Bombay High Court
Madhavrao Ramji Thavre And Others vs The State Of Maharashtra Thr Its ... on 16 February, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1894 OF 2021
MADHAVRAO S/O RAMJI THAVRE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
WITH
CIVIL APPLICATION NO. 1472 OF 2021
DEEPAK S/O TUKARAM LATPATE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
WITH
CIVIL APPLICATION NO. 1667 OF 2021
KADYACHIWADI SHETKARI SAMUHA KRUSHI SAHITYA
PURAVATHA AND DHANYA GODAM SEVA SAHAKARI
SANSTHA LTD., KADYACHIWADI, TQ. GANGAKHED, DIST.
PARBHANI THROUGH ITS REPRESENTATIVE
VERSUS
MAHADEVRAO S/O RAMJI THAVRE AND OTHERS
.....
Advocate for the Petitioners : Mr. Vishal A. Bagal
AGP for Respondent No.1 : Mr. R. D. Sanap
Advocate for Respondent Nos. 2 and 3 : Mr. S. K. Kadam
Advocate for Respondent No.4 : Mr. M. S. Deshmukh
Advocate for the Applicant in CA/1472/2021 :
Mr. Shahaji B. Ghatol Patil
Advocate for the Applicant in CA/1667/2021 :
Mr. Nilkanth R. Pawade
.....
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CORAM : V. K. JADHAV, J.
DATED : 16TH FEBRUARY, 2021
PER COURT :-
1. By way of the present Writ Petition, the petitioner
societies are challenging the order dated 15.01.2021 passed
by respondent no.3-Election Officer, thereby the objections
filed by the petitioners have been rejected. The petitioners
are seeking direction against respondent no.3 to include
their names in the final voter list of respondent no.4-
Parbhani District Central Co-operative Bank Ltd. (for short,
"respondent-Bank").
2. Learned counsel for the petitioners press the petition
to the extent of petitioner nos. 1 and 4 societies and so far as
the other petitioner societies (i.e. petitioner nos. 2, 3, 5 and
6) are concerned, the learned counsel for the petitioners has
fairly conceded that those petitioner societies have invested
in the share capital of the federal society after the cut-off
date.
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3. Petitioner nos. 1 and 4 are the co-operative societies
registered under the provisions of the Maharashtra Co-
operative Societies Act, 1960 (for short, "Act of 1960") and
the Rules 1961. The petitioner societies are working in the
territorial jurisdiction of respondent no.4 Bank.
4. Learned counsel for the petitioners submits that the
petitioner nos. 1 and 4 societies are eligible for being a
member of respondent no.4 Bank. On 09.03.2016, the
petitioner societies have filed applications/proposals for
seeking membership of respondent no.4 Bank along with all
the necessary documents. Learned counsel submits that
petitioner nos. 1 and 4 societies have invested in the share
capital of respondent no.4 Bank on 18.07.2014. However,
respondent no.4 Bank has not taken any decision on the
above mentioned proposals/applications seeking
membership. Thus, the petitioner societies have filed
application bearing no. 15 of 2017 before the Divisional
Joint Registrar, Co-operative Societies, Aurangabad and
considering the record before respondent no. 3 and in terms
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of the provisions of Section 22 (2) of the Act of 1960 and the
by-laws, respondent no.3 has allowed the application 15 of
2017 filed by the petitioners by order dated 17.05.2017
thereby directing respondent no.4 Bank to include the name
of the petitioners in the list of respondent no.4 Bank as
deemed members.
5. Learned counsel for the petitioners submits that the
petitioners have filed Writ Petition No. 2019 of 2020 before
this Court seeking direction to call the resolution of the
petitioner societies to include names of their representatives
in the voter list of the ensuing election of the respondent
Bank. By order dated 26.02.2020, this Court has observed
that 'the petitioners are the members of respondent no.3
Bank (respondent no.4 herein) in view of the order passed
by the Divisional Joint Registrar and the bone of contention
would be the right of the petitioners to vote, as provided
under Section 27 (3) read with Rule 9 of the Rules 2014. If
the respondent Bank does not send names of petitioners in
the voter list, which the Bank is required to submit by
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05.03.2020 to respondent no.1, then provisional voter list is
to be published, the petitioners can raise objection to that
effect and can agitate their contention before respondent
no.1. Similar observations were made under order dated
12.02.2020 in Writ Petition No. 2673 of 2020. In that event,
all the contentions of the parties would be open for
consideration'.
6. Learned counsel for the petitioners submits that the
petitioners have submitted their resolutions along with all
the necessary documents within the prescribed period,
however, respondent no.3-Election Officer has published the
primary voter list of respondent no.4 Bank without including
names of the representatives of the petitioner societies.
7. Learned counsel further submits that by order dated
15.01.2021, respondent no.3-Election Officer has rejected
the objection filed by the petitioners on the ground that the
order of deemed member is after the cut-off date i.e.
06.05.2017.
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8. Learned counsel further submits that respondent no.3-
Election Officer has failed to consider the mandate of
Section 22(2) of the Act of 1960.
9. Learned counsel further submits that in view of the
provisions of Section 27(3) of the Act of 1960, any new
member society of the federal society shall be eligible to vote
in the affairs of that federal society only after completion of
three years from the date of its investing any part of its fund
in the shares of such federal society. Thus, the petitioner
societies have completed three years on 18.07.2017 from the
date of investment in the share capital of the federal society
and as such the petitioner societies are eligible to participate
in the election of respondent no.4 Bank.
10. Mr. Kadam, learned counsel for respondent nos. 2 and
3 submits that in terms of Rule 19 of the Maharashtra Co-
operative Societies Rules, 1961, certain conditions are
prescribed to be complied with for admission as a member.
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Learned counsel submits that even assuming that the
petitioner societies have invested any part of its funds in the
shares of respondent no.4 Bank, however, the application
submitted by the petitioner societies for enrollment as a
member is to be approved by the committee of respondent
no.4 Bank subject to such resolution as the general body of
members may, in pursuance of the powers conferred on it in
that behalf from time to time, pass.
11. I have also heard learned AGP for respondent no.1.
12. Learned counsel Mr. M. S. Deshmukh appearing for
respondent no.4 Bank submits that petitioner nos. 1 and 4
societies have invested their amount in the shares of the
federal society on 18.07.2014 and the record is available to
that effect. Even respondent no.4 Bank has taken a specific
plea to that effect in their written statement submitted
before the Election Officer. Learned counsel Mr. S. K. Kadam
appearing for the respondent Election Officer has also
accepted the same.
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13. Learned counsel Mr. Ghatol appearing for the
applicant in Civil Application No. 1472 of 2021 seeking
intervention submits that false and fabricated applications
are prepared only with the intention to show that the said
applications seeking membership of respondent no.4 Bank
came to be filed. Learned counsel submits that the Divisional
Joint Registrar has passed a false and collusive order in the
application bearing no. 15 of 2017. Even in the said order
passed by the Divisional Joint Registrar, there is no mention
about the starting point of membership.
14. Learned counsel Mr. Ghatol further submits that in
terms of the provisions of Section 27 (3A) of the Act of
1960, the petitioner societies have not completed three years
from the date of their investment in the share capital of
respondent no.4 Bank and as such, they are not entitled to
be incorporated in the provisional voter list of respondent
no.4 Bank. Learned counsel submits that the petitioner
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societies have never applied for membership of respondent
no.4 Bank on 09.03.2016 as alleged.
15. Learned counsel Mr. Ghatol further submits that the
writ petition is filed, when the election process had started
in co-operative society, and thus liable to be dismissed.
Learned counsel submits that it is well settled that
preparation of voter list is the part of election process for
constituting the management committee of the specific
society. Learned counsel submits that thus, interference at
this stage by exercising writ jurisdiction is unwarranted and
uncalled for. Learned counsel submits that so far as
petitioner nos. 1 and 4, whose claims are now pressed, they
have not raised a specific plea either in their objection
petition or in this Writ petition that they have invested in the
share capital of respondent no.4 Bank in the year 2014.
Learned counsel submits that in view of the same, the
evidence about investment in the funds of the federal society
in the year 2014, if submitted for the first time in this Writ
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Petition without there being any plea, the same is liable to be
discarded.
16. Learned counsel Mr. Ghatol, in order to substantiate
his contention, places reliance on the following cases:
1. Janak Dulari Devi and Others v. Kapildeo Rai and
Others, reported in AIR 2011 SC 2521.
2. Union of India (UOI) v. E.I.D. Parry (India) Ltd.,
reported in AIR 2000 SC 831.
3. Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha and
Another v. State of Maharashtra and others,
reported in (2001) 8 SCC 509.
17. Learned counsel Mr. N. R. Pawade appearing for the
applicant in Civil Application no. 1667 of 2021 seeking
intervention, has made submissions on the same lines.
Learned counsel submits that in accordance with the
provisions of the Act of 1960 and the Maharashtra Co-
operative Societies (Election to Committee) Rules, 2014, the
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final voter list is also published and the election programme
may be declared soon. Thus, the election of respondent no.4
Bank is set in motion and the prayer of the petitioners
cannot be entertained at this belated stage.
18. Learned counsel Mr. M. S. Deshmukh appearing for the
respondent no.4 Bank submits that the observations made by
the Supreme Court in the case of Shri Sant Sadguru
Janardan Swami (Supra), relied upon by learned counsel Mr.
Ghatol for the intervenor in Civil Application No. 1472 of
2021, are further diluted and it is held that interference by
the writ court is permissible if the election process was not in
conformity with the relevant statutory provisions. Learned
counsel, in order to substantiate his contention, placed
reliance on the following cases:
1. Pundlik v. State of Maharashtra, reported in 2005
AIR SCW 4371.
2. Dattatraya Kachru Chine and others v. State of
Maharashtra and others, reported in 2005 (4)
Mh. L.J. 243.
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3. Chandrakant Mahadev Patole & Others v. State of
Maharashtra & Others, reported in 2010 ALL MR
(Suppl) 457.
4. Ahmednagar Zilla S.D.V. & P. Sangh Ltd. and
Another v. State of Maharashtra and Others,
reported in (2004) 1 SCC 133.
19. I have carefully considered the submissions advanced
by learned counsel for the respective parties. With their able
assistance, I have perused the pleadings, grounds taken in
the petition and the annexures thereto.
20. The provisions of Section 27 of the Societies Act
speak about voting powers of the members. Sub-sections (3)
and (3A) of Section 27 of the Societies Act are relevant for
deciding the issue raised in the present writ petition. Thus,
sub-sections (3) and (3A) of Section 27 of the Societies Act
are reproduced herein below:-
"27. Voting powers of members.
(1) .....
(2) .....
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(3) A society which has invested any part of its
funds in the shares of any federal society, may
appoint one of its active members to vote on
its behalf in the affairs of that federal society;
and accordingly such member shall have the
right to vote on behalf of the society:
Provided that, any new member society of a
federal society shall be eligible to vote in the
affairs of that federal society only after the
completion of the period of three years from
the date of its investing any part of its fund in
the shares of such federal society:
(3A)An individual member of a society shall not be
eligible for voting in the affairs of that society
for a period of two years from the date of his
enrollment as a member of such society:
Provided that, nothing in this sub-section shall
apply in respect of a co-operative housing
society and a co-operative premises society."
21. Thus, from bare reading of Section 27(3) and the
proviso thereof, it is clear that the condition for eligibility of
a member to vote in the affairs of a federal society is
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completion of three years from the date of its investing any
part of its funds in the shares of such federal society. So far
as sub-section (3A) is concerned, there is marked difference
between a member society and an individual member of the
society. If it is a member society, what is important and
relevant is the date of investing any part of its funds in the
shares of such federal society i.e. respondent No.4 Bank in
the present case. Thus, completion of period of three years is
required to be computed from the said date of investment.
So far as the sub-section (3A) pertaining to an individual
members of the society is concern, he shall not be eligible for
voting in the affairs of the federal society for a period of two
years from the date of its enrollment as a member of that
society. Thus, for an individual member, the criterion is the
date of enrollment as member of such federal society.
22. In the case of Dudhganga Vikas Seva Sanstha
Maryadit vs. Distt. Collector, Kolhapur and Others , reported
in (2006) 5 SCC 250, in para Nos. 7 and 8, the Supreme
Court has made following observations:-
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"7. A mere reading of section 27 makes it explicit
that a society, which has invested any part of its
fund in the shares of a federal society, may
appoint one of its members to vote on its behalf
in the affairs of the federal society. Proviso to
sub-section (3) of Section 27 of the Act lays
down the condition of eligibility which is to the
effect that any new member of a federal society
shall be eligible to vote in the affairs of the
federal society only after the completion of the
period of 3 years from the date of its investing
any part of its fund in the shares of such federal
society. We may also note sub-section (3-A) of
Section 27 of the Act which relates to an
individual member of a society. In his case it is
provided that he shall not be eligible for voting
in the affairs of that society for a period of two
years from the date of his enrollment as a
member of such society. The legislature has
consciously employed in sub-sections (3) and
(3-A) words which are of significance. In the
proviso to sub-section (3) the period of 3 years
is reckoned from the date of the society
investing any part of its fund in the shares of a
federal society, whereas sub-section (3-A)
provides that the period of 2 years shall be
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computed from the date of enrollment of an
individual as a member of such federal society.
8. Having regard to the plain words used in
Section 27(3) of the Act, the appellant Society
having invested its fund in the shares of
Kolhapur District Central Cooperative Bank
Ltd., Respondent 2 herein on 30-12-2002, it
became eligible to vote in the affairs of the
federal society after 30-12-2005. We are
informed that the date of investment by the
appellant Society and its enrollment as a
member of the federal society is the same,
namely, 30-12-2002. Ex facie, therefore, in
terms of Section 27(3) of the Act, in April 2006
when the election was due to be held, the
appellant Society was entitled to appoint one of
its members to vote on its behalf in the affairs
of the federal society Respondent 2, having
completed the period of 3 years from the date
of its investment in shares of Respondent 2
society on 30-12-2005."
23. In the case of Dhule Gramin Vikas Bhajipala Phal
Phalawal Va Phule Kharedi Vikri Sahakari Sanstha Ltd. and
Others vs. State of Maharashtra and Others , reported in
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2007 (5) ALL MR 867, the Division Bench of this Court, by
referring the observations made by the Supreme Court in the
case above i.e. Dudhganga Vikas Seva Sanstha Maryadit
(supra), in para 18 of the judgment has made following
observations:-
"18. We find from perusal of the provisions of
Section 27(3) of the Act, 1960 that there is no
ambiguity in its application. Considering the
interpretation put up by the Apex Court and
the Division Bench of the Bombay High Court
in their judgment to the provisions of Section
27 of the Act read with Rule 4 of the
Committee Rules it can be safely held that the
members society of the federal society shall be
eligible to vote in the affairs of the federal
society after completion of period of three
years from the date of its investing funds in
the shares of the federal society."
24. In the case of Amrutdhara Dudh Utpadak Sahakari
Sanstha and Another vs. The State of Maharashtra and
Others, reported in 2012 (3) ALL MR 850, the learned Single
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Judge of this court (Coram : S. V. Gangapurwala, J.) in para
10 of the judgment has made the following observations:-
"10. Even sub section (3) of Section 27 of the said
Act lays down that the society which has
invested any part of its funds in the shares of
the federal society, may appoint any of its
members to vote on its behalf in the affairs of
that federal society. The said sub section (3)
of Section 27 of the said Act does not warrant
that a specific membership has to be
conferred on the society. It only mandates
that the said Society should have invested
any part of its funds in the shares of any
federal society. In the present case, none of
the respondents dispute the fact that the
petitioners have invested part of their funds
in the shares of the respondent no.4 -Society.
The only embargo put on the rights of such a
Society to vote is that it should have
completed three (3) years from the date of its
investing any part of its funds in the share of
any federal society in view of proviso (3) to
Section 27. In the present case, the
petitioners have invested their part of the
funds in the shares of respondent no.4 in the
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year 2002. Even the said restriction laid
down in proviso would not apply in this
case."
25. In the case of Babaji Kondaji Garad and Others vs.
Nasik Merchants Co-operative Bank Ltd., Nasik and Others,
reported in AIR 1984 SC 192, in para 10 of the judgment,
the Supreme Court has considered the use of expression
"shall" by the Legislature and observed that the intention of
the Legislature in using the word "shall" manifest its
intention. In the instant case, in the proviso of sub-section
(3) of Section 27 the word "shall" is used and as such, the
petitioner nos. 1 and 4 societies are eligible to vote in the
ensuing elections of respondent No.4 Bank.
26. It is pertinent to note that though petitioner nos. 1
and 4 societies are registered long back, however,
respondent no.4 Bank has enrolled them as member on one
and the same date i.e. on 20.05.2017. Even respondent no.4
Bank has admitted by pointing out the record and even
respondent no.4 Bank has mentioned the said fact in its
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reply filed before the Election Officer that petitioner nos. 1
and 4 societies have invested their funds in the share capital
of respondent no.4 Bank way back in the year 2014. Thus,
completion of period of three years is required to be
computed from the said date of investment. So far as the
other petitioners i.e. petitioner nos. 2, 3, 5 and 6 are
concerned, learned counsel for the petitioner societies has
fairly conceded that the those petitioner societies have
invested funds in the share capital of the federal society in
the year 2018 and as such those societies have not
completed three years from the date of their investment.
27. In view of the above and considering the relevant
provisions and the ratio laid down by the Supreme Court
and the Division Bench of this Court, I am of the considered
opinion that the impugned order to the extent of petitioner
nos. 1 and 4 is not sustainable and the same is thus liable to
be quashed and set aside. Hence, I proceed to pass the
following order:
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ORDER
I. The Writ Petition is partly allowed to the extent
of petitioner nos. 1 and 4 in terms of prayer
clause "B".
II. The Writ Petition is hereby dismissed to the
extent of petitioner nos. 2, 3, 5 and 6.
III. The Writ petition is accordingly disposed off.
( V. K. JADHAV, J. )
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