Bombay High Court
Ashok Nivrutti Tanawade And ... vs The State Of Maharashtra And ... on 7 October, 2016
Bench: R.V. Ghuge
WP/10091/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10091 OF 2016
1. Ashok Nivrutti Tanawade,
Age : 50 years, Occu : Agri.,
2. Tulshiram Appa Pawar,
Age : 70 years, Occu: Agri.,
3. Laxmibai Kamlakar Kesbhat,
Age : 55 years, Occu: Agri.,
4. Vimal Laxman Pandule,
Age : 52 years, Occu : Agri.,
5. Ujwala Prakash Tanawade,
Age : 38 years, Occu : Agri.,
6. Ajay Sharad Deshpande,
Age : 55 years, Occu : Agri.,
7. Usha Rajendra Pandule,
Age : 35 years, Occu : Agri.,
8. Satish Sudhakar Tanawade,
Age : 50 years, Occu : Agri.,
9. Uttam Bhagwan Shelar,
Age : 50 years., Occu. Agri.,
10. Vitthal Fakira Pawale,
Age : 66 years, Occu : Agri.,
11. Baba Vajir Shaikh,
Age : 36 years, Occu : Agri.,
12. Jafer Vajir Shaikh,
Age : 37 years, Occu : Agri.,
13. Ananda Manik Tanawade,
Age : 43 years, Occu : Agri.,
14. Baliram Nivrutti Tanawade,
Age : 41 years, Occu : Agri.,
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WP/10091/2016
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15. Nanibai Ankush Tanawade,
Age : 40 years, Occu : Agri.,
16. Kisan Ankush Tanawade,
Age : 35 years, Occu : Agri.,
17. Sindhubai Narayan Tanawade,
Age : 38 years, Occu : Agri.,
18. Rajendra Ankush Tanawade,
Age : 30 years, Occu : Agri.,
19. Vimal Keshav Tanawade,
Age : 36 years, Occu : Agri.,
20. Bhagubai Babasaheb Kesbhat,
Age : 75 years., Occu : Agri.,
21. Kamlabai Nivrutti Tanawade,
Age : 37 years, Occu : Agri.,
22. Narmada Sudhakar Tanawade,
Age : 45 years, Occu : Agri.,
23. Subhadra Kakasaheb Tanawade,
Age : 52 years, Occu : Agri.,
24. Jagannath Suryabhan Tanawade,
Age : 43 years, Occu : Agri.,
25. Tukaram Manik Tanawade,
Age : 41 years, Occu : Agri.,
26. Bhagwan Suryabhan Tanawade,
Age : 39 years, Occu : Agri.,
27. Kesharbai Manik Tanawade,
Age : 45 years, Occu : Agri.,
28. Sanjay Ankush Tanawade,
Age : 55 years, Occu : Agri.,
29. Chagan Keshav Tanawade,
Age : 43 years, Occu : Agri.,
30. Abidabi Kasam Shaikh,
Age : 39 years, Occu : Agri.,
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WP/10091/2016
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31. Sangita Radhakisan Tanawade,
Age : 38 years, Occu : Agri.,
32. Kishor Appa Pawar,
Age : 45 years, Occu : Agri.,
All 1 to 32 R/o. Pingewadi,
Tq. Shevgaon,
Dist. Ahmednagar. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through Secretary,
Co - operation and Textile Dept.,
Mantralaya, Mumbai - 32.
2. The District Co - Operative
Election Officer &
The District Deputy Registrar,
Co - operative Societies,
Ahmednagar.
3. The Taluka Co - operative Election
Officer, The Asstt. Registrar,
Co - operative Societies, Shevgaon,
Tq. Shevgaon, Dist. Ahmednagar.
4. Pingewadi Vividh Karyakari
Seva Sahakari Society,
Pingewadi, Tq. Shevgaon,
Dist. Ahmednagar.
Through its' Secretary.
5. The Commissioner,
State Co - operative election
Authority Pune. ... RESPONDENTS
...
Advocate for Petitioners : Shri Parnere Satish B.
AGP for Respondent 1 : Shri Kutti P.N.
Advocate for Respondents 2, 3 & 5 : Shri Kadam S.K.
Advocate for Respondent 4 : Shri Bade Patil K.D.
...
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WP/10091/2016
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CORAM : RAVINDRA V. GHUGE, J.
Dated: October 07, 2016
...
ORAL JUDGMENT :-
1. Leave to correct the prayer clause and add the date of the
impugned order 26.9.2016. Addition be carried out forthwith.
2. I have heard the learned Advocate for the respective parties
for quite sometime.
3. Rule.
4. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
5. The petitioners are objecting to their exclusion from the valid
voters' list and the rejection of their objections by respondent No. 2 -
District Cooperative Election Officer and the District Deputy Registrar
("DCEO"), Cooperative Societies.
6. The programme for finalization of the voters' list was declared
by the communication dated 6.9.2016, issued by the DCEO. The
provisional voters' list was to be published on 7.9.2016. Objections
were to be raised in between 7.9.2016 till 3.00 pm on 16.9.2016.
WP/10091/2016
Decision on the objections was to be announced at 4.00 pm on
26.9.2016 and the final voters' list was to be declared at 11.00 am on
30.9.2016.
7. These petitioners, who were included in the disqualified
voters' list as was provisionally declared, had raised their objections
on 14.9.2016. They were disqualified on the ground that the
increased share capital from Rs.10 to Rs.100, considering the effect
of the 97th Amendment to the Maharashtra Cooperative Societies Act,
1960, was unpaid by the petitioners. Due to the non-payment of the
increased share capital, they were not included in the provisional
voters' list and consequentially in the final voters' list.
8. The objections of these petitioners were rejected by the DCEO
vide the impugned order dated 26.9.2016 on the ground that the
deficit share capital was not paid.
9. It is the contention of the petitioners that they had submitted
a demand draft for an amount of Rs.25,000/- and tendered the same
to the respondent society which was refused to be accepted.
Subsequently they submitted the demand draft to the concerned
Bank in which the respondent No.4 society held an account. By
communication dated 9.9.2016, the Branch Manager of the said Bank
informed the petitioners that the society had directed the Bank not
WP/10091/2016
to accept the demand draft. These contentions of the petitioners
are not refuted by the society.
10. The petitioners have relied upon Section 26(1) of the MCS Act,
1960 to contend that the requisite notice about rise in share capital
and for payment of the deficit amount was not issued by the society
and as such, the petitioners were kept in the dark.
11.
This Court, by it's judgment dated 10.8.2016, in Writ Petition
No.8616 of 2016 in the matter of Navnath Tukaram Jadhav and 96
others Vs. The State Cooperative Election Authority, Maharashtra
State, Pune, has concluded in paragraph Nos. 4 to 6 as under:-
"4. Program for finalisation of voters list as well as
for electing the Managing Committee of the society was
published by the Returning Officer under the directions
of State Election Authority on 07.07.2016. The date
prescribed for publication of voters list as per the
program was 11.07.2016 whereas objections were
permitted to be raised between 11.07.2016 to
15.07.2016. As per the program of election, decision on
objections was required to be taken on 16.07.2016. The
program prescribes, in observance of the various stages
of election, that voting shall take place on 14.08.2016.
Petitioners contend that respondent no.5 raised
objection in respect of entitlement of petitioners to
continue as members of the society in view of their
WP/10091/2016
failure to deposit the increased share amount within
stipulated period. It is contended that initial share
value of Rs. 10/- has been increased and the members
are obliged to deposit the additional value of the
share. It is contended that petitioners did not deposit
additional share value and as such, are not entitled to
participate in the process of election. The objection
raised by respondent no. 5 was considered favourably
and the Election Officer directed deletion of their
names. It is the contention of petitioners that firstly
they have deposited the additional share value with
the District Central Cooperative Bank in the account of
the society and secondly, there was no demand made
by the society for deposit of additional share value and
as such, petitioners did not incur any disability.
5. Learned counsel for respondent no. 4 - society,
states on instructions that notice of demand in respect
of increased share amount was not made. Apart from
this, before taking adverse decision, the Returning
Officer did not extend an opportunity of hearing to
petitioner and as such, the decision rendered by the
Returning Officer is liable to be quashed and set aside.
Section 26 of the Maharashtra Cooperative Societies
Act, 1960, provides that a member shall be entitled to
exercise such rights as provided in the Act, rules and
regulations. Proviso to subsection 1 to section 26
provides that no member shall exercise the rights, until
he has made such payment to the society in respect of
membership, or acquired such interest in the society,
as may be prescribed and specified under the bylaws of
the society, from time to time. Second proviso to
WP/10091/2016
subsection 1 to section 26 provides that in case of
increase in minimum contribution of member in share
capital to exercise right of membership, the society
shall give a due notice of demand to the members and
give reasonable period to comply with. In the instant
matter, admittedly, the society has not issued notice of
demand to petitioners and as such, petitioners cannot
be denied right to participate in the process of
election.
6. For the reasons recorded above, writ petition
deserves to be allowed and the same is accordingly
allowed. Decision rendered by the Returning Officer
directing deletion of names of petitioners from the
voters list is quashed and set aside. Petitioners shall be
entitled to participate in the process of election to the
extent of casting vote in the election on the prescribed
date. Rule is accordingly made absolute. In the facts
and circumstances of the case, there shall be no order
as to costs."
12. The society contends that the only reason for not including the
petitioners in the final voters' list is on account of non-payment of
the deficit share capital.
13. Shri Kadam has relied upon the affidavit-in-reply filed by the
Assistant Registrar, Cooperative Societies and Taluka Cooperative
Election Officer, Shevgaon, stating therein that 14 amongst the 31
petitioners, mentioned at page No.52 are entitled to be included in
WP/10091/2016
the final voter's list.
14. In the light of the above, the claim of the 17 petitioners for
inclusion in the final voters' list is at issue.
15. Notwithstanding the rival contentions of the petitioners and
the respondent / Society, it is admitted that a notice was not served
on these petitioners under Section 26(1). So also, the second proviso
to Section 26(1) mandates that the members should be given a
reasonable period to comply with the direction to deposit the
increase in the share capital. This opportunity was not given to the
petitioners. So also, they attempted to pay the said deficit share
capital on 4.8.2016, which was much prior to the cut off date for
preparation of the voters' list, which is 2.10.2016. The
communication by the Branch Manager of the Bank further supports
the case of the petitioners that the society had instructed the Bank
to refuse acceptance of the said demand draft.
16. In the light of the above and considering the conclusions drawn
by the learned Division Bench of this Court in paragraph Nos.4 to 6 of
it's judgment, reproduced above, the impugned order dated
26.9.2016 passed by the DCEO is quashed and set aside. These
petitioners would be included in the final voters' list forthwith and
they would be entitled to participate in the election process only to
WP/10091/2016
the extent of casting their votes in the elections which are now
scheduled on 14.11.2016 as per the statement made by Shri Patil, the
learned Advocate.
Needless to state, this order shall be restricted only to the
extent of these petitioners and to the extent of their participation as
directed above.
17. Rule is made partly absolute in the above terms.
ig ( RAVINDRA V. GHUGE, J. )
...
akl/d
