Bombay High Court
Nitin Baburao Hiwse And Another vs State Of Maharashtra, Thr. Secretory Of ... on 25 January, 2024
Author: Avinash G. Gharote
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:1009-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3390/2023
5
PETITIONERS 1. Nitin Baburao Hiwse
Aged 59 Years, President, Tivas Santra
Bagayatdar Sahakari Sanstha Sr. No.58,
Amravati Division, Amravati.
2. Subhash Tukaram Raghatate,
Aged 71 years, President Chandrapur
Zilla Krushi Audyogic Sahakari Sanstha,
Sr. No.10 (Nagpur Division), Nagpur.
...VERSUS...
RESPONDENTS 1. The State of Maharashtra
Through its Secretary of Co-operation and
Marketing Department, Mantralaya,
Mumbai.
2. The Maharashtra State Co-operative
Election Authority, Pune.
3. The Director of Marketing, Pune,
Central Building, Pune.
4. District Co-operative Election Officer,
cum Divisional Joint Registrar, Co-operative
Societies, Malhotra House, 6th Floor, Opp.
GPO, Fort, Mumbai.
5. The Returning Officer, for the Elections of
Maharashtra State Sahakari Marketing
Federation Ltd. Mumbai, Malhotra House, 6 th
Floor, Opp GPO, Fort, Mumbai.
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6. Maharashtra State Sahakari Marketing
Federation Ltd., Through its Managing
Director, Kanmoor House, 281/87, Narsi
Nath Street, Masjid Bandar, Mumbai -
400009
INTERVENERS 7. Sunil s/o Bhauraoji Funde
aged about 58 years,
Occ. Agriculturist, R/o Sakoli, Tah. Sakoli,
District Bhandara.
(Amendment as per Court's order Dt.
09/06/2023)
(Added respondent No.7/Intervener as per
Court's order Dtd. 09/06/23)
8. Rohit s/o Dilip Nikam
Aged - 47 years, Occ- Business,
Director, Jalgaon District Agro-Indul
Multipurpose Service Co-operative Sanstha
Maryadit [Nashik Division], Visanji Nagar,
Jalgaon, Dist. Jalgaon.
(Amendment carried out as per Hon'ble
Court's order dated 30/10/2023)
(Amended/Added R. No.8 after R.No.7)
Mr. M.V. Samarth, Senior Advocate a/b Mr. V.P. Ingle, Advocate for petitioners
Mrs. K.R. Deshpande, AGP for respondent nos.1, 3 and 4
Mr. S.S. Ghate, Advocate for respondent no.2
Mr. P.D. Meghe, Advocate for respondent no.6
Mr. A.M. Ghare and Mr. Onkar Ghare, Advocates for respondent no.7
Mr. D.M. Kale, Advocate for respondent no.8
WITH
WRIT PETITION NO.3120/2023
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PETITIONERS 1. Shri Sunil s/o Bhauraoji Funde
Aged 58 Yrs., Occ. Service, R/o Sakoli,
Tahsil Sakoli, District Bhandara.
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2. Shri Babanrao s/o Ajabrao Bhad,
Aged 64 yrs., Occ : Service, R/o Sillewada,
Tahsil Saoner, District Nagpur.
3. Shri Shivhari s/o Rumaji Bhad,
Aged 58 yrs., Occ : Service,
R/o Tamaswadi, Tahsil Parshioni, District
Bhandara.
...VERSUS...
RESPONDENTS 1. The State of Maharashtra, through its
Secretary of Co-operation and Marketing
Department, Mantralaya, Mumbai.
2. The Director of Marketing, Pune,
Central Building, Pune.
3. District Co-operative Election Officer,
cum Divisional Joint Registrar Co-operative
Societies, Alhotra House, 6th Floor, Opposite
GPO, Fort, Mumbai.
4. The Returning Officer, for the Election of
Maharashtra State Sahakari Marketing
Federation Ltd. Mumbai, Malhotra House, 6th
Floor, Opposite GPO, Fort, Mumbai.
5. Maharashtra State Sahakari Marketing
Federation Ltd., Mumbai, through its
Managing Director, Kanmoor House, 281/87,
Narsi Nath Street, Masjid Bandar, Mumbai -
400 009.
INTERVENERS 6. Subhash Sitaram Raghtate
Aged 71 years Occ. Agriculturist, President,
Chandrapur Zilla Krishi Audyogik Sahakari
Sanstha Chandrapur (Sr. No.10) Nagpur
Division.
(Amendment as per Court's order dated
20.06.2023)
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7. The State Co-operative Election Authority,
through its Commissioner, Central Building,
Pune.
(Amendment as per Court's order dated
20.06.2023)
(Amended/Added R. Nos.6 & 7)
Mr. A.M. Ghare and Mr. Onkar Ghare, Advocates for petitioners
Mrs. K.R. Deshpande, AGP for respondent nos.1 to 4
Mr. P.D. Meghe, Advocate for respondent no.5
Mr. S.S. Ghate, Advocate for respondent no.7
Mr. D.M.Kale, Mr. S.P. Bhandarkar & Mr. Ram Karode, Advocates for Intervenor
CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATE : 25/01/2024 5
ORAL JUDGMENT (PER : AVINASH G. GHAROTE, J.)
1. Heard. Rule. Rule made returnable forthwith. Heard
finally with the consent of the learned counsels for the rival 10
parties.
2. Writ Petition No.3390/2023 questions the order
dated 17/05/2023 (pg.114) passed by the respondent no.1/State
granting stay to the elections to the Board of Director/Managing
Committee of the respondent no.6 - Federation, on account of 15
the resolution passed in the special meeting of the respondent
no.6 dated 21/02/2023, to amend its bye-law Nos.41(1) and 41
(3), which was submitted to the respondent no.3 for approval.
The stay was granted in the purported exercise of the powers
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under Section 157 of the of the Maharashtra Co-operative
Societies Act, 1960 ("MCS Act" for short hereinafter) and so also
the consequent order dated 18/05/2023 passed by the Returning
Officer (pg.116), whereby in pursuance to the communication
dated 17/05/2023, stay to the elections to the respondent no.6 - 5
Federation has been communicated.
3. Mr. Samarth, learned Senior Counsel for the
petitioners in Writ Petition No.3390/2023 contends that the
order dated 17/05/2023, which is claimed to be passed in
exercise of the power under Section 157 the MCS Act is beyond 10
the scope and ambit of the powers conferred upon the State
under that provision and therefore is without jurisdiction. It is
further contended that though the reasons, as indicated in the
order dated 17/05/2023 for its passing speak about the
directions dated 06/10/2015 issued by the respondent no.1 for 15
correction in the bye-laws of the respondent no.6 and the change
in the bye-laws No.37 and 41 (1) being necessary, which was
proposed, the same cannot be held to be legal and proper, on that
count. He further invites our attention to the language of Section
157 of the MCS Act to substantiate his contention. 20
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4. Mr. Ghare, learned counsel for the respondent no.7
in Writ Petition No.3390/2023 supports the impugned orders and
contends that since a need was felt to amend the bye-laws of the
respondent no.6, with an intention that a larger number of
persons could participate in the elections to be held for its Board 5
of Directors in a special meeting held on 21/02/2023, the change
in respect of bye-law No.41 (1) was resolved to be so made and
the proposal was submitted for approval of the respondent no.3
(Director Marketing) on 02/03/2023, which ultimately came to
be approved on 19/05/2023 and therefore, since the voters net 10
was widened, it was necessary to conduct the election of the
respondent no.6 afresh, which is what is prayed for in Writ
Petition No.3120/2023. It is, therefore, submitted by Mr. Ghare,
learned counsel for the respondent no.7, that the elections are
now required to be directed to be held in terms of the amended 15
bye-laws of the respondent no.6 - Federation, for which, he
places reliance upon Ahmednagar Zilla S.D.V. & P. Sangh Ltd. and
another Vs. State of Maharashtra and others (2004) 1 SCC 133.
5. There was yet another petition, namely, Writ Petition
No.3492/2023 challenging the order dated 19/05/2023 by the 20
respondent no.3, accepting the amendment to the bye-laws of the
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respondent no.6 -Federation. However, since there is an alternate
remedy available under Section 152 (1) of the MCS Act to the
petitioners therein, the said petition has been permitted to be
withdrawn with liberty to avail of the alternate remedy.
Since the term of the earlier elected Board of
Directors of the respondent no.6 ended in the year 2019, fresh
elections to the Board of Directors were required to be held. The
respondent no.2, which is the Maharashtra State Co-operative
Election Authority with this intent had published election 10
programme in that regard on 08/05/2023 as under (pg.86) :
Sr. Date and Time Election programme details
No.
01 09/05/2023 to Filing of nomination papers.
15/05/2023
02 16/05/2023 Scrutiny of the nomination papers.
at 11:00 a.m.
03 17/05/2023 at Publication of list of valid nominations.
11:00 a.m.
04 17/05/2023 to Withdrawal of nomination papers by the
31/05/2023 candidates.
between 11:00
a.m. to 3:00 p.m.
05 01/06/2023 Allotment of symbols and publication of final
list of candidates.
06 11/06/2023 Polling by the voters.
between
9:00 a.m. to 5:00
p.m.
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07 13/06/2023 Counting of votes and declaration of poll
from 9:00 a.m. result immediately.
7. Needless to say that prior to this, the entire process
of publication of the provisional voters list, calling of objections
and publication of the final voters list was already over. The
election programme was worked out and on 17/05/2023, the 5
final list of the candidates, consequent to the scrutiny was
published (pg.104), in which, the petitioner nos.1 and 2 in Writ
Petition No.3390/2023 were included in the category of ordinary
constituency for Nagpur Division at serial nos.2 and 4. In view of
the interim order dated 15/05/2023 passed by this Court in Writ 10
petition No.3120/2023, the name of the respondent no.7
(petitioner in Writ Petition No.3120/2023) also came to be
included at serial no.3 in the aforesaid final list of candidates. It
is at this juncture that considering the interim order dated
15/05/2023 passed by this Court in Writ Petition No.3120/2023, 15
the respondent no.1 by the order dated 17/05/2023 (pg.114) in
exercise of the powers under Section 157 of the MCS Act granted
stay to the election process, as a result of which, the respondent
no.2 also by the communication dated 18/05/2023 intimated the
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8. For the purpose of appreciating the challenge to the
order dated 17/05/2023 the provisions of Section 157 of the
MCS Act are necessary to be considered. For the sake of ready
reference, Section 157 of the MCS is reproduced as under :-
"157. Power to exempt societies from provisions of Act. 5
The State Government may, by general or special order
exempt any society or class of societies from any of the provisions
of this Act, or of the rules made thereunder, or may direct that
such provisions shall apply to such society or class of societies with
such modifications not affecting the substance thereof as may be 10
specified in the order.
Provided that, no order to the prejudice of any society shall
be passed, without an opportunity being given to such society to
represent its case"
9. A perusal of the language of Section 157 of the MCS
Act, would indicate that it confers powers upon the State to
exempt, by general or special order any society or class of
societies, from any of the provisions of the MCS Act or the rules
made thereunder. It would thus be apparent that Section 157 of 20
the MCS Act, does not confer any power upon the respondent
no.1 to postpone the elections of the respondent no.6, in exercise
of the powers conferred therein. The order dated 17/05/2023
(pg.114), therefore, will have to be held to be infirm and without
jurisdiction, considering the language of Section 157 of the MCS 25
Act.
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10. Though Mr. Ghare, learned counsel for the
respondent no.7 in Writ Petition No.3390/2023 seeks to place
reliance upon the provisions of Section 73 CC of the MCS Act, to
contend that the order dated 17/05/2023 (pg.114) has to be
related to the powers as conferred upon the respondent no.1 5
under the said provision, however, Section 73 CC of the MCS Act
would indicate that the power of the State Government to
postpone the elections as contained therein are only on account
of (i) scarcity (ii) drought (iii) flood (iv) fire or any other
national calamity or (v) rainy season or (vi) due to scarcity, 10
drought, flood, fire, hailstorms or any other natural calamity,
farmers, farm labourers, or other persons on large scale have
suffered, resulting in reduction in numbers of voters; and (vii) on
the implementation of any Government Scheme made for their
rehabilitation, there is likelihood of increase of numbers of voters 15
or (viii) due to any election programme of the State, Legislative
Assembly, or Council or House of the People or local authority
coinciding with the election programme of any society or class of
societies; (ix) if the State is of the opinion that it is not in the
public interest to hold the elections to any society or class of 20
societies. It is only on the above grounds and then too for the
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reasons to be recorded in writing, notwithstanding anything
contained in the MCS Act and the rules made thereunder or the
bye-laws of the society that the State can postpone the election of
any society or class of societies, for a period not exceeding six
months at a time, the total period of extension being not more 5
than one year in aggregate. It would thus be apparent that none
of the conditions as indicated above in Section 73 CC of the MCS
Act, can be said to be in existence so as to consider the plea that
the order dated 17/05/2023 could be related to exercise of the
powers of the State to postpone the elections under 10
Section 73 CC of the MCS Act. Thus, reliance upon Section 73 CC
of the MCS Act, by Mr. Ghare, learned counsel for the respondent
no.7 in Writ Petition No.3390/2023 to justify the order dated
17/05/2023, is clearly misplaced.
11. It is also material to note that when the election 15
programme was declared and was being implemented, the bye-
laws of the respondent no.6, which were extant then (pg.25)
were what were considered for the purpose of preparing the final
voters list, which came to be published on 24/04/2023. The
special meeting for amendment to the bye-law No.41 (1) though 20
held on 21/02/2023 and the proposal for its approval came to be
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submitted to the respondent no.3 on 02/03/2023, no orders
were passed thereupon, which continued to be the position till
19/05/2023, when the order dated 19/05/2023 (pg.92-D in WP
No.3120/2023) was passed, allowing amendment to the bye-laws
which included amendment to bye-law Nos.41(1), 41 (3) and 42 5
(b), bye-law Nos.41 (1) and 41 (3) relating to the eligibility in
respect of a person seeking to be elected to the post of Director of
the respondent no.6. However, what is material to note is that the
order dated 19/05/2023 by which the amendment to the bye-
laws of the respondent no.6 was allowed, specifically states, that 10
the amended bye-laws, would come into effect from the date of
the order i.e. 19/05/2023. This being the position, the
contention, that the entire election programme which already
had progressed to the stage of publication of the final list of
candidates, in our considered opinion, cannot be scrapped and 15
the position be relegated back to the stage of preparing the
preliminary voters list. Though reliance has been placed by
Mr. Ghare, learned counsel for the petitioners upon Ahmednagar
Zilla S.D.V. & P. Sangh Ltd. (supra) but that was a case, in which
the amendment to the bye-laws was approved before the 20
publication of the final voters list and consequent to the
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amendment, the voters list was prepared for holding election for
constituting the Managing Committee of the Society. It was
ultimately held that the amendment of the bye-laws was not in
conformity with the law applicable and therefore, the electoral
roll prepared on its basis would have to fall down, as the 5
conditions precedent for amending the bye-laws had not been
complied with. In the instant case, the final electoral roll, has
been prepared on the basis of the bye-laws, which were legal and
valid on the date of its preparation. Not only this, the election
programme in pursuance thereto was published and had 10
progressed to a stage where the final list of candidates, came to
be published after scrutiny on 24/04/2023. The amendments to
the bye-laws were approved by the respondent no.3 only on
19/05/2023 and it was specifically directed that they would
come into effect consequent to the date of the order. 15
12. The learned Division Bench of this Court at
Aurangabad in Writ Petition No.7252/2023 and other connected
matters decided on 30/06/2023 while considering the powers of
the State under Section 73 CC and 157 of the MCS Act has held
that exercise of the powers thereunder has to be for reasonable 20
and cogent reasons and even if these are present, the mandate of
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the provision, cannot be used to extend the outer limit of one
year, considering which, in view of the admitted position that the
term of the party stands over in 2019, the reasons given in the
impugned order cannot be used to extend it beyond what is
13. In that view of the matter, the claim for conducting
the election in consonance with the amended bye-laws, which
were permitted to be amended by the order dated 19/05/2023,
by scrapping the entire election process, which had already
reached the stage, as indicated above, cannot be entertained, as 10
once the election process is commenced the same has to be
concluded to its logical end, apart from which, the respondent
no.2 has no such power to cancel the elections on account of
subsequent amendments to the bye-laws.
14. In view of the aforesaid discussion, Writ Petition 15
No.3120/2023 seeking holding of elections on the basis of the
amended bye-laws fails and is dismissed.
15. So also for the reasons, as stated above, the order
dated 17/05/2023 (pg.114) passed by the respondent no.1, in
exercise of the power under Section 157 of the MCS Act being 20
without jurisdiction and authority, is hereby quashed and set
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aside, as a result of which, the consequent communication dated
18/05/2023 (pg.116) by the respondent no.2 also cannot be
sustained and is quashed and set aside. The respondent no.2 is
accordingly directed to go ahead with the elections as per the
16. Writ Petition No.3390/2023 is accordingly allowed
in the above terms and Writ Petition No.3120/2023 is dismissed.
Rule accordingly. No order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Mr. Onkar Ghare, learned counsel for the petitioners
in Writ Petition No.3120/2023, at this stage, seeks continuation of
the order dated 15/05/2023 in Writ Petition No.3120/2023 for a 15
period of two weeks. However, since we have already held that the
election programme cannot be stalled and has to be continued to
its logical end and the position that the elections to the Managing
Committee were not held since 2019, we are not inclined to
continue the order. The request is, therefore, rejected. 20
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 25/01/2024 16:56:35
