Bombay High Court
Tukaram Sakharam Salpe And ... vs The State Of Maharashtra Through ... on 5 August, 2022
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6754 OF 2022
1. Tukaram Sakharam Salpe
age 38 years, occ. Agricultural
r/o Kanadkhed Tq. Purna
Dist. Parbhani
2. Gangaprasad Shivram Dadhale
age 30 years, occ. Agricultural
r/o as above.
3. Madhav s/o Bapurao Kadam
age 65 years, occ. Agri.
4. Sitaram s/o Damaji Kadam
age 55 years, occ. Agri.
5. Suresh s/o Bapurao Kadam
age 32 years, occ. Agri.
6. Balaji s/o Pandharinath Kale
age 50 years, occ. Agri.
7. Sanjiv s/o Vinayak Suryavanshi
age 37 years, occ. Agri.
8. Kishan s/o Shayamrao Galande
age 55 years, occ. Agri.
9. Shivaji s/o Balasaheb Gadhve
age 56 years, occ. Agri.
10. Siddharth s/o Ramji Gadhve
age 39 years, occ. Agri.
11. Nandabai Madan Giri
age 43 years, occ. Agri.
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12. Uddhav s/o Tatyarao Chandal
age 54 years, oc. Agri.
13. Nagesh s/o Subhash Chandal
age 38 years, occ. Agri.
14. Maroti s/o Subhashrao Jogdand
age 37 years, occ. Agri.
15. Gangadhar s/o Dattarao Dangare
age 63 yars, occ. Agri.
16. Kishan s/o Manika Dadhale
age 59 years, occ. Agri.
17. Gayabai Tukaram Dadhale
age 56 years, occ. Agri.
18. Niloba s/o Begaji Dadhale
age 67 years, occ. Agri.
19. Bhagwan s /o Ramrao Dadhale
age 37 years, occ. Agri.
20. Mangesh s/o Dnyaneshwar Dadhale
age 38 years, occ. Agri.
21. Maroti s/o Bapurao Dadhale
age 64 years, occ. Agri.
22. Rameshwar s/o Kishanrao Dadhale
age 39 years, occ. Agri.
23. Rameshwarl s/o Manikrao Dadhale
age 42 years, occ. Agri.
24. Shivram s/o Begaji Dadhale
age 69 years, occ. Agri.
25. Shivaji s/o Sakharam Dadhale
age 39 years, occ. Agri.
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26. Haribhau s/o Tukaram Dadhale
age 55 years, occ. Agri.
27. Sakharam s/o Manikrao Dadhale
age 72 years, occ. Agri.
28. Punjaji s/o Kondiba Dadhale
age 55 years, occ. Agri.
29. Kishan s/o Haribhau Deshmukh
age 51 years, occ. Agri.
30. Haribhau s/o Gopal Deshmukh
age 38 years, occ. Agri.
31. Dharba s/o Taterao
age 32 years, occ. Agri.
32 Kundlik s/o Kishanro Dhotre
age 37 years occ. Agri.
33. Kailas s/o Narayan Dhotre
age 40 years, occ. Agri.
34. Suresh s/o Narayan Dhotre
age 38 years, occ. Agri.
35. Narhari s/o Santoba Pawar
age 70 years, occ. Agri.
36. Akhil s/o Lalkha Pathan
age 64 years, occ. Agri.
37. Gabru s/o Hamidkha Pathan
age 64 years, occ. Agri.
38. Anurath s/o Narayan Pawar
age 40 years, occ. Agri.
39. Kundlik s/o Marotrao Pawar
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age 70 years, occ. Agri.
40. Gangadhar s/o Manika Pawar
age 60 years, occ. Agri.
41. Gyandev s/o Kondiba Pawar
age 65 years, occ. Agri.
42. Gyandev s/o Pandurang Pawar
age 40 years, occ. Agri.
43. Dnyaneshwar s/o Narayan Pawar
age 45 years, occ. Agri.
44. Tukaram s/o Narayan Pawar
age 62 years, occ. Agri.
45. Navnath s/o Namdev Pawar
age 38 years, occ. Agri.
46. Narayan s/o Tukaram Pawar
age 70 years, occ. Agri.
47. Narayan s/o Santoba Pawar
age 60 years, occ. Agri.
48. Nivrutti s/o Kondiba Pawar
age 55 years, occ. Agri.
49. Baliram s/o Kundlik Pawar
age 55 years, occ. Agri.
50. Bhujang s/o Santoba Pawar
age 65 years, occ. Agri.
51. Manika s/o Bhujangrao Pawar
age 55 years, occ. Agri.
52. Madhav s/o Gyanba Pawar
age 60 years, occ. Agri.
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53. Marotrao s/o Sopanrao Pawar
age 45 years, occ. Agri.
54. Munjaji s/o Namdev Pawar
age 55 years, occ. Agri.
55. Rangnath s/o Sakharam Pawar
age 55 years, occ. Agri.
56. Shivaji s/o Gyandev Pawar
age 45 yeas, occ.a agri.
57. Shrirang s/o Sakharam Pawar
age 65 years, occ.agri.
58. Hanuman s/o Bhujangrao Pawar
age 56 years, occ. Agri.
59. Tukaram s/o Namdev Panchal
age 40 years, occ. Agri.
60. Kondji s/o Rajaram Patale
age 62 years, occ. Agri.
61. Munjaji s/o Gunaji Patale
age 45 years, occ. Agril
62. Suryabhan s/o Santoba Paratkar
age 60 years, occ. Agri.
63. Maroti s/o Bapurao Pujari
age 42 years, occ.agri.
64. Digambar s/o Munjaji Bakhal
age 67 years, occ. Agri.
65. Radhaji s/o Digambar Bakhal
age 38 years, occ. Agri.
66. Gopinath s/o Baliram Bansode
age 50 years, occ. Agri.
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67. Prakash s/o Ghanshyam Bansode
age 38 years, occ agri.
68. Chimnaji s/o Gangadhar Barse
age 50 years, occ. Agri.
69. Govind s/o Narayan Bhalerao
age 40 years, occ. Agri.
70. Bapurao s/o Piraji Bhalerao
Age 62 years, occ. Agril
71. Madhav Taterao
age 29 years, occ. Agri.
72. Madhav Shivram
age 34 years, occ. Agri.
73. Laxman s/o Manika Vaidya
age 60 years, occ. Agri.
74. Bhagirathbai Vitthal Shiraskhode
age 68 years, occ. Agri.
75. Gangabai Rohidas Salpe
age 60 years, occ. Agri.
76. Piraji s/o Rohidas Salpe
age 34 years, occ. Agri.
77. Ravi s/o Rohidas Salpe
age 32 years, occ. Agril.
78. Saraswati Namdev Salpe
age 65 years, occ. Agri.
79. Nagnath s/o Namdev Salpe
age 45 years, occ. Agri.
80. Ramchandra s/o shahuji Salpe
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age 50 years, occ. Agri.
81. Sapna Tukaram Salpe
age 37 years, occ. Agri.
82. Pandit s/o Purbhaji Suryavanshi
age 58 years, occ. Agri.
83. Pradip s/o Vinayak Suryavanshi
age 39 years, occ. Agri.
84. Vinayak s/o Purbhaji Suryavansi
age 52 years, occ. Agri.
85. Ananta s/o Madhav Kadam
age 52 years, occ. Agril
86. ghanshyam s/o Ananta Kadam
age 40 years, occ. Agri.
Petitioners No. 3 to 86 r/o Kanadkhed
Tq. Purna Dist. Parbhani Petitioners
Versus
1. The State of Maharashtra
Through its Secretary
Cooperation Department
Mantralaya, Mumbai.
2. The Divisional Joint Registrar
Cooperative Societies, Aurangabad.
3. The District Deputy Registrar
Cooperative Societies, Parbhani
4. The Assistant Registrar,
Cooperative Societies, Purna
5. The State Cooperative Election
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Authority, Pune
Through its Secretary
6. The District Cooperative
Election Offcer and District
Deputy Registrar, Cooperative
Societies, Parbhani
7. The Taluka Cooperative
Election Offcer and Assistant
Registrar, Cooperative Societies
Purna Dist. Parbhani.
8. The Vividh Karyakari Seva Sahakari Sanstha
Kanadkhed, Tq. Purna, Dist. Parbhani
Though its Secretary
9. Rama Tukaram Bakhal
age 45 years, occ. Agri.
r/o Kanadkhed, Tq. Purna
Dist. Parbhani.
10. Khemaji Laxman Parathkar
age 70 years, occ. Agril.
r/o as above.
11. Manika Kashinath Patale
occ. Agri.
r/o as above. Respondents
Mr. S. B. Ghatol Patil, Advocate for the petitioners.
Mr. K. B. Jadhavar, AGP for respondents No. 1 to 4.
Mr. S. K. Kadam, Advocate for respondents No 5 to 7.
Mr. V. B. Kale, Advocate for respondent No. 8.
Mr. P. D. Bachate, Advocate for respondent No. 9.
CORAM : M.G. Sewlikar, J.
DATE : 5th AUGUST, 2022.
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. By consent of the parties, heard fnally at the stage of
admission.
3. Facts leading to this petition are that the petitioners are
the members of Respondent No. 8 - Society. Respondent No. 6 - The
District Cooperative Election Offcer and District Deputy Registrar,
published the program of fnalisation of voters' list of 32 societies in
Parbhani District. Pursuant to the said program, the provisional
voters' list was published on 3rd June, 2022, objections were to be
submitted on or before 13th June, 2022, hearing on objections was
scheduled between 13th June, 2022 and 23rd June, 2022 and decision
was scheduled on 23rd June, 2022. The fnal voters' list was to be
published on 28th June, 2022.
4. The petitioners have deposited membership fees and
share amount with respondent No. 8 - Society. Respondent No. 8 -
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Society admitted petitioners as members vide passing resolution of
Managing Committee and subsequently, the General Body has
confrmed the membership of petitioners. Their names are
incorporated in the membership register. Petitioners are having
agricultural lands and they are eligible members of respondent No. 8
- Society.
5. On 2nd June, 2022, respondent No. 6 published
provisional voters' list of 163 members. Petitioners' names appeared
between Serial No. 79 and 163. Respondents No. 9 to 11 raised
objection against the petitioners stating that there is no record of
membership of petitioners and by manipulating records, their names
were added. They, therefore, requested to delete the names of
petitioners from the voters' list. On 13 th June, 2022, respondent No.
6 issued notice to respondents No. 7 - The Taluka Cooperative
Election Offcer and Assistant Register, Cooperative Societies, Purna
and 8 - The Vividh Karyakari Seva Sahakari Sanstha, Kanadkhed
and instructed them to conduct inquiry and submit the report. On
16th June, 2022, respondent No. 8 - Society submitted report before
respondent No. 7 and pointed out that those 86 members under
objection are legally enrolled members of the society. There is entry
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of subsidy in Kird Register. The Managing Committee as well as the
General Body has admitted them as members. Their names appear
in I and J Register. Accordingly, respondents No. 7 and 8 requested
not to delete the names of petitioners from voters' list. On 17 th June,
2022, respondent No. 7 conducted inquiry and found that the
petitioners are legally enrolled members of respondent No. 8 -
Society. Out of 86 members, 17 members did not possess
agricultural land. Therefore, names of 69 members were
recommended to be continued in the fnal voters' list. Respondent
No. 6, without issuing notice and without hearing the petitioners,
deleted the names of petitioners observing that there is no entry of
share amount in Audit Report as well as there is no name of
Administrative Chairman in the resolution admitting petitioners as
members. This order is impugned in this petition.
6. Initially, only 2 members had fled the petition.
Petitioners No. 3 to 86 were subsequently added with the permission
of the Court.
7. I have heard learned counsel Shri S. B. Ghatol Patil, for
the petitioners, Shri S. K. Kadam, learned counsel for respondents
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No 5 to 7 and Shri P. D. Bachate, learned counsel for respondent No.
9.
8. Learned counsel Shri Ghatol Patil submitted that
petitioners had duly applied for membership by fling written
application. They paid member fees and deposited share amount on
4th April, 2011 and 22nd March, 2012 respectively. The Managing
Committee had passed a resolution on 6 th June, 2011 and
28th March, 2012, and admitted the petitioners as members of
respondent No. 8 - Society. The General Body has also approved the
membership of petitioners. The names of petitioners are included in
the register of members. The petitioners have complied with the
requirements of membership as provided under Sections 38 and 39
and Rules 32, 33 and 65(3) of Maharashtra Co-operative Societies
Act, 1960 (for short "MCS Act"). Therefore, the petitioners are
entitled to exercise voting right under section 23 of the MCS Act. He
submitted that respondent No. 6 ought to have considered that not
taking entry of share amount and membership fees in the year 2011-
2012 in the Audit Report is the mistake of respondent No. 8 and for
that purpose, legally enrolled members-petitioners cannot be
deprived of their valuable right of voting. He submitted that
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respondent No. 6 has deleted the names of petitioners without
issuing notice and without hearing them. Therefore, the order is void
ab initio. He submitted that as per Section 23 of the MCS Act, there
is open membership. He further submitted that the petitioners could
not exercise their right of voting earlier because they had not
completed two years. He, therefore, submitted that the petitioners
are legally enrolled members and, therefore, they may not be deprived
of their right of voting.
9. Learned counsel Shri Kadam and Shri Bachate
submitted that the petitioners were enrolled by the Administrator.
The Administrator was appointed in the year 2011 and his term
continued till 2015. During this period, he enrolled 86 members.
They submitted that the Administrator was not competent to enroll
them as members. They placed reliance on the case of Jt. Registrar
of Co-operative Societies, Kerala vs. T. A. Kuttappan and others
reported in AIR 2000 Supreme Court 2378 and K. Shantharaj and
another vs. M. L. Nagaraja and others reported in AIR 1997 Supreme
Court 2925. They submitted that in view of these two decisions of
the Honourable Supreme Court, the Administrator had no authority
to enroll the petitioners as members.
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10. Learned counsel Shri Ghatol Patil tried to distinguish
these decisions contending that in the case of T. A. Kuttappan
(supra) the act in question was Kerala Cooperative Societies Act and
in the case of K. Shantharaj (supra) the act in question was
Karnataka Cooperative Societies Act. He submitted that the
provisions in both the cases are not in pari materia with the
provisions of MCS Act. Section 78(6) of the MCS Act states that the
decisions taken by the Administrator are binding on the new
Committee. He submitted that therefore, the Committee, in the year
2015, took the decision of confrming the membership of the
petitioners enrolled by the Administrator. He submitted that there is
no analogous provision in the Kerala Co-operative Societies Act and
Karnataka Co-operative Societies Act as that of Section 78(4) of the
MCS Act. He, therefore, submitted that these two decisions of the
Honourable Supreme Court are not applicable to the facts of the
instant case.
11. Admittedly, petitioners were enrolled by the
Administrator. The Honourable Supreme Court in the case of K.
Shatharaj (supra), has observed thus :-
"..... We fnd that there is no force in the contention.
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The power of Administrator given under the statute
to conduct elections should be confned within the
parameters set under the relevant provisions of the
Act, Rules and Bye-laws. The Division Bench has
minutely and carefully gone into all the questions
and agreed with the learned single Judge that the
Administrator has no power to enroll new members;
but he has the power to organise election process in
accordance with the provisions of the Act, the Rules
and the Bye-laws of the Society. In that view of the
matter, we think that the High Court has not
committed any error of law warranting interference.
Similar observations are found in the case of T. A.
Kuttappan.
12. The provisions of Section 30A of the Karnataka Co-
operative Societies Act and the provisions of Section 32(1)(b) of the
Kerala Co-operative Societies Act are in pari materia with the
provisions of Section 78(4) of the MCS Act. Section 78(1) of the MCS
Act reads thus :-
78. Power of suspension of committee :-
(4) The administrator or committee of administrators
so appointed shall, subject to the control of the Registrar
and such instructions as he may from time to time give,
have power to exercise all or any of the functions of the
committee or of any offce of the society and take all such
actions as may be required in the interest of the society
and shall arrange for conduct of the election, through the
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State Co-operative Elections Authority, within the period
specifed and handover the management tot he newly
elected Committee in accordance with the Act, rules and
by-laws of the society. The administrator or committee of
administrators so appointed as aforesaid, shall
notwithstanding anything contained in the by-laws, have
power to call a special general body meeting of the society
to review or reconsider the decisions or the resolutions
taken or passed at the general body meeting called by the
provious committee or to endorse the action taken by it.
13. This clearly indicates that these two provisions are in
pari materia with Section 78(4) of the MCS Act. Therefore, these
judgments squarely apply to the facts of the instant case. It is
further pertinent to note that though the petitioners were enrolled as
members in the year 2011 and 2012, they did not exercise their right
of voting in the elections held in the year 2015. Learned counsel Shri
Ghatol Patil submitted that they did not exercise their right of voting
as they did not complete two years at the time of elections in the year
2015. however, nothing has been placed on record to indicate that
they had not completed two years. Some of the members were
enrolled in the year 2011. Naturally, they had completed four years in
the year 2015. Therefore, at least, they could have exercised their
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right of voting. There is nothing on record to show that the members
asserted their right at any time. Therefore, as held in the case of K.
Shantharaj (supra), the Administrator had not authority to enroll the
members.
14. Learned counsel Shri Ghatol Patil placed reliance on the
cases of Balaso Tukaram Patil vs. Chhatrapati Rajaram Sahakari
Sakhar Karkhana Ltd. and others reported in 2015(4) Mh.L.J. 230,
Karbhari Maruti Agawan and others vs. State of Maharashtra and
others reported in 1994 Mh.L.J. 1527, Shri Jalindar Tukaram Kharat
vs. The State of Maharashtra and others reported in 2021(6) All MR
368, Pundlik vs. State of Maharashtra reported in AIR 2005 SC 3746
and Writ Petition No. 3323/2022 decided on 10th March, 2022. I have
carefully gone through all these decisions. In none of the decisions,
the question of validity of the members was raised. In all these
decisions, the members were valid members. In the case at hand,
the contention of the respondents is that petitioners are not valid
members.
15. The process of election has started. It is trite that once
election process starts, the jurisdiction under Article 226 of the
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Constitution of India should normally be not exercised. In this view
of the matter, this Court is left with no alternative than to dismiss
the petition. Hence, the petition is dismissed. No order as to costs.
Certifed copy is expedited. Rule discharged.
( M. G. SEWLIKAR )
Judge
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