Dinkar Rangnath Pandharkar vs The Honble Minister, Co Operation ...
2021 Latest Caselaw 16760 Bom

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                         WRIT PETITION NO.10792 OF 2021

Dinkar s/o Rangnath Pandharkar,
Age : 65 years, Occu. Agri.,
R/o Pimplagaonpisa, Tq. Shrigonda,
District Ahmednagar                                          PETITIONER

      VERSUS

The Principal Secretary,
Co-operation and Textile and
Marketing Department,
Mantralaya, Mumbai and
162 others                                                 RESPONDENTS

                                      AND

                        WRIT PETITION NO. 10787 OF 2021

Dinkar s/o Rangnath Pandharkar,
Age : 65 years, Occu. Agri.,
R/o Pimplagaonpisa, Tq. Shrigonda,
District Ahmednagar                                          PETITIONER

      VERSUS

The Principal Secretary,
Co-operation and Textile and
Marketing Department,
Mantralaya, Mumbai and
76 others                                                  RESPONDENTS

                                      AND

                        WRIT PETITION NO. 13139 OF 2021

Dinkar s/o Rangnath Pandharkar,
Age : 65 years, Occu. Agri.,
R/o Pimplagaonpisa, Tq. Shrigonda,
District Ahmednagar                                          PETITIONER

      VERSUS




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                                            2             WP10792-2021+.odt
The State of Maharashtra,
through its Principal Secretary,
Co-operation and Textile and
Marketing Department,
Mantralaya, Mumbai and
440 others                                                    RESPONDENTS
                                      .....
Mr. Rahul R. Karpe, Advocate for the petitioner in all petitions
Mr. K.B. Jadhavar, A.G.P. for the respondent/State
Mr. V.H. Dighe, Advocate for respondent No.4 in writ petition
Nos.10792/2021 and 10787/2021 and for respondent No.2 in
writ petition No.13139/2021
Mr. Salgar, Advocate holding for Mr. N.V. Gaware, Advocate
for respondent No.3 in all writ petitions
Mr. Z.H. Farooqui, Advocate for respondent Nos.22, 181 and
210 in writ petition No.13139/2021
                                      .....

                                    CORAM :    MANGESH S. PATIL, J.

DATE : 03.12.2021

PER COURT :

Heard the learned Advocate for the petitioner in all the three

petitions, learned A.G.P., learned Advocate Mr. V.H. Dighe for the

respondent - the District Cooperative Election Officer and learned

Advocate Mr. Z.H. Farooqui for some of the respondents.

2. Common questions arise in all these petitions filed by the

same person in respect of the same cooperative society in respect of the

provisional voters list published under the Maharashtra Cooperative

Societies (Election to the Committee) Rules, 2014 (hereinafter referred to

as `the Rules') framed under the Maharashtra Cooperative Societies Act,

1960 (`the Act', for short). In view of the exigency expressed at the bar by

3 WP10792-2021+.odt the learned Advocate for the petitioner, these matters are taken up for final

hearing at the admission stage.

3. By way of writ petition Nos.10792/2021 and 10787/2021, the

petitioner is seeking to challenge the order passed by the learned Minister

in the appeals under Section 152 of the Act whereby he has allowed the

appeals and quashed and set aside the order dated 28.12.2020 passed by

the Returning Officer under the provisions of Rule 11 of the Rules in

respect of earlier process of election, whereby the Returning Officer had

directed some voters to be removed from the voters' list. In writ petition

No.13139/2021, the petitioner is taking exception to the order passed by

the Returning Officer, rejecting his objection to the provisional voters list

published during the recent process, raised under Rule 11 of the Rules in

respect of respondent No.3 cooperative society duly registered as such

under the Act.

4. Though elaborate arguments were advanced by both the sides,

considering the nature of the dispute and the stage at which these petitions

have been filed, one need not delve deep into the controversy.

5. According to the petitioner, the contesting respondents were

not eligible to be enrolled as voters. Their names were included in the

election process of the year 2020. The objection of the petitioner in that

process was upheld and the decision of the Returning Officer was

challenged before the learned Minister in appeals under Section 152 of the

4 WP10792-2021+.odt Act. Ignoring the fact that the appeal was preferred by some of the voters,

the entire orders were quashed and set aside. The petitioner has

challenged these orders of the learned Minister in writ petition

Nos.10792/2021 and 10787/2021.

6. Due to pandemic, the elections were postponed and now a

fresh provisional voters list has been published. Since the elections were

postponed and a fresh provisional voters list has been published, the

petitioner raised objection which has been turned down by the order under

challenge in writ petition No.13139/2021.

7. Mr. R.R. Karpe, learned Advocate for the petitioner would

vehemently submit that in the earlier round of preparation of provisional

voters list of the year 2020, without there being any challenge by many of

the respondents to the decision of the Returning Officer, the learned

Minister allowed the appeals and quashed and set aside the order of the

Returning Officer in entirety. It was in blatant disregard to the settled

norms of exercising quasi-judicial power. The orders were without

jurisdiction and should have been interpreted to mean, at the most, that

the order passed by the Returning Officer was quashed and set aside only

to the extent of the voters who had preferred those appeals under Section

152 of the Act.

8. Mr. Karpe, learned Advocate would then point out that a fresh

election process has now been contemplated and a provisional list has

5 WP10792-2021+.odt been published. Again, the petitioner raised the same objection and still,

by the order under challenge, the Returning Officer has illegally rejected it.

He ignored the fact that only some of the voters had preferred the appeals

before the learned Minister and those voters who had not challenged the

earlier orders could not have been included in the provisional voters' list

published for the fresh elections to be held now.

9. Mr. Karpe thereafter refers to various decisions and

particularly in the matter of Election Commission of India V. Ashok Kumar;

2000 AIR(SC) 2979 and tries to distinguish the decision of the Full Bench

of this court in the matter of Karmaveer Tulshiram Autade and others V.

State Election Commission office and others; 2021 AIR (Bom.) 90 as also

the latest Division Bench judgment in the matter of Dattatray Genaba Lole

and others Vs. The Divisional Joint Registrar, Cooperative Societies and

others; Writ Petition No.5878 of 2021, decided on 26.11.2021.

10. Per contra, the learned A.G.P., Mr. V.H. Dighe, learned

Advocate for the District Cooperative Election Officer, learned Advocate

Mr. Salgar, holding for Mr. N.V. Gaware, Advocate for respondent No.3 and

learned Advocate Mr. Z.H. Farooqui for some of the respondents would

submit that preparation of provisional voters list has been consistently held

to be an intermediate stage in the process of election and even it has been

consistently held by this court as also the Supreme Court that such

preparation and process of finalization of the voters list is a matter in

6 WP10792-2021+.odt respect of which the High Court cannot exercise writ jurisdiction under

Article 226 of the Constitution of India. They also point out that even there

is an equally efficacious remedy in the form of a dispute to be raised under

Section 91 of the Act. Lastly, they would submit that in view of the recent

programme for finalization of voters list, objections were to be raised in

the given timeline and the final voters list was to be published by

26.11.2021. The writ petition No.13139/2021 is filed after such cut-off

date of 26.11.2021.

11. Though attractive, the submission of the learned Advocate for

the petitioner ignores the fact that all such persons, who are likely to be

now affected by a challenge in the present petitions, will have to be given

an opportunity of being heard. Though some of them have been arrayed

as respondents herein, it is only by way of an indulgence that in addition

to the regular mode of service, they were permitted to be served by paper

publication of their notices. The fact remains that they are not before this

court so that any adverse order affecting their interest can be passed.

12. In my considered view, it would not be necessary to consider

the rival submissions threadbare. It would suffice for the purpose to refer

to the Full Bench decision of this court in the matter of Karmaveer

Tulshiram Autade and others (supra) coupled with the Division Bench

judgment in the matter of Dattatray Genaba Lole and others (supra).

Again, in the similar challenge, a coordinate bench of this court in the case

7 WP10792-2021+.odt of Bhagwanrao Ramchandrarao Patil V. The State of Maharashtra and

others; Writ Petition No.12006 of 2021 with connected matters, decided on

05.11.2021, referring to the decision of the Full Bench, has elaborately

discussed and given reasons as to why and how this court cannot exercise

the writ jurisdiction to cause any interference in the preparation of the

voters' list.

13. Apart from such state-of-affairs, as is mentioned earlier the

voters list was to be finalized on 26.11.2021 and the latest writ petition

challenging the provisional list has been filed on 29.11.2021. Therefore

even for this reason, these writ petitions fail.

14. Following the observations of the Division Bench in the matter

of Dattatray Genaba Lole and others (supra), these writ petitions are liable

to be dismissed.

15. The Writ Petitions are dismissed.

[MANGESH S. PATIL] JUDGE

npj/WP10792-2021+.odt