Bombay High Court
Babasaheb Gokul Shinde vs The State Of Maharashtra And ... on 15 October, 2016
Bench: T.V. Nalawade
914_WP101316.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1013 OF 2016
Babasaheb Gokul Shinde ..PETITIONER
VERSUS
State of Maharashtra and Others ..RESPONDENTS
Mr. Deelip Bankar Patil, Advocate h/f Mr. S.M. Gunjal, Advocate for
petitioner.
Mr. S.N. Kendre, A.G.P. for Respondent Nos.1 to 3 and 21.
Mr. A.D. Shinde, Advocate for Respondent Nos.5 to 20.
ig WITH
WRIT PETITION NO. 5471 OF 2016
Govind Dhanaji Jawale and Others ..PETITIONERS
VERSUS
The Divisional Joint Registrar,
Co-operative Societies, Nashik Division,
Nashik and Others. ..RESPONDENTS
....
Mr. P.D. Bachate, Advocate for petitioners.
Mr. S.N. Kendre, A.G.P. for Respondent Nos.1 and 2.
Mr. Deelip Bankar Patil, Advocate for Respondent No.4.
....
CORAM : T.V. NALAWADE, J.
DATED : 15th OCTOBER, 2016
ORDER :
1. The first proceeding is filed to challenge the order made by the
Returning Officer to include Respondent Nos. 5 to 20 in the final voters list
and for direction to see that they are not allowed to vote in the elections to
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Respondent No.4 - Co-operative Credit Society fo Shenwadgaon, Tahsil
Rahuri. Proceeding is filed also to challenge the decision given in Revision
No. 7 of 2016 which was filed before the Divisional Joint Registrar, Co-
operative Societies, Nashik by the present petitioners. The authority has
held that the present petitioners stand disqualified and they cannot continue
as members of respondent - co-operative society. Both sides are heard.
Hereinafter the Maharashtra Co-operative Societies Act, 1960 is referred to
as 'the Act'.
2. Respondent No.3 of the present proceeding had filed application
under Section 11 read with Section 25A of the Act before the Assistant
Registrar, Co-operative Societies for deleting the names of present
petitioners from the list of members of the society. The application was filed
on two grounds viz. (i) the present petitioners are not residing in the area for
which the society is created and (ii) they are not having 10R land within the
limits of the ares for which society is created. On the basis of the record like
certificate issued by the revenue authority that petitioners are not having
land, the Assistant Registrar made order to delete the names of the present
petitioners from the membership register. In the revision, the Divisional
Joint Registrar has considered other circumstance that there is no record to
show that present petitioners are residents of village Shenwadgaon, the area
for which the society is created, in additional to the aforesaid ground.
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3. The learned Counsel for petitioners submitted that the authority
has committed error in not considering the by-laws of the society. He
submitted that when the petitioners were made members in the past, the
authority ought to have presumed that they were eligible to continue as
members of the society. He submitted that the amended provisions like
necessity to hold 10R portion of agricultural land in the area of operation of
the society cannot be made applicable against the present petitioners. He
submitted that in view of the by-law no. 6(3) the condition of holding 10R
portion of agricultural land is not applicable to the persons mentioned in by-
law 4(14) and the petitioners could not have been deleted as they fall in that
category. On the other hand, the learned Counsel for respondent who had
filed appliation before the Assistant Registrar submitted that the petitioners
could not produce any record to show that they are residents of the area for
which the society is created and further they are not disputing that they are
not having 10R portion of land in the area of operation of the society. He
submitted that the petitioners were made members as agriculturist and they
do not fall in the category mentioned in by-law no. 4(14). He submitted that
there is record to show that the present petitioners are residents of other
village, even other tahasils and they themselves had mentioned in the
proceedings filed by them their addresses from other places. He took this
Court through the record like voters list prepared for general elections for
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difference places like Pachegaon, Kerwadi, Kopergaon, etc. He showed this
Court the names of these petitioners included in the voters list of those
places. This Court went through the revenue record Pachegaon, Punadgaon,
Ghari, Chandkasari, etc. also. The learned Counsel showed to this Court the
record of resolution made by respondent - co-operative society against the
petitioner as they were not satisfying the eligibility conditions. He submitted
that though such resolution was there, by joining hands with the petitioner,
their names were continued in the voters list. He submitted that when the
Divisional Joint Registrar, Nashik had given stay only for particular period,
till 02nd February, 2016, by misusing this order, names of the petitioners
were continued in the voters list and even this Court was mislead to see that
these petitioners are allowed to vote in the election.
4. There is force in the submission made by learned Counsel for the
person who had filed proceeding under Section 11 read with 25A of the Act.
Admittedly, these persons are not having 10R portion of agricultural land in
the area of operation of respondent - society. In one proceeding they had
filed their addresses of different places other than the place Shenwadgaon
for which the society was created were mentioned and there is other record
showing that they are exercising their right of vote at their places in general
election. The record is sufficient to infurr that they were made members as
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agriculturists and they are not the members under by-law 4(14). This record
is considered by both the authorities.
5. The proceeding under Section 11 read with 25A of the Act was
started before declaration of program of election for the years 2016-21. The
decision of the matter had also come out prior to declaration of program. It
can be said that the society ought not to have shown the petitioners as the
voters for the said election. The learned Counsel for petitioners from Writ
Petition No. 1013 of 2016 placed reliance on the case reported as AIR 1994
Bombay 304 ( Aurangabad Bench ) ( Karbhari Maruti Agawan and
Others Vs. State of Maharashtra and Others ) and submitted that this
Court has power to intervene when the body in power has done some
mischief and has included or has avoided to delete the names of disqualified
members from voters list supplied to be authority. In this case, this Court
has further laid down that the powers given to the Registrar under Section
11 of the Act can be exercised even when the election program is declared
and the result given by the authority under Section 11 needs to be
considered. There cannot be dispute over this proposition. He places
reliance on Division Bench case of this Court reported as 1999(3) ALL MR
628 ( Shivaji Marotrao Suryawanshi Vs. State of Maharashtra and
Others ). In that case it was held that when the non-borrower members
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were not residents of area of operation of society, their inclusion in voters list
was illegal and the petition can be entertained to challenge such inclusion. It
is further observed that such writ is not barred due to the circumstance that
option of filing election petition is available. There cannot be dispute over
this proposition also. Thus, if before the date of voting the decision is given
under Section 11 read with Section 25A of the Act the returning officer must
act in accordance with the said decision.
6.
On the basis of the record, it can be said that the body in power
did mischief and continued the petitioners of Writ Petition No. 5471 of 2016
as members of the society when they were already disqualified by competent
authority and their names were shown illegally in the voters list supplied to
the authority for election. For this act, costs needs to be imposed on the
petitioners of Writ Petition No. 5471 of 2016. They have mislead this Court
also and the declaration of the result was withheld due to submission made
by these petitioners. This Court holds that the petitioners were not entitled
to vote in the elections and so their votes need to be excluded and result
needs to be declared accordingly.
7. In view of these circumstances, Writ Petition No. 5471 of 2016 is
dismissed. The petitioners are to pay costs of Rs.50,000/- ( Rupees Fifty
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Thousands Only ). The amount is to be deposited in the account of the
society. Th votes of the petitioners are not to be counted. They are to be
excluded and the result is to be declared. Learned Counsel for the
petitioners requests for further protection. It is refused.
8. Writ Petition No. 1013 of 2016 is allowed. The order dated 18 th
December, 2015 made by the Returning Officer by which the names of
Respondent Nos.5 to 20 are included stands set aside. The learned A.G.P.
to inform the orders. Authenticated copy is allowed.
( T.V. NALAWADE, J. )
SSD
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