Bombay High Court
Shrikant Balaso Patil And Anr vs State Co Op Election Authority And Ors on 19 January, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:2686-DB
Sayyed 7-WP-429-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.429 OF 2024
1. Shrikant Balasao Patil
Age - 47, Occupation: Agri.,
R/o. Nave Chavre, Tal:-Hathkanagle,
District:- Kolhapur.
2. Rajaram Krishna Patil,
Age - 62, Occupation: Agri.,
R/o. Nave Chavre, Tal:-Hathkanagle,
District:- Kolhapur. ..Petitioners
Versus
1. State Co-operative Election Authority
Maharashtra State, Pune,
Old Central Building Ground Floor,
Pune - 411 032.
2. Assistant Registrar,
Co-operative Societies,
Hathkanagle, District: Kolhapur.
3. Administrator,
Chavre Co-op. Housing Society
Ltd. Chavare, Ichalkaranji,
Tal: Hathkanagle, District: Kolhapur.
4. The Returning Officer &
Auditor Co-operative Societies, Ichalkaranji,
Office: Mahatma Phule Market Building,
Ward no.16, House no.598, Gala no.8 & 9,
Shivajinagar, Ichalkaranji, Tal: Hathkanagle,
District: Kolhapur.
5. Chavre Co-op. Housing Society,
Ltd. Chavare, Ichalkaranji,
Tal: Hathkanagle, District: Kolhapur. ..Respondents
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__________
Mr. Ruturaj Pawar for the Petitioners.
Ms. Pooja Deelip Patil i/by Mr. Deelip Patil Bankar for Respondent No.1
(SCEA).
Ms. Kavita N. Solunke, AGP for Respondent No.2 (State).
Mr. Pramod Patil a/w Mr. Ajit Hon, Mr. Shyamsunder Solanke & Ms.
Sakshi Thombare i/by PNP & Associates for Respondent Nos.3 & 5.
__________
CORAM : A. S. CHANDURKAR &
JITENDRA JAIN, JJ.
DATE : 19th JANUARY 2024
JUDGMENT:
(per Jitendra Jain, J.)
1. By this Petition under Article 226 of the Constitution of India,
the Petitioners have primarily challenged the appointment of
Respondent No.4 - Shri. Subhash Deshmukh as Returning Officer for
conducting election of Respondent No.5 - Society. The Petitioners
although have prayed for other reliefs, but the same were not contested
and therefore, we are only adjudicating the legality of appointment of
Respondent No.4 as Returning Officer.
2. Briefly the facts are as under :-
(i) The Petitioners are members of Respondent No.5 - Co-operative
Housing Society. On account of complaints made by some of the
members of Respondent No.5 with regard to management and
voters' list for election of the society, an Administrator-Respondent
No.3 came to be appointed on 28 th December 2017 by Respondent
No.2 - Assistant Registrar, Co-operative Societies under Section 78-
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A of the Maharashtra Co-operative Societies Act, 1960. On 15 th
May 2018 and 21st December 2019, Respondent No.2 passed
further orders for appointment of new Administrator since earlier
administrator retired.
(ii) On 1st December 2023, Respondent No.4 came to be appointed as
Returning Officer to conduct election of Respondent No.5 - Society
for the period of 2023-2028 .
(iii) On 6th December 2023, Respondent No.4 - Returning Officer under
Rule 76 of the Maharashtra Co-operative Societies (Election to
Committee) Rules notified programme for finalizing the voters' list.
Pursuant thereto, the provisional voters' list was published.
(iv) On 15th December 2023, the Petitioners raised objections with
Respondent No.4 with regard to the provisional voters' list. After
hearing the Petitioners, Respondent No.4 rejected the objections
vide order dated 26th December 2023. There is no further
challenge to the said rejection order by the Petitioners under the
Maharashtra Co-operative Societies Act.
(v) On 1st January 2024, Respondent No.4 published the election
schedule by specifying various time period within which various
stages of the election programme were to be completed. The
election as per the said election programme is scheduled for 4 th
February 2024 and on the same day, the results will be announced.
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3. It is on the above backdrop that the present Petition is filed
challenging the appointment of Respondent No.4 as Returning Officer.
4. Submissions of the Petitioners :-
The Petitioners submitted that Respondent No.4 is on the
panel of "Auditor" as well as on the panel of "Returning Officer" of
Respondent Nos.1 and 2. The Petitioners submitted that as per the first
proviso to Rule 76-B of the Maharashtra Co-operative Societies (Election
to Committee) Rules, an auditor cannot be appointed as Returning
Officer to conduct election. The Petitioners relied upon the definition of
the auditor under Section 154B-1(4) for the said purpose. The
Petitioners, however, admitted that although Respondent No.4 is on the
panel of the auditors, he was never appointed as auditor of Respondent
No.5 - Society. The Petitioners, therefore, submitted that on a conjoint
reading of Section 154B-1 read with proviso to Rule 76-B Maharashtra
Co-operative Societies (Election to Committee) Rules, 2014, Respondent
No.4 is disqualified to be appointed as Returning Officer. The Petitioners
further submitted that in the voters' lists prepared by Respondent No.4
there are more than 40 members against whom a noting is made that
they are dead. It is the submission of the Petitioners that Respondent
No.4 has not prepared voters' lists in accordance with the law and
therefore, the challenge to the conduct of Respondent No.4 in preparing
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the voters' lists in the present Petition. The Petitioners have also raised
various objections with respect to the mismanagement of Respondent
No.5 - Society. The Petitioners, therefore, prayed for quashing of order
appointing Respondent No.4 as Returning Officer and to quash the
election process initiated by him. The Petitioners have relied upon
following the decisions in support of their submissions:
(i) Shivaji Marotrao Suryawanshi vs. State of Maharashtra &
Ors.1,
(ii) Chandrakant Mahadev Patole & Ors. vs. State of
Maharashtra & Ors.2 and
(iii) Dinkarrao Bhauso Jadhav & Ors. vs. The State of
Maharashtra & Ors.3
5. Submissions of the Respondents :-
The Respondent No.1 - Election Authority furnished the list of
the panel of the "Returning Officer" and submitted that although the
name of the Respondent No.4 appears in the said lists as well as on the
panel of the "Auditors" list, he was never appointed as auditor of
Respondent No.5 - Society and therefore, on a true and proper
construction of Rule 76-B, Respondent No.4 cannot be treated as
disqualified to be appointed as Returning Officer. The other Respondents
supported the submissions of Respondent No.1 and further contended
1 [2000(2) Mh. L. J. 306].
2 2009 SCC OnLine Bom 2486 : (2010) 1 AIR Bom R 427.
3 Writ Petition No.872 of 2015 dated 17th April 2015.
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that the election programme has advanced too far and this Court should
not interfere in the election process. They further submitted that insofar
as the voters' lists is concerned against whose name it is mentioned that
the members have died, there should not be any grievance of the
Petitioners as on today, but if at all any voting rights are exercised in
respect of such dead members, the Petitioners can challenge the same at
that point of time. The Respondents therefore, prayed for dismissal of
the present Petition.
Analysis and conclusion :-
6. We have heard the learned counsel for the Petitioners and the
learned counsel for the Respondents and with their assistance have
perused the documents annexed to the Petition.
7. In our view, the first issue which requires consideration of this
Court is as to the interpretation of the first proviso to Rule 76-B of the
Maharashtra Co-operative Societies (Election to Committee) Rules,
2014. The issue which arises is if a person is on the panel of the
"Auditor" as well as on the panel of the "Returning Officer" and such a
person has never been appointed as auditor of the society of which the
election is to be held then whether such a person is disqualified to be a
Returning Officer of such society under proviso to Rule 76-B merely
because his name appears on list of panel of the "Auditor" also.
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8. It is apt to re-produce relevant Rule 76-B of the Maharashtra
Co-operative Societies (Election to Committee) Rules and Section 154B-
1(4) of the Maharashtra Co-operative Societies Act, 1960.
"154B-1. Definitions:
In this Chapter, unless the context otherwise requires,
(1) .....
(2) .....
(3) .....
(4) "Auditor" means a person or an auditing firm who or which has
been empanelled on the panel approved by the State Government under
sub-section (1) of section 81;"
(emphasis supplied)
"76-B. Appointment of Returning Officer to conduct election:
The Returning Officer shall be appointed by the Managing
committee of such Societies from the panel of Returning Officers
approved by SCEA and maintained by Divisional Joint Registrar or from
among the members of the same society who are not desirous to contest
the election before sixty days of the expiry of the tenure of the existing
Committee and communicated the same to the Registrar:
Provided that, no auditor, employee or any member of outgoing
management committee of such Society shall be appointed as Returning
Officer for conducting election to committee of such society:
Provided further that, the Returning Officer so appointed shall
undergo training related to election, from any District Housing Co-
operative Federation or any training institute notified by the State
Government, from time to time:
Provided further that, if committee of such society fails to appoint
Returning Officer, then the Registrar shall appoint the Returning Officer
from the panel."
(emphasis supplied)
9. Admittedly, the name of Respondent No.4 appears on the
panel of "Auditor" required to be appointed under Section 81 of the
Maharashtra Co-operative Societies Act, 1960 as well as on the panel of
"Returning Officer" for the purpose of holding election. There is also no
dispute between the Petitioners and Respondents that Respondent No.4
was never appointed as auditor of Respondent No.5 - Society.
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10. The first proviso to Rule 76-B of the Maharashtra Co-operative
Societies (Election to Committee) Rules provides that no auditor,
employee or any member of outgoing management committee of such
society shall be appointed as Returning Officer for conducting election to
committee of such society. The phrase 'auditor' is not defined in the
Election to Committee Rules. However, Section 154B-1(4) of the
Maharashtra Co-operative Societies Act, 1960 defines "Auditor" for the
purposes of Chapter XIII-B to mean a person or an auditing firm who or
which has been empanelled on the panel approved by the State
Government under sub-section (1) of section 81. In our view, the said
definition of the term "Auditor" cannot be made applicable for the
purpose of interpreting the first proviso to Rule 76-B. The definition
under Section 154B-1 starts with the phrase "unless the context
otherwise requires". This phrase is to be read along with the proviso to
Rule 76-B which provides that no auditor, employee or any member of
outgoing management committee of such Society shall be appointed as
Returning Officer for conducting election. The common thread flowing
between three categories of persons referred to in first proviso to Rule
76-B is that the person who is referred therein should have some interest
in the affairs of the society. The interest of an employee would be his
salary and employment. The interest of any member of outgoing
management committee would be his involvement in the affairs of the
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committee, when the committee was in existence and stretching the said
thread to auditor, it would mean auditor was appointed as auditor and
has audited the books of accounts of the society of which election is to
be conducted. The phrase 'Auditor' would take it is colour from the
words following namely 'employee or member of outgoing management
committee'. It is a legitimate rule of construction to construe words in
an Act of Legislature with reference to words found in immediate
connection with them. Associated words take their meaning from one
another under the doctrine of noscitur a sociis, the philosophy of which
is that the meaning of the doubtful word may be ascertained by
reference to the meaning of words associated with it. Therefore, in our
view, if a person was never appointed as an auditor of the society of
which election is required to be held then he cannot suffer the
disqualification specified in first proviso to Rule 76-B. Merely because, a
person is on the panel of the "Auditor" and also on the panel of
"Returning Officer" that would not attract disqualification if such a
person was never appointed as auditor of the society for which he is
appointed as Returning Officer to hold election. Where the context
makes the definition given in the interpretation clause inapplicable, a
defined word when used in the body of the statute may have to be given
a meaning different from that contained in the interpretation clause.
Repugnancy of a definition arises only when the definition does not
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agree with the subject or context. In our view, therefore, the definition
of 'Auditor' under section 154B-1(4) would not be applicable for
interpreting proviso to Rule 76-B. Therefore, in our view, the Petitioners'
contention that although Respondent No.4 was never an auditor of
Respondent No.5 society but since he is empanelled on the list of the
"Auditor" as well as the "Returning Officer", he is disqualified under Rule
76-B of the Maharashtra Co-operative Societies (Election to Committee)
Rules is to be rejected.
11. Rule 76-B prescribes that the Returning Officer shall be
appointed from the panel of Returning Officers approved by State Co-
operative Election Authority (for short "SCEA"). The first proviso to the
said Rule can be broken up into following parts:
(i) No
(ii) auditor, employee or any member of outgoing management
committee
(iii) of such society
(iv) shall be appointed as returning officer for conducting election
to committee of such society.
12. In our view, the phrase "such society" means the society of
which the Returning Officer is appointed to conduct election. The word
'of' means belonging to or pertaining to or connected with or associated
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with. The said word 'of' is also a word of identification and relation. It
would suggest a necessity of some links, connections or associations.
Therefore, the word 'of' preceding such society goes with all the three
persons, who are named in the proviso, namely auditor, employee and
any member of outgoing management committee. Therefore, the
reading of the first proviso to Rule 76-B would mean, no auditor of such
society or no employee of such society or no member of such society of
outgoing management committee of such society shall be appointed as
Returning Officer for conducting election to committee of such society.
If the phrase "of such society" is read to mean that it applies only to
members of management committee then when it comes to "employee",
a question would arise, whose employee? Therefore, the only way to
give purposeful meaning to the first proviso to Rule 76-B would be to
mean that "of such society" would go with all 3 entities specified
therein. The word "such society" would be society of which election is
to be conducted and therefore auditor has to be auditor of such society
and when read with Section 81 would be an auditor appointed under
Section 81 of such society. We are not adding/deleting any words in
Rule 76-B but are only interpreting the word/phrase as enacted.
Therefore, the auditor which is prescribed in first proviso to Rule 76-B
would be an auditor, who is appointed under Section 81 of the
Maharashtra Cooperative Societies Act, 1960 as auditor of such society
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of which the election is to be conducted. If a person was never
appointed as an auditor of such a society, then he does not suffer a
disqualification under first proviso to Rule 76-B for being appointed as
Returning Officer. Although empanelled in the list of "Auditor" as well
as list of "Returning Officer".
13. Rule 2(16) of the Maharashtra Cooperative Societies Election
Committee Rules defines "Returning Officer" to mean "any person"
appointed from the panel approved by SCEA in case of type "E"
societies" and the Respondent No.5 is a type "E" society. We have not
been shown any provision, rules or any other document by which a
person, who is empanelled in the list of "Auditor" cannot be empanelled
on the list of the "Returning Officer". This would indicate that a person
can be empanelled as an Auditor as well as Returning Officer, but for
being disqualified under first proviso to Rule 76-B, such a person should
not have been appointed as an auditor of the society of which the
election is to be conducted and it is only such a person who cannot be
appointed as a Returning Officer.
14. Thirdly, the Petitioners themselves acceded to the appointment
of Respondent No.4 as Returning Officer by raising objections to the
voters' lists prepared by Respondent No.4. The Petitioners did not raise
any objections to the appointment of Respondent No.4 as Returning
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Officer while filing the objection to the voters' lists. Therefore having
submitted to the appointment of Respondent No.4 by conduct, the
Petitioners cannot now turn around and challenge the appointment of
Respondent No.4 as Returning Officer. It is a settled position that a
person cannot blow hot and cold at the same time. The principle of
approbate and reprobate is applicable. Therefore on this count also, the
Petitioners challenge to the appointment of Respondent No.4 as
Returning Officer is required to be rejected.
15. Fourthly, insofar as the preparation of the voters' lists is
concerned, merely because against name of certain members it is
mentioned that they are dead, that would not mean that the voters' list
is not prepared correctly. If at the time of voting any vote is exercised
against the members who are dead then at that point of time the
Petitioners will be free to challenge in appropriate proceedings, but as of
today no fault can be found in the preparation of the voters' list by
Respondent No.4. This objection was also raised by the Petitioners with
Respondent No. 4 on 15th December 2023 and the same was rejected by
Respondent No.4. The order of rejection has not been challenged by the
Petitioners and therefore on this count also the Petitioners cannot
challenge the preparation of the voters' list by Respondent No. 4 and
also the appointment of Respondent No.4.
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16. The election process is in pursuance to the reasons for
appointment of the administrator and, therefore, it is for implementing
the orders dated 28th December 2017, 15th May 2019 and 21st December
2009 and, therefore, prayer to the said grievance stands redressed.
17. It is also important to note that as per the election programme
published on 1st January 2024, out of ten stages, today stage six is
reached which provides for filing of the nomination of the candidates for
the election. At this stage, in our view, the Court would be slow in
interfering in the election schedule as the same has commenced and
therefore, even on this count, the petition fails.
18. We now propose to deal with the decisions relied upon by the
Petitioners. In our view, none of these decisions deal with the first
proviso to Rule 76-B and therefore same cannot assist the Petitioners.
Furthermore, the decisions are also distinguishable on facts and
therefore same are of no assistance to the Petitioners in adjudication of
the present Petition. The voters list prepared by Respondent No.4 in
which against some members "dead" is mentioned because they have
expired cannot be said that voters' list is not prepared correctly.
Therefore on this count the exercise of our jurisdiction to stall the
election process cannot be invoked.
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19. We make it clear that all the contentions of the Petitioners
with respect to challenge to the election results are kept open in
appropriate proceedings.
20. In view of the above reasoning, the Petition is dismissed with
no order as to costs.
(JITENDRA JAIN, J.) (A. S. CHANDURKAR, J.)
Signed by: Sayyed Saeed Ali
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Designation: PA To Honourable Judge
Date: 20/01/2024 10:41:38
