Tatyasaheb Murlidhar Adsul vs The State Co Operative Election ...
2021 Latest Caselaw 2768 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 1973 OF 2021

 Tatyasaheb Murlidhar Adsul                                  ...Petitioner

          versus

 The State Co-operative Election Authority
 Maharashtra State, Pune and others                          ...Respondents

                                     .....
 Mr. K. J. Suryawanshi, advocate for the petitioner
 Mr. V.H. Dighe, advocate for respondent Nos. 1 and 2
 Mr. S.P. Deshmukh, A.G.P. for respondent Nos.3 and 4
 Mr. D.J. Choudhari, advocate for respondent No. 5
 Mr. L. H. Kawale, advocate for respondent No.6
 Mr. C.V. Thombre, advocate for respondent Nos. 7 and 8
                                 .....

                                            CORAM : V. K. JADHAV, J.

DATED: 11th FEBRUARY, 2021

PER COURT :-

1. Being aggrieved by order dated 18.03.2020 passed by the

respondent No.2 thereby allowing the objection raised by the

respondent No.8 herein, the petitioners have preferred this writ

petition.

2. Learned counsel for the petitioner submits that the

respondent No.2 has issued notification dated 18.12.2019 calling

resolutions of the member societies for nomination of their

representatives. Respondent No.2 has given instructions that the

representative should not be defaulter as per the provisions of

Section 27(10) and Section 73CA (1) (i) (f) of the Maharashtra Co-

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operative Societies Act 1960 (for short "Societies Act"). The said

resolutions of the representatives were to be submitted on or before

16.01.2020. However, thereafter the elections were postponed and

under the interim orders of this court, the process of preparation of

voters list was continued.

3. Learned counsel for the petitioner submits that respondent

No.4 authority has appointed Administrator on respondent No.7

society. Respondent Nos.6 and 7 did not call special meeting of the

society for nominating the representative of the society to participate

in the elections of respondent No.5 bank. Learned counsel submits

that respondent Nos. 7 and 8 prepared false and bogus documents

to show that the special general body meeting of the society was

called on 30.01.2020 by issuing notice dated 21.01.2020 and the

notice dated 21.1.2020 is signed by respondent No.8 as Chairman of

the meeting, though he was not appointed as Chairman of any

meeting. Thereafter, the said meeting was conducted. The name of

respondent No.8 is nominated as representative of the society to

participate in the process of elections of respondent No.5 bank.

Respondent No.8 has submitted the alleged resolution dated

30.01.2020 to respondent No.2 for inclusion of name in the voters list

of respondent No.5 bank. Respondent No.5 bank has asked

respondent No.6 authorized officer about resolution dated

30.01.2020 and the authorized Officer has submitted report in writing

to respondent No.5 on 18.2.2020 mentioning that he has not called

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and conducted the special general body meeting of the society to

nominate the name of representative. The petitioner has submitted

application dated 14.2.2020 to respondent No.5 bank contending that

no meeting has been conducted to nominate the name of

representative in terms of the provisions of Section 76 of the

Societies Act and as such, not to include the name of representative

on the basis of false resolution. However, respondent No.5 bank has

prepared the provisional voters list and it was submitted to

respondent No.2 on 20.2.2020 in which the name of respond No.8

was not included in the said list so prepared by respondent No.2 on

29.2.2020. Thereupon, the respondent No.8 has made application

on 9.3.2020 to respondent No.2 requesting to include his name in the

voters list alleging therein that the Secretary of the society had called

special general meeting on 30.01.2020 and in the said meeting his

name has been nominated as representative of respondent No.6

society.

4. Learned counsel for the petitioner submits that respondent

No.8 has obtained loan from respondent No.6 society and he is

defaulter of the said society. Respondent No.7 Secretary has

submitted a list of the defaulter members with respondent No.5 bank.

The name of respondent No.8 herein is included in the said defaulter

list. Learned counsel submits that in terms of the provisions of

section 27(10) and 73 CA (1) (i) (f) of the Societies Act, respondent

No.8 herein is not entitled to participate in the elections. Learned

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counsel submits that though respondent bank has shown relevant

documents to respondent No.2 contending therein that the

Administrator of respondent No.6 society has not called and

conducted the special general body meeting of the society and

further respondent No.8 is defaulter and there is recovery certificate

against him, his name cannot be included in the voters list. However,

without considering the relevant documents on record respondent

No.2, illegally allowed the objection of respondent No.8 by order

dated 18.3.2020 to include the name in the voters list.

5. Learned counsel for respondent No.8 submits that respondent

No.4 has appointed the Administrator. The Chairperson has called

meeting on 30.01.2020 under his signature alongwith the Secretary

i.e. respondent No.7. Learned counsel submits that the Chairperson

and respondent No. 7 are competent to call meeting of the society for

the purpose of nominating the representative of the society. The said

meeting was attended by 44 members. By passing resolution in the

meeting, unanimous decision was taken to nominate respondent

No.8 as representative of the society. However, the administrator,

malafide given report stating that he has not signed the notice and

proceeding of the meeting.

6. Learned counsel for respondent No.8 submits that respondent

No.8 has already cleared the dues of respondent No.7 society. He is

not defaulter of respondent No.7 society. Copy of receipt dated

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12.9.2017 issued by respondent No.7 society is placed on record.

Learned counsel submits that respondent No.2 has rightly

considered the objection raised by respondent No.8 and directed to

include his name in the voters list. Thus, the order passed by

respondent No.2 is legal, proper and correct.

Learned counsel for respondent No.8, in order to substantiate

his submissions, placed reliance on the following judgments:-

i) Shriram Mukundrao Korde vs. State of Maharashtra and others, reported in 2015 (3) Bom.C.R. 129;

ii) Pundlik Chingalaba Kaje vs. State of Maharashtra and ors.

Reproted in 2006 (2) ALL MR 684;

iii) Balaso Tukaram Patil and others vs. Chhatrapati Rajaram Sahakari Sakhar karkhana Ltd. And others, reported in 2015 (7) Bom.C.R. 943;

iv) M.I.D.C. Prakalpgrast Majur Kamgar Sahakari Sanstha Maryadit vs. Amravati District Labour Co-operative Society's Union and another, reported in 2016 (5) Mh.L.J. 390;

7. I have also heard Mr. Dighe, learned counsel for respondent

Nos. 1 and 2, learned A.G.P. for rspondent Nos 3 and 4 and Mr. Kawale

learned counsel for respondent No.6.

8. I have carefully considered the submissions advanced by

learned counsel for the respective parties. With their able assistance,

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I have perused the pleadings, grounds taken in the petition,

annexures thereto and reply filed by the concerned respondents.

9. Undisputedly, the Administrator was appointed on the

respondent society. I find no substance in the allegations that the

general body meeting of the society was not validly called and that

name of respondent No.8 was not recommended in the general body

meeting. It appears that notice dated 21.01.2020 calling special

general body meeting is signed by the Secretary and the

Chairperson. On perusal of the proceedings, it appears that by

majority i.e. by 44 members, unanimously recommended the name of

respondent No.8 as delegate of the society.

10. Respondent No.2 has issued notification dated 18.12.2019

calling resolution of the members societies to nominate their

representatives. They have been instructed in the said notification

that the representative should not be defaulter as per the provisions

of Section 27(10) and Section 73CA (1) (i) (f). The provisions of

Sections 27 (10) and 73CA (1) (i) (f) of the Societies Act, are relevant

for resolving the issue in this matter, which are reproduced herein

below:-

"27. Voting powers of members.-

(1) to (9) .........

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(10) 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.

Provided that, a member shall not be deemed to be a defaulter, if he has discharged his obligation to deliver his marketable produce to the marketing or processing society and the value of such produce is not less than the amount of his dues, even if the actual settlement of his dues, either in whole or in part, takes place at a later stage."

"73-CA. Disqualification of committee and its Members-

(1) ........

(i) is a defaulter of any society;

Explanation: For the purposes of this clause, the term "defaulter" includes

(a) to (e) .......

(f) in the case of District Central Co-operative bank or of the State Co-operative Bank, a member, if he,-

(i) is a person who represents a society other than a primary agricultural credit co-oprative soceity on the board of a District Central Co-operative bank or the State Co-operative bank, if the society to whom he represents has committed a default towards the payments of such Bank of a period exceeding ninety days.

(ii) is a person who is a defaulter of a primary

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agricultural credit co-operative society or is an office bearer of a defaulting primary agricultural co-operative credit society,

(iii) is a person who represents a society whose Managing Committee is superseded."

11. In the instant case, respondent No.8 is defaulter of the

society. By communication dated 11.03.2020, copy of the same is

marked at Exh. L page 46 of the petition, the Chief Executive Officer

of the respondent bank has informed the respondent Election Officer

that respondent No.8 herein is defaulter of the society to the tune of

Rs.15,984/-. However, respondent No.2 Election Officer has not

considered the objection raised and even communication as referred

to above. It thus appears that though respondent No.8 is defaulter of

the society his name has been included in the voters list. Further

the meeting does not get sanction of the administrator and it is

doubtful that meeting has been called validly.

12. The ratio laid down in the cases relied upon by learned

counsel for respondent No.8, in my view, are not applicable to the

facts and circumstances of the present case.

13. In view of the same, the order dated 18.3.2020 passed by

respondent No.2 allowing the objection of respondent No.8 is liable

to be quashed and set aside. Hence, I proceed to pass the following

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order:-

ORDER

I) Writ petition is hereby allowed in terms of prayer clauses "B"

and "C".

II) Writ petition is accordingly disposed of.

(V. K. JADHAV, J.)

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