Ravindra Vitthal Kadus And Others vs The State Of Maharashtra And ...
2021 Latest Caselaw 3754 Bom

                                                                                              111
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD
                           111 WRIT PETITION NO.3202 OF 2021

                   RAVINDRA VITTHAL KADUS AND OTHERS
                                     VERSUS
                  THE STATE OF MAHARASHTRA AND OTHERS
                                       ...
        Advocate for Petitioners : Mr V D Sapkal Senior Advocate i/by
                             Mr Markad Dattraya R.
                 AGP for Respondents State: Mrs P V Diggikar
               Advocate for Respondents 2 & 3 : Mr V H Dighe
              Advocate for Respondent No.4 : Mr. N. v. Gaware


                                        CORAM    : S. V. GANGAPURWALA &
                                                   SHRIKANT D. KULKARNI, JJ.
                                         DATE    : 1st March, 2021.
ORDER:

1. Mr. Sapkal, the learned Senior Advocate submits that final voters

list published for election of respondent No.4 Vivid Karyakari Society is

illegal. The society nor the election authority considered the amendment

to section 27 of the Maharashtra Cooperative Societies Act, 1960. Proviso

is added to sub section (1-A) of section 27 of the Act, 1960 wherein

applicability of sub section (1-A) of section 27 of the Act, 1960 was

exempted in respect of elections of the societies to be conducted on or

before 31st March, 2021 and when voters list for conducting election has

been finalized prior to the commencement of the Maharashtra Cooperative

Societies (Second Amendment ) Ordinance, 2020.

2. Mr.Sapkal the learned Senior Advocate submits that in view of the

amendment, active as well as non active members would get right to be

valid voters to the election of respondent no. 4 society. The society, in

ignorance of the amendment, submitted the provisional voters list

excluding the name of the non active members, the same was illegal.

Election authority also finalized the said voters list without considering

amendment to section 27 of the Act. These non active members would

have right to vote. The learned Senior Advocate submits that this court, in

its writ jurisdiction can entertain the writ petition and correct the error

committed by the respondents and in that case, judgment of the Apex

Court in the case Shri Sant Sadguru Janardan Swami (Moingiri

Maharaj)Sahakari Dugdha Utpadak Sanstha Vs. The State of Maharashtra,

ported in AIR 2001 SC 3982 would not apply. Learned counsel, to

buttress his submissions, relies on the following judgments.

i. AIR 2007 SC 347 (Dudhganga Vikas Sewa Sanstha Maryadit Vs. District Collector, Kolhapur)

ii. Judgment of this Court in writ petition No.7199 of 2011 dated 23.09.11(Surekha Sanjay Kharade & ors. Vs. The District Deputy Registrar, Cooperative Societies, Ahmednagar.

iii. 2009 BCI 536 (Chandrakant Mahadev Patole & ors. Vs. State of Maharashtra and others)

iv. Judgment of this Court in Writ Petition No. 3551 of 2015 with connected matters dated 6th may, 2015 (Basawraj Vishwanath Sarne Vs. The State of Maharashtra)

3. Mr. Dighe, the learned Advocate for the Election Authority and

Mr.Gaware, the learned Advocate for respondent no.4 submit that the

petitioners have not disclosed the particulars of the persons to be included

in the voters list. The interested persons are not made parties to the

present petition. Those 362 persons whom the petitioners termed as non

active members and their names are not included have not raised any

objection to the provisional voters list. The learned counsel further

submits that the election programme has already been declared and the

nominations are to be accepted from today, 1 st March, 2021. The process

of election has commenced.

4. The society submitted the provisional voters list. After considering

the objection raised to the provisional voters list, the voters list has been

finalized. Petitioner Nos. 2 and 3, it appears, did not raise objection to the

the provisional voters list. Petitioner No.1 raised objection to the

provisional voters list. The said objection is considered. Petitioner no.1

did not raise objection to the non inclusion of 362 members which the

petitioners term as non active members and ought to have been included

pursuant to the amendment to section 27 of the Act, 1960.

5. After the objections are considered, the voters list has been

finalized. The petitioners, for the first time, it appears, in the present writ

petition have raised objection of non inclusion of 362 non active members

in the valid voters list. Election programme has been declared. Election

process has been set into motion.

6. In absence of the petitioners raising objection to the provisional

voters list vis a vis non inclusion of 362 persons in the provisional voters

list, none of 362 members raising objection of their non inclusion in the

voters list, the election process having set in motion and as election

programme is declared and that the petitioners will have opportunity to

assail the same in the election dispute/petition as may be permissible and

as observed in the case of Shri Sant Sadguru Janardan Swami (supra), we

are not inclined to exercise our writ jurisdiction.

7. Writ petition disposed of. No costs.

(SHRIKANT D. KULKARNI, J.) (S.V.GANGAPURWALA, J.)

JPC