Midc Prakalpgrasth Majur Sahkari ... vs The District Deputy Registrar And ...
2022 Latest Caselaw 7452 Bom

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

             WRIT PETITION NO. 3318 OF 2022

1. MIDC Prakalpgrasth Majur Sahkari            : PETITIONERS
   Sanstha, Wagholi, Tq. and Dist. Amravati,
   through its President Shri Deepak Sukhdeo
   Khadse, Aged about 53 years, Occ. : Labour,
   R/o C/o MIDC Prakalpgrasth Majur
   Sahkari Sanstha, Wagholi, Tq. and Dist.
   Amravati
2. Magasvargiya Suyash Tantrik Majur Sahkari
   Sanstha, Amravati through its President Shri
   Sukhdeorao Raybole, Aged about 58 years,
   Occ : Labour
   R/o C/o Magasvargiya Suyash Tantrik
   Majur Sahkari Sanstha, Amravati
3. Jagdamba Majur Sahkari Sanstha Ltd.,
   Shivarpan Colony, Amravati, through its
   President Shri Vinod Bhilpwar, Aged about
   56 years, Occ : Labour,
   R/o C/o Jagdamba Majur Sahkari Sanstha
   Ltd., Shivarpan Colony, Amravati
4. Bhushan Majur Sahkari Sanstha, Tiwsa,
   through its Secretary Shri Bhushan
   Ramchandra Yavale, Aged about 50 years,
   Occ : Labour
   R/o C/o Bhushan Majur Sahkari Sanstha,
   Tiwsa
5. Shri Balaji Majur Kamgar Sahkari Sanstha,
   Amravati through its President Shri Nitin
   M. Wankhede, Aged about 54 years, Occ :
   Labour R/o C/o Shri Balaji Majur Kamgar
   Sahkari Sanstha, Amravati
6. Shri Laxmikant Majur Sahkari Sanstha,
   Amravati through its President Shri Manoj
   Uttamrao Khole,
   Aged about 52 years, Occ : Labour
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    R/o C/o Shri Laxmikant Majur Sahkari
    Sanstha, Amravati
7. Vaishali Majur Sahkari Sanstha, Amravati
   through its President Shri Vasant Purandas
   Thavare, Aged about 58 years, Occ : Labour
   R/o C/o Vaishali Majur Sahkari Sanstha,
   Amravati
8. Jwalamukhi Majur Sahkari Sanstha,
   Shelgund, Tq. Daryapur, District Amravati,
   through its President Shri Nitin P Joshi,
   aged about 50, Occ : Labour, R/o C/o
   Jwalamukhi Majur Sahkari Sanstha,
   Shelgund, Tq. Daryapur, District Amravati
9. Biogas Plant Labour Society, Amravati,         PETITIONERS
   through its President Shri Vasantrao
   Uttamrao Jagtap, Aged about 72 years,
   Occ : Labour, R/o C/o Biogas Plant Labour
   Society, Amravati
10. Hemant Majur Sahkari Sanstha, through its
    President Shri Ganesh Bapurao Charpe,
    Aged about 68 years, Occ : Labour,
    R/o C/o Hemant Majur Sahkari Sanstha,
    Amravati
11. Rohidas Majur Sahkari Sanstha, Amravati
    through its President Shri Vaibhav Deepak
    Malkhede, Aged about 28 years, Occ :
    Labour, R/o C/o Rohidas Majur Sahkari
    Sanstha, Amravati
12. Nav Yuvak Majur Sahkari Sanstha,
    Amravati through its President Shri Deepak
    Maruti Malkhede, Aged about 56 years,
    Occ : Labour, R/o C/o Nav Yuvak Majur
    Sahkari Sanstha, Amravati
13. Indira Majur Sahkari Sanstha, Amravati,
    through its President Shri Rajendra Nagada,
    Aged about 55 years, Occ : Labour, R/o C/o
    Indira Majur Sahkari Sanstha, Amravati
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14. Shivneri Majur Kamgar Sahkari Sanstha,
    Amravati, through its President Shri Malu
    Nage, Aged about 65 years, Occ : Labour
    R/o C/o Shivneri Majur Kamgar Sahkari
    Sanstha, Amravati
15. Gajanan Electrical and Civil Labour Co-op
    Society, Amravati through its President Shri
    Bittu Chinuulal Chadda, Aged about 60
    years, Occ : Labour, R/o C/o Gajanan
    Electrical and Civil Labour Co-op Society,
    Amravati
16. Bhojraj Majur Sahkari Sanstha, Nandgaon        PETITIONERS
    (Khand) through its President Shri Kishor
    Bhasme, Aged about 54 years, Occ : Labour,
    R/o C/o Bhojraj Majur Sahkari Sanstha,
    Nandgaon (Khand)
17. Santaji Majur Sahkari Sanstha,
    Kapustalni, Tq. Anjangaon (Surji), District
    Amravati through its President Shri Keshav
    N. Umak, Aged about 50 years, Occ.
    Labour, R/o C/o Santaji Majur Sahkari
    Sanstha, Kapustalni, Tq. Anjangaon (Surji),
    District Amravati
18. Vishal Majur Sahkari Sanstha, Amravati,
    through its Secretary Shri Prakash Kokate,
    Aged about 51 years, Occ. : Labour,
    R/o C/o Vishal Majur Sahkari Sanstha,
    Amravati

                               VERSUS

1. The District Deputy Registrar and District : RESPONDENTS
   Co-operative Election Officer, Co-operative
   Societies, Amravati
2. Amravati Jilha Majur Sahkari Sansthancha
   Sangha Maryadit, Amravati, Shyam Nagar,
   Congress Nagar Road, Amravati through its
   President Shri Mohd. Tanvir Mohd. Sadiq,
   Aged about 51 years, Occ. : Labour,
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        R/o Shyam Nagar, Congress Nagar Road,
        Amravati

Mr. K.P. Mahalle, Advocate for petitioners
Mr. K.L. Dharmadhikari, AGP for respondent No.1
Mr. A.M. Ghare, Advocate for respondent No.2

                    CORAM :                        MANISH PITALE, J.

                    RESERVED ON :                  07/07/2022

                    PRONOUNCED ON: 01/08/2022


JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for the rival parties.

2. By this writ petition, the petitioners, who are Co-operative

Societies and Members of respondent No.2 - Federal / Apex Society,

have approached this Court for quashing and setting aside of final voters

list published on 15/06/2022, by the respondent No.1 i.e. the District

Deputy Registrar and the District Co-operative Election Officer of Co-

operative Societies, Amravati, with a further prayer to direct the

respondent No.1 to publish a fresh programme for finalization of voters

list. The petitioners prayed for an interim direction to restrain the

respondent No.1 from publishing election programme of the respondent

No.2 - Federal Society.

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3. While issuing notice on 17/06/2022, this Court took note of

a specific judgment on which the petitioners placed reliance and interim

relief was granted, restraining respondent No.1 from publishing election

programme of the respondent No.2 - Federal Society. Upon receiving

notices, the respondents appeared through counsel and filed replies,

opposing the present petition.

4. Mr. K. P. Mahalle, the learned counsel appearing for the

petitioners relied upon the contents of the writ petition and contended

that in the present case, the manner in which the respondent No.1 had

published the final voters list demonstrated that more than 85% of voters

i.e. member societies of the respondent no.2 - Federal Society were not

included in the final voters list, thereby showing that the entire process of

finalization of voters list was vitiated. It was submitted that the

programme for finalization of voters list was not duly published and even

the statutory requirements were not followed, as a consequence of which

the petitioners were deprived of an opportunity to raise objections at the

relevant time. It was further submitted that due to the defective manner

in which the respondent No.1 proceeded with the process of finalization

of voters list, the petitioners and other similarly situated member societies 6 of 31 CORRECTED-WP-3318-2022-J.odt

were deprived of an opportunity to raise objections at the opportune time

and the final voters list came to be published, depriving more than 85%

voters of their right to vote.

5. It was further submitted that the ostensible reason for non-

inclusion of names of petitioner societies in the final voters list, was that

such societies were allegedly defaulters. The petitioners and other such

member societies were illegally branded as defaulters for not having paid

1% supervision charges to the respondent No.2 - Federal Society for the

works allegedly allotted by the respondent No.2 - Federal Society to the

petitioners and other member societies. It was submitted that, in the first

place, in terms of the law laid down by this Court in the case of Bajrang

Majoor Kamgar Sahakari Sanstha Maryadit and Others Vs. The District

Co-operative Election Officer and Others (Judgment and order dated

29/04/2015, passed in Writ Petition No.2113/2015), non-payment of 1%

supervision charges could not lead to the petitioners and other member

societies being treated as defaulters making them ineligible for inclusion

in the final voters list. It was further submitted that the respondent No.2

- Federal Society had stated fictitious figures towards alleged amounts

due from the petitioners and other member societies towards 1%

supervision charges. Therefore, the final voters list deserved to be 7 of 31 CORRECTED-WP-3318-2022-J.odt

quashed and a fresh programme ought to be declared by respondent No.1

for finalization of voters list.

6. It was submitted that the respondent No.2 was not justified

in relying upon judgment of this Court in the case of M.I.D.C.

Prakalpgrast Majur Kamgar, Sahakari Sanstha, Maryadit Vs. Amravati

District Labour Cooperative Society's Union Ltd. and another (judgment

and order dated 09/06/2016, passed in Writ Petition No. 527/2016),

wherein it was held that non-payment of 1% supervision charges was a

ground for holding the member society as defaulter, dis-entitling

inclusion in voters list, for the reason that the said judgment was per

incuriam, as the aforesaid earlier judgment of this Court in the case of

Bajrang Majoor Kamgar Sahakari Sanstha Maryadit Vs. The District Co-

operative Election Officer (supra), was not brought to the notice of the

learned Single Judge in the aforesaid subsequent judgment. The learned

counsel for the petitioners relied upon judgments of the Hon'ble

Supreme Court and this Court on the concepts of binding precedent, per

incuriam, and stare decisis to contend that the respondent No.2 was not

justified in relying upon the subsequent judgment, which had ignored the

position of law clarified in the earlier judgment.

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7. It was submitted that a bare perusal of the documents placed

on record on behalf of respondent No.2 would show that the figures

towards alleged defaults of the petitioners were concocted and that,

therefore, the contentions raised on the basis of such documents did not

deserve consideration. The learned counsel appearing for the petitioners

relied upon judgments of the Hon'ble Supreme Court in the case of State

of Bihar Vs. Kalika Kuer alias Kalika Singh and others reported in

(2003)5 SCC 448 and Central Board of Dawoodi Bohra Community and

Another Vs. State of Maharashtra and Another reported in (2005)2 SCC

673 and judgments of this Court in the cases of Bajrang Majoor Kamgar

Sahakari Sanstha Maryadit Vs. The District Co-operative Election

Officer (supra), Rajan Dinkarrao Pharate and Others Vs. State of

Maharashtra and Others reported in 1997(1) Mh.L.J. 543 and Mahindra

& Mahindra Ltd. Nagpur Vs. Mr. Avinash D. Kamble reported in

2008(3) ALL MR 1.

8. On the other hand, Mr. A.M. Ghare, learned counsel

appearing for respondent No.2 relied upon affidavit-in-reply filed in the

present writ petition on behalf of the aforesaid respondent. It was

submitted that the petitioners had indulged in suppressing facts and

misleading this Court and that, therefore, this Court ought to dismiss the 9 of 31 CORRECTED-WP-3318-2022-J.odt

writ petition on that ground alone. It was submitted that even otherwise,

there were disputed and complicated questions of facts sought to be

raised in the writ petition, which could be decided only by way of an

election dispute under Section 91 of the Maharashtra Co-operative

Societies Act, 1960 and not in writ jurisdiction. It was emphatically

submitted that the petitioners were not justified in claiming that the

election programme was not publicized for the reason that the

programme was published in newspaper "Deshonnati", calling for

objections to the provisional voters list. Even prior to that, as per

procedure, each of the member societies were called upon to send the

names of their representatives for the purpose of election of the Executive

Committee of the respondent No.2 - Federal Society. This was done as

far back as on 08/04/2022 and that, therefore, the petitioners could not

claim that they were not aware about the election programme.

9. It was submitted that petitioner Nos. 4, 9, 13, 15 and 17 did

not even care to send names of their representatives and yet, they had

joined other petitioners in filing the present petition. It was further

submitted that the election programme was published on the notice

board as per the statutory requirement and even the panchanama was

drawn, thereby indicating that the allegation about the election 10 of 31 CORRECTED-WP-3318-2022-J.odt

programme for finalization of voters list being clandestinely conducted

by respondent No.1 in conspiracy with respondent No.2, was a hollow

and unsustainable allegation.

10. As regards supervision charges of 1% payable to the

respondent No.2 - Federal Society, it was submitted that reliance placed

on the judgment in the case of Bajrang Majoor Kamgar Sahakari Sanstha

Maryadit Vs. The District Co-operative Election Officer (supra), was

misplaced because the issue in the said petition was different. It was

submitted that the judgment of this Court in the case of M.I.D.C.

Prakalpgrast Majur Kamgar, Sahakari Sanstha, Maryadit Vs. Amravati

District Labour Cooperative Society's Union Ltd. (supra), was exactly on

the point that is sought to be raised in the present petition. It was held

therein that failure to pay 1% supervision charges would result in

member society being held as a defaulter and hence, not entitled for

inclusion in the final voters list. As regards the contention raised on the

concepts of binding precedent, per incuriam and stare decisis, it was

submitted that there could be no quarrel with the propositions and

judgments upon which reliance was placed, but, the same did not apply

to the facts of the present case.

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11. It was further submitted that there was enough material

placed before respondent No.1, upon the said respondent giving an

opportunity to the petitioner societies to demonstrate that they had paid

supervision charges of 1%, but, the petitioners and other member

societies had failed to demonstrate that they had indeed paid such

charges. The petitioner Nos.6 and 11, after the proceedings before the

respondent No.1, did pay the charges that were due and their names were

included in the final voters list, thereby indicating that the process of

finalization of voters list was fair. Yet, the said petitioners joined the

other petitioners to file the present writ petition.

12. It was submitted that reliance placed on the position of law

elucidated in the judgment in the case of Rajan Dinkarrao Pharate Vs.

State of Maharashtra (supra), was not justified, for the reason that

although large number of member societies may not have been included

in the final voters list, but, there was a reason for the same, which was

supported by the position of law. It was further submitted that only 18

member societies as petitioners had filed the present writ petition, while

the remaining member societies had chosen not to raise any grievance

about the final voters list.

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13. Attention of this court was invited to a judgment of a

learned Single Judge of this Court in the case of Vinay Kore Majur

Sahkari Sanstha Ltd. thru Authorized Representative and Ors. Vs. The

State of Maharashtra and Ors. (order dated 09/02/2022, passed in Writ

Petition No.1154/2022), to contend that the petitioners were not justified

in relying upon the earlier judgment of this Court in the case of Bajrang

Majoor Kamgar Sahakari Sanstha Maryadit Vs. The District Co-operative

Election Officer (supra).

14. Mr. K.L. Dharmadhikari, learned Assistant Government

Pleader appeared on behalf of respondent No.1 and defended the

finalization of voters list, submitting that by the operation of the relevant

provisions of the aforesaid Act and Rules framed thereunder, the

respondent No.1 had correctly finalized the voters list. It was further

submitted that the disputed questions being raised on behalf of the

petitioners could be decided only in a properly instituted election dispute

under Section 91 of the aforesaid Act and not by way of the present

petition before this Court.

15. Heard learned counsel for the rival parties and perused the

material on record. Before dealing with the contentions raised on behalf 13 of 31 CORRECTED-WP-3318-2022-J.odt

of the rival parties, as regards the question of entertaining the present writ

petition and whether grounds are made out by the petitioners to interfere

with the final voters list published by respondent No.1, it would be

necessary to deal with the question as to whether the case of the

petitioners is covered in their favour as per the judgment of a learned

Single Judge of this Court in the case of Bajrang Majoor Kamgar Sahakari

Sanstha Maryadit Vs. The District Co-operative Election Officer (supra)

and in that context, applicability of the principles of per incuriam,

binding precedent and stare decisis.

16. The basis on which final voters list is restricted by

respondent No.1 to only 13 out of 102 member societies of the

respondent No.2 - Federal Society, is that all those not included in the

final voters list were defaulters under the provisions of the said Act. The

basis for not including the names of the petitioners and several other

member societies is that they failed to pay 1% supervision charges to the

respondent No.2 - Federal Society for the works made available by the

said Federal Society to its member societies. The basis on which

respondent No.1 held the petitioners and other member societies not

eligible for being included in the final voters list as defaulters is

application of explanation (c)(ii) to Section 73CA(1)(i) of the said Act.

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17. According to the petitioners, the petitioners and other

member societies could not be treated as defaulters because under Section

26 of the said Act, they were active members and continued to be so, as

they had made payment of membership of the respondent No.2 - Federal

Society and there was no default on that count in their cases. As regards

the question of they being branded as defaulters for having failed to pay

1% supervision charges to respondent No.2 - Federal Society, reliance

was placed on the said judgment of a learned Single Judge of this Court

in the case of Bajrang Majoor Kamgar Sahakari Sanstha Maryadit Vs.

The District Co-operative Election Officer (supra). As opposed to this,

the respondents relied upon judgments of other learned single Judge of

this Court in the case of M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari

Sanstha, Maryadit Vs. Amravati District Labour Cooperative Society's

Union Ltd. and Vinay Kore Majur Sahkari Sanstha Ltd. thru Authorized

Representative Vs. The State of Maharashtra (supra).

18. It was specifically contended on behalf of the petitioners that

the said two subsequent judgments of learned Single Judges of this Court

were per incuriam and that, therefore, they ought to be ignored and the

writ petition ought to be allowed on the basis of the law clarified by the 15 of 31 CORRECTED-WP-3318-2022-J.odt

learned Single Judge of this Court in the case of Bajrang Majoor Kamgar

Sahakari Sanstha Maryadit Vs. The District Co-operative Election

Officer (supra).

19. In order to examine the correctness or otherwise of the

said contentions raised on behalf of the petitioners, it would be

appropriate to refer to the judgments brought to the notice of this Court

by the learned counsel appearing for the rival parties. In the case of State

of Bihar Vs. Kalika Kuer alias Kalika Singh (supra), the Hon'ble Supreme

Court referred with approval the elucidation of principle of per

incurianm in Halsbury's Laws of England, wherein it was stated that a

decision is per incuriam when the Court has acted in ignorance of a

previous decision of its own or of a Court of co-ordinate jurisdiction,

which covered a case before it. It was further laid down in the said

judgment by the Hon'ble Supreme Court that the earlier decision cannot

be ignored merely because certain aspects of the matter were not raised

before the Court or more aspects should have been gone into and that the

matter would have to be resolved only in two ways i.e. either to follow to

earlier decision or to refer the matter to a Larger Bench to examine the

issue, in case it is felt that earlier decision is not correct on merits.

16 of 31 CORRECTED-WP-3318-2022-J.odt

20. Thereafter, in the case of Central Board of Central Board of

Dawoodi Bohra Community Vs. State of Maharashtra (supra), a

Constitution Bench of the Hon'ble Supreme Court reiterated the said

position of law and it was further stated that when the earlier decision is

referred to and considered, the subsequent decision cannot be said to be

per incuriam.

21. In the case of Jagannath Temple Managing Committee Vs.

Siddha Math and others reported in (2015) 16 SCC 542, in the context of

a decision being per incuriam and the concept of stare decisis, it was held

as follows :

"We agree with the contention advanced by the learned Senior Counsel appearing on behalf of the appellant Temple Committee. Most respectfully, we opine that the decision of this Court in Jagganath Vs. State of Orissa, 1989 Supp (1) SCC 553, referred to supra, wherein this Court upheld the validity of the Notification dated 18-03-1974 insofar as it pertains to the estate of Lord Jagannath is per incuriam for non-consideration of the provisions of Sections 5 and 30 of the Temple Act, 1955 and the law laid down by this Court as regards between the two State enactments, which one will be the Special Act over other. While the doctrine of stare decisis is crucial to maintain judicial discipline, what cannot be lost sight of the fact is that decisions which are rendered in ignorance of existing statutes and law laid down by this Court cannot bind subsequent Benches of this Court. In the case of State of Gujarat Vs. Mirzapur Moti Kureshi Jamat, (2005) 8 SCC 534, referred to supra, it was held as under: "112. The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and reason; it is a 17 of 31 CORRECTED-WP-3318-2022-J.odt

flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience."

35. It becomes clear from a perusal of the case law adverted to by the learned senior counsel appearing on behalf of the appellant Temple Committee that a judgment can be said to be per incuriam when it is passed in forgetfulness or ignorance of a statute operating in that field. The notification dated 18-03-1974 vested the estates of Lord Jagannath, Puri in the State Government in view of the amended provision of the proviso to Section 2(oo) of the OEA Act, 1951 inserted by way of an Amendment in the year 1974. The judgment in Jagannath was passed only on consideration of the OEA Act, 1951. The provisions of the Temple Act, 1955, which is the principal Act that applies to the Lord Jagannath Temple, Puri were not adverted to at all."

22. In the case of Mahindra & Mahindra Ltd. Nagpur Vs. Mr.

Avinash D. Kamble (supra), a Division bench of this Court held that

where a statute is inadequate or does not provide for a situation, judicial

precedent will have to be followed. But, in matters concerning

appreciation of evidence and drawing factual conclusions, even by

resorting to legal presumption, there could be no precedent.

23. It is also significant that when a contention is raised that an

earlier judgment is a binding precedent, it is necessary to examine as to

what was the main issue in such a matter and whether in the subsequent 18 of 31 CORRECTED-WP-3318-2022-J.odt

decisions, which are claimed to be per incuriam, such an issue fell for

consideration and the decisions were rendered in ignorance of the earlier

judgment.

24. In the case of Bajrang Majoor Kamgar Sahakari Sanstha

Maryadit Vs. The District Co-operative Election Officer (supra), upon

which much emphasis is placed by the learned counsel for the petitioners

to contend that it was a binding precedent, the question that fell for

consideration before a learned Single Judge of this Court was, as to

whether the insistence on the part of the Election Officer for furnishing

no dues certificate from the Federal Society as per Rules or bye-laws of

the Federation was mandatory and in case of failure to produce such no

dues certificate, could the member societies be deprived of the right of

voting, when there was no such requirement under the aforesaid Act and

the Rules framed thereunder. It is in this context that the learned Single

Judge of this Court held that an Election Officer was not justified in

insisting upon such no dues certificate on the basis of bye-laws of Federal

Society and accordingly, the writ petition stood allowed in favour of the

petitioners therein.

25. While deciding the said issue, there was indeed reference 19 of 31 CORRECTED-WP-3318-2022-J.odt

made to the aspect of 1% supervision charges required to be paid to the

Federal Society, but, this was examined only in the context of clause 17 of

bye-law No. 9 of the concerned Federal Society. It was observed by the

learned Single Judge of this Court in the said judgment that no provision

of the Act or Rules framed thereunder was brought to his notice,

requiring member societies to submit no dues certificates in respect of 1%

supervision charges. Thus, the entire controversy in the said case

revolved around the insistence of no dues certificates on the part of the

Election Officer. In this backdrop, the learned Single Judge of this Court

in the said case held in favour of the petitioners and directed the names of

the petitioner - member societies to be included in the final voters list.

26. The petitioners have contended before this Court that in the

subsequent judgment in the case of M.I.D.C. Prakalpgrast Majur Kamgar,

Sahakari Sanstha, Maryadit Vs. Amravati District Labour Cooperative

Society's Union Ltd. (supra), the said earlier judgment in the case of

Bajrang Majoor Kamgar Sahakari Sanstha Maryadit Vs. The District Co-

operative Election Officer (supra), was not brought to the notice of the

learned Single Judge, although the controversy was identical and in the

said subsequent judgment, the learned Single Judge in ignorance of the

earlier judgment, held against the petitioners and upheld non-inclusion 20 of 31 CORRECTED-WP-3318-2022-J.odt

of the petitioners thereof in the final voters list. But, a perusal of the said

subsequent judgment of a learned Single Judge of this Court in the case

of M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari Sanstha, Maryadit Vs.

Amravati District Labour Cooperative Society's Union Ltd. (supra),

would show that the issue specifically decided was, as to whether the

petitioner societies therein could be said to be defaulters by applying

Section 27(10) read with Section 73CA(1)(i)(c)(ii) of the aforesaid Act.

The said provisions were analyzed in detail and the learned Single Judge

of this Court in the aforesaid judgment found that the petitioner member

societies in the said case had admittedly availed services of the respondent

- Federal Society for allotment of works for which 1% supervision charges

were payable and such charges were found to be due on the petitioners

therein, thereby indicating that they could not be permitted to vote by

operation of Section 27(10) of the said Act, which says that if a member

is a defaulter, as provided in explanation (c) (ii) to Section 73CA(1)(i) of

the said Act, such a member will not have the right to vote.

27. Thus, in the said subsequent judgment in the case of

M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari Sanstha, Maryadit Vs.

Amravati District Labour Cooperative Society's Union Ltd. (supra), the

issue for consideration was distinct from the earlier judgment of the 21 of 31 CORRECTED-WP-3318-2022-J.odt

learned Single Judge of this Court in the case of Bajrang Majoor Kamgar

Sahakari Sanstha Maryadit Vs. The District Co-operative Election

Officer (supra), in as much as the issue in the subsequent case revolved

around the question of member societies being defaulters by operation of

Section 27(10) read with explanation (c) (ii) to Section 73CA(1)(i) of the

said Act. The issue in the earlier judgment was, as to whether the

Election Officer could insist upon a no dues certificates from the Federal

Society as per its bye-laws. Therefore, even if the subsequent judgment in

the case of M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari Sanstha,

Maryadit Vs. Amravati District Labour Cooperative Society's Union Ltd.

(supra), did not refer to the aforesaid earlier judgment in the case of

Bajrang Majoor Kamgar Sahakari Sanstha Maryadit Vs. The District Co-

operative Election Officer (supra), such subsequent judgment cannot be

said to be per incuriam.

28. In any case, in another subsequent judgment of a learned

Single Judge of this Court in the case of Vinay Kore Majur Sahkari

Sanstha Ltd. thru Authorized Representative Vs. State of Maharashtra

(supra), when an identical issue as regards member societies being treated

as defaulters due to failure of payment of 1% supervision charges and

their non-inclusion in the final voters list was considered, reliance was 22 of 31 CORRECTED-WP-3318-2022-J.odt

sought to be placed on the said judgment of the learned Single Judge in

the case of Bajrang Majoor Kamgar Sahakari Sanstha Maryadit Vs. The

District Co-operative Election Officer (supra). But, the learned Single

Judge in the case of Vinay Kore Majur Sahkari Sanstha Ltd. thru

Authorized Representative Vs. State of Maharashtra (supra), specifically

held that the issue in the earlier judgment in the case of Bajrang Majoor

Kamgar Sahakari Sanstha Maryadit Vs. The District Co-operative

Election Officer (supra), concerned no dues certificate to be produced in

terms of bye-laws of the Federal Society for inclusion in the final voters

list and there was no issue or discussion pertaining to defaulters as per the

aforesaid two provisions.

29. It was noted that, in any case, the learned Single Judge in the

case of Bajrang Majoor Kamgar Sahakari Sanstha Maryadit Vs. The

District Co-operative Election Officer (supra), had observed that there

was no provision under the Act and Rules brought to his notice,

requiring members to submit no dues certificate in respect of 1%

supervision charges. There was no discussion on the concept of defaulter

under Section 27(10) and explanation (c)(ii) to Section 73CA(1)(i) of the

aforesaid Act.

23 of 31 CORRECTED-WP-3318-2022-J.odt

30. Therefore, even if the principles pertaining to the concepts

of per incuriam and stare decisis, as laid down by the Hon'ble Supreme

Court and this Court in the aforementioned judgments, are to be applied

to the facts of the present case, it becomes clear that the subsequent

judgments in the cases of M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari

Sanstha, Maryadit Vs. Amravati District Labour Cooperative Society's

Union Ltd. (supra) and Vinay Kore Majur Sahkari Sanstha Ltd. thru

Authorized Representative Vs. State of Maharashtra (supra), cannot be

said to be per incuriam or in ignorance of a binding precedent. The

contentions raised on behalf of the petitioners in this regard are,

therefore, rejected.

31. As noted above, in the two cases of M.I.D.C. Prakalpgrast

Majur Kamgar, Sahakari Sanstha, Maryadit Vs. Amravati District Labour

Cooperative Society's Union Ltd. and Vinay Kore Majur Sahkari Sanstha

Ltd. thru Authorized Representative Vs. State of Maharashtra (supra), in

the backdrop of facts that are identical to the present case, it was held that

the member societies of a Federal Society, who failed to pay 1%

supervision charges for the services rendered by the Federal Society are

defaulters under the aforesaid provisions.

24 of 31 CORRECTED-WP-3318-2022-J.odt

32. For the sake of clarity Section 27(10) and explanation (c)(ii)

to Section 73CA(1)(i) of the said Act read as follows :

"Section 27(10) - If a member has taken a loan from the society, such member shall, whenever 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.

73CA - [Disqualification of committee and its members ] (1) Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being member of a committee, no person shall be eligible for being appointed, nominated, elected, co-opted or, for being a member of a committee, if he -

(i) is a defaulter of any society, -

Explanation - For the purpose of this clause, the term "defaulted" includes -

(c) in the case of any society, -

(i) a member who has taken anamat or advance; or

(ii) a member who has purchased any goods or commodities on credit or availed himself of any services from the society for which charges are payable; and fails to repay the full amount of such anamat or advance or pay the price of such goods or commodities or charges for such service, within thirty days from the date of withdrawal of anamat or advance by him or from the date of delivery of goods to him or availing of services by him, whichever is earlier;"

33. The petitioners have not disputed that being members of the

respondent No.2 - Federal Society, on services provided by the said

Federal Society in the form of providing work to member societies, they

are obliged to pay 1% supervision charges. As held in the aforesaid two

judgments in the cases of M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari 25 of 31 CORRECTED-WP-3318-2022-J.odt

Sanstha, Maryadit Vs. Amravati District Labour Cooperative Society's

Union Ltd. aand Vinay Kore Majur Sahkari Sanstha Ltd. thru Authorized

Representative Vs. State of Maharashtra (supra), this Court is of the

opinion that non-payment of the said 1% supervision charges by the

member societies would render them ineligible for voting and, therefore,

non-inclusion of names of such member societies in the final voters list

cannot be said to be an arbitrary act, deserving interference at the hands

of this Court in writ jurisdiction.

34. Having noted the said position of law and applying it to the

facts of the present case would show that the respondent No.2 - Federal

Society had treated some member societies, including the petitioners

herein, as defaulters for non-payment of 1% supervision charges. Some

of the member societies had contested this position before the respondent

No.1 and documents, including ledger books of the member societies and

respondent No.2 - Federal Society were considered by the respondent

No.1 and it was found that there were indeed member societies, who had

defaulted and accordingly, their names were not included in the final

voters list. It is brought to the notice of this Court that when two

societies, upon being made aware about their default in payment of 1%

supervision charges, had paid the said amount, their names were indeed 26 of 31 CORRECTED-WP-3318-2022-J.odt

included in the final voters list by the respondent No.1 - Election Officer.

These are petitioner Nos.6 and 11 before this Court.

35. By testing the action of respondent No.1 on the touchstone

of the aforesaid position of law as regards defaulter members under the

aforesaid provisions of the Act, this Court is of the opinion that the final

voters list determined by respondent No.1 at this stage, cannot be said to

be a decision requiring interference in writ jurisdiction. The petitioners

have sought to emphasize that figures have been fudged and documents

have been created by the respondent No.2 - Federal Society to falsely

show the petitioner societies as defaulters and certain submissions were

made in that regard. But, the Election Officer, on the basis of the

material available on record, by the very nature of proceedings

undertaken while finalizing voters list, arrived at a reasonable conclusion.

If at all serious disputed questions of facts are sought to be raised by the

petitioners, filing an election dispute under Section 91 of the said Ac,t

read with Rule 78 of the Maharashtra Co-operative Societies (Election to

Committee) Rules 2014, is the only remedy.

36. The petitioners sought to rely upon judgment of the learned

Single Judge of this Court in the case of Rajan Dinkarrao Pharate Vs. 27 of 31 CORRECTED-WP-3318-2022-J.odt

State of Maharashtra (supra), wherein this Court, despite availability of

alternative remedy of filing election dispute under Section 91 of the said

Act, entertained the writ petitions and partly allowed the same. It was

emphasized that in the said judgment, writ jurisdiction was invoked

because it was found that about 97% of the voters were sought to be

disenfranchised and that in the present case, such a scenario existed

because about 85% of the member societies were not included in the final

voters list. It was submitted that in the subsequent Division Bench

judgment of this Court in the case of Pandurang Laxman Kadam & Ors.

Vs. State of Maharashtra & Ors. (2016) 6 BOM C.R. 75, this Court held

that Section 91 of the aforesaid Act provided for an efficacious alternative

remedy and writ petition could not be entertained even when question

pertaining to finalization of voters list was raised, except in cases like the

aforesaid case of Rajan Dinkarrao Pharate and Others Vs. State of

Maharashtra (supra), wherein majority of the voters were sought to be

kept out of the final voters list.

37. But, this Court is of the opinion that reliance on the said

judgment of the learned Single Judge of this court in the case of Rajan

Dinkarrao Pharate and Others Vs. State of Maharashtra (supra), is

misplaced because the fact that large number of voters are not included in 28 of 31 CORRECTED-WP-3318-2022-J.odt

the final voters list alone cannot be a ground for invoking writ

jurisdiction, when the basis of non-inclusion of voters in the final voters

list is based on a reasonable view taken by the Election Officer, on the

basis of material on record and those raising a dispute in that regard are

raising questions necessarily pertaining to seriously disputed questions of

facts, requiring enquiry and recording of evidence, indicating that

redressal can be sought only by instituting an election dispute under

Section 91 of the said Act.

38. This Court is of the opinion that, considering the nature of

factual disputes being raised by the petitioners as regards alleged fudging

of figures by respondent No.2 - Federal Society, a factual enquiry is

necessary entailing recording of evidence and hence, the only remedy

available in such a scenario is filing of an election dispute under Section

91 of the said Act.

39. As regards the contention raised on behalf of the petitioners

that they were caught unaware because sufficient publicity was not given

to the election programme of finalization of voters list, this Court found

that there is no substance in the said contention because admittedly, the

election programme was published in daily newspaper "Deshonnati". It 29 of 31 CORRECTED-WP-3318-2022-J.odt

was published on the notice board of the Federal Society, as required by

the Act and Rules and a panchanama in that regard was also executed.

40. At the same time, there is substance raised in the contention

raised on behalf of the respondent No.2 - Federal Society that the

petitioners have indulged in suppression of relevant facts. The petitioner

No.1 is the very society, which was party to the case in which the

aforementioned judgment of the learned Single Judge of this Court in the

case of M.I.D.C. Prakalpgrast Majur Kamgar, Sahakari Sanstha, Maryadit

Vs. Amravati District Labour Cooperative Society's Union Ltd. (supra),

was rendered and yet, the said fact was suppressed from this Court. It was

also suppressed from this Court that when the respondent No.2 - Federal

Society had called upon the member societies to forward the names of

their representatives for the purpose of the proposed election, petitioner

Nos.4, 9, 13, 15 and 17 had not even forwarded the names of their

representatives, thereby showing that they could not raise a grievance

about non-inclusion of their names in the final voters list.

41. Similarly, it was suppressed from this Court that after the

question regarding default in payment of 1% supervision charges was

taken up and decided by the respondent No.1 - Election Officer, the 30 of 31 CORRECTED-WP-3318-2022-J.odt

petitioner Nos.6 and 11 had actually paid the said amount and

consequently, the names of these two societies were included in the final

voters list, thereby showing that they could not have any grievance. This

demonstrates that the petitioners did not place all the facts correctly

before this Court while invoking writ jurisdiction, thereby indicating

another reason why the writ petition ought not to be entertained.

42. It is also relevant that in view of some of the aforesaid

societies not even forwarding the names of their representatives to the

respondent No.2 - Federal Society, only 14 of the petitioner societies

could be said to have grievance. But, there is nothing to show that other

member societies, large in numbers, whose names were not included in

the final voters list, have any grievance in that regard. They did not even

care to raise grievance as regards non-inclusion of their names in the final

voters list. In this backdrop, it can be said that there is some substance in

the contention raised on behalf of respondent No.2 - Federal Society that

such member societies, who have not even come forward to raise

grievance are either not aggrieved, or being defaulters, they are aware that

their names could never be included in the final voters list. This is

another reason to hold that the contention raised on behalf of the

petitioners that the entire process of finalization of the voters list was 31 of 31 CORRECTED-WP-3318-2022-J.odt

vitiated, cannot be accepted and the present writ petition deserves to be

dismissed.

43. In view of the above, it is found that there is no substance in

the contentions raised on behalf of the petitioners and the impugned

final voters list does not deserve interference.

44. Accordingly, the writ petition is dismissed. Interim relief

stands vacated. Pending applications, if any, are disposed of.

45. Needless to say, if the petitioners have any grievance, they

would be at liberty to raise the same in a properly instituted election

dispute under Section 91 of the said Act, if so advised. Such a dispute, if

filed, will be decided without being influenced by the observations made

hereinabove. Rule is discharged.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:01.08.2022 17:32