Bombay High Court
Dnyandev Nagorao Mohite vs The State Of Maharashtra Through ... on 1 August, 2022
Bench: M. G. Sewlikar
(1) 9 wp 8020.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8020 OF 2022
Dnyandev S/o Nagorao Mohite
Age: 44 years, Occu: Agri.
R/o At Mahagaon, Post. Kalgaon,
Tq. Purna, Dist. Parbhani. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Co-operation Department,
Mantralaya, Fort, Mumbai-32.
2. The Divisional Joint Registrar,
Co-operative Societies,, Aurangabad
Kranti Chok Aurangabad.
3. The District Deputy Registrar,
Co-operative Societies, Parbhani.
4. The Assistant Registrar,
Co-operative Societies, Purna,
Tq. Purna, Dist. Parbhani.
5. The State Co-operative Election Authority,
Maharashtra State, Pune.
6. The District Co-operative Election Officer &
District Deputy Registrar,
Co-operative Societies, Parbhani.
7. The Taluka Co-operative Election Officer &
Assistant Registrar, Co-operative Societies,
Purna, Tq. Purna, Dist. Parbhani.
8. Vividh Karyakari Seva Sahakari Society Ltd.,
Dhanora (Motya) (A)
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Tq. Purna, Dist. Parbhani.
Through its Secretary.
9. Ganpati S/o Manika Gaikwad
Age: 55 Years, Occ: Agri.
10. Shivaji S/o Ganpati Gaikwad
Age: 35 years, Occ: Agri.
11. Revan S/o Santaya Vibhute
Age: 30 years, Occ: Agri.
12. Parvati Rangnath Shinde
Age: 40 years, Occ: Agri.
13. Vyankati S/o Dattarao Shinde
Age: 50 years, Occ: Agri.
14. Maroti S/o Ghanshyam Jadhav
Age: 70 years, Occ: Agri.
15. Subhash S/o Ranba Jadhav
Age: 35 years, Occ: Agri.
16. Suresh S/o Shesherao Jadhav
Age: 30 years, Occ: Agri.
17. Anil S/o Bhagwan Bhalerao
Age: 24 years, Occ: Agri.
18. Anusaya Shankar Bhalerao
Age: 65 years, Occ: Agri.
19. Indubai Ganesh Bhalerao
Age: 50 years, Occ: Agri.
20. Kamlabai Pavhar Bhalerao
Age: 45 years, Occ: Agri.
21. Kirankumar S/o Ganesh Bhalerao
Age: 30 years, Occ: Agri.
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22. Daivshala Keshavrao Bhalerao
Age: 60 years, Occ: Agri.
23. Pooja Parasram Bhalerao
Age: 26 years, Occ: Agri.
24. Meenakshi Subhash Lendale
Age: 30 years, Occ: Agri.
25. Pranita Balaji Bhalerao
Age: 22 years, Occ: Agri.
26. Ratnabai Kisanrao Chandne
Age: 75 years, Occ: Agri.
27. Mahananda S/o Parasram Bhalerao
Age: 40 years, Occ. Agri.
28. Nandabai Ranba Jadhav
Age: 50 years, Occ: Agri.
29. Saraswati Rangnath Bhalerao
Age: 65 years, Occ: Agri.
30. Shivaji S/o Suryakant More
Age: 35 years, Occ: Agri.
31. Govind S/o Vitthalrao Mohite
Age: 35 years, Occ: Agri.
32. Shital Kirankumar Bhalerao
Age: 29 years, Occ: Agri.
33. Shivkanya Gajanan Bhalerao
Age: 36 years, Occ: Agri.
34. Somnath S/o Sidhram Mohite
Age: 36 years, Occ: Agri.
35. Shivhar Keshav Bhalerao
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Age: 29 years, Occ: Agri.
36. Shridevi Sahebrao Bhalerao
Age: 31 years, Occ: Agri.
37. Siddheshwar Keshav Bhalerao
Age: 24 years, Occ: Agri.
38. Priyanka Baban Lendale
Age: 22 years, Occ: Agri.
39. Ganesh S/o Parmeshwar Lendale
Age: 23 years, Occ: Agri.
40. Sunita Ramesh Bhalerao
Age: 29 years, Occ: Agri.
41. Shivmala Kailas Lendale
Age: 28 years, Occ: Agri.
42. Swati Chandrakant Bhalerao
Age: 35 years, Occ: Agri.
43. Shivkannya Munjaji Lendale
Age: 33 years, Occ: Agri.
44. Parvati Shankarrao Lendale
Age: 60 years, Occ: Agri.
45. Priyanka Shivaji Lendale
Age: 30 years, Occ: Agri.
46. Munjaji S/o Dattarao Lendale
Age: 35 years, Occ: Agri.
47. Vaishanavi Kashinath Lendale
Age: 26 years, Occ: Agri.
48. Bhagirathi Nagorao Lendale
Age: 65 years, Occ: Agri.
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49. Santosh S/o Honaji Rodge
Age: 30 years, Occ: Agri.
50. Ram S/o Dilip Mohite
Age: 25 years, Occ: Agri.
51. Sakharam S/o Dattarao Rodge
Age: 50 years, Occ: Agri.
52. Yogesh S/o Bhanuydas Lendale
Age: 22 years, Occ: Agri.
53. Rohini Akash Lendale
Age: 30 years, Occ: Agri.
54. Shivcharan S/o Devidas Lendale
Age: 21 years, Occ: Agri.
55. Sunita Suresh Lendale
Age: 27 years, Occ: Agri.
56. Kalpana Bhagwat Lendale
Age: 32 years, Occ: Agri.
57. Kaveri Harihar Lendale
Age: 30 years, Occ: Agri.
58. Kailas S/o Somaji Lendale
Age: 28 years, Occ: Agri.
59. Gangasagar Manmath Lendale
Age: 30 years, Occ: Agri.
60. Ganesh S/o Bhanudas Lendale
Age: 25 years, Occ: Agri.
61. Gokarna Dattarao Lendale
Age: 50 years, Occ: Agri.
62. Chandrakant S/o Hanumant Lendale
Age: 34 years, Occ: Agri.
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63. Navnath S/o Devidas Lendale
Age: 24 years, Occ: Agri.
64. Pradip S/o Manmath Lendale
Age: 19 years, Occ: Agri.
65. Omkar S/o Dattarao Lendale
Age: 25 years, Occ: Agri.
66. Nirmala Maharudra Lendale
Age: 35 years, Occ: Agri.
67. Jayshri Ankush Lendale
Age: 30 years, Occ: Agri. .. Respondents
.....
Advocate for Petitioner : Mr. Ghatol Patil Shahaji
APP for Respondent-State: Mr. K.B. Jadhavar
Advocate for R/2 to 5 : Mr. S.K. Kadam
.....
CORAM : M.G. SEWLIKAR, J.
DATE : 1st August, 2022
JUDGMENT :-
Rule. Rule made returnable forthwith. With consent of the
parties taken up for final hearing at the admission stage.
2. Petitioner, by this writ petition is challenging the order dated 21 st
July, 2022 passed by respondent no.6-District Co-operative Election Officer
(DCEO) whereby he added respondent nos.9 to 67 in voters list illegally.
3. Facts in brief are that the petitioner is the member of the
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respondent no.8-society.
4. Respondent no.6-District Co-operative Election Officer published
a programme for finalisation of voters of respondent no.8-society. Provisional
voters list was published on 30th June, 2022. Claims and objections were
invited till 11th July, 2022. Date of inquiry on these objections was scheduled
on 21st July, 2022 and final voters list has been published on 26th July, 2022.
5. On 21st February, 2022, respondent no.8 illegally included the
names of respondent nos.9 to 67 in provisional voters list, though they are not
legally enrolled members of respondent no.8-society. Therefore, petitioner
and four other members raised objection on provisional list and requested to
delete the names of respondent nos.9 to 67 from final voters list.
6. On 28th February, 2022 respondent no.8 appeared before
respondent no.7-Taluka Co-operative Election Officer & Assistant Registrar,
Co-operative Societies, Purna and mentioned that as per the audit report the
strength of members has increased, however, no record was produced to that
effect showing that respondent nos.9 to 67 are illegally enrolled members and
they are not having voting rights. Respondent no.8 without perusing the
record has accepted the remarks of respondent no.7-Taluka Co-operative
Election Officer. Addition of these members is not in accordance with law
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and therefore their names deserve to be deleted.
7. Heard learned counsel Shri Ghatol Patil for the petitioner, Shri
S.K. Kadam for respondent nos.2 to 5 i.e. Divisional Joint Registrar, District
Deputy Registrar, Assistant Registrar & State Co-operative Election Authority.
8. Shri Ghatol Patil submits that the respondent nos.9 to 67 are not
the members of the society and they cannot become members of the society
as they do not fulfill the requirements of the rules. He submitted that none of
the members possess any land in village Mahagaon. He submitted that they
did not apply in writing to the respondent no.8-society seeking membership.
There is no resolution of managing committee as well as of respondent no.8
for adding them as members. They have not paid membership entrance fees
and the share amount. Society has not issued share certificate in their favour.
He submitted that respondent nos.9 to 67 in collusion with the Secretary of
respondent no.8-society prepared a page attached to audit showing increasing
strength of members. However, fact remains that there is no increase in share
amount. He submits that the audit report in question and the earlier audit
reports are contradictory with each other. He submitted that only on the basis
of audit report the names of the members have been added by Chief Election
Officer-respondent no.6, which is clearly illegal. He submitted that there is no
absolute rule that Court should not interfere once the election process
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commences. If there is patent illegality, then Court should intervene in such
matters. He placed reliance on the case of Pundlik V/s. State of Maharashtra
and Ors. reported in AIR 2005 SUPREME COURT 3746. He submits that,
therefore, this Court can exercise its jurisdiction under Article 226 of the
Constitution of India.
9. Learned counsel for the respondent nos.2 to 5 submits that
election process has commenced. He submits that in the case of Dattatray
Genaba Lole V/s. Divisional Joint Registrar reported in 2022 (1) Bom CR 471,
this Court has considered the entire case law and has come to the conclusion
that once election process starts it cannot be stalled. He submits that in case
of Sant Sadguru Janardan Swami (Moingiri Mahakari) Sahkari Dugdha
Utpadak Sanstha V/s. State of Maharashtra reported in AIR 2001 SC 3982, the
Hon'ble Supreme Court has held that preparation of the electoral role is an
intermediate stage in the process of election of the Managing Committee and
it amounts to setting in motion the election process and at this stage this
Court cannot exercise its jurisdiction under Article 226 of the Constitution of
India.
10. Learned counsel Shri Ghatol Patil tried to distinguish this
authority by contending that the decision in Sant Sadguru Janardan Swami
cited (supra) case has been distinguished by the Hon'ble Supreme Court in the
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case of Pundlik cited (supra). He submits that this is not an absolute rule but
where there is grave illegality this Court under Article 226 of the Constitution
of India must step in to cure the illegality. It is thus clear that this Court
under Article 226 of the Constitution of India can interfere in a challenge to
an election process at an intermediate stage only when the order or action
under challenge is patently and demonstrably illegal viz. by applying a non -
existent rule or provision to the election process or failing to adhere to a
mandatory provision. The intervention in such cases should be for assisting
the process of the election rather than thwarting or stalling it. Such is not the
case here. It was not pointed out that any non - existent rule has been made
applicable. In the case of Pundlik cited (supra) the position was completely
different.
11. It is settled law as held in the case of Sant Sadguru Janardan
Swami cited (supra) that once election process starts it cannot be stalled. It
has been held in the case of Sant Sadguru Janardan Swami cited (supra) thus:
"12. In view of our finding that preparation of the electoral
roll is being an intermediate stage in the process of election of
the Managing Committee of a specified society and the
election process having been set in motion, it is well settled
that the High Court should not stay the continuation of the
election process even though there may be some alleged
illegality or breach of rules while preparing the electoral roll."
( 11 ) 9 wp 8020.22
12. In the case of Dattaray Genaba Lole cited (supra) this Court held
thus:
"8.1 Shri Dani, for the Petitioner, has submitted that the
Petition has been filed at the beginning of the election process.
He has also submitted, in paragraph 1 of the Petitioners
Written Submissions, that "Rule 78 provides only a dispute to
challenge the election. It does not provide for any redressal
forum at an intermediate stage and even on this count, there is
no alternate remedy available to the Petitioners." Thus,
although there seems to be an acceptance by the Petitioner that
the elections are at an intermediate stage, we would first
independently ascertain that issue. This would also have a
bearing on the main issue of whether the Petition ought to be
entertained because of various judgments that have
specifically held that Courts ought to be very hesitant to
entertain challenges to the election process at an intermediate
stage (subject to very limited exceptions as will discussed
when considering those judgments).
8.2 In considering this aspect of the matter, it is necessary
to reiterate that the elections of the Managing Committee of
Respondent No. 3 have been notified on 17 th December 2019
and the cut-off date was determined as 4 th May 2020. The
preparation of the provisional voter list had commenced and
objections, such as those of the Petitioners, to have Petitioner
No. 3's name included have already been rejected by
Respondent No. 1. The election programme for nomination
was to be published between 7 th October 2021 and 17th
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October 2021, but has been held in abeyance as noted above.
It is at this stage that the present Petition came to be filed.
There have been significant events in the election process that
have taken place thereafter as well, such as publishing the
final voters list and publication of the election programme.
Thus, the election process was very much underway and at an
intermediate stage even when the Petition was filed.
8.3 The legal principles that emerge from the various
judgments noted and discussed in detail below is that as a
matter of principle, Courts have been reluctant to interfere at
an intermediate stage of an election process. It has been held
that every allegation of illegality or irregularity and every
assertion of rights by persons being excluded from the voters
list are not entertained by Courts under Article 226 of the
Constitution of India at the intermediate stage of the election
process. There is a strong public policy reason behind Courts
being circumspect in entertaining challenges at this stage
under Article 226 of the Constitution of India. This is because
there is a vital public interest in the elections being completed
after which various matters can be gone into. A liberal
approach to interference at the intermediate stage would
frequently result in election processes being halted or
becoming uncertain, which by itself undermines the sanctity
of such elections and the democratic object that they seek to
achieve.
8.4 The only circumstance in which the Courts would be
inclined to interfere in a challenge to an election process at an
intermediate stage would be when the order or action under
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challenge is patently and demonstrably illegal, such as, for
example, by applying a non- existent rule or provision to the
election process or failing to adhere to a mandatory provision.
The intervention in such cases has been explained as enabling
or assisting the process of the election rather than thwarting or
stalling it. Also, one of the important aspects to consider is the
precise stage of the election process and the delay, if any, in
the filing of the petition."
It further held as under:
"9. Hence, all grounds including validity of the electoral
roll, validity of nominations, corrupt practices, irregularities
and illegalities in electoral process as a whole can be raised in
the dispute. The parties to the dispute, necessary and proper,
the reliefs that can be sought and granted all depends upon the
facts and circumstances in each case. No general rule can be
laid down in that behalf. The decided cases under the statutes
dealing with elections provide sufficient guidelines in that
behalf. The legal principles would have to be applied to the
facts in each case. However, merely alleging irregularities and
illegalities would not be enough. In all such cases, proof will
have to be brought and which would demonstrate that the
purity and sanctity of the electoral process is adversely and
prejudicially affected. Further, it will have to be proved that
the breach, if any, is of a mandatory or procedural provision.
In this behalf, a reference can be made to the recent
pronouncement of the Hon'ble Supreme Court in
VIPULBHAIM. CHAUDHARY v. GUJRAT COOPERATIVE
MILK MARKETING FEDERATION LIMITED reported in
( 14 ) 9 wp 8020.22
2015 (3) ABR 472. The Court holds thus:"
It further held as under:
"13. Reliance placed on the decision of the Hon'ble
Supreme Court in the case of Ahmednagar Zilla S.D.V. & P.
Sangh Ltd. (supra), and of this Court in the case of Vinod
Wankhede (supra), to my mind is misplaced, inasmuch as, the
aforesaid decisions turned on their own facts. In the case of
Ahmednagar Zilla S.D.V. & P. Sangh Ltd. (supra), the
electoral roll was prepared in view of certain amendments in
the byelaws, which amendment was struck down by the
appellate authority. The Supreme Court found that the
preparation of the voters' list on the basis of "non-existent
Rules" would be illegal. The Supreme Court found that in the
case of Shri sant Sadguru Janardan Swami (Moingiri Maharaj)
Sahakari Dugdha Uttpadak Sanstha (supra) the voters' list was
prepared in terms of extant rules but certain irregularities were
committed therein unlike in the case of Ahmednagar Zilla
S.D.V. & P. Sangh Ltd. (supra) where the electoal roll was
found to be prepared on the basis of non-existed rules. In my
considered view, the present case would be similar to the
factual situation, as in the case of Shri Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahakari Dugdha Uttpadak
Sanstha (supra) than the case of Ahmednagar Zilla S.D.V. & P.
Sangh Ltd. (supra) where the bye-laws on the basis of which
voters' list was prepared were struck down by the appellate
authority."
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13. In the case of Pundlik cited (supra), it is true that the case of Sant
Sadguru Janardan Swami cited has been distinguished on facts. In the case of
Pundlik cited (supra), the Supreme Court reiterated that preparation of voters
list is an integral process of election and the Court could not interfere at that
stage. In para 17 the Supreme Court held thus:
"17. In our opinion, the learned counsel for the appellant is
also right in submitted that if the order passed by respondent
No.2 is upheld, the provisions of sub-rule (2) of Rule 5 will
become nugatory and otiose. When the rule making authority
conferred power on the Sangh to change the name of its
representative/delegate by expressly permitting the change of
representative/delegate and intimating the said fact to the
Collector, such right cannot be taken away or interfered with.
Since the last date as per the communication of the respondent
No.2 - Collector was June 10, 2005, the action of respondent -
Sangh was within the four corners of Rule 5(2). The High Court
was, therefore, in error in not allowing the petition and granting
the relief to the appellant."
14. The Division Bench of this Court in the case of Dattatray Genaba
Lole cited (supra) has distinguished the case of Pundlik in para 8.41 and 8.42.
The Division Bench held thus:
"8.41 The judgment in Shri Sant Sadguru, supra, was
considered and distinguished by the Supreme Court in
Pundlik, supra. In paragraph 8 and 9 of this decision the
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Supreme Court noticed the normal rule of non-interference by
the Courts at the interim stage of preparation of voters list. In
paragraph 12, 13 and 16 the Court explained that the ratio of
Shri Sant Sadguru was not being followed because there was a
patent illegality in the failure to follow the mandate of Rule
5(2) of the 1971 Rules in a matter that left no discretion to the
Collector. In paragraph 17, the Court upheld the submission
that the action of the Collector if allowed to stand would
render sub-rule (2) of Rule 5 nugatory and otiose. In
paragraph 18, the Court referred to a decision in Ahmednagar
Zilla S.D.V. & P. Sangh Ltd., supra, where electoral rolls were
prepared on the basis of bye-laws that were held to be illegal.
In the context of such a challenge, the Supreme Court
reversed the High Court and distinguished Shri Sant Sadguru
and held that where the voters list has been prepared on the
basis of non- existent rules, it would be illegal, and the Court
could not interfere under Article of the Constitution of India.
8.42 The judgments in the case of Pundlik and
Ahmednagar Zilla S.D.V. & P. Sangh Ltd., supra, are a clear
indication and guide to when the normal rule of non-
interference at an intermediate stage can be varied. That
would usually be in cases where a binding provision is
ignored such that its existence itself is rendered nugatory; or
when a part of the election process is carried out on the basis
of non-existent rules. We are not suggesting that this is the
entirety of circumstances to justify a departure from the well
settled and normal approach of non-interference. However, the
nature of the challenge must be analogous to the
circumstances that warranted interference in these two
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judgments. In other words, every alleged illegality or
irregularity and minor deviation in the election process cannot
justify intervention of this Court at an intermediate stage
under Article 226 of the Constitution of India. As noted above,
in Narsing Ganpatrao Nikam, supra, a learned Single Judge of
this Court considered Ahmednagar Zilla S.D.V. & P. Sangh
Ltd., but held that on facts the case before him was governed
by the ratio in Shri Sant Sadguru."
15. Thus the position that emerges from the above decisions is that
preparation of electoral roll is an intermediate stage and is a part of election
process. Once the election process starts, it should not be stalled unless
while preparing voters list some non-existent rules are made applicable. In
the case at hand, it is not the case of petitioner that any non-existent rule has
been made applicable. The remedy of the petitioner would be to raise these
objections by way of an election petition. Therefore, I do not find any merit in
the Writ Petition. It is devoid of any substance and hence it is dismissed.
16. Rule is discharged.
[M.G. SEWLIKAR, J.]
mub
