Bombay High Court
Prabhat Daulatrao Patil vs The State Of Maharashtra Through ... on 19 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1124-DB
WP-13315-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13315 OF 2023
Prabhat s/o Daulatrao Patil
Age: 80 years, Occu.: Agri.,
R/o. Digras, Tq. Udgir, Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra
Through Principal Secretary,
Cooperation Department,
Mantralaya, Mumbai-32.
2. State Cooperative Election Authority,
Maharashtra State, Pune,
Central Building, Pune,
Through its Commissioner/Secretary
3. District Cooperative Election Officer,
Latur @ District Deputy Registrar,
Cooperative Societies, Latur.
4. Assistant Registrar,
Cooperative Societies,
Udgir, Tq. Udgir, Dist. Latur.
5. Udgir Taluka Shetkari Sahakari
Kharedi Vikri Sangh, Maryadit,
Udgir, Through its Secretary.
6. Deoni Taluka Shetkari Sahakari
Kharedi Vikri Sangh, Maryadit,
Deoni, Through its Secretary.
7. Jalkot Taluka Shetkari Sahakari
Kharedi Vkiri Sangh, Maryadit,
Jalkot, Through its Secretary.
[1]
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8. Shirur Anantpal Taluka Shetkari
Sahakari Kharedi Vkiri Sangh
Maryadit, Shirur Anantpal,
Through its Secretary.
9. Chakur Taluka Shetkari Sahakari
Kharedi Vikri Sangh Maryadit,
Chakur, Through its Secretary.
10. Latur Taluka Shetkari Sahakari
Kharedi Vikri Sangh Maryadit,
Latur, Through its Secretary.
(Respondent Nos.7 to 10 deleted
as per Court order dated 07.11.2023) .. Respondents
..........
Mr. M. S. Deshmukh, Advocate for the Petitioner.
Mr. P. S. Patil, AGP for Respondent Nos.1 and 4 - State.
Mr. V. H. Dighe, Advocate for Respondent Nos.2 and 3.
Mr. A. N. Irpatgire, Advocate for Respondent No.5.
Mr. K. P. Rodge, Advocate for Respondent No.6.
..........
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
RESERVED ON : JANUARY 09, 2024.
PRONOUNCED ON : JANUARY 19, 2024.
JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :
-
. Rule. Rule made returnable forthwith. Heard learned Counsel for the
appearing parties finally by consent.
2. Present writ petition has been filed by the petitioner for following
reliefs :-
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"A) Issue Writ of Mandamus and or other appropriate
Writ or order in the like nature thereby direct Respondent
No.2 to 4 to direct the Respondent No.5-Udgir Sangh to
submit list of valid members to prepare provisional voters list
for the purposes of ensuing election of Respondent No.5-
Udgir Sangh only containing names of members who are
falling within the area of operation of Respondent No.5-Udgir
Sangh by keeping in mind statutory order passed by
Respondent No.4-Assistant Registrar Cooperative Society,
Udgir dated 18.04.2012 (Anne.-F) as well as report submitted
by Respondent No.4 dated 18.08.2023 (Anne.-K).
B) By an interim order the Respondent Nos.2 to 4 be
directed to direct the Respondent No.5-Udgir Sangh to submit
list of valid members to prepare provisional voters list for the
purposes of ensuing election of Respondent No.5 Udgir Sangh
only containing names of members who are falling within the
area of operation of respondent No.5 Udgir Sangh by keeping
in mind statutory order passed by respondent No.4 Assistant
Registrar Cooperative Society, Udgir dated 18.04.2012
(Anne.-F) as well as Report submitted by Respondent No.4
dated 18.08.2023 (Anne.-K), pending hearing and final
disposal of instant petition."
3. The petitioner contends that he is resident of Digras, Taluka Udgir,
District Latur and he is a valid member of respondent No.5 and, therefore,
entitled to participate and vote in the election process of respondent No.5.
Respondent No.5 was established and registered in the year 1974 having
area of operation of entire Udgir Taluka, however, in the year 1999, two
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Talukas, namely, Deoni and Jalkot came to be established carving out some
area from erstwhile Udgir Taluka. Thereafter, two independent Cooperative
Kharedi Vikri Sangh namely respondent Nos.6 and 7 came to be established
in the year 2002 under the provisions of Maharashtra Cooperative Societies
Act, 1960 having area of operation of those respective Talukas. Respondent
No.3 was bound to ask respondent Nos.6 and 7 to prepare valid
membership list by incorporating names of members in the membership
register from the respective Talukas as per their by-laws and upon
preparation of such list, the consequence should have been to remove the
names of those persons from the register of membership from respondent
No.5. Respondent No.5 failed to hold elections within specified time and,
therefore by invoking powers under Section 73H of the Maharashtra
Cooperative Societies Act, 1960, Administrator came to be appointed on
10.10.2011. Thereafter the elections of Managing Committee of respondent
No.5 was held in the year 2016 for the term of 2016-2021. The Managing
Committee which came to be elected still continued to hold the office till
the filing of the petition. But prior to that when Government Administrator
was appointed in 2011, a resolution was passed to send a proposal dated
31.10.2011 for request to transfer members of respondent No.5, who were
residing within the area of operation of newly established respondent Nos.6
and 7. The said proposal was forwarded by respondent No.4 to respondent
No.3 by letter dated 02.11.2011. Resolution No.2 was adopted by
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respondent No.5 in the meeting held on 07.04.2012 thereby cancelling
membership of those members, who were not falling within the area of
operation of respondent No.5, in view of Section 25 of the Maharashtra
Cooperative Societies Act, 1960. The share amounts of those members
were kept in suspense account. In spite of repeated requests, the newly
established respondent Nos.6, 7 and 9 were not incorporating the names of
the members those falling within their jurisdiction, who were the members
of erstwhile respondent No.5. Respondent No.4 thereafter addressed a
letter dated 28.02.2012 to respondent No.3 to issue directions to respective
Sangh's to effect the said enrollment of the members. Even after lapse of
more than ten years of order dated 20.03.2012 issued by respondent No.3
to take action as per the letter of Administrator appointed on respondent
No.5 dated 27.02.2012, respondent Nos.6, 7, 9 and 10 have failed to make
compliance of the same. The petitioner has given a letter on 05.06.2023 to
respondent No.2 pointing out all these facts and to carry out the orders and
in view of his representation, the respondent No.2 asked respondent No.3
by order dated 13.06.2023 to take appropriate action in the light of the
representation. Still, there is no progress, hence, the petitioner has filed the
present petition.
4. Heard learned Advocate Mr. M. S. Deshmukh for the petitioner,
learned AGP Mr. P. S. Patil for respondent Nos.1 and 4, learned Advocate
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Mr. V. H. Dighe for respondent Nos.2 and 3, learned Advocate Mr. A. N.
Irpatgire for respondent No.5, and learned Advocate Mr. K. P. Rodge for
respondent No.6.
5. Learned Advocate for the petitioner has taken us through the
documents produced on record to support the contention of the petitioner.
The fact is not in dispute that after the two Talukas were established from
the jurisdiction of erstwhile Taluka Udgir, respondent Nos.6 and 7 were
formed and, therefore, the learned Advocate for the petitioner submits that
the list of members ought to have been therefore prepared. The petitioner
is agitating since long, but still the earlier elections were held without
adhering to the resolution passed and order passed as aforesaid. When one
Sangh i.e. respondent No.5 had passed the resolution regarding
cancellation/transfer of members, then the consequent or reciprocal action
ought to have been taken by respondent Nos.6 and 7. Respondent No.2
had also directed respondent Nos.6 and 7 to carry out those resolutions,
but respondent Nos.6 and 7 appear to be stubborn on the point.
6. The learned Advocate for the petitioner has relied on the decisions of
the Hon'ble Supreme Court as well as this Court, which are as follows :-
I) Ahmednagar Zilla S. D. V. and P. Sangh Ltd. And
another Vs. State of Maharashtra and others, [AIR 2004 SC
1329];
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II) Pundlik Vs. State of Maharashtra and others,
(2005) 7 SCC 181;
III) Ankita Gaurav Mungad and others Vs. The State of
Maharashtra and others, decided by this Court in Writ
Petition No.511 of 2023 dated 27.03.2023.
IV) Ankushbhau s/o Juglal Baghele and others Vs.
State of Maharashtra and others, decided by this Court
Bench at Nagpur on 13.04.2022.
V) Union Territory of Ladakh and Ors. Vs. Jammu
and Kashmur National Conference and another, AIR Online
2023 SC 739.
7. He further submitted that though in the affidavit-in-reply of
respondent No.5 it is said that it is a premature action of the petitioner as
elections are not proposed to be held, yet in Ahmednagar Zilla S. D. V. and
P. Sangh Ltd. (Supra), it has been observed where the voters list has been
prepared on the basis of non-existant rules, it would be illegal and the
Court could interfere under Article 226 of the Constitution of India. The
preparation of voters list as per the rules is necessary, then only the
elections can be held properly in a fair manner.
8. The affidavit-in-reply has been filed by one Sangmeshwar s/o
Vishvambhar Badnale, District Deputy Registrar, Cooperative Societies and
District Cooperative Election Officer, Latur. It is on behalf of respondent
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Nos.2 and 3. He admitted the fact that the names of certain members have
not been deleted from the membership register of respondent No.5, but in
the last election of respondent No.5 which took place in the year 2016,
those members in fact participated in the elections as their names were not
deleted. The application/representation has been given by the petitioner to
the office of respondent No.2 on 05.06.2023 and thereafter the
communication has been made by respondent No.2 to respondent No.3.
Respondent No.5 appears to have responded to the communication of
respondent No.3, wherein the respondent No.5 had stated that there is no
provision to cancel the membership under Section 25 of the Maharashtra
Cooperative Societies Act. There was Administrator on respondent No.5 till
11.09.2014, but the Administrator had not taken any steps in respect of
deletion of the names. The same objection was taken when the elections of
2016 were held that certain members are residing outside the jurisdiction
of the society. Those objections were rejected by the Election Officer, Latur
on 31.03.2016. No steps were taken by any person to set aside the said
order. The term of respondent No.5 Udgir Sangh is already expired and
due to the postponement of election by the Government, elections have not
been held. Now, the stay imposed by the government in holding the
elections has been lifted. The process would be undertaken including the
stage of preparation of voters list. The provisional list would be then
published in accordance with Rules 6 to 11 of Maharashtra Cooperative
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Societies (Election to Committee) Rules, 2014.
9. Learned Advocate for respondent Nos.2 and 3 by submitting the
submissions on the basis of the affidavit-in-reply submitted that the
schedule has been published in respect of preparation of provisional voters
list. The petitioner may raise any objection, if he want.
10. Affidavit-in-reply on behalf of respondent No.5 has been filed by one
Maroti Kerba Biradar, who is the Manager of respondent No.5. It is stated
that the writ petition virtually seeks the execution of communication dated
18.04.2012, which cannot be allowed in the year 2023. Petitioner had
added respondent Nos.6, 7, 9 and 10, but chosen to delete the names of
those respondents at his own risk. In the said circumstance, writ petition
suffers from non-joinder of necessary parties. The provisional voters list
would be prepared by exercising powers under the provisions of
Maharashtra Cooperative Societies (Election to Committee) Rules, 2014,
but in that process respondent Nos.2 to 4 have no authority to decide the
entitlement of a particular person to hold the membership. The petition is
premature as regards the act of preparation of the voters list. The
petitioner is having remedy to object the said list, after its publication.
11. Learned Advocate for respondent No.5 while supporting the said
affidavit-in-reply submitted that the petition is premature. He submitted
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that a membership of a member of Cooperative Society will not cease
automatically that too on the basis of action taken by Administrator. He
relied on the decision in S. M. Kamble and others Vs. Jt. Registrar, Co-
operative Societies, CIDCO, Navi Mumbai and others, [2007 (6) Mh.L.J.
819]. In the above said decision, it was held that a person ceases to be a
member of the society on his resignation being accepted or on his transfer
of the whole share or interest in the society to another member or on his
death or on his removal or expulsion from the society. Further, in the said
decision, the Administrator appointed on the co-operative society has
declared that 27 members of the society were not eligible to be members
and ceased to be members since they are not residing in the State of
Maharashtra for required period of 15 years or more. The action of
Administrator was held to be illegal by this Court.
12. Here, we echo the observations by this Court in S. M. Kamble and
others (Supra) on the point that Section 25 of Maharashtra Cooperative
Societies Act, 1960 provide for Cessation of membership in a particular
way. Section 25 of the Maharashtra Cooperative Societies Act, 1960 reads
thus :-
"25. Cessation of membership -
A person shall cease to be a member of a society on his
resignation from the membership thereof being accepted, or on the
transfer of the whole of his share or interest in the society to another
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member, or on his death, or removal or expulsion 'from the society,
or where a firm, company, any other corporate body, society or trust
is a member on its dissolution or ceasing to exist.
13. Here, it has not been pointed out by the petitioner that any such act
as stated in Section 25 of the Maharashtra Cooperative Societies Act has
taken place in respect of the members of erstwhile respondent No.5 or
present respondent No.5. In view of the creation of the two Taulkas, the
Administrator could not have taken a decision to transfer the membership
on his own. In fact, there is no provision for transfer at the behest of
Administrator. Whatever action was taken by the Administrator was way
back in the year 2011. Whether passing of unilateral resolution or
unilateral action by respondent No.5 would have amounted the cessation of
membership is a factual aspect, which cannot be gone into in the writ
jurisdiction of this Court, but the fact remains is that those members appear
to have participated in the election of 2016. There is no documentary
proof produced by the petitioner to prove that he had raised the similar
objection or taken objection to the voters list prepared at the time of
election of 2016. Whatever representation he has made is on 05.06.2023.
14. The Election Officer has given it in writing and also that the
programme of preparation of provisional voters list would be undertaken
and then, certainly, there would be a liberty to the petitioner to take
objection which will have to be decided by the concerned authority. We
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have gone through the decisions relied upon by the petitioner, but those are
not applicable to the facts of the present case. Under the said
circumstance, we are of the considered view that no case is made out for
exercise of constitutional powers of this Court under Article 226 of the
Constitution of India.
15. The writ petition thus stands dismissed.
16. Rule stands discharged.
[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
