Vijay Shrirangsa Kadkan And ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 1044 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                            
                         WRIT PETITION NO.3021 OF 2016




                                                    
     1.       Dhondiram Balasaheb Pardikar                         PETITIONERS
              Age - 40 years, Occ - Medical Practitioner
              R/o Saraswati Hospital,
              Saraswati Nagar, Vasmat,




                                                   
              Taluka - Vasmat, District - Hingoli

     2.       Mahadev Vishwanath Kapuskari,
              Age - 55 years, Occ - Business




                                      
              R/o Zenda Chowk, Vasmatnagar,
              Taluka - Vasmat, District - Hingoli

              VERSUS
                             
     1.       The State of Maharashtra                            RESPONDENTS
                            
              Through its Principal Secretary,
              Co-operation, Marketing and Textile
              Department, Mantralaya,
              Mumbai
      


     2.       The State Co-operative Election Commission,
   



              Maharashtra State, Pune
              Through its Secretary

     3.       The District Deputy Registrar /
              District Co-operative Election Officer,





              Hingoli

     4.      Jaiprakash Narayan Nagari
             Sahakari Bank Ltd., Vasmatnagar,
             Chhatrapati Shivaji Chowk,





             Parbhani Road, Vasmatnagar,
             Taluka - Vasmat, District - Hingoli
             Through its Manager
                                     .......

Mr. R.N.Dhorde, Sr. Advocate i/b Mr. V. R. Dhorde, for petitioners Mr. S. K. Tambe, AGP for respondent-State Mr. S. K. Kadam, Advocate for respondents No.2 and 3 Mr. V.D.Salunke, Advocate for respondent No.4 .......

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                                     WITH




                                                                            
                         WRIT PETITION NO.3367 OF 2016

     Sow Vanisri Vasant Chepurwar                                     PETITIONER




                                                    
     Age - 36 years, Occ - Household
     R/o Main Road, Vasmath Nagar,
     Taluka - Vasmath,
     District - Hingoli




                                                   
              VERSUS

     1.       The State of Maharashtra                            RESPONDENTS
              Through the Principal Secretary,




                                      
              Co-operation, Marketing and Textile
              Department, M.S.ig
              Mantralaya, Mumbai-32

2. The State Co-operative Election Commission,

Maharashtra State, Pune Through its Secretary

3. The District Deputy Registrar / District Co-operative Election Officer,

Hingoli

4. Jaiprakash Narayan Nagari Sahakari Bank Ltd., Vasmatnagar, Chhatrapati Shivaji Chowk, Parbhani Road, Vasmatnagar,

Taluka - Vasmat, District - Hingoli Through its Manager

.......

Mr. N. B. Khandare, Advocate for petitioner Mr. S. K. Tambe, AGP for respondent-State

Mr. S. K. Kadam, Advocate for respondents No.2 and 3 Mr. V. D. Salunke, Advocate for respondent No.4 .......

WITH WRIT PETITION NO.3463 OF 2016

1. Vijay Shrirangsa Kadkan PETITIONERS

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Age - 49 years, Occ - Business, R/o Ganesh Peth, Vasmatnagar,

District - Hingoli

2. Santosh Trimbak Gore,

Age - 35 years, Occ - Agriculture R/o Bhosale Galli, Shahar Peth, Vasmatnagar, District - Hingoli

3. Bhaskar Laxman Gawale, Age - 36 years, Occ - Business, R/o Boudhwada, Vasmatnagar, District - Hingoli

4. Khajakha Rashidkha Age - 45 years, Occ - Business

R/o Station Road, Vasmatnagar, District - Hingoli

5. Aminkha Arifkha Age - 54 years, Occ - Labour, R/o Shukrwarapeth, Vasmatnagar, District - Hingoli

6. Umar Baig Mahemud Baig, Age - 45 years, Occ - Business

R/o Shukrawarapeth, Vasmatnagar, District - Hingoli

7. Shaikh Kalim Shaikh Rahim,

Age - 45 years, Occ - Business, R/o Vasmatnagar, District - Hingoli

8. Dinesh Balajirao Palimkar, Age - 35 years, Occ - Business,

R/o Ganesh Peth, Vasmatnagar, District - Hingoli

VERSUS

1. The State of Maharashtra RESPONDENTS Through the Principal Secretary, Co-operation, Marketing and Textile

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Department, Mantralaya, Mumbai

2. The State Co-operative Election Commission, Maharashtra State, Pune

Through its Secretary

3. The District Deputy Registrar Co-operative Societies and the District Election Officer,

Hingoli, District - Hingoli

4. Jaiprakash Narayan Nagari Sahakari Bank Ltd., Vasmatnagar, Chhatrapati Shivaji Chowk,

Parbhani Road, Vasmatnagar, Taluka - Vasmat, District - Hingoli

Through its Manager

.......

Mr. V. D. Hon, Sr. Advocate i/b Mr. A. V. Hon, for petitioners Mr. S. K. Tambe, AGP for respondent-State Mr. S. K. Kadam, Advocate for respondents No.2 and 3 Mr. V.D.Salunke, Advocate for respondent No.4 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 31st MARCH, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally by consent.

2. I have heard Mr. R. N. Dhorde, Mr. V. D. Hon, learned

senior advocates, Mr. N. B. Khandare, learned advocate for the

petitioners in respective writ petitions, Mr. Tambe, Learned AGP

for respondent State, Mr. S. K. Kadam, learned advocate

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appearing for State Co-operative Election Authority, respondents

No.2 and 3 and Mr. V. D. Salunke, learned advocate for

respondent No.4 Bank.

3. Broadly stated, contention on behalf of the petitioners that

is being canvassed is that, voters' list, as had been prepared

pursuant to the programme for finalization of voters' list, is

illegal and improper, the list being not containing names of all

the existing members of the bank, as would be mandatory under

the last proviso to section 26 (2) of the Maharashtra Co-

operative Societies Act, 1960 (Hereinafter for the sake of brevity

will be referred to as "the Act"), present election to managing

committee being first elections after 2013, the proviso reads

thus -

"Provided also that, in any election conducted immediately after the date of commencement of the Maharashtra Co-operative Societies

(Amendment) Act, 2013, all the existing members of the society shall be eligible for voting, unless otherwise ineligible to vote".

4. Further contention on behalf of the petitioners is that not

only the voters' list is deficient in aforesaid respect, however,

there are certain other irregularities in publication of voters' list,

which contains names of dead persons, names of such persons

who are not residents within the area of operation of the bank,

certain persons' names figure twice in the voters' list and gender

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of quite a few persons has undergone mutation. Thus, according

to the petitioners, the whole basis of election, the voters' list,

being defective and illegal, it is amenable to be interfered with

under the extraordinary powers of this court under Articles 226

and 227 of the Constitution of India. The learned advocates refer

to the provisional voters' list as annexed to the writ petition and

contend that when it refers existing membership of 5766

persons, the same also refers to figure of eligible voters as 2706.

According to them, absence of rest of the members in the

provisional voters' list is an illegality, which is writ large having

regard to proviso, afore-stated. According to them, this being a

statutory and mandatory provision, the technicalities should not

matter and this court should intervene, arresting deterioration in

the situation.

5. Mr. Dhorde, learned senior advocate contends that the law

ordains that all the existing members of the society should be

voters pursuant to proviso to section 26 of the Act and in the

circumstances, inclusion of all the existing members ought to be

there in the provisional list of voters. He submits that in the

circumstances, it was incumbent on the election officer to

question as to why 5766 members should not be included in the

voters' list and here the election officer has faltered in his

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statutory duty and it was imperative.

6. Mr. Dhorde, refers to a decision of the Supreme Court,

rendered in the case of "Bar Counsel of Delhi and Another V. Surjeet

Singh" reported in AIR 1980 SC 1612, which was a case wherein the

electoral roll, pursuant to proviso, which was found to be ultra

vires of the Delhi Bar Council Election Rules, had been

invalidated by the Supreme Court and in the circumstances

considered that an electoral roll prepared with such proviso is

completely vitiated and shall be liable to be set aside, further

finding that an alternate remedy in respect of said elections held

on basis of an electoral roll under a provision which is void and

ultra vires, relating to preparation of electoral rolls, in such

cases, would not detain exercise of powers of the Court,

particularly under Article 226 of the Constitution of India. In the

peculiar facts and circumstances of the case, the court had

considered that Rule 34 of the Bar Council of Delhi Elections

Rules, 1968 was not a remedy at all. The Supreme Court

appears to have considered that if alternate remedy fully covers

challenge to the election then that remedy and that remedy

alone must be resorted to even though it involves the challenge

to election of all successful candidates. But, if the nature and the

ground of challenge of the whole election are such that the

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alternate remedy is not remedy in the eye of law to cover the

challenge or, in any event, is not adequate and efficacious

remedy, then the remedy of writ petition to challenge the whole

election is still available. Thus, that case appears to be with

reference to the proviso which was found to be ultra vires and

that an election Tribunal in such cases would not be able to

declare the provision to be ultra vires. So the supreme court

appears to have ruled, as referred to above.

7.

Mr. Dhorde, learned senior advocate further refers to a

decision by division bench of this court in the case of "Vasantrao

Annasaheb Ubale and Others V. The State of Maharashtra and Others"

reported in 2001 (4) ALL MR 578 to emphasise that an amendment

is prospective in its application and would not be retro active. In

said case, under the amendment a necessity of passage of two

years as a member before being considered as a voter is

mandatory and in that case the division bench appears to have

ruled that the persons who were on the date of amendment

otherwise eligible as voter, their voting right would not be

affected by amendment and the amendment would be applicable

prospectively. This citation has been relied upon, perhaps to

emphasise that all the existing members would have a right to

vote to the first elections after 2013 and ineligibility if any

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incurred under the amendment in 2013, would not hold them

from being voter, having regard to the proviso.

8. Learned senior advocate further refers to a decision in the

case of "Dattatraya Kachru Chine and Others V. State of Maharashtra and

Others" reported in 2005 (4) ALL MR 597, which was a case involving

discontinuation of membership on account of failure to supply

sugarcane. The division bench distinguished said case from the

case of "Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha

Utpadak Sanstha V. State of Maharashtra" reported in 2001 AIR (SC) 3982 :

2001 (8) SCC 509, referring to that the point canvassed before the

Apex Court was in reference to breach of certain mandatory

provisions of the rules in the process of preparation of electoral

roll. There was no issue relating to right of persons, who had

already been a member of the society to continue to be a voter

of the society. While going by the allegations and contentions of

learned advocates for the petitioners, it does not appear to be a

case relating to right of a person, who had been a member of

the society, to continue to be a member of society. The

contentions and allegations as are advanced are with reference

to preparation of voters' list. As such, said case, may not assist

the petitioners, the way they may desire.

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9. In the course of their submissions, learned advocates refer

to various provisions of the Act, particularly section 26, the

proviso as referred to above and sub clause (10) of section 27

and provisions of section 73CA. According to learned advocates,

no procedure having been followed for foisting disqualifications,

on the other members, whose names do not figure in the voters'

list, having regard to proviso to section 26 of the Act, non

appearance of their names in the provisional voters' list or for

that matter in the final voters' is illegal and unsustainable. As

such, according to them, quite a few objections had been placed

before the returning officer during the period referred to in the

programme for finalization of voters' list and those have been

cursorily dealt with and rejected. On the contrary, the objections

taken by the Manager of the Bank have been sustained deleting

names of 192 persons from the provisional voters' list terming

them to be defaulters. According to them, the requisite record,

which is in the custody of the bank, which would support their

contentions and the objections before the returning officer, had

not been provided to them.

10. Over and above this, it is sought to be canvased that

publication of programme of finalization of voters' list is almost a

clandestine affair. The same had been ostensibly published in

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newspaper "Loksatta", which cannot be said to be a widely

circulated newspaper in the area of operation of the bank. As

such, many of the petitioners were unaware about ensuing

elections and for that matter about objections having been called

in respect of preparation of voters' list. It is upon coming to

know about the same, writ petitions No.3367 of 2016 and 3463

of 2016 have been filed.

11. Mr. Salunke, learned advocate appearing for respondent

No.4 Bank at the outset, questions tenability of the writ petitions

on the grounds being taken up in the petitions and the authority

of the petitioners to raise such objections and their locus standi.

He refers to an order passed by Division Bench of this Court

dated 11th March, 2016 contending that scope of writ petition No.

3021 of 2016 cannot be extended beyond the extent of

petitioner No.2 and that had been made specific by the Division

Bench while issuing notice. He further refers to that since the

order passed by the election officer was under challenge, the

matter has been referred to single judge.

12. In addition to above, he submits that the petitions cannot

be maintainable for, either the petitioners in the three writ

petitions had not taken any such objections as in writ petitions to

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the preparation of the voters' list at the relevant time. In case of

writ petition No.3021 of 2016, looking at the nature of objection,

particularly, as appearing on pages from 17 to 20 thereof, tenor

of their grievance is that provisional voters' list includes quite a

few members, who are defaulters and as such, their names need

to be omitted from the voters' list. Such a grievance stands

satisfied with deletion of 192 members, while it came to the

notice of respondent No.4 that those members had defaulted

payment of loan to the bank. He further submits that rest of the

objections as are appearing are too vague and nonspecific and

do not satisfy conditions and requirements of the Rules,

particularly Rules 8 (1) and (2), nor any material had been made

available before the election officer to substantiate the objections

which are purportedly taken. In such circumstances, the

election officer cannot be faulted with for the orders, which are

purportedly impugned in writ petition No. 3021 of 2016.

13. He points out that writ petition No.3021 of 2016 is

confined to petitioner No.2, who purportedly objected to deletion

of his name, however, the same has no substance, for, he has

not brought anything on record to show that he has is not a

defaulter and the no dues certificate which he has produced, is

not with reference to him, but to his brother. As such, there is no

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substance in the grievances in writ petition No.3021 of 2016 that

deletion of name of petitioner No.2 from the voters' list is

erroneous. His name does not figure in the voters' list for him

being a defaulter.

14. As far as other two writ petitions i.e. writ petitions No.3367

of 2016 and 3463 of 2016 are concerned, according to him,

those cannot be maintained on various counts, particularly for

laches, having come to the court belatedly, when the election

programme has advanced to an irreversible stage. He submits

that over and above this, the petitioners have no locus standi at

all. Their grievances in the writ petitions are too general in

nature and are vague and are not supported by any material.

According to him, the petitions having filed on perceived

illegalities, when in fact there are none. He submits that the

persons whose names do not figure in the voters' list are not

before this court. Nor they have authorized present petitioners to

take their cases to the court. While they could have taken

objections to the preparation of voters' list, they have not taken

any objection during relevant period and even otherwise, there is

no substance in the allegations being now hurled, for,

preparation of voters' list is in accordance with the Rules.

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15. Mr. Salunke, learned advocate places reliance on the

decision rendered by the Supreme Court in case of "Sant Sadguru"

(supra) stating that preparation of voters' list having declared by

the supreme court as part of election programme, it is not to be

meddled with in exercise of extraordinary powers under Article

226 of the Constitution of India. He further submits that it is not

such a gross case wherein it can be said that there is illegality,

glaringly surfacing. He further refers to an order of division

bench of this court dated 13th February, 2015 in writ petition

No.1753 of 2015 refusing to interfere with election programme

with reference to judgment of the supreme court in case of "Sant

Sadguru" (supra) as also said order having been followed by learned

single judge of this court in case of "Abasaheb Hanumant Chitte and

Others V. State of Maharashtra and Others" in writ petition No. 973 of

2015 dated 18th February, 2015.

16. In addition to above, Mr. Salunke, learned advocate,

placing reliance on by-laws of the society, in order to counter

allegations made in the writ petition about inclusion of such

persons who are not residents in the area of operation of the

bank, refers to by-laws No.9 and 10 of the society, which refer to

that it is not necessary that the member should be resident

within the area of operation of the bank and that the person who

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is engaged in any occupation, profession or business within the

area of operation of the bank would qualify him to be a member

of the bank. He submits that it is not the allegation that the

persons whose names appear in the voters' list, who may,

ostensibly appear residents of area outside the area of operation

of the bank, are not carrying on any occupation, profession or

business within the area of operation of the bank. In absence of

such objection and that having regard to that said members

stated to be carrying on occupation, profession and business in

the area of operation of the bank, their inclusion in the voters'

list cannot be faulted with. He goes on to submit that assuming

that a person who is dead, his inclusion in voters' list is not

going to prejudice elections, as he would not be able to vote. So

is the case in respect of persons whose gender is allegedly

erroneous as the person would not change.

17. According to him, even otherwise, the writ petition raises

so many questions of facts which can hardly be dealt with in the

writ jurisdiction and it would require evidence to support the

allegations. In such a case, writ petition is not at all be a remedy

and if at all, the petitioners are aggrieved by inclusion and / or

deletion of certain persons, alleging illegalities in the same, the

same may be taken care of by some other remedy. According to

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him, these are the questions to be decided by the Registrar or

for that matter at appropriate stage, if at all the petitioners are

aggrieved, having regard to Section 78 of the Act and the Rules.

He submits that having regard to nature of allegations hurled,

the writ petition would not be an efficacious remedy, without

prejudice to his basic contention that there is no substance in

the writ petitions. He, therefore, submits that there is no

substance in the writ petitions and those deserve to be

dismissed.

18. Mr. S. K. Kadam, learned advocate representing

respondents No.2 and 3, State Co-operative Election Authority,

submits that the infirmities, sought to be alleged in the

preparation of voters' list by contentions and allegations of the

petitioners, cannot be said to be tenable at all. The voters' list,

having regard to Rule 6 of the Rules, is to be given by the

society in the form and accordingly, the election officer is

required to publish the same in Form E-3 of Rule 7 of the

Election Rules 2014, which requires him to refer to total number

of membership of the society followed by total number of eligible

voters as supplied by the society. As such, the publication of

provisional voters' list on that count cannot be flawed and

objection on that ground is untenable.

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19. Mr. Kadam refers to objections as have been appended to

writ petition No.3021 of 2016 stating that looking at the nature

of objections appended to the writ petition from pages 17 to 21,

would not give an indication that the petitioners would be

entitled to the relief, now being sought in the writ petition, for,

the nature of objections primarily is that the voters' list, rather

the list of defaulters has not been supplied to them by the bank

and therefore, it is likely that their names may be included in the

voters' list. That grievance according to him, stands taken care

of by deletion of the persons, who were defaulters, under the

request from the bank. He further refers to that in none of the

objection that was ground of non appearance of members before

2076 and in fact it is in the nature of request to include names of

members of last five years. However, he submits that

preparation of list of voters has to be in accordance with

provisions of law and rules thereunder. It cannot be said that

preparation of voters' list is not in accordance with relevant

provisions of law. He further points out that on the date of

hearing, the objectors had skipped appearance before the

election officer and had not produced any material in support of

the objections and having regard to the material as has been

placed before the election officer, he has passed the orders. He

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submits that the so called objections are too vague, uncertain

and non speaking. Mr. Kadam further submits that the scope of

the writ petition cannot be widened beyond the orders passed by

the election officer and beyond the objections as have been

taken.

20. Mr. Tambe, learned AGP appearing for respondent-State

submits that having regard to the nature of allegations

appearing in the writ petitions, it is discernible that it is only a

fishing inquiry which is sought to be made through the court

without placing any credible material on record. He, therefore,

supports the impugned orders and the submissions advanced on

behalf of the respondents.

21. Looking at aforesaid submissions on either side, the

objections as are appearing on pages 17 to 21 in writ petition

No.3021 of 2016, do not appear to form basis for or can be said

to give rise to contentions and allegations in the writ petition.

The contentions and allegations in the writ petition appear to be

beyond scope of objections taken before election officer. The

petitioners, allege that there are dead persons included in the

voters' list, there are persons who reside outside the area of

operation of the bank, there are persons whose genders have

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been erroneously shown, are not the objections taken before the

election officer during the period reserved therefor. As a matter

of fact, the objections appear to be under apprehension that

some defaulters may be included in the voters' list. In writ

petition No. 3021 of 2016, however, there is sort of a volte face,

in the sense that whereas the apprehension expressed in the

objection is inclusion of defaulters in the voters' list, here in the

writ petition prayers appear to seek direction to include names of

192 persons who have been deleted as defaulters under the

orders of the election officer. Those 192 persons do not appear

to have been aggrieved, having not come before this court. Nor

do the petitioners show that said 192 persons have authorized

the petitioners to approach this Court. Further, the petitioners

have not placed anything on record to show that said 192

persons cannot be termed as defaulters by placing any material

on record. Petitioners in writ petitions No. 3367 of 2016 and

3463 of 2016 had not taken objection to voters' list within

appropriate time schedule and have already approached under

writ petitions. The contentions advanced are on perceptions

rather than being substantiated by material.

22. At the stage at which the elections now stand, wherein list

of candidates whose nominations are found to be valid has

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already been declared and having regard to that the dispute

mainly relates to quite a few factual aspects, which are disputed,

I do not think these are the matters, wherein this court should

interfere and invoke its powers under Article 226 of the

Constitution of India.

23. Writ petitions, as such, are not being entertained and are

dismissed. Rule stands discharged.

[SUNIL P. DESHMUKH, J.]

drp/wp3021-16