bye-law shows that after
retirement from service the member can become nominal
10 WP 8406 of 2016
member but he cannot take loan from the society and he
will not have right to vote.
6) The learned counsel for the petitioner took this
Court through the Rules framed under the Maharashtra
Cooperative Societies Act. They show that different forms
are prescribed for filling information regarding nominal
member and active member. On the other hand, learned
counsel for the respondents, retired employees, showed to
this Court the provision of Section 24 of the Cooperative
Societies Act and submitted that if a person is not
member, he cannot be given share in the profit of the
society. He submitted that the society had given dividend
to these respondents. Learned counsel also submitted that
the share capital was not returned by the society and so
long as the share capital remains with the society, these
respondents need to be treated as active members of the
society and they cannot be deprived of their right to vote.
7) The scheme of the bye-laws shows that the
society was created for permanent employees, employees
who were appointed as against permanent post and who
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were actually working with the Corporation and only such
employees were to have control over the society.
8) The aforesaid bye-law shows that immediately
after retirement of any member from the service he
ceases to be active member. Giving of nominal
membership is possible if he makes application and he
cannot become nominal member automatically. Only
because the share capital remains with the society, such
retired employee cannot get right to vote in view of the
scheme of the bye-laws.
9) It appears that the persons who are presently
having control over the society want to see that retired
persons are able to vote. The argument was advanced by
learned counsel for the society in support of the retired
employees.
10) The learned counsel for the respondent placed
reliance on a case reported as AIR 2001 SC 3982 (Shri
Sant Sadguru Janardan Swami (Moingiri Maharaj)
Sahakari Dugdha Utpadak Sasntha v. State of
12 WP 8406 of 2016
Maharashtra) and submitted that preparation of electoral
roll is an intermediate stage in the process of election of
the managing committee and if the election process is set
in motion, the High Court is not expected to stay the
continuation of the election process even when there is
some illegality or irregularity regarding breach of the
rules while preparing electoral roll. There cannot be
dispute over the proposition of the Apex Court in the case
cited supra. The facts of the said matter were totally
different. This Court is not interfering in the election
process and it is only question of eligibility of few persons
to vote in the election. The aforesaid eligibility conditions
are such that the society ought to have deleted the names
of respondent Nos.7 to 71 from voters list. At least, the
Returning Officer ought to have taken such step when the
grievance was raised in that regard and when there are
specific rules leaving no option than to delete the retired
persons from the voters list. Thus the retired persons
cannot be allowed to vote in the election. Asking the
petitioner and other members to go to the Court to
challenge the election itself on this ground would not be
proper in such a case. The objection was raised at proper
13 WP 8406 of 2016
stage but the society did not take action. This Court holds
that in view of the facts of the present matter, the order
made by the Returning Officer of rejection of the
application filed by the petitioner needs to be set aside
and further order needs to be made to remove the names
of respondent Nos.7 to 71 from the final voters list. In the
result, the following order :-
11) The petition is allowed. The order made by the
Returning Officer is hereby set aside. The names of the
respondent Nos.7 to 71 from the voters list stand deleted.
They are not be allowed to vote in the election. The
process of election to go on. The learned counsel
representing the Returning officer to communicate the
order to the Returning officer. Authenticated copy is
allowed to the learned counsel for the Returning Officer
and the learned counsel for the petitioner. Rule is made
absolute in the above terms.
Sd/-
(T.V. NALAWADE, J. )
rsl
