Dilip Motiram Andhare And Others vs State Of Maharashtra, Thr. Its ...
2021 Latest Caselaw 16536 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH AT NAGPUR

             WRIT PETITION NO. 4719 OF 2021


PETITIONERS: 1]     Dilip Motiram Andhare,
                    aged about 58 years, Occ. Retired,
                    R/o. Sane Guruji Nagar, Akola,
                    Tq. And Dist. Akola.

             2]     Vijay Vishwanath Bhore,
                    aged about 58 years, Occ. Retired,
                    R/o. Barshitakli, Tah. Barshitakli,
                    Dist. Akola.

             3]     Rekha Arun Wankhade,
                    Aged about 58 years, Occ. Retired,
                    R/o. Barshitakli, Tah. Barshitakli,
                    Dist. Akola.

             4]     Mohan Mahadeo Shegokar,
                    Aged about 58 years, Occ. Retired,
                    R/o. Akot, Tah. Akot,
                    Dist. Akola..

             5]     Dilip Damodhar Gawande,
                    Aged about 58 years, Occ. Retired,
                    R/o. Akot, Tah. Akot,
                    Dist. Akola.

             6]     Geeta Ganesh Ghavat,
                    Aged about 58 years, Occ. Retired,
                    R/o. Dabki Road, Akola, Tah. &
                    Dist. Akola.

             7]     Ramesh Baliram Nalinde,
                    Aged about 58 years, Occ. Retired,
                    R/o. Barshitakli, Tah. Barshitakli,
                    Dist. Akola.
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8]    Arun Mahadeo Wankhade,
      Aged about 58 years, Occ. Retired,
      R/o. Barshitakli, Tah. Barshitakli,
      Dist. Akola.

9]    Shridhar Sakharam Yadav,
      Aged about 58 years, Occ. Retired,
      R/o. Balapur, Tah. Balapur,
      Dist. Akola.

10]   Shankar Natthuji Zade,
      Aged about 58 years, Occ. Retired,
      R/o. Patur, Tah. Patur,
      Dist. Akola.

11]   Jyoti Ambadas Thorve,
      Aged about 58 years, Occ. Retired,
      R/o. Patur, Tah. Patur,
      Dist. Akola.

12]   Govardhan Janrao Waghode,
      Aged about 58 years, Occ. Retired,
      R/o. Akot, Tah. Akot,
      Dist. Akola.

13]   Pralhad Madhavrao Sontakke,
      Aged about 58 years, Occ. Retired,
      R/o. Akot, Tah. Akot,
      Dist. Akola.

14]   Alka Madhukar Chavhan,
      Aged about 58 years, Occ. Retired,
      R/o. Telhara, Tah. Telhara,
      Dist. Akola.

15]   Punjabrao Manikrao Kukde,
      Aged about 58 years, Occ. Retired,
      R/o. Telhara, Tah. Telhara,
      Dist. Akola.
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                       16]        Purushottam Narayan Kedar,
                                  Aged about 58 years, Occ. Retired,
                                  R/o. Dabki Road, Akola, Tah. &
                                  Dist. Akola.

                       17]        Ganesh Bhaurao Deshmukh,
                                  Aged about 58 years, Occ. Retired,
                                  R/o. Dabki Road, Akola, Tah. &
                                  Dist. Akola.

                                        ...VERSUS...

RESPONDENTS: 1]                   State of Maharashtra, through its
                                  Secretary, Cooperation and Textile
                                  Department, Mantralay, Mumbai.

                       2]         District Deputy Registrar/District
                                  Cooperative Election Officer,
                                  Akola, District Akola.

                       3]          Akola Zilla Parishad Prathamik
                                   Shikshak Sahakari Pat Sanstha
                                   Maryadit, Akola, through its
                                   Manager.
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Shri R.D.Karode, Advocate for Petitioner
Shri Sagar Ashirgade, AGP for Respondent Nos. 1 & 2
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                                     CORAM : AVINASH G. GHAROTE, J.

                                      DATE         : 30/11/2021.

[Oral Judgment]


1]                Heard Shri Karode, learned counsel for Petitioner and

Shri Ashirgade, learned AGP for Respondents Nos. 1 & 2. None for

wp4719.21.odt

2] Rule. Rule made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

3] Heard Mr.Karode, learned counsel for the petitioners.

The challenge is raised to the order dated 12.11.2021, by which,

upon an objection to the provisional Voters List published on

25.10.2021, which objection was raised on 1.11.2021 regarding the

inclusion of the name of certain members therein, the Respondent

No.2 held that under Rules 6 and 9 of the Maharashtra Co-Operative

Societies (Election to Committee) Rules, 2014, the members who

had deposited the arrears were entitled to be included in the final

Voters List and those members who had superannuated from the

service were liable to be deleted from the Voters' List.

4] Mr. Karode, learned counsel for the petitioners submits

that the provisions of Rule 6 enjoins upon the Respondent No.2 to

prepare a provisional Voters List and the claims and objections raised

therein had to be decided in consonance with the Rules in a

summary manner. He further submits that the provisional list has wp4719.21.odt

been prepared in consonance with the requirement as contained in

Rule 9(1) by inclusion of active members who have completed

minimum 2 years as members from the date of their enrollment upto

the date of expiry of the term of the existing Managing Committee.

In the instant case, he submits that since as per the provisional

Voters List as supplied by the society to the Respondent No. 2 on

25.10.2021, the cut-off date was 31.8.2021, all those persons who

had cleared off their dues were liable to be included. He submits

that all the petitioners whose names were included in the provisional

Voters List had cleared off their dues and therefore were eligible to

be included in the final Voters List and the deletion therefore by the

impugned order is not justified. He further submits that the

provisions of Section 27 (1-A) and specifically proviso as inserted by

the amendment dated 16.7.2021 of the MCS Act indicates that the

provision of sub-section 1-A would not be applicable to the elections

of Societies to be conducted on or before 31 st March 2022, as a

result of which, the rigor of Section 27(1-A) of the MCS Act cannot

be applied in the matter of preparation of Voters List, which would

mean that sub-Section 1-A of Section 27 of the MCS Act which says

that an active member who subsequently fails to participate in the wp4719.21.odt

affairs of the society and to use the services upto the minimum level

as specified from time to time in the bye-laws shall cease to be an

active member and shall not be entitled to vote, cannot be taken into

consideration by Election Officer while preparing the Voters List. He

further places reliance upon Section 26 of the MCS Act and

specifically upon the proviso inserted thereto by the amendment

dated 16.7.2021, which provides that in respect of elections of the

society to be conducted on or before 31 March 2022, all the

members of the society shall be eligible for voting unless otherwise

ineligible for voting, and therefore, it is his contention that the

names of the petitioners which were included in the provisional

Voters List as forwarded to Respondent No. 2 by the Respondent

No.3/society could not have been deleted by Respondent No. 2.

Further by relying upon Section 22 of the MCS Act, he submits that

the eligibility of a person entitled to become a member is prescribed

in Section 22 and once the name of such a member is entered in a

register of members as required to be maintained under Section 38

of the MCS Act, the same cannot be deleted without following the

requirement of Section 25A of the MCS Act. It is his contention that

in the instant matter, this procedure as required under Section 25A wp4719.21.odt

has not been followed and therefore Respondent No.2 was not

entitled to delete the names of the petitioners from the provisional

Voters List.

5] He also places reliance upon Shree Vitthal Sahkari

Sakhar Karkhana Ltd vrs. Wadikuroli Vividh Karyakari Sewa Society

Ltd and ors; 2010 (5) Mh.L.J 376, which holds that there cannot be

an automatic cessation of membership and Girdharilal Bhaulal

Pardeshi vrs. State of Maharashtra and others; 1992 CTJ 175, which

holds that the bye-laws of the society do not have the force of law.

6] Mr. Ashirgade, learned AGP submits that though a

provisional Voters List is sent by the society to the Respondent No.2,

who is the Election Officer, he is not denuded of his powers to make

additions and deletions therein. He places reliance upon Rule 14 of

the MCS (Elections to Committee) Rules, 2014, which enjoins upon

the Returning Officer to do all such acts and things as may be

necessary for effectually conducting the election in the manner

provided in the MCS (Elections to Committee) Rules, 2014 and bye-

laws made by the society. He further relying upon Rule 10 of MCS

Rules submits that the societies are grouped in different categories wp4719.21.odt

and election to particular category will depend upon the nature of

membership as specified in the bye-laws of the society. He therefore

submits that since Respondent No.3/Society is classified as a Credit

Resource Society, having sub-classification as Salary Earners Society,

therefore, the membership shall be governed according to such

classification and the bye-laws of the society. Placing reliance upon

the bye-laws of the society, specifically bye-law No. D-1.1(1), he

submits that for becoming a member of the Respondent No.3 society,

the requirement is that such a person should be in employment as a

primary teacher in the schools run by Zilla Parishad, Akola. He

therefore submits that the requirement of preparation of the Voters

List would naturally require the society as well as the Respondent

No.2 to ensure that this basic requirement is conformed to. He

therefore submits that since all the petitioners have retired and are

no longer in service before the cut-off date of 31.08.2021, the

impugned order cannot be faulted with.

7] No doubt that Section 22 of the MCS Act prescribes who

can be a member of the society and Section 38 requires a register of

members to be maintained and the deletion from the membership wp4719.21.odt

register has to be in consonance with the procedure as provided in

Section 25A of the MCS Act, however, there is no provision in the

entire statute which automatically makes the register of members as

maintained under Section 38 of the MCS Act as the provisional

Voters List for the elections to be held for the society. This is

naturally so for the reason that the said list, always has to be

constantly upgraded considering the basic requirement of the bye-

laws of the society which prescribes as to who can be a member, as it

is the requirement contained in the bye-laws which would form the

basis for determining who is and is not a member, thereby entitling

such person who is declared to be a member, as being a person

having right to vote in the election of the society. This is further

fortified by the proviso to Section 26 as inserted by the amendment

dated 16.7.2021 which by using the expression "unless otherwise

ineligible for voting", indicates that the election has to be conducted

only as per a list which includes persons eligible to vote and not

otherwise.

8] The contention of Mr. Karode, learned counsel for the

petitioner that the amendment to Section 27(1-A) on 16.7.2021 by wp4719.21.odt

the Maharashtra Act No. 11 of 2021 by insertion of the proviso

would mean that the list sent by the Respondent No.3/society to the

Respondent No. 2 has to be accepted as it is, cannot be accepted for

the reason as indicated above that the provisions of the MCS Act do

not provide that the list of members as maintained under Section 38

of the MCS Act becomes the provisional Voters List. Considering the

language of the proviso as inserted by the amendment of 16.7.2021

in Section 26, it would always be permissible for the Election Officer

to examine the provisional list and ensure that the persons who are

not eligible to become members as per the bye-laws of the society,

are deleted form the provisional Voters List. Any other

interpretation on this, would lead to a consequence which would

mean that even if a person was not eligible to be a member of the

society as per the bye-laws, however, since the name of such a

person finds place in the register of members as maintained under

Section 38 of the MCS Act would be entitled to not only vote but

also to contest in the election, even if he is superannuated and no

longer fulfills the basic requirement of remaining the member of the

society, which is a situation impermissible in law. This is further

fortified by the language of Rule 14 of the MCS (Election to wp4719.21.odt

Committee) Rules, which enjoins the Returning Officer to conduct

the election in the manner as provided, apart from the 2014 Rules,

also as per the bye-laws of the society which would indicate that the

final Voters List should also be of persons who are eligible to vote as

per the bye-laws of the society.

9] No doubt, that it has been held in Girdharilal Pardeshi

(supra), that the bye-laws of a Co-operative Society do not have

force of law, however, considering the specific provision as contained

in Rule 14 of the MCS (Election to Committees) Rules, 2014, it

would not be permissible for the Returning Officer to conduct the

elections by ignoring the basic requirement of membership of a

society being fulfilled by a person who claims himself to be eligible

to vote or contest in the election which is contained in the bye-laws

of the society. Shree Vitthal Sahkari Sakhar Karkhana (supra) relied

upon by Mr. Karode, learned counsel for the petitioner was a case in

which there was a claim that breach of the bye-laws was committed

by the members and therefore, it was contended that there would an

automatic cessation of the membership and considering Section 25

of the MSC Act and Rules 28 and 29 of the MCS Rules, it was held wp4719.21.odt

that such cessation is not automatic, but the procedure as required

for removal of a person from the membership of the society was

required to be followed, however, in the instant case, we are not

dealing with the issue of removal from membership of the society,

but an issue, as to who is eligible to be included in the final Voters

List of the Respondent No.3 society and therefore, Shree Vitthal

Sahkari Sakhar Karkhana (supra) is of no assistance to the argument

advanced for the reasons as already stated above, that the register of

members does not automatically become the final Voters List and it

is always permissible for Respondent No.2 to ensure that the persons

who are members of the society as per the bye-laws of the society

are alone entitled to participate in the election process and be

included in the Voters List.

10] Reverting back to the facts of the instant matter, all the

petitioners except petitioner No. 17 have retired from their

employment as Assistant Teacher in the Schools run by Zilla

Parishad, Akola, on or before the cut-off date of 31.8.2021 and

therefore were ineligible to be included in the final Voters List as the

bye-laws necessarily require that a member of the society would be a wp4719.21.odt

person who was in employment of the schools run by Akola Zilla

Parishad as an Assistant Teacher. This is so even for a member, who

wants to contest from the one seat reserved in the Managing

Committee or the representative for depositors, for which the

additional requirement is for a deposit being available before the

cut-off date.

11] The above being the position, I do not see any infirmity

in the impugned order in so far as it relates to Petitioner Nos. 1 to 16

are concerned. In so far as Petitioner No. 17 is concerned, he has

superannuated on 10.11.2021, which is not before the cut-off date.

The very purpose of a cut-off date is to create a demarcating line for

the purpose of preparing the final Voters List and it may so happen in

a case that a person till the time the election is completed may have

superannuated, but was eligible on the cut-off date and therefore,

even if this creates an anomaly, considering the nature and purpose

of the cut-off date, it will be necessary to hold that such a person

would have right to vote otherwise there would be no finality to the

cut-off date at all, since the process of superannuation is continuous

one depending upon the completion of the period of employment of wp4719.21.odt

employee, considering which the petition is party allowed. The

impugned order in so far it relates to Petitioner Nos. 1 to 16 is

maintained. In so far as Petitioner No. 17 is concerned, the same is

quashed and set aside and Respondent No.2 is directed to include his

name in the Voters List in view of the cut-off date of 31.8.2021.

JUDGE

Rvjalit

Digitally sign byRAJESH VASANTRAO JALIT Location:

Signing Date:01.12.2021 17:33