Bombay High Court
Jai Bajrang Majur Kamgar Sahakari ... vs Amravati District Labour Co-Op. ... on 9 June, 2016
Bench: S.B. Shukre
J-wp527 & 528.16.odt 1/27
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.527 OF 2016
M.I.D.C. Prakalpgrast Majur Kamgar,
Sahakari Sanstha, Maryadit, Wagholi,
Tq. and Distt. Amravati,
Through its President and
representative Shri Deepak s/o.
Sukhdeorao Khadse, Aged 47 years,
Occupation : Labour,
R/o. Wagholi, Post. Dawargaon,
Tq. and Distt. Amravati. : PETITIONER
...VERSUS...
1. Amravati District Labour
Co-operative Society's Union Ltd.,
Amravati, Office at Shamnagar,
Congress Nagar Road, Amravati,
Tq. And Distt. Amravati.
2. District Co-operative Election Officer
and District Deputy Registrar,
Co-operative Societies, Amravati,
Office at Kantanagar Sahkar Sankul,
Amravati. : RESPONDENTS
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Shri H.S. Chitaley, Advocate for the Petitioner.
Shri A.M. Ghare, Advocate for the Respondent No.1.
Shri S.B. Ahirkar, Asstt. Government Pleader for the Respondent No.2.
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AND
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J-wp527 & 528.16.odt 2/27
WRIT PETITION No.528 OF 2016
Jai Bajrang Majur Kamgar
Sahakari Sanstha, Ltd. Lehgaon,
Tq. Morshi, Distt. Amravati,
Through its President and
representative Shri Anil Purushottam
Tatte, Aged about 55 years,
R/o. Lehgaon, Tq. Morshi, Distt. Amravati. : PETITIONER
...VERSUS...
1. Amravati District Labour
Co-operative Society's Union Ltd.,
Amravati, Office at Shamnagar,
Congress Nagar Road, Amravati,
Tq. And Distt. Amravati.
2. District Co-operative Election Officer
and District Deputy Registrar,
Co-operative Societies, Amravati,
Office at Kantanagar Sahkar Sankul,
Amravati. : RESPONDENTS
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Shri H.S. Chitaley, Advocate for the Petitioner.
Shri A.M. Ghare, Advocate for the Respondent No.1.
Shri S.B. Ahirkar, Asstt. Government Pleader for the Respondent No.2.
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CORAM : S.B. SHUKRE, J.
RESERVED ON : 31.3.2016
th
PRONOUNCED ON : 9
JUNE, 2016.
J U D G M E N T :
1 Rule. Rule made returnable forthwith. Heard
finally by consent of learned counsel appearing for the parties.
J-wp527 & 528.16.odt 3/27
2. By these writ petitions the petitioners have challenged
the legality and correctness of the order dated 11.1.2016 passed by
the District Co-operative Election Officer-cum-District Deputy
Registrar, Co-operative Societies, Amravati. Both the petitioners
are the Co-operative Societies registered under the provisions of the
Maharashtra Co-operative Societies Act, 1960 (in short,"Act, 1960")
and the Maharashtra Co-operative Societies Rules, 1961 (in short,
"Rules, 1961"). They are classified as producer societies in view of
the Rule 10(1) of the Rules 1961. The respondent No.1, in both
the writ petitions, is a Federal Society to which the petitioners-
Societies are affiliated and respondent No.2, in both the writ
petitions, is the Election Officer appointed for conducting the
elections of respondent No.1-Society.
3. On 1st September, 2009, there was an election of
respondent No.1 Society in which the existing executive body of
respondent No.1 was got elected. It's term, however, expired on
31st August, 2014, it being for a period of 5 years as per the
bye-laws of respondent No.1-Society. But, no elections were
proposed and held immediately or within reasonable time
thereafter. On 19.12.2015, the respondent No.2 declared a
temporary election programme in which provisional voters list
J-wp527 & 528.16.odt 4/27
dated 31.10.2014 was referred to. On going through the
provisional voters list dated 31.10.2014 the petitioners learnt that
only 14 members out of 96 were included therein as the voters and
the petitioners did not find their names mentioned in the voters list.
The reason for exclusion of their names from the voters list learnt
to be that both the petitioners-societies were considered as
defaulters. Therefore, the petitioners in Writ Petition No.527 and
petitioner in Writ Petition No.528/2016 filed written objections
with the respondent No.2 on 29.12.2015 respectively. They also
prayed for inclusion of their names as voters in the voters list.
4. Pursuant to the objections taken by both the petitioners,
the respondent No.2 by notice dated 5.1.2016 called upon both the
petitioners to remain present for hearing before him on 11.1.2016
along with receipts showing payment of arrears of dues of
respondent No.1, relevant proceeding books, no dues certificate
issued by the respondent No.1 and other necessary documents.
5. After hearing all the petitioners, the respondent No.2 by
common order passed on 12th January, 2016 rejected the objections
on the ground that the petitioners were defaulters in clearing the
arrears of the society within the meaning of Section 27(2) read
with Section 73CA(1) of the Act, 1960 and Rule 6 of the
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Maharashtra Co-operative (Election to Committee) Rules 2014 (in
short, "Rules, 2014"). It is this order which has been challenged in
both these writ petitions and it being a common order both these
writ petitions are being disposed of by this common judgment.
6. I have heard Shri Chitaley, learned counsel for both the
petitioners, Shri A.M. Ghare, learned counsel for the respondent
No.1 and Shri S.B. Ahirkar along with Ms. T.H. Udeshi, learned
Assistant Government Pleader for respondent No.2. With their
assistance, I have carefully gone through the paper book of both the
petitions including the impugned order.
7. Shri Chitaley, learned counsel for the petitioners submits
that the petitioners in order to attract the provision of Section
27(10) of the Act, 1960 should have been the loan defaulters and
even if it is assumed just for the sake of argument, that both the
petitioners were defaulters as contemplated under Section 27(10)
still the provisions of Section 73CA(1) together with Rule 58 of the
Rules, 1961 would require that a notice is given to the concerned
members regarding non-payment of their arrears, before order of
cessation of membership is issued by the Registrar. He submits,
relying upon the Full Bench Judgment in the case of Narayan s/o.
Gujabrao bhoyar vs. Yeotmal Zilla Parishad Karmachari
J-wp527 & 528.16.odt 6/27
Sahakari Pat Sanstha Maryadit, Yeotmal and another, reported
in 2009(6) ALL MR 674, that issuance of such notice of hearing
before passing an order of cessation of membership is a must and
Section 73CA (1) cannot interpreted to mean that disqualification
from being a voter is incurred automatically. He further submits
that there cannot be any automatic disqualification and order to
that effect must be passed after granting hearing to the affected
parties. He further submits that there is a difference between
knowledge of default and grant of opportunity of hearing. He also
relies upon the case of Dadan Ram and others vs. State of Bihar
and others, reported in AIR 2008 SC 588.
8. Learned counsel for the petitioners further submits that
even on facts the impugned order cannot be sustained as alleged
notice given by the respondent No.1-Federal Society dated
7.12.2015 was not received by the petitioners and there is no
credible proof placed on record by the respondent No.1 regarding
receipt of said notice by the petitioners. He also submits that this
notice, on the face of it, is of doubtful nature as there are some
overwritings on it.
9. Learned counsel also submits that after said notice dated
5.12.2015, the petitioners were allotted some works by the
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respondent No.1 and this fact itself would show that the petitioners
were not in arrears of any dues to the respondent No.1 or otherwise
the respondent No.1 would not have allotted any works to the
petitioners after December 2015. He also submits that exclusion of
voting right of the petitioners amounts to loss of membership of a
Federal Society and, therefore, a declaration as defaulter by
following the proper procedure by the competent authority is
necessary, which has not been done in the present case. Thus, he
submits that the impugned order is bad in law, requiring
interference by this Court and granting of consequential benefits to
the petitioners.
10. Shri A.M. Ghare, learned counsel for the respondent
No.1 Federal Society in both the petitions submits that the
contesting election is a statutory right and not a fundamental right.
He further submits that both the petitioners were defaulters as
contemplated under Section 27(10) of the Act, 1960. He further
submits that even the reply filed by the petitioners only mentioned
that they were active members with no loan having been taken by
them and that they were ready to pay dues, if any. He submits that
the petitioners, however, did not produce any no dues certificates
and did not prove the fact that there were no arrears of respondent
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No.1-Society due and payable to it by them. He submits that after
publication of provisional voters list on 19.12.2016, as per the
election programme, the petitioners had ample time till the date of
filing of nomination papers, which was 25.1.2016, to pay the dues
which they did not fruitfully utilized.
11. Learned counsel for the respondent No.1 further submits
that under Section 26 of the Act, 1960 rights and duties of
members are prescribed and it is laid down that a member shall be
entitled to exercise such rights as are provided in the Act and shall
be obliged to perform such duties as are mentioned in Sub-section
(2). He further submits that under Section 27, the voting powers of
the members of a Society are regulated and in it's sub-Section (10),
it is specifically prescribed that if a member is a defaulter as
provided in the explanation to clause (i) of Section 73CA (1), such
member shall have no right to vote in the affairs of the society. He
submits that since this is a case wherein the petitioners, the
members of respondent No.1-Federal Society, have not lost their
membership of the respondent No.1-Society but have only lost their
voting powers, the cases relied upon by the learned counsel for the
petitioners would not be applicable to the facts of this case and
according to him, those cases deal with a post election
J-wp527 & 528.16.odt 9/27
disqualification scenario. He submits that even otherwise,
opportunity of hearing is built in where a case falls under Section
27(10) of the Act, 1960, and the same is available three times, at
preparation of provisional voters list, at preparation of final voters
list and at the time of filing of nomination papers, which was not
availed of by the petitioners.
12. Learned counsel for the respondent No.1 further submits
that even on facts, the submissions canvassed on behalf of the
petitioners are incorrect. He submits that both the petitioners knew
that there were some arrears of respondent No.1-Society which
were required to be cleared by both the petitioners and this could
be ascertained from their balance-sheets. He also submits that their
own bye-laws would show that in case of default, there would not
be available any voting right. He further submits that alternate
remedy under Section 91 of the Act, 1960 being available to the
petitioners, must be resorted in this case by them. Thus, according
to him, there is no merit in these petitions.
13. Shri S.B. Ahirkar, learned Assistant Government Pleader
for the respondent No.2 submits that now almost entire process of
the elections has been completed with the declaration of results of
elections and as such there is no scope for any interference. He also
J-wp527 & 528.16.odt 10/27
submits that the petitioners are not remedyless as Section 91
provides adequate and effective remedy for redressal of their
grievances.
14. The impugned order rejecting the objections taken by
both the petitioners has been passed by invoking the provisions of
Section 27(10) of the Act, 1960 read with Rule 6 of the Rules,
2014. Section 27 is about voting powers of the members and its
sub-Section (10) takes away the voting right if the member
commits default in repayment of loan. Sub-Section (10) of Section
27 reads as follows :
"If a member has taken a loan from the society,
such member shall, whenever he is a defaulter, as
provided in the Explanation to clause (i) of sub-
section (1) of Section 73CA have no right to vote in
the affairs of the society."
15. It is clear from the above provision of law that a member
would have no right to vote if he commits default in repayment of
the loan taken from the Society. The petitioners are the members
of the respondent No.1 Federal Society and, therefore, as per this
provision of law, they would have no right to vote if it is found that
they have taken loan from the respondent No.1-Society and
committed default in repayment of the same. According to the
J-wp527 & 528.16.odt 11/27
learned counsel for the petitioners, neither of the petitioners has
taken any loan from the respondent No.1-Society and, therefore,
there is no question of committing any default in repaying the
same. Learned counsel for the respondent No.1 as well as learned
Assistant Government Pleader for respondent No.2 do not agree.
They submit that the term "loan" used in sub-section (10) of
Section 27 is wide enough to include any debt in the nature of
supervision charges for the services availed of by any member from
the respondent No.1-Society. I think learned counsel for
respondent No.1 and learned Assistant Government Pleader for
respondent No.2 are right in making the said submission. The
concept of default in repaying the loan propounded by Section
27(10) has wide amplitude. It involves all kinds of debts incurred
by a member towards his or it's Society. This is because of the fact
that sub-Section (10) clarifies as to who is a defaulter and uses for
it only clause (i) of sub-section (1) of Section 73CA. It must be
emphasised here that the use has been made only of clause (i) of
Section 73CA (1) and not the entire Section 73CA (1). Clause (i)
provides for inclusive definition of the said term by giving a
detailed explanation containing clauses (a) to (f). All these clauses
refer to various situations giving rise to acquisition by the member
J-wp527 & 528.16.odt 12/27
of the attributes of a defaulter. Some of the situations are - failure
to repay the crop loan of a primary agricultural credit Society
[clause (a)], failure to pay any of the installments of loan taken
from a term lending Society [clause (b)], failure to repay the
advance or failure to pay purchase price of any goods or commodity
or charges for availing of any services taken from any other Society
[clause (c)], failure to pay any of the installments of loan taken
from non-agricultural credit Society [clause (d)] and so on and so
forth. In this case, the charge is that the petitioners failed to pay
the supervision charges of the respondent No.1-Federal Society for
the services availed of by them from the respondent No.1 and,
therefore, clause (c)(ii) of the Explanation would be relevant,
which reads thus :
"a member who has purchased any goods or
commodities on credit or availed himself of any
services from the society for which charges are
payable; and fails to repay the full amount of such
anamat or advance or pay the price of such goods or
commodities or charges for such service, after
receipt of notice of demand by him from the
concerned society or within thirty days from the
date of withdrawal of anamat or advance by him or
from the date of delivery of goods to him or availing
of services by him whichever is earlier;"
16. It is clear from the above Explanation that a member
J-wp527 & 528.16.odt 13/27
qualifies himself or itself to be termed the "defaulter" if the
member, after having availed of any services from the Society for
which charges are payable, fails to pay the charges therefor within
30 days from the date of availing of the services or immediately
upon receipt of the demand notice, whichever is earlier. It is also
clear that once a member avails of any service from the Society
which is chargeable, such member is liable to pay the charges
immediately on demand or on his or it's own within 30 days from
the date of availing of the service, whichever is earlier. A member
cannot say that unless and until a demand notice is received by him
or it, the charges for the service availed of need not be paid. A
statutory duty has been cast upon the member to pay the service
charges even without waiting for a demand notice to be received,
within a maximum period of 30 days from the availment of the
service. This Explanation thus widens the amplitude of the term
"defaulter" and consequently also broadens the connotation of the
word "loan" by laying down that any failure to pay either the loan
or price of the goods or the service charges, would take the member
within the category "defaulter". Section 27(10), therefore, would
have to be understood as referring to all debts incurred in
repayment of anything of which is covered by the Explanation to
J-wp527 & 528.16.odt 14/27
clause (i) of sub-section (1) of Section 73CA and it cannot be
restricted to only the amount which is borrowed by a member from
the Society. The word "loan" is inextricably linked with the term
"defaulter" which is defined in widest possible range in Explanation
to clause (i) of Section 73CA (1) covering all kinds of debts and
situations giving rise to indebtness to society as specifically and
particularly stated therein. Therefore, I find no substance in the
argument that the words "loan" and "defaulter" used in Section
27(10) have a very narrow meaning restricted only to the
traditional concepts of "loan" and "defaulter of loan" wherein there
is borrowing of an amount and failure to repay it.
17. In this case, it is seen that the programme regarding
finalizing provisional voters list prepared by respondent No.1 was
published by respondent on 19.12.2015. As per this programme,
the provisional voters list dated 31.10.2014 was to be published on
21.12.2015 and the objections on the provisional voters list were to
be filed between 21.12.2015 and 13.12.2015. It is further seen that
final voters list was to be published on 13.1.2016. As names of the
petitioners were missing from the provisional voters list, the
petitioners filed their objections with respondent No.2. The
petitioner in Writ Petition No.527/2016 filed its objection on
J-wp527 & 528.16.odt 15/27
29.12.2015 and petitioner in Writ Petition No.528/2016 filed its
objection on 28.12.2015. In these objections, none of the
petitioners specifically mentioned that they were not in arrears of
dues to the respondent No.1-Federal Society. They also did not file
along with the objections any receipts issued by respondent No.1-
Society acknowledging receipt of payment of arrears including
supervision charges by them. The petitioner in Writ Petition
No.527/2016 contended that it did not take any loan from the
respondent No.1 and that it was regularly paying the maintenance
charges and so could not be considered as defaulter. It was also
stated that the respondent No.1 did not make available to it any
information regarding arrears of dues and if there were any, it had
the capacity to clear the same. The petitioner in Writ Petition
No.528/2016 in it's objection specifically stated that its proposed
representative, Shri Anil Purushottam Tatte, was not the defaulter
of the petitioners-Society and, therefore, said representative could
not be denied voting right. As said earlier, this objection too did
not state in a specific manner that the petitioner-Society was not in
arrears of any dues to the respondent No.1-Society.
18. Even then, by the notice issued on 5.1.2016, the
respondent No.2 called upon the petitioners to not only to remain
J-wp527 & 528.16.odt 16/27
present for hearing, but also to produce before him receipts
showing making of payment of the arrears of respondent No.1-
Society, no dues certificates issued by respondent No.1-Society and
other relevant documents. Admittedly, neither such receipts nor
any no dues certificates were produced by the petitioner-Societies.
Therefore, respondent No.2, by invoking the provisions of Section
27(10) of the Act 1961 read with Rule 6, Rules 2014 passed the
impugned order on 12.1.2016 rejecting the objections on the
ground that the petitioner-Societies having not cleared the arrears
of dues of respondent No.1-Society, were the defaulters and as such
found that their names could not be included in the final voters list.
19. The above referred facts clearly establish on record that
both the petitioner-Societies were given adequate hearing and
sufficient opportunity to prove that they were not the defaulters,
but the opportunity was not availed of by them. The right to vote
is a creation of statute as observed in the case of Pandurang
Laxman Kadam and others, reported in 2016(1) ABR 336
(paragraph 47) and would not be available unless the conditions
stipulated in the statute are fulfilled. In the instant case, the
provision of Section 27(10) imposes a prohibition upon the
members right to vote. It lays down that if any member is a
J-wp527 & 528.16.odt 17/27
defaulter of a Society, he shall have no right to vote. This provision
of law takes away the voting right on the happening of the event of
commission of default in payment of dues of a society. If it is found
that the event has taken place, the consequence of losing of voting
right as provided in Section 27(10) follows merely on the
happening of the event. There is no provision in Section 27 or
anywhere in the Act 1961 that for losing a voting right upon
happening of the event mentioned in sub-Section (10) of Section
27, a specific declaration by the Registrar of the Co-operative
Society or any other competent Authority to that effect is required.
All that is required is giving of adequate opportunity to the member
to clear the arrears of dues. Such opportunity, as discussed earlier,
has been given to the petitioner-Societies and the same was
squandered by them. So, the fact established on record is that the
petitioner-societies could not prove that they were not the
defaulters or were not in arrears of dues of respondent No.1-
Society.
20. It is the contention of the learned counsel for the
petitioners that the notice regarding the outstanding dues was not
received by both the petitioners though respondent No.1-Society
submits that such notice was issued and received by both the
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petitioners. It is also the contention of the learned counsel for the
petitioners that the notices were of doubtful nature owing to some
overwritings appearing therein. The copies of the notices issued by
respondent No.1-Society are annexed to the respective petitions
and they do not bear any endorsements regarding their being
received by the petitioners. Therefore, only on the basis of copies
of these notices it would be difficult to say with any certainty that
notices regarding payment of outstanding amount were indeed
received by the petitioners. However, the deficiency in this regard
has been more than made up when notice dated 5.1.2016 was
received by the petitioners. The copy of this notice is forming part
of the paper book of both the petitions. By this notice, the
petitioners were called upon to produce before the respondent No.2
receipts issued by respondent No.1-Society showing payment of its
dues and also the no dues certificates issued by respondent No.1-
Society. Even the objections taken by the petitioners sufficiently
indicated that the petitioners did have the notice about the charge
of default committed by them and that is the reason why the
petitioners have mentioned in their respective replies that they
should not be considered as defaulters. Therefore, I find no
substance in the argument that the petitioners did not have any
J-wp527 & 528.16.odt 19/27
notice about the charge of commission of defaults by them and that
no sufficient opportunity was given to them for clearing the arrears
before finalizing the voters list. In fact, the minutes of hearing that
took place on 11.1.2016 before the respondent No.2, a copy which
has been produced before the Court during the course of hearing
and which has been taken on record and marked "X" for the
purpose of identification, shows that the petitioner-Societies, on
their oral request, were given time till 4.00 p.m. on 12.1.2016 to
clear the arrears of dues of respondent No.1-Society. The fact that
the petitioners asked for time to clear the arrears of respondent
No.1-Society is sufficient to conclude that the petitioners were
conscious of the fact that there were some arrears of respondent
No.1 which they were obliged to clear, if they were to retrieve their
right to vote. Unfortunately the petitioners inspite of having been
given further opportunity did not help themselves.
21. Learned counsel for respondent No.1 submits that the
petitioners had knowledge about the outstanding amount of dues
and it is reflected from their balance-sheets. The copies of the
balance-sheets filed on record show that they relate to previous
year and, therefore, do not really help us in reaching a conclusion
that as on the date of finalizing of the voters list, the petitioners
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stood in arrears. However, other facts discussed earlier do establish
such knowledge on the part of the petitioners.
22. The next contention of the learned counsel for the
petitioners is that disqualification of the petitioners resulting in
deprivation of their voting rights is not automatic and has to be
made by a formal declaration issued by the competent authority
and it must be preceded by grant of adequate opportunity of
hearing. He submits that principles of natural justice requires that
such hearing is granted and there is a difference between
knowledge about default and grant of hearing. He relies upon the
cases of Narayan s/o. Gujabrao Bhoyar (supra) and Dadan Ram and
others (supra). According to the learned counsel for the respondent
No.1 and learned Assistant Government Pleader for respondent
No.2 both these cases do not have any application to the facts of the
present case as they have been turned on different facts and
different provisions of law.
23. In the case of Narayan s/o Gujabrao Bhoyar (supra), the
facts were that the petitioner, an elected member of the Managing
Committee of Yavatmal Zilla Parishad Karmachari Sahakari
Sanstha, had failed to repay the advance taken by him from the
Society within a specific period and, therefore, he incurred
J-wp527 & 528.16.odt 21/27
disqualification for continuing as member of the Managing
Committee in terms of Section 73FF of the Act 1961, which Section
has been re-numbered as Section 73CA by the Maharashtra Act
No.16 of 2013 with effect from 14.2.2013. On these facts, the Full
Bench of this Court held that declaration of being a defaulter
resulting in disqualification as contemplated under Section 73FF
(1), now Section 73CA must be made by showing minimum
compliance with the principles of natural justice, which will have to
be read into the provisions of this Section and it would mean that
the competent forum would have to issue a notice/intimation
calling upon the member of the Committee to show cause as to why
he be not declared as a defaulter. The facts of the instant case are
entirely different. The issue involved in the instant case is not of
incurring of disqualification for continuing as a member of a
Committee as contemplated under Section 73CA (1) but is of not
removing the prohibition or the disability imposed upon the voting
right of a member under Section 27(10). If the prohibition is
removed, and it can be removed by clearing the dues of the Society,
the disability cast on the right to vote would stand removed
automatically. The prohibition imposed by sub-section (10) of
Section 27 works like an eclipse casting a dark shadow on the
J-wp527 & 528.16.odt 22/27
member's right to vote and once the eclipse goes away, the dark
shadow also vanishes thereby bringing alive the right to vote. It is
settled law that the right to vote is statutory and, therefore, it can
be exercised only in accordance with the conditions prescribed in
the statute. If these conditions are not fulfilled, the right to vote
cannot be exercised. Therefore, the burden is cast upon the
member whose voting right has been rendered lifeless to prove that
he has fulfilled the conditions necessary for making his voting right
come alive. For this purpose, the only requirements would be that
the member should know the reason why he is not able to exercise
the voting right and should be given an opportunity to remove that
reason or cause. Therefore, the ratio of the case of Narayan s/o.
Gujabrao Bhoyar, in my humble opinion, cannot be pressed into
service in these cases by the petitioners.
24. Apart from the above, Section 73CA, I would say
operates in a different field. As said earlier, the section is about
incurring of disqualification for being appointed or nominated or
elected or co-opted to be a member of a Committee or for
continuing as a member of the Committee, which is basically a post-
election scenario. Under sub-section (1) of Section 73CA, a
member of the Committee incurs disqualification for continuing as
J-wp527 & 528.16.odt 23/27
a member of the Committee if he becomes defaulter of the Society.
The consequence provided under Sub-section (1) of Section 73CA is
far reaching in the sense that there is cessation of membership and,
therefore, the Full Bench of this Court found that such a
consequence cannot have its automatic effect, that there has to be a
proper declaration made by a competent authority in that regard
and that it must be preceded by an opportunity of hearing. Section
27, on the other hand, operates in entirely different arena. It does
not speak about incurring of disqualification by a member of the
Society. It does not touch in any manner the membership issue and
what it does is only taking away of the voting right of the member,
if the member becomes a defaulter of the Society, which is
essentially a pre-election situation. If the member ceases to be a
defaulter of the Society, the voting right is restored automatically.
Such being the difference between the nature and scope of Section
73CA and Section 27(10), the case of Narayan s/o. Gujabrao
Bhoyar in my respectful submission would have no application to
the facts of the case.
25. Similarly, the argument that if the rules of natural
justice are made applicable to a Section dealing with
disqualification of a member for being continued as a member of
J-wp527 & 528.16.odt 24/27
the Committee, there is no reason why the principles of natural
justice in their full force and effect could not be applied to a case
involving denial of voting right also holds no water. The reason
being that cessation of membership is something which is drastic in
nature and has permanent effect. The legislative intent of making
compliance with the principles of natural justice is also sufficiently
indicated in Rule 58 of the Rules, 1961. For this reason, the
Division Bench held that minimum compliance with the rules of
natural justice and declaration by a competent authority in
compliance with the provision of Rule 58 are necessary for
cessation of the membership of a Committee. On the other hand,
the consequences of Section 27(10) are not so drastic and do not
have any permanent effect. A member does not lose his
membership. He only loses his voting right and that to temporarily
till he makes the repayment of dues of society. Then opportunity is
also given to him to clear the dues. So in my humble opinion, the
applicability of principles of natural justice in their full force and
effect to Section 27(10) cannot be seen.
26. In the case of Dadan Ram and others (supra), it has been
held that there is a difference between the knowledge of something
having the force of law and complying with the requirements of
J-wp527 & 528.16.odt 25/27
natural justice. With due respect, I would say that while there
cannot be any dispute about the principle of law so laid down, in
the instant case, the ratio would have no application as I have
found that basically the principles of natural justice in their full
force do not have any application here, though they may apply only
to the extent indicated earlier. Therefore, the said case of Dadan
Ram would be of no assistance to the petitioners in the instant case.
27. The learned counsel for the petitioners has also relied
upon the case Shri Pandurang Baburao Lhase and others vs. The
Returning Officer @ Co-operative Officer and others, and
others,in Writ Petition No.1035/2015, decided on 20.2.2015 by
the learned Single Judge of this Court. In the said case, the
petitioners were declared as defaulters unilaterally without giving
any opportunity to them to show that they were not the defaulters.
In the instant case, I have already found that such opportunity was
given to the petitioners and yet they did not avail of the same.
Therefore, said case would be of no assistance to the petitioners.
28. Learned counsel for the petitioners has submitted that
there was no default on the part of the petitioners, which is
reflected from the giving of some works to the petitioners
subsequently after issuing of the alleged notices in December 2015.
J-wp527 & 528.16.odt 26/27
The argument cannot be accepted for the reason that there is no
ostensible relationship between commission of defaults and award
of works or rendering of services by the Society to its members.
There is no provision of law requiring that once a member is found
to be the defaulter of the Society, further works or services cannot
be allotted or rendered. The argument is, therefore, rejected.
29. Learned counsel for the respondent No.1 has pointed out
to me the provision made in the bye-laws of the respondent No.1-
Society regarding denial of voting right. Clause 28 prescribes that a
defaulter and non-active member would have no voting right.
There is no dispute about this provision made in the bye-laws of
respondent No.1-Society. The petitioner-societies have not shown
that they are not the defaulters of the respondent No.1-Society
within the meaning of clause 28. Therefore, even by virtue of this
clause, the petitioner-Societies could be said to be defaulters and,
therefore, would have no voting right in terms of Section 27(10) of
the Act 1961.
30. For all these reasons, I find that no fault could be
noticed in the impugned order and so no interference with the
same is warranted. Even otherwise, the election process is almost
complete with the declaration of results of the elections during the
J-wp527 & 528.16.odt 27/27
pendency of these petitions. Due to this subsequent development,
the only option left to the petitioners now would be to resort to
appropriate remedy available under the law, as rightly submitted by
learned counsel for the respondent No.1 and learned Assistant
Government Pleader for the respondent No.2.
31. In the result, I am of the view that these writ petitions
deserve to be dismissed. They stand dismissed accordingly.
32. The sealed envelope containing votes cast by the
petitioner-Societies, if retained in this Court, shall be returned to
the respondent No.2 for the purposes of his record only.
33. Rule stands discharged. No costs.
JUDGE
okMksns
