Bombay High Court
Siddheshwar Sahkari Sakhar Karkhan Ltd ... vs The State Of Maharashtra Through ... on 30 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:2176-DB
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REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13128 OF 2023
Siddheshwar Sahakari Sakhar Karkhana Ltd.,
Manik Nagar, Sillod, Tq.Sillod,
Dist.Aurangabad.
Through its Authorized Officer
Shri Madhav Manikarao Khare,
Age : 62 years, Occ : Service,
R/o Sillod, Tq.Sillod, Dist. Aurangabad.
...PETITIONER
-VERSUS-
1. The State of Maharashtra.
Through Secretary,
Cooperation, Marketing &
Textile Department, Mantralaya,
Mumbai.
2. The State Cooperative Election
Authority, MS Pune.
Through its Secretary.
3. District Cooperative Election Officer
and Regional Joint Director (Sugar),
Aurangabad, Dist. Aurangabad.
...RESPONDENTS
AND
WRIT PETITION NO.13141 OF 2023
1. Balaji Shankar Sonwane,
Age : 28 years, Occ : Agri,
R/o Sarani (Aa), Tq.Kaij,
Dist. Beed.
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2. Balasaheb Pandharinath Borade,
Age : 60 years, Occ : Agri,
R/o Gotegaon, Tq.Kaij,
Dist. Beed.
...PETITIONERS
-VERSUS-
1. The State of Maharashtra.
Through Secretary,
Cooperation, Marketing & Textile
Department, Mantralaya, Mumbai.
2. The State Cooperative Election Authority,
MS Pune. Through its Secretary.
3. District Cooperative Election Officer
and District Deputy Registrar,
Cooperative Society, Beed.
4. The Kaij Taluka Kharedi Vikri Sangh,
Kaij, Tq.Kaij, Dist. Beed.
...RESPONDENTS
...
Shri V.D. Hon, Senior Advocate i/by Shri K.J. Suryawanshi,
Advocate for the Petitioner in WP/13128/2023.
Shri N.B. Khandare, Advocate i/by Shri A.G. Choudhari,
Advocate for the Petitioners in WP/13141/2023.
Shri S.K. Tambe, AGP for Respondent 1/State.
Shri S.K. Kadam, Advocate for Respondents 2 and 3/
Cooperative Election Authority.
Shri B.B. Bhise, Advocate for Respondent 4 in WP 13141/23.
...
CORAM: RAVINDRA V. GHUGE
&
Y.G. KHOBRAGADE, JJ.
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Reserved on :- 19th January, 2024
Pronounced on :- 30th January, 2024
JUDGMENT (Per Ravindra V. Ghuge, J.) :
-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2. In the first Writ Petition No.13128/2023, the
Petitioner Cooperative Sugar Factory has put forth prayer clauses
B, C, D and E as under:-
"B) To quash and set aside the orders dated
03.10.2023 issued by respondent no.2 State Co-
operative Election Authority M S Pune may
kindly be quashed and set aside
C) The respondent no.2 and 3 may kindly be
directed to publish election program from the
stage of nomination for the election of
managing committee of petitioner Karkhana,
immediately.
D) Pending hearing and final disposal of this writ
petition the orders dated 03.10.2023 issued by
respondent no. 2 state Co-operative Election
Authority M S Pune may kindly be stayed.
E) Pending hearing and final disposal of this writ
petition the respondent no.2 and 3 may kindly
be directed to publish election program from
the stage of nomination for the election of
managing committee of petitioner Karkhana,
immediately."
3. In the second Writ Petition No.13141/2023, the
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Petitioners have put forth prayer clauses B, C, D, and E as
under:-
"B. To quash and set aside the order dated
03.10.2023 issued by respondent no.2 state Co-
operative Election Authority M S Pune by
issuing writ of certiorari.
C. The respondent no.2 and 3 may kindly be
directed to publish election program from the
stage where it is stopped and finalize the voters
list and start the election process from the stage
of nomination for the election of managing
committee of respondent no. 4, society,
forthwith by issuing appropriate writ.
D. Pending hearing and final disposal of this writ
petition the orders dated 03.10.2023 issued by
respondent no. 2 state Co- operative Election
Authority M S Pune may kindly be stayed.
E. Pending hearing and final disposal of this writ
petition the respondent no.2 and 3 may kindly
be directed to publish the election program
from the stage where it is stopped and start
further process of election of nomination for
the election of managing committee of
respondent no.5, society immediately, by
passing appropriate order."
4. These two matters were heard extensively. The
submissions of the Petitioners in both these petitions can be
summarized as under:-
(a) The elections to the Cooperative Sugar Factory were
last conducted on 30.05.2017 and the five years tenure ended on
30.05.2022.
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(b) Though the elections were due on or before
30.05.2022, the Election Authorities did not conduct the elections
even after the expiry of the term.
(c) By communication dated 15.02.2023, the State
Cooperative Election Authority, Maharashtra State, Pune (in
short, "SCEA"), directed the Cooperative Societies to initiate the
process for finalization of the voters list and prescribed the cut
off date as 01.02.2023.
(d) All the parties to the proceedings accepted the said
cut off date and initiated the steps for finalization of the voters
list.
(e) On 07.06.2023, the State of Maharashtra introduced
the ordinance called as the "Maharashtra Cooperative Societies
(Amendment) Ordinance, 2023.
(f) In Section 2 of the Maharashtra Cooperative
Societies Act, 1960 (hereinafter referred to as "the Act of 1960"),
in clause (19), after sub-clause (a), sub-clause (a-1) is inserted,
which defines "active member". Section 26 of the Act of 1960
was substituted. So also, sub-section (1A) was introduced below
Section 27(1). Section 73A also suffered a minor amendment.
(g) The election programme for the preparation of the
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final voters list was commenced on 08.06.2023, objections were
called till 19.06.2023, hearing took place on 22.06.2023 and the
decision was pronounced on 30.06.2023.
(h) An order was issued by SCEA dated 28.06.2023 and
the elections were postponed. However, by that time, the
procedure for finalization of the voters list was already
completed.
(i) A notification was published by the Honourable
Governor of Maharashtra dated 21.08.2023 and the above stated
Maharashtra Ordinance No.II/2023 dated 07.06.2023 was
withdrawn with immediate effect.
(j) The notification dated 28.06.2023, by which the
elections were postponed, specifically intimated all the
concerned that since the Honourable Supreme Court and the
Honourable High Court directed that the elections should be
conducted in cooperative societies and as the elections are
postponed, the elections would now be held any time after
30.09.2023 and it would be ensured that the elections process
would move forward from the stage at which they were
postponed by the said order.
(k) Reference is made to Section 27(3) and Section 73-
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CB of the Act of 1960 and Rules 3, 6 and 9 of the Maharashtra
State Cooperative Societies (Election to Committee) Rules, 2014
(hereinafter referred to as "the Election Rules of 2014").
(l) The purpose behind maintaining the cut off date for
at least two years prior to the proposed date of election, is to
ensure that a desirous candidate should not start enrolling his
supporters as members in order to increase his vote bank. Yet, the
Petitioners agreed to abide by the cut off date 01.02.2023 as
directed by the SCEA and completed the entire procedure in
furtherance thereof.
(m) Now, because the SCEA has prescribed the new cut
off date as 01.10.2023, all such persons or societies who have
enrolled new members in between 01.02.2023 and 01.10.2023,
would succeed in getting voting rights for such newly added
members, which will defeat the very object of the provisions of
the Act of 1960 and the Rules framed thereunder.
(n) If the impugned order is made applicable, the
Cooperative Societies will have to once again start new process
for finalization of the voters list, which will cause grave hardship
and manifest inconvenience, besides nullifying the object of
Section 27 of the Act of 1960 and the Rules, which mandate that
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the valid voter would be a person, who has been enrolled at least
two years prior to the date of election.
(o) There is no dispute that the SCEA has jurisdiction to
prescribe the cut off date strictly as per the Rules applicable.
However, the SCEA cannot review it's decision and prescribe a
fresh cut off date.
(p) Between 01.02.2023 and 01.10.2023, there may not
be any change in the number of members, unless some societies
have shrewdly increased the members to gain advantage in
elections.
(q) The election programme to the extent of finalization
of the voters list was declared on 08.05.2023. After 10 days and
within 20 days of the declaration of the final voters list, the
elections are to be declared and just within two days, the
Government postponed the elections with a clear indication that
the elections would be conducted after 30.09.2023 from the stage
at which they were postponed.
(r) No reasons are assigned to change the cut off date.
(s) In view of the above, clause 2 of the impugned order
deserves to be quashed and set aside.
(t) Reliance is placed upon the following judgments by
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the Petitioners in the first petition:-
(1) Mohanrao Anandrao Munde and another vs. State of
Maharashtra and others, 2006 (6) Mh.L.J. 813.
(2) Bhosale Dattaram Madhavrao and others vs. The
State of Maharashtra and others, Writ Petition
No.12106/2022 (Aurangabad Bench) decided on
13.12.2022.
(3) Kharade Seva Sahakari Society Ltd. vs. Thane
District Central Cooperative Bank Ltd. And others,
Writ Petition No.2690/2020 (Principal Seat) decided
on 11.01.2021.
(4) Deorao Vithoba Kale vs. Divisional Joint Registrar,
Cooperative Societies, Nagpur and others, 1982
Mh.L.J. 543.
(5) Jai Mahavir Cooperative Housing Society Ltd. vs.
Panchal Keshavlal Narbheram and others, AIR 1987
SC 1513.
(u) Shri Khandare, the learned Advocate appearing for
the Petitioners in the second petition, has relied upon the
following judgments :-
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(a) Ramchandra Ganpat Shinde and another vs. State of
Maharashtra and others, (1993) 4 SCC 216.
(b) Kuntinath Appanna Nilapgol and another vs.
Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd.
and others, AIR 2000 Bombay 285.
5. The learned Advocate Shri S.K. Kadam appearing
on behalf of the Respondents/ Cooperative Election Authorities
has vehemently defended the impugned order. His submissions
can be summarized as under:-
(a) He refers to the order dated 06.09.2023 passed by
the learned Single Judge at the Principal Seat in Writ Petition
No.7380/2023 (Manohar Aapanna Dharanguttikar and others vs.
The District Deputy Registrar, Cooperative Societies, Kolhapur
and others).
(b) He then relies upon another order dated 07.09.2023
passed by the learned Single Judge at the Principal Seat in Writ
Petition No.9547/2023 (Prithviraj Sahebrao Jachak vs. State of
Maharashtra and others) wherein, it has been noted that
Respondent No.4 in the said petition had withdrawn the voters
list and nothing survived in the petition.
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(c) Though the voters list was finalized on 30.06.2023,
the elections were postponed by the notification dated
28.06.2023.
(d) Due to Covid-19 pandemic, several elections were
postponed.
(e) New cut off date was prescribed under Section
73(CB) of the Act of 1960 read with Rule 3(v) and Rule 9 of the
Rules of 2014.
(f) The communication dated 15.02.2023 issued by the
Secretary, SCEA, binds all the parties.
(g) No harm or prejudice would be caused to these
Petitioners.
(h) The SCEA intends to reach every member of the
society so as to enable him to participate in the elections.
(i) New cut off date would assist the SCEA in noticing
any unfair means adopted by any society in preparation of the
final voters list.
(j) The SCEA has power of review.
(k) The Writ Petitions deserve to be dismissed.
6. Considering that the litigating parties have referred
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to several provisions, we deem it appropriate to reproduce the
same for ready reference, as under:-
"Section 27. Voting powers of members.
(1) Save as otherwise provided in sub-sections (2)
to (7), both inclusive, no member of any
society shall have more than one vote in its
affairs; and every right to vote shall be
exercised personally, and not by proxy:
Provided that, in the case of an equality
of votes the Chairman shall have a casting vote.
Explanation :- For the purposes of this
sub-section, "votes to more than one candidate
from the panel" shall be treated as one vote.
(2) Where a share of a society is held jointly by
more than one person, the person, whose name
stands first in the share certificate, if present,
shall have the right to vote. But in his absence
the person whose name stands second, and in
the absence of both, the person whose name
stands next, and likewise, in the absence of the
preceding persons the person whose name is
next on the share certificate, who is present and
who is not a minor, shall have the right to
vote.
(3) A society, which has invested any part of its
funds in the shares of any federal society, may
appoint one of its members to vote on its behalf
in the affairs of that federal society; and
accordingly such member shall have the right
to vote on behalf of the society:
Provided that, any new member society
of a federal society shall be eligible to vote in
the affairs of that federal society only after the
completion of the period of three years from
the date of its investing any part of its fund in
the shares of such federal society:
Provided further that, where the election
is to a reserved seat under Section 73-B, no
person shall have more than one vote.
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(3A) An individual member of a society shall not be
eligible for voting in the affairs of that society
for a period of two years from the date of his
enrollment as a member of such society.
Provided that, nothing in this sub-section
shall apply in respect of a cooperative housing
society and a cooperative premises society.
(4) A company or any other body corporate,
constituted under any law for the time being in
force, which has invested any part of its funds
in the share of a society, may appoint any of its
directors or officers to vote on its behalf in the
affairs of such society; and accordingly, such
director or officer shall have the right to vote
on behalf of the company or body corporate.
(5) Where a firm has invested any part of its funds
in the shares of a society, any one of its
partners appointed by the firm shall be entitled
to vote in the affairs of the society on behalf of
the firm.
(6) A local authority or public trust which has
invested any part of its fund in the shares of a
society, may appoint any of its members or
trustees, to vote on its behalf in the affairs of
that society; and accordingly such person shall
have the right to vote on behalf of the local
authority or the public trust, as the case may be.
(7) In the case of a federal society, the voting
rights of individual members thereof shall be
such as may be regulated by the rules made
under this Act and by the bye-laws of the
society.
(8) No nominal member shall have the right to
vote and no such member shall be
eligible to be a member of a committee or for
appointment as a representative of the society
on any other society.
(9) No nominee of the Government or any
financing bank on the committee of any society
shall be entitled to vote at any election of
officers of such committee such as, the
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President, Vice- President, Chairman, Vice-
Chairman, Secretary, Treasurer or any other
officer by whatsoever designation called, who
holds the office by virtue of his election to that
office.
(10) If a member has taken a loan from the society,
such member shall, whenever he is a defaulter
as provided in the Explanation to clause (I) of
sub-section (1) of section 73CA have no right
to vote in the affairs of the society:
Provided that, a member shall not be
deemed to be a defaulter if he has discharged
his obligation to deliver his marketable produce
to the marketing or processing society and the
value of such produce is not less than the
amount of his dues, even if the actual
settlement of his dues, either in whole or in
part, takes place at a later stage.
(11) The agricultural credit society may issue
suitable orders for the purpose of carrying out
the provisions of sub-section (10)."
"Section 73CB State Cooperative Election Authority
(1) The superintendence, direction and control of
the preparation of the electoral rolls for, and the
conduct of, all elections to a society shall vest
in the authority called as 'the State Co-
operative Election Authority', as may be
constituted by the State Government in that
behalf. Every general election of the members
of the committee and election of the
office-bearers of a society including any casual
vacancy, to the extent applicable, shall be held
as per the procedure prescribed.
(2) The State Co-operative Election Authority shall
consist of a State Co-operative Election
Commissioner, who has held the post not
below the rank of Secretary to the State
Government. The State Co-operative Election
Commissioner shall be appointed by the
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Governor. The State Co-operative Election
Commissioner shall hold the office for a period
of three years and he may be re-appointed for a
further period of two years. The office of the
State Co-operative Election Authority shall be
at such place as may be notified by the State
Government :
Provided that, a person appointed as the
State Co-operative Election Commissioner
shall retire from the office on completion of the
age of sixty- five years.
(3) The State Government shall appoint on
deputation, any person holding a post not
below the rank of Additional Registrar, as a
Secretary to the State Co-operative Election
Authority.
(4) Subject to the provisions of sub-section (2),
other conditions of service, including the salary
and allowances, of the State Co-operative
Election Commissioner shall be such as may be
prescribed. Subject to the provisions of sub-
section (6), the State Co-operative Election
Commissioner shall be removed from his office
only by an order of the Governor on the
ground of proved misbehaviour or incapacity
after an inquiry ordered by the Governor and
conducted by a retired Judge of the High Court,
who has on inquiry, reported that the State Co-
operative Election Commissioner ought to be
removed on such ground.
(5) The Governor may suspend the State Co-
operative Election Commissioner from his
office, and if deemed necessary, also prohibit
him from attending the office during inquiry, if
an inquiry has been ordered under sub-section
(4) until the Governor has passed the orders on
receipt of the report of the retired High Court
Judge.
(6) Notwithstanding anything contained in sub-
section (5), the Governor may, by order,
remove the State Co-operative Election
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Commissioner from his office, if he,--
(a) is adjudged an insolvent; or
(b) has been, convicted of an offence which, in
the opinion of the Governor involves moral
turpitude ; or
(c) has engaged during his term of office in any
paid employment outside the duties of his
office; or
(d) is, in the opinion of the Governor, unfit to
continue in office by reason of infirmity of
mind or body; or
(e) has acquired such financial or other interest
as is likely to affect prejudicially his functions
as the State Co-operative Election
Commissioner.
(7) The State Government, after consultation with
the State Co-operative Election Commissioner,
shall provide the officers and employees for his
office, to assist him in performing his functions
under this Act.
(8) The State Government shall, when so requested
by the State Co-operative Election
Commissioner make available to the State
Co-operative Election Authority such staff as
may be necessary for discharge of the functions
conferred on the State Co-operative Election
Authority by sub-section (1).
(9) (a) If any person to whom sub-section (8)
applies is, without reasonable cause, guilty of
any act or omission in discharge of his official
duty, he shall, on conviction, be punished with
fine which may extend to five hundred rupees.
(b) No suit or other legal proceedings shall lie
against any such person for damages in respect
of any such act or omission as aforesaid.
Explanation.--For the purposes of this
sub-section, the expression "persons to whom
sub-section (8) applies" are the Returning
Officers, Assistant Returning Officers,
Presiding Officers, Polling Officers and any
other persons appointed to perform any duty in
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connection with the receipt of nominations or
withdrawal of candidatures, or the recording or
counting of votes at an election; and the
expression "official duty" shall be construed
accordingly, but shall not include duties
imposed otherwise than by or under this Act.
(10) Notwithstanding anything contained in any law
for the time being in force, the election of the
committee of each society shall be conducted
by the State Co-operative Election Authority
before the expiry of the term of the existing
committee so as to ensure that the newly
elected members of the committee assume
office immediately on the expiry of the office
of the members of the outgoing committee.
(11) The State Co-operative Election Authority shall
hold the elections of the society or class of
societies as per the procedure, guidelines and
the manner, including using the latest
technology and expertise, as may be prescribed
:
Provided that, the State Government
may, considering the objects of the society,
class of societies, area of operation and norms
of business and for proper management and
interest of members, may by general or special
order, classify the societies in such manner as
may be prescribed.
Provided further that, in case of housing
society having less than or up to 250 members,
the elections of the Committee shall be
conducted by the said housing society in the
manner as may be prescribed.
(12) The State Co-operative Election Authority shall
conduct elections to the committee and also to
office of President or Chairperson, Vice-
President or Vice-Chairperson and such other
office bearers as are required to be elected as
per the by-laws of the society, within fifteen
days from the constitution of the committee
after a general election.
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(13) There shall be an Election Fund maintained at
level of the State Co-operative Election
Authority. Every society shall deposit in
advance, the estimated amount of expenditure
on its election, as may be prescribed and
required by the State Co-operative Election
Authority towards the Election Fund. The State
Co-operative Election Authority shall incur the
necessary expenses, for the conduct of the
elections of the societies, including the election
of the office bearers, from the said fund. The
expenses of the holding of any election,
including the payment of travelling allowances,
daily allowances and remuneration, if any, to
the persons appointed to exercise the powers
and perform the duties in respect of the
election, shall be incurred from the said fund
and the expenditure shall be made in the
manner prescribed. The Registrar, on
requisition by the State Co-operative Election
Authority, shall recover expenses of holding
election from any such society or class of
societies :
Provided that, if any society fails to pay
the election expenses, the Registrar may issue
the recovery certificate for recovery of the
amount due and such amount shall he
recovered as arrears of land revenue.
(14) The committee of every co-operative society
shall,--
(a) inform the State Co-operative Election
Authority about the expiry of its term of office
at-least six months before the date of expiry of
such term;
(b) inform any casual vacancy occurred in the
committee or its office bearers, within fifteen
days of the occurrence of such vacancy ;
(c) furnish such books, records and information
as the State Co-operative Election Authority
may require as per the calendar specified
by the State Co-operative Election Authority ;
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(d) provide all necessary help, assistance and
co-operation for the smooth preparation of
electoral rolls for the conduct of elections.
(15) Where in respect of any society, the term of its
committee has expired before the date of
commencement of the Maharashtra Co-
operative Society (Second Amendment) Act,
2018, the election to such committee shall be
held by State Co-operative Election Authority
within a period of six months from the date of
such commencement:
Provided that, in respect of such a
society, the committee shall continue to hold
the office till such a period of six months or
declaration of results of election of such a
society whichever is earlier:
Provided further that, in case of society
doing business of banking, the requisition made
or guidelines issued by the Reserve Bank of
India or the National Bank shall prevail.
Provided also that, where the election of
the Committee of any society which was due
but has not been conducted before the date of
commencement of the Maharashtra Co-
operative Societies (Second Amendment) Act
2020, then election of Committee of such
society shall be conducted,-
(a) within six months from the date of
commencement of the said Amendment Act; or
(b) where the period within which such election
should have been conducted is extended by the
State Government by general or special order,
then within six months from the date on which
such extended period expires:"
7. Rules 3, 6 and 9 of the Maharashtra State
Cooperative Societies (Election to Committee) Rules, 2014 read
thus:-
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"Rule 3. Powers of State Co-operative Election
Authority (SCEA).--
In order to conduct the elections of the co-
operative societies, the SCEA shall have the
following powers, namely :--
(i) to appoint any officer or employee of the State
Government, or any Co-operative Society, or
any Local Body on any post with such
designation and duties for the purpose of
conducting the elections; and it shall be
obligatory on every officer or employee so
appointed, to perform the duties assigned to
him, failing which he shall be liable for
prosecution for having committed contempt of
the lawful authority of the public servant within
the meaning of Chapter 'X' of the Indian Penal
Code, 1860 :
Provided that, the State Co-operative
Election Authority may by general or special
order direct any officer or employee of the
State Government not below the rank of
District Deputy Registrar to exercise its powers
under this clause :
Provided further that, such officer or
employee shall work under the general
superintendence and control of the State Co-
operative Election Authority;
(ii) to requisition any public or private premises,
vehicles, services or any other material
required for holding the election, from any
office of the State Government, Local Body,
Co-operative Societies as he may deem
necessary. On service of such requisition, it
shall be obligatory on the authority to whom
such requisition is made, to forthwith hand
over the possession of premises, vehicles or
any other material, as the case may be, to the
Requisitioning Authority or any person
authorized by him in that behalf ;
Provided that, the State Co-operative
Election Authority may, by general or special
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order, direct any officer or employee of the
State Government not below the rank of
District Deputy Registrar to exercise its powers
under this clause;
(iii) to prescribe the code of conduct to be
implemented in the area of operation of the
society according to the nature of business or
class of societies;
(iv) to appoint Observers and Zonal officers, who
shall be appointed with a view to keep
watch for smooth and fair conduct of elections
as and when required.
(v) to issue such special or general orders or
directions for fair and free elections, which
shall not be inconsistent with the provisions of
the Act and the Rules.
(vi) to issue general or special orders, from time to
time, regarding the estimated amount
of election expenditure for societies or class of
societies to be deposited in the 'Election
Fund' in advance by the society as required by
sub-section (13) of section 73 CB of the Act.
The State Co-operative Election Authority may
consider to determine estimated amount of
expenditure based on criteria's such as number
of voters, number of candidates, number of
polling stations, number of constituencies, area
of operation, class of the societies, etc. for
the conduct of the free and fair elections of the
societies, including the election of the office
bearers."
"Rule 6. Provisional list of voters for co-operative
societies having individuals as members :--
(1) A provisional list of voters shall be prepared by
every society in the year in which the election
of such society is due to be held. The member
who has completed minimum two years as
member from the date of his enrolment up to
the date of expiry of term of existing
*22* wp13128a13141o23
Committee and who is an active member shall
be included in the provisional list as laid down
in sections 26 and 27 of the Act. If different
constituencies are provided in the bye-laws, the
names of voters shall be arranged constituency
wise, if required, as laid down in the bye-laws.
Explanation:- For the purposes of this
sub-rule, "the date of expiry of term of existing
committee'' means the date on which the
existing managing committee completes the
period of five years from the date of election.
(2) The period of two years as provided in sub-
section (3A) of section 27 of the Act is to be
counted from the date of enrollment of member
to the date when election of the managing
committee of the society becomes due:
Provided that, the period of two years
shall not be counted in respect of a co-
operative housing society and a co-operative
premises society as provided in the proviso to
sub-section (3A) of section 27 of the Act:
Provided further that, in case of societies
where the elections could not been held before
the expiry of the term of the committee due to
unforeseen situations or any other reason, a
provisional list of the voter shall be prepared
on the basis of the date fixed by the SCEA:
Provided also that, provisional list of
voters of the society having its first elections
due after term of expiry of the provisional
committee under clause (a) of sub-section (1A)
of section 73 shall comprise of all the members
as on the date of election when due:
Provided also that, the provisional list of
the voters of the society on which an
authorized officer is appointed under section
77A or an administrator is appointed under
section 78A, shall be prepared on the basis of
the date fixed by the SCEA.
*23* wp13128a13141o23
(3) Four copies of the authenticated provisional
lists of voters in print as well as preferably
in digital form shall be delivered by the
committee of the society to the District Co-
operative Election Officer or Taluka or Ward
Co-operative Election Officer, or as directed by
the SCEA, one hundred and twenty days before
the date of expiry of the term of Committee.
Copies of such lists shall be displayed on the
notice board of the society. The District Co-
operative Election Officer or Taluka or Ward
Co-operative Election Officer within ten days
from its receipt shall invite claims and
objections from the members of the society.
(4) If any committee fails to deliver copies of the
provisional lists of voters to the District
Co-operative Election Officer or Taluka or
Ward Co-operative Election Officer on or
before the due date, the District Co-operative
Election Officer or concerned Taluka Co-
operative Election Officer shall himself or
through any person authorized by him in this
behalf, prepare such provisional list of voters
and the expenditure incurred therefore shall be
recovered from the committee or other persons
responsible therefore, as arrears of land
revenue.
(5) In the event of the District Co-operative
Election Officer or Taluka or Ward Co-
operative Election Officer taking action under
the last preceding sub-rule, he shall also cause
copies of the provisional list of voters to be
displayed on his notice board and notice board
of the society within ten days from the date of
receipt of such list from the society for inviting
claims and objections from the members of the
society:
Provided that, such list may be published
on the official website of SCEA and the Co-
operation Department."
*24* wp13128a13141o23
"Rule 9. Provisional list of voters for the societies
having society or society and individuals as
members.--
(1) A provisional list of voters shall be prepared by
every society in the year in which
the elections of such society are due to be held.
The active members who have completed
minimum two years as members from the date
of their enrolment up to the date of expiry of
term of existing managing committee and in
case of society being a active member who has
completed minimum three years from the date
of enrollment to the date of expiry of period of
existing managing committee; shall be included
in the provisional list as laid down in section of
27. If different constituencies are provided in
the bye-laws, the names of voters shall be
arranged constituency wise as laid down in the
bye-laws.
Explanation:- For the purposes of this
sub-rule, "the date of expiry of term of existing
committee'' means the date on which the
existing managing committee completes the
period of five years from the date of election.
(2) The period of three years provided in sub-
section (3) of section 27 of the Act is to be
counted from the date of enrollment of member
to the date when election of the managing
committee of the society becomes due:
Provided that, in case of societies where
the elections could not be held before the
expiry of the term of the committee due to
unforeseen conditions or any other reason,
provisional list of the voter shall be prepared
on the basis of the date fixed by the SCEA:
Provided further that, provisional list of
voters of the society having its first elections
due after term of expiry of the provisional
committee under section 73 (1A) (a) shall
comprise of all the members as on the date of
election when due:
*25* wp13128a13141o23
Provided also that, the provisional list of
the voters of the society on which an
authorized officer is appointed under section
77A or an administrator is appointed under
section 78A shall be prepared on the basis of
the date fixed by the SCEA.
(3) Four copies of the authenticated provisional
lists of voters shall be delivered in print as
well as preferably in digital form by the
committee of the society to the District Co-
operative Election Officer or Taluka or Ward
Co-operative Election Officer, or as directed by
the SCEA one hundred and twenty days before
the date of expiry of the term of Committee.
Copies of such lists shall be displayed on the
notice board of the society. The District Co-
operative Election Officer or Taluka or Ward
Co-operative Election Officer shall, within ten
days from its receipt, call for inviting claims
and objections from the members of the
society.
(4) If any committee fails to deliver copies of the
provisional lists of voters to the election
officer on or before the due date, the District
Co-operative Election Officer or Taluka or
Ward Co-operative Election Officer shall
himself or through any person authorized by
him in this behalf, prepare such provisional list
of voters and the expenditure incurred therefor
shall be recovered from the committee
responsible therefore, as arrears of land
revenue.
(5) In the event of the District Co-operative
Election Officer or Taluka or Ward Cooperative
Election Officer taking action under the last
preceding sub-rule, he shall also cause copies
of the provisional list of voters to be displayed
on his notice board and on the notice board of
the District Co-operative Election Officer or
Taluka or Ward Co-operative Election Officer
*26* wp13128a13141o23
and of the society within 10 days from the date
of receipt of such list from the society for
inviting claims and objections from the
members of the society :
Provided that, such list may be published
on the official website of SCEA and the Co-
operation Department."
8. In Ramchandra Ganpat Shinde (supra), the
Honourable Supreme Court has observed in paragraphs 4, 5, 6
and 7 as under:-
"4. Rule 4(1) of the Rules provides thus:
4(1) A provisional list of voters shall be
prepared by every society for the year in which
general election is due to be held. Persons who
are members as on the 30th June of the year
immediately preceding the year in which such
election is due shall be included in the
provisional list. If different constituencies are
provided in the bye-laws, the names of voters
shall be arranged constituency wise as laid
down in the bye-laws:
Provided that, if any case, the
preparation of the provisional list of voters falls
due after the expiry of a period of six months
from the 30th June, the Collector may, in
consultation with the Registrar in respect of the
societies, of the categories mentioned in
Clauses (i), (v), (vi) and (vii) of Sub-section (1)
of Section 73G, and in consultation with the
District Deputy Registrar in respect of the
societies the other categories mentioned in
Sub-section 1 of Section 73G, by order, change
the date of the 30th June and subsequent dates
and fix revised dates for the purpose of these
rules
5. Its reading adumbrates that the provisional list
*27* wp13128a13141o23
of voters of society shall be prepared by the
society for "the year in which general election
is due to be held". Persons who are members as
on 30th June of the year immediately preceding
the year in which such election is due, shall
alone be included in the provisional list.
Thereby, it is clear that the society shall prepare
a provisional list of voters, comprising of all
the members of that society for the year in
which general election is due to he held. But
the persons who are members of the society as
on 30th June of the immediately preceding the
year in which such election is due should alone
be included in the provisional list and eligible
to vote at the election. Under the proviso, if the
preparation of the provisional list falls due after
the expiry of the period of six months from
30th June, then the Collector is enjoined to
consult the Registrar or the Dist. Deputy
Registrar as the case may be based, on the class
of society envisaged under Section 73G; he
should pass an order changing the date of 30th
June and prescribe a subsequent date; fix
revised date for the purpose of preparing the
provisional list and ensure the procedure for
declaration of the final list.
6. It is the case of the appellants that after the
final list was published by the Dist. Collector
on December 17, 1991, A.K. Patil, the
Chairman, got enrolled 2000 members and
made them eligible to exercise franchise in his
favour apprehending that he would be defeated
in the general election, colluded with More and
Mule, i.e. Director and a member of the society
respectively, got filed collusive writ petitions,
abused the process of the court, played fraud on
the court and obtained collusive orders to make
the provisional list of voters to be as on June
30, 1992 and to conduct elections on that basis.
The Dist. Collector filed counter-affidavit in
this Court admitting that Rule 4 and the
*28* wp13128a13141o23
circular issued by the Govt. in this behalf
envisage that the final list of voters in force
before the postponement of the election by the
State Govt. shall be valid but since the High
Court issued the direction to treat June 30,
1992 to be the date for reckoning the
provisional list of voters to be valid, he had no
option but to abide by the direction and to
conduct the election in terms thereof. As stated
earlier that though respondents 5 to 7 were
served, they did not file any counter denying
the allegations of the appellants made against
them.
7. We have already noted that under Rule 4
provisional list of voters shall be prepared by
every society "in the year in which general
election is due to be held". It is not due under
law as contended for the Society. What is the
meaning of the above quoted phrase is to be
gathered from the statutory operation of the
law. The term of the Managing Committee was
to expire on December 3, 1991. Under the Act
the election to the managing committee of the
society shall be held under Section 73G before
the expiry of the term in accordance with the
provision in chapter 11A of the Act, the Rules
and the bye-laws of the society. The year in
which the general election due is, therefore, the
year 1991. If the elections were not conducted
before its expiry, by operation of Sub-section
2B of Section 73G, the members of the existing
committee should cease to hold office on its
expiry of extended term as the case may be and
should be deemed to have vacated their offices.
By operation of Sub-section (3) of Section
73G, the general body of the members of the
society should elect the members of the
managing committee. Therefore, before the
expiry of the term of the committee the general
election to the Managing Committee is due.
Black's Law Dictionary, sixth edition at. p.500,
*29* wp13128a13141o23
meaning of the words 'due date' has been stated
thus: "In general, the particular day on or
before which something must be done to
comply with law of contractual obligation".
When Section 73G, provisions in Chapter XIA
and the bye-laws read with Rule 4 envisage
that the election to the managing committee
should be conducted before the expiry of the
term, the Society has been enjoined under Rule
4(1) to prepare the provisional voters list of the
members as on June 30th of the year
"immediately preceding the year" in which
such general election is due to be held and
submit the same to the Dist. Collector. The
Legislature, thereby intended that despite the
existence of the members on the admission
register of the society, only those members who
were admitted and valid as members on or
before 30th June of the year immediately
preceding the year in which such general
election is due alone are eligible to exercise the
franchise and to be included in the provisional
list. Thereafter on publication in the Notice
Board under Rule 6(1) and considering the
objections, suggestions or improvements if any
made, the Collector is enjoined to finalise the
list under Rule 7 and have it published as "final
list of voters". The proviso would operate only
in case the preparation of the provisional list of
voters falls due after the expiry of the period of
six months from the 30th June, then only, after
consultation with the designated officer, the
Collector, by an order, may change the date of
30th June and fix a subsequent date as revised
date to submit the provisional list of voters. In
this case the proviso has no application for the
reason that the provisional list had already been
approved and published by the Collector as per
the law on December 17, 1991. It was not
challenged. Therefore, the year in which the
general election to the society is due is the date
*30* wp13128a13141o23
as per the operation of law i.e. 1991 but not due
after the expiry of the period as postponed by
the State Govt. Obviously, for that reason the
Govt. also had issued instructions on
September 28, 1992 that in case the provisional
list was approved and the final list was
published prior to the postponement of the
election, the election should be conducted in
accordance with the final list published under
Rule 7 of the Rules."
[Emphasis supplied]
9. It is, therefore, apparent that the valid voters list is to
be prepared in the year preceding the year in which the elections
are due to be held. However, in the peculiar facts of this case
wherein the elections were over-due and were not held for almost
2 years, that the litigating parties before us have accepted the
decision of the SCEA in directing the cut-off date as 01.02.2023.
The parties acted on the said cut-off date and after the program
for finalization of the valid voters list was declared by the
authority, the prescribed procedure was followed and the final
voters lists were prepared. The postponement of the elections
was under a declaration that the elections would be held after
30.09.2023 and the process of elections would be taken forward
from the stage at which they were postponed.
10. In Kuntinath Appanna Nilapgol (supra), this Court
*31* wp13128a13141o23
has observed in paragraphs 25 to 28 as under:-
25. An attempt was made on behalf of the
Petitioners to make out a case that Rule 8, as
quoted above, has its own field of operation
and it is totally uncontrolled by Rule 4 sub-rule
(1) and, as such the Collector has power under
Rule 8 to fix any date, of course, in
consultation with the District Deputy Registrar.
If that be so, in our opinion, it will create a very
anomalous position and, moreover, the
important part of Sub-rule (1) of Rule 4 bearing
reference to the order in which the general
election is due, will be given a complete go-
bye.
26. It is nobody's case that under Rule 8, the
Collector can announce elections even though
they are not due. For this purpose, we may
refer to Section 73G of the said Act. Under
sub-section (2), the term of the Committee is
fixed for a period of five years to be counted
from the date on which the first meeting is
held. There is further reference to the extension
being given by the State Government not
exceeding a period of one year.
27. The elections will, therefore, become due only
in the year in which the term of the Committee
is to come to an end. If this is understood in the
light of the aforesaid provisions of sub-section
(2) of Section 73G of the said Act, in our
opinion, it could mean that if, no extension is
granted, in the 5th year, elections will be due. If
extension is granted, at the most, in the 6th,
year counted from the date on which the first
meeting is held, the election would become
due.
28. In the instant case, the election had become due
in the year 1998, i.e. before 3rd December,
1998, when the term ordinarily has come to an
end. With reference to that date, everyone
agrees to it but for the proviso of Sub-rule (1)
*32* wp13128a13141o23
of Rule 4 of the said Rules, for the purpose of
provisional voters list, the date is 30th June,
1997. According to the proviso, if preparation
itself falls due after the expiry of a period of six
months from the 30th June, 1997, the Collector
may in consultation with the Registrar or the
District Deputy Registrar, as the case may be,
change the date of the 30th June, 1997 to
subsequent dates and fix revised dates for the
purpose of these Rules."
11. In Mohanrao Anandrao Munde (supra), this Court
has held in paragraph 14 as under:-
"14. For the reasons recorded above, we, therefore,
allow the petition and quash and set aside the
action of the respondents, contained in the
order dated 2nd September, 2006 of staying the
specified co-operative society and the
consequential notification published by the
Assistant Election Officer for Majalgaon
Sahakari Sakhar Karkhana Ltd., Sundarnagar,
Telgaon, Tq. Majalgaon, district Beed, dated
4th September, 2006. We also direct the
respondent Nos. 1 to 5 to hold the elections, in
accordance with the provisions of Maharashtra
Specified Co-operative Societies (Election to
the Committees) Rules, 1971 from the stage
where the programme was stayed after
publishing the revised programme. The revised
programme shall be published within one week
from today."
[Emphasis supplied]
12. In an unreported order dated 13.12.2022 delivered at
the Aurangabad Bench in Bhosale Dattaram Madhavrao (supra),
*33* wp13128a13141o23
this Court has held in paragraphs 10 and 11 as under:-
"10. Even otherwise the elections have been
postponed till 20.12.2022. It implies that the
State Cooperative Election Authority would be
able to proceed and conduct the elections of the
Societies from the stage at which they have
reached, immediately after 20.12.2022. Mr.
Kadam who appears for the authority on
instructions submits that it is bound by the
programme and would commence the elections
of the Societies from the stage they have
reached on 29.11.2022 from 21.12.2022
onwards depending upon the stage and the
duration for completing each stage.
11. Considering all the aforementioned facts and
circumstances, we deem it appropriate to
dispose of the writ petitions by directing the
State Cooperative Election Authority to resume
the election process from the stage it has
reached in respect each of such Societies from
21.12.2022 onwards. The State Cooperative
Election Authority shall publish the revised
programme in respect of each of the Societies
by 16.12.2022."
[Emphasis supplied]
13. In an unreported order dated 11.01.2021 delivered at
the Principal Seat in Kharade Seva Sahakari Society Ltd. (supra),
this Court has held in paragraph 6 as under:-
"6. In view of these circumstances, we direct the
respondent nos.2 and 3 to resume the process
of conducting elections in accordance with the
programme which was issued on 23rd
December 2019 page 68 of the writ petition
from the stage it was left and shall complete the
entire process on or before 31st March 2021."
*34* wp13128a13141o23
[Emphasis supplied]
14. In Deorao Vithoba Kale (supra), on point of the
power to review an order, this Court has held in paragraph 2 as
under:-
"2. Shri Paliwal, the learned Counsel for the
petitioner, in the first place, contended that the
impugned order is violative of the principle of
natural justice inasmuch as, admittedly removal
has taken place without issuing any show cause
notice to the petitioner. It seems to us that
grievance made in this connection is sound. On
merits, it was contended that in view of the
provisions of section 78(1)(b) of the Act, there
is no bar to the appointment of the same person
over again after the disqualification is removed.
If that was the intention of the legislature in
place of the word "person" the word "other
person" would have been incorporated in the
said section. Shri Desai, the learned Assistant
Government Pleader, on the other hand,
contended that by virtue of the fact that
appointment has to be in his place it has to be
presumed that the appointment of the sarre
person was prohibited. We have given our
thought to this question and in our judgment
interpretation put on behalf of the State is
fallacious. On the language of the provision,
we see nothing illegal in reappointment of a
person after the disqualification is wiped out.
Moreover, we fail to appreciate under what
provision of law the third respondent reviewed
his own order. The only power of review in the
Act is to be found in section 150 but obviously
it does not grant any jurisdiction to the third
respondent for review. It was further contended
that the order of nomination (Annexure-IV)
*35* wp13128a13141o23
was void ab initio and, therefore, the third
respondent had every jurisdiction to correct his
own mistake when he noticed it. We are unable
to see how this appointment is void ab initio. It
is a common point that either on the date of his
fresh nomination on 14-2-1980 or
subsequently, the petitioner had not incurred
any disqualification."
[Emphasis supplied]
15. In Jai Mahavir Cooperative Housing Society (supra),
it was concluded in paragraph 14 as under:-
"14. When the respondent submitted his dispute to
the Registrar and the Registrar after examining
the matter came to the conclusion that it was a
dispute which could be entertained within the
scope of S. 96 and therefore referred it to his
nominee for decision. It could not be doubted
that the Registrar exercised jurisdiction under
S. 96 and came to the conclusion and therefore
the High Court was right in coming to the
conclusion that once the Registrar takes this
decision he has no power to review his order.
In this view of the matter we see no reason to
entertain this appeal. The appeal is therefore
dismissed. In the circumstances of the case
parties are directed to bear their own costs."
[Emphasis supplied]
16. Part III of the Rules of 2014, pertains to preparation
of the electoral roll. Rule 6 reproduced above, would indicate
under clause 2 that the period of two years as provided in sub-
section (3A) of Section 27 of the Act of 1960 is counted from the
*36* wp13128a13141o23
date of enrollment of a member to the date when the election of
the Managing Committee of the society becomes due. Proviso
thereunder indicates that the period of two years shall not be
counted in respect of a cooperative housing society and
cooperative premises society.
17. Section 27(3A) of the Act of 1960 prescribes that an
individual member of the society shall not be eligible for voting
in the affairs of that society for a period of two years from the
date of his enrollment as a member of such society. As such, on a
conjoint reading of Rule 6(2) with Section 27(3A), it is obvious
that a member is not permitted to vote in an election for a period
of two years from the date of his membership. It is apparent that
the intent, object and logic behind such provisions is to ensure
that unfair acts of a desirous candidate in sponsoring members by
increasing the membership as soon as he gets the wind of fresh
elections, can be curbed.
18. In the instant case, the programme for finalization of
the voters list was already published and the cooperative
societies/ sugar factories completed the process of finalization of
the voters list after painstakingly following the due procedure
prescribed. When the elections were postponed, every society
*37* wp13128a13141o23
was made to believe that the election programme would
commence from the stage at which the elections were postponed.
19. We find that the impugned order contains reference
to 2 orders of this Court. However, both are short orders which
do not lay down a law. So also, the reason cited does not justify
the change in the cut-off date. We do not find any such reason in
the impugned order, which would stand the test of refixing the
cut off date.
20. It is, thus, well settled that though in certain
circumstances, the SCEA may re-fix the cut-off date, this can be
done only by following the due procedure laid down in law and
for sound reasons which would justify such a step. Such action
will have to be scrutinized depending on the facts and
circumstances in each case and there cannot be a 'cut and dried'
strait jacket formula to be applied mechanically in every case. In
the instant cases, the impugned order does not reflect any such
reasons or circumstances, which would justify re-fixing of the
cut-off date. So also, the final voters list is ready as on
30.06.2023 by following the cut-off date 01.02.2023, which is
not too stale/old, to be discarded. In fact, the revised cut-off date
01.10.2023, would amount to 'cutting too close' to the proposed
*38* wp13128a13141o23
elections as this would result in granting voting rights to those
persons who may have been enrolled as new members after
01.02.2023 and until 01.10.2023. Moreover, the State had
announced that the elections would be held after 30.09.2023,
from the stage at which they were postponed.
21. Considering the aforesaid analysis of the facts,
circumstances, the provisions of law and the cited reports, both
these Writ Petitions are allowed. The impugned orders dated
03.10.2023, stand quashed and set aside. We direct the SCEA to
proceed to declare the election program from the stage at which
it was postponed.
22. Rule is made absolute in the above terms. No order
as to costs.
kps (Y.G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)
