Bombay High Court
Mahadeo Tukaram Kanchan vs State Of Maharashtra Thr. ... on 3 February, 2022
Bench: G.S. Patel, Madhav J. Jamdar
Digitally signed
by HEMANT 913-ASWPL-1630-2022.DOC
HEMANT CHANDERSEN
CHANDERSEN SHIV
SHIV Date:
2022.02.04
16:45:37 +0530
Shiv
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (L) NO.1630 OF 2022
Mahadeo Tukaram Kanchan ...Petitioner
Versus
State of Maharashtra & Ors. ...Respondents
Mr Atul Damle, Senior Advocate with Mr Vikas G Kumbhar for the
Petitioner.
Mr S S Panchpor, AGP for the State.
Mr S S Kanetkar, for the Respondents.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 3rd February 2022
PC:-
1. The dispute relates to elections to the managing committee of
the Gram Vikas Seva Vivid Karyakari Sahakari Sanstha Ltd, Urli
Kanchan, Taluka Haveli, District Pune. The prayers in the Petition
are for directions to the Administrator of this society, the 5th
Respondent, to admit to membership the legal heirs of the members
who are all deceased.
2. Prayer (a-iii) also seeks a direction that all deceased voters be
removed from the electoral rolls of the society.
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3. In the Petition, allegations are made in respect of the
qualifications of some persons included in the electoral rolls. We will
address that issue separately.
4. At Exhibit-C to the Petition from page 36 is a copy of an order
dated 30th November 2017 of a Division Bench of this Court (R M
Sawant and Sarang V Kotwal, JJ) in Writ Petition (Stamp) No 31614
of 2017. It pertains to this very society, which was also the 5th
Respondent before that Court. As paragraph 6 of the 30th
November 2017 points out, the 5th Respondent is a multi purpose
society. Paragraph 11 of this order is material for our immediate
purposes today. It is at pages 43 to 45 of the memo of Petition and
reads thus:
"11. It is also required to be noted that it is the case of the
Petitioners that even out of the 175 names which find a
place in the final list of voters, 56 persons are dead and
therefore the names have been wrongly included. The death
certificates of the said 56 persons have been annexed to the
above Writ Petition as well as to the Additional Affidavit of
the Petitioners. The said fact has not been dealt with in the
Affidavit in Reply filed on behalf of the Respondent No.5
Society. The aforesaid facts therefore exemplifies the
manner in which the elections to the Respondent No.5
Society are sought to be held. The said fact therefore
impinges upon the legality and validity of the final list of
voters which firstly on account of the manner in which the
term "borrower" member is sought to be construed by the
Respondent No.5 Society and thereafter on account of the
fact that dead persons are sought to be included cannot be
said to be prepared in accordance with the bye laws. Hence
though we are conscious of the fact that the interference in
the election process has to be with great circumspection as
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the remedy by way of election petition is available, in the
peculiar facts and circumstances of the case where the
elections are sought to be held to the Respondent No.5
Society in the teeth of the aforesaid irregularities and
illegalities, this Court is constrained to interdict with the
election programme, we are fortified in our view by the
judgments of the Apex Court in Ahmednagar Zilla S.D.V. &
P Sangh Ltd v/s. State of Maharashtra and others reported in
(2004) 1 SCC 133, and Pundlik v/s State of Maharashtra
reported in (2005) 7 SCC 181 in which cases the election
process was interfered with on the ground that there was a
breach of the Rules in the preparation of voters list and in
fact in Ahmednagar Zilla's case was prepared on the basis of
non existent Rules. If the election programme is allowed to
continue in the teeth of the said irregularities and
illegalities, the same would amount to perpetuating the said
irregularities and illegalities. Hence there would be interim
reliefs in terms of prayer clause (a). In so far as the
appointment of the Administrator is concerned, it is for the
authorities to consider the same. Since we have stayed the
elections it would be open for the authorities exercising
powers under the Maharashtra Cooperative Societies Act to
take appropriate action for administration of the
Respondent No.5 including the appointment of an
Administrator/or Administrative Committee. It would also
be open for the authorities to direct the Respondent No.5
Society to make necessary corrections in the matter of
enrollment of the heirs of the original members as members
and deletion of the persons who are dead from the voters
list and thereafter hold the elections in accordance with the
MCS Act and Rules."
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5. In the present Petition, at page 182, Exhibit-M, is a copy of an
order dated 15th November 2021 to which is annexed a list of
members said to be deceased. There are 155 names on this list.
6. We come now to the Affidavit filed by the Administrator of
the 5th Respondent. The Affidavit is affirmed on 27th January 2022
and runs from page 199 onwards. At pages 201 to 202, in summary,
the Administrator says::
(a) 206 letters were sent to the addresses of original
members who are said to be deceased. 130 such letters
were served. 53 were returned unserved.
(b) 317 persons took membership application forms from
the society.
(c) Thereafter, 233 applications for membership in place of
the deceased members were received by the society.
These were scrutinised.
(d) The Affidavit then refers to the Specific General Body
meeting on 9th July 2019. 34 members were present in
the said meeting. Of the legal heirs who applied, 163
were admitted to membership. Another 70 applications
were kept pending. This was because they had not yet
fully complied. On 30th September 2019, (there seems
to be a typographical error in the date, which is shown
as 2018), the 31 legal heirs who had applied were
admitted to membership.
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7. All in all, therefore, by 2019 it seems that 194 legal heirs were
admitted to membership. This is from the total of 206 letters to the
deceased members mentioned earlier. Necessarily, this means that
there were 12 names in balance, being the difference between the
original figure of 206 and the final figure of 194. The 5th
Respondent's Affidavit does not tell us whether the 12 names that
constitute this difference continued on the voters' list or were in fact
removed.
8. The additional discrepancy is, however, from 2021. The list at
page 182, and specifically at pages 183 to 187 shows 155 deceased
members. Thus, it is not clear from this whether these 155 were part
of the 207 who were sent letters, or were part of the 194 who were
admitted to membership, or were in addition to these (perhaps on
account of having expired after 2018/2019).
9. Before we assess the Petition on merits further, we require a
clarification from the Administrator of the 5th Respondent society
in regard to list at pages 183 to 187 to explain specifically the
discrepancy that we have noted above.
10. Let that Affidavit be filed by 14th February 2022.
11. Mr Kanetkar questions the maintainability of the Petition at
the instance of this Petitioner. We leave all contentions open and we
will address that issue on the next date as well.
12. Stand over to 17th February 2022.
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13. All concerned will act on production of a digitally signed copy
of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
3rd February 2022
