Indrabhan Maruti Musale And ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 1988 Bom

                                         1                                wp 2801.2022

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               BENCH AT AURANGABAD

               904 WRIT PETITION NO.2801 OF 2022

           INDRABHAN MARUTI MUSALE AND ANOTHER
                          VERSUS
           THE STATE OF MAHARASHTRA AND OTHERS
                           ...
       Advocate for Petitioners: Mr. S. S. Thombre
        AGP for Respondent/State: Mr. S. K. Tambe
      Advocate for Respondent No.2: Mr. V. H. Dighe
                           ...

                                         CORAM: S. V. GANGAPURWALA &
                                                S. G. DIGE, JJ.

                                         DATE:        26th FEBRUARY, 2022

 PER COURT:

1. The Petitioners claim to be the members

of Respondent N. 5 Society. Provisional voters

list was published. The Petitioners raised

objection to the names of 56 persons on the ground

that they do not possess 10 Are land required to

be a valid member. The objection of the

Petitioners is rejected, aggrieved thereby the

present petition.

2. Mr. Thombre, learned Advocate for the

Petitioners submits that the Petitioners had given

the details of 56 persons not possessing the lands

2 wp 2801.2022

in the village required as per the bye-laws. In

view of that, they could not be the valid members

of the Society inter alia could not have found

place in the voters list.

3. The learned Counsel further submits that

in spite of the fact that the detailed objection

was raised by the Petitioners within the

stipulated time the Returning Officer failed to

exercise his jurisdiction and in a casual manner

ignored the objection of the Petitioners relying

only upon the membership register. As per Sub-rule

3 of Rule 8 of the Maharashtra Co-operative

Societies (Election to Committee) Rules, 2014

(hereinafter referred to as 'Rules-2014), the

Election Officer is required to make an inquiry

and consider each claim / objection and give his

decision thereto in writing and thereafter the

final voters list is to be published. It is only

after deciding all claims and objections the list

becomes final. The learned Advocate for the

Petitioners submits that the Petitioners to

substantiate their contention had also placed on

3 wp 2801.2022

record the list affirmed by the Talathi showing

that these 56 persons do not possess land and

still their names appear in the voters list. No

order has been passed by the Returning Officer in

view of the objection raised. He has only observed

that the names of these 56 persons appear in the

register of the Society as members and there is no

provision to delete their names as such has

rejected the applications. In fact, the Returning

Officer ought to have conducted an enquiry, ample

time was available with the Returning Officer. The

impugned order is illegal. The learned Advocate to

substantiate his contention that this Court can

interfere with the preparation of the voters list

relies upon the Judgment of the Apex Court in the

case of State of Goa and others Vs. Fouziya Imtiza

Shaikh and others dated 12.03.2021 and submits

that the Apex Court has held that if the

assistance of writ court is required in the

progress of the election proceedings and

facilitating its completion the writ court may

issue orders. The election programme is declared.

4 wp 2801.2022

The date for publishing of the final voters list

is 28.02.2022. The Returning Officer can still

decide the objection of the Petitioners by issuing

notices to the Petitioners and / or by issuing

publication notice.

4. Mr. Dighe, learned Advocate submits that

the Petitioners have alternate remedy available.

Out of these 56 persons the names of 44 persons

were appearing as valid voters even in the

previous elections. Only 12 members are newly

registered. Their names appear in the register of

members maintained by the Society. In such an

event, this Court may not interfere. The learned

Advocate relies on the Judgment of the Division

Bench of this Court at Principal Seat dated

26.11.2021 in Writ Petition No. 5878 of 2021.

5. The provisional voters list is published

on 02.02.2022. The objections were invited to the

provisional voters list from 02.02.2022 to

11.02.2022. The decision on the objections was to

be taken on 21.02.2022 and the final voters list

5 wp 2801.2022

is to be published on 28.02.2022. The election

programme has to be published within 10 to 20 days

of the publication of the final voters list.

6. It appears that the Petitioners had

raised objection to the inclusion of 56 members in

the provisional voters list. The said objection it

appears was referable to Rule 8 of the Rules-2014.

Sub-rule 3 of Rule 8 of Rules-2014 mandates the

election Officer after making the enquiry as it

may deem necessary consider each claim or

objection and give his decision thereto in writing

to the persons concerned and thereafter only final

voters list should be published.

7. In the present case, the Returning

Officer has only observed that names of these 56

persons appear in the register of the members of

the Society and there is no provision to remove

their names from the voters list. The Returning

Officer did not exercise his jurisdiction within

the meaning of Sub-rule 3 of Rule 8 of Rules-2014.

 The       Returning           Officer     certainly      ought        to     have





                                         6                                   wp 2801.2022

 considered               the         objection           and         decided           the

contentions on merits. The Petitioners it appear

had also subsequently on 17.02.2022 presented the

certificate of the Talathi to contend that these

56 persons do not possess any land in the village.

8. The Returning Officer was supposed to

issue notice to those 56 persons before arriving

at conclusion and then ought to have taken

decision. No notice was issued and as observed

above on the basis of the opinion / report

received from the Assistant Registrar that the

names of these persons appear as members in the

register of Societies and that there is no

provision for removing their names from the voters

list rejected the objection.

9. The Returning Officer certainly was

required to carefully consider the objection and

ought to have made an enquiry as contemplated

under Rule 8(3) of Rules-2014. The Returning

Officer had failed to do so.

7 wp 2801.2022

10. Be that as it may, the objection of the

Petitioners is rejected thereby deciding in favour

of 56 persons. These 56 persons are not parties to

the Writ Petition. It would not be possible now to

enter into the enquiry in respect of the

eligibility of these persons on the basis of

owning the property to the extent of 10 Are. The

same would now require enquiry and also Say would

be required to be called from them. 28.02.2022 is

the last date for finalising the voters list.

11. Though we observe that Returning Officer

failed to exercise his powers under Sub-rule 3 of

Rule 8 of Rules-2014 however considering the time

frame for publishing the final voters list and

that these 56 persons against whom objections were

raised and rejected are not parties in the present

Petition, it will not be possible to set aside the

said order in their absence and direct further

steps to be taken. Even otherwise, the Petitioner

can certainly assail the same after the election

is over in the appropriate proceedings

permissible. In that event, all contentions of the

8 wp 2801.2022

Petitioners are kept open to be raised at the

relevant time.

12. The Writ Petition accordingly stands

disposed of. No costs.

13. Authenticated copy be given.

[S. G. DIGE, J.] [S. V. GANGAPURWALA, J.]

marathe