Bombay High Court
Baban Eknath Navale vs State Cooperative Election Authority ... on 16 January, 2024
2024:BHC-AUG:1007
wp-6-2024 grp.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6 OF 2024
WITH CA/455/2024
Sanjay @ Raosaheb Yadavrao Waghchaure
Age : 45 years, Occu : Agri.,
R/o. Dhupkheda, Tq. Paithan, Dist. Aurangabad
(Chattrapati Sambhajinagar). ..PETITIONER
VERSUS
1. The State Co-operative Election Authority,
Maharashtra State, Pune
Through its Commissioner/Secretary.
2. District Co-operative Election Officer
Aurangabad @ Regional Joint Director (Sugar),
Aurangabad region, Aurangabad.
3. Sant Eknath Co-operative Sugar Factory Ltd,
Tq. Paithan, Dist. Aurangabad
Through its Administrator/Incharge
Managing Director. ..RESPONDENTS
WITH
WRIT PETITION NO.8 OF 2024
WITH CA/454/2024
Sanjay @ Raosaheb Yadavrao Waghchaure
Age : 45 years, Occu : Agri.,
R/o. Dhupkheda, Tq. Paithan, Dist. Aurangabad
(Chattrapati Sambhajinagar). ..PETITIONER
VERSUS
1. The State Co-operative Election Authority,
Maharashtra State, Pune
Through its Commissioner/Secretary.
2. District Co-operative Election Officer
Aurangabad @ Regional Joint Director (Sugar),
Aurangabad region, Aurangabad.
3. Sant Eknath Co-operative Sugar Factory Ltd,
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(2)
Tq. Paithan, Dist. Aurangabad
Through its Administrator/Incharge
Managing Director. ..RESPONDENTS
WITH
WRIT PETITION NO.31 OF 2024
1. Vasant s/o Yashwant Kale,
Age:- 67 years, Occ. Agri.,
R/o Old Kavsan, Paithan,
Tq. Paithan, Dist. Aurangabad
2. Nandabai w/o Vasantrao Kale,
Age:- 60 years, Occ. Agri.,
R/o As above
3. Prakash Raosaheb Labde,
Age:- 61 years, Occ. Agri.,
R/o Mudhalwadi, Tq. Paithan,
Dist. Aurangabad
4. Muktabai w/o Prakash Labde,
Age:- 60 years, Occ. Agri.,
R/o As above
5. Suvarna Annasaheb Labde,
Age:- 39 years, Occ. Agri.,
R/o As above
6. Bhausaheb Raosaheb Labde,
Age:- 55 years, Occ. Agri.,
R/o As above
7. Annasaheb Raosaheb Labde,
Age:- 52 years, Occ. Agri.,
R/o As above
8. Maroti Rambhau Thorat,
Age:- 68 years, Occ. Agri.,
R/o Khanapur, Tq. Shevgaon,
Dist. Aurangabad
9. Kailas s/o Murlidhar Belge,
Age:- 47 years, Occ. Agri.,
R/o Paithan, Dist. Aurangabad
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10. Bhausaheb Govind More,
Age:- 77 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
11. Ganesh Harishchandra More,
Age:- 50 years, Occ. Agri.,
R/o As above
12. Jankabai Harischandra More,
Age:- 76 years, Occ. Agri.,
R/o As above
13. Mandakini Suresh Rodi,
Age:- 52 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
14. Chandrakala Raosaheb Gogade,
Age:- 64 years, Occ. Agri.,
R/o As above
15. Rama Maruti Satale,
Age:- 48 years, Occ. Agri.,
R/o As above
16. Balaji Manik More,
Age:- 62 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
17. Prakash Laxman More,
Age:- 61 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
18. Chhababai Dada Rodi,
Age:- 94 years, Occ. Agri.,
R/o As above
19. Sudhakar Bapu Gogade,
Age:- 79 years, Occ. Agri.,
R/o As above
20. Bhima Dada Rodi,
Age:- 60 years, Occ. Agri.,
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R/o As above
21. Kishor Ramrao Rodi,
Age:- 51 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
22. Raju Vasant Rodi,
Age:- 53 years, Occ. Agri.,
R/o As above
23. Shivaji Tukaram More,
Age:- 73 years, Occ. Agri.,
R/o As above
24. Kalyan Tukaram More,
Age:- 62 years, Occ. Agri.,
R/o Kaptur, Tq. Paithan,
Dist. Aurangbad
25. Kalyan Kashinath Dange,
Age:- 57 years, Occ. Agri.,
R/o As above
26. Kadubal Asaram More,
Age:- 47 years, Occ. Agri.,
R/o As above
27. Alka Sunil Baldava,
Age:- 61 years, Occ. Agri.,
R/o Yashwant Nagar, Paithan,
Dist. Aurangabad
28. Deepak Bhagwan Bobde,
Age:- 24 years, Occ. Agri.,
R/o Issarwadi, Tq. Paithan,
Dist. Aurangabad
29. Bapusaheb Tulshiram Kadbane,
Age:- 57 years, Occ. Agri.,
R/o Dhangaon, Tq. Paithan,
Dist. Aurangabad
30. Anil Ashokrao More,
Age:- 31 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
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Dist. Aurangabad
31. Badrinath Dhondiram Bomble,
Age:- 58 years, Occ. Agri.,
R/o Pachalgaon, Tq. Paithan,
Dist. Aurangabad
32. Shivaji Dhondiram Bomble,
Age:- 61 years, Occ. Agri.,
R/o As above
33. Vitthal Patilba Pathade,
Age:- 79 years, Occ. Agri.,
R/o As above
34. Raghunath Eknath Bomble,
Age:- 69 years, Occ. Agri.,
R/o As above
35. Jalindar Pandharinath Bomble,
Age:- 55 years, Occ. Agri.,
R/o As above
36. Baburao Sukhdev Bomble,
Age:- 62 years, Occ. Agri.,
R/o As above
37. Nanasaheb Bapurao Bomble,
Age:- 58 years, Occ. Agri.,
R/o As above
38. Babasaheb Suryabhan Bomble,
Age:- 76 years, Occ. Agri.,
R/o As above
39. Prakash Sarjerao Bomble,
Age:- 64 years, Occ. Agri.,
R/o As above
40. Sunil Ramchandra Kulkarni,
Age:- 61 years, Occ. Agri.,
R/o Nath Galli, Paithan,
Dist. Aurangabad
41. Shubhangi Sunil Kulkarni,
Age:- 52 years, Occ. Agri.,
R/o Bhilwada, Paithan,
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Dist. Aurangabad
42. Machhindra Ganpat Kharad,
Age:- 63 years, Occ. Agri.,
R/o Anandpur, Tq. Paithan,
Dist. Aurangabad
43. Shobhai Machhindra Kharad,
Age:- 62 years, Occ. Agri.,
R/o As above
44. Ram Machhindra Kharad,
Age:- 38 years, Occ. Agri.,
R/o As above
45. Vilas Manik Kharad,
Age:- 35 years, Occ. Agri.,
R/o As above
46. Namdev Vinayak Kharad,
Age:- 51 years, Occ. Agri.,
R/o As above
47. Dwarka Kalyan Kharad,
Age:- 55 years, Occ. Agri.,
R/o As above
48. Ram Eknath Takle (Patil),
Age:- 72 years, Occ. Agri.,
R/o Sakhare Mangal karyalya,
Plto No.13/2, Aurangabad
49. Badrinarayan Eknath Takle (Patil),
Age:- 75 years, Occ. Agri.,
R/o Rohi Lagad, Jalna
50. Vasant Eknath Takle (Patil),
Age:- 59 years, Occ. Agri.,
R/o New Mondha, Jalna,
Tq. & Dist. Jalna
51. Ashok Ramkisanrao Narke,
Age:- 67 years, Occ. Agri.,
R/o Takli Ambad, Tq. Paithan,
Dist. Aurangabad
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52. Sharad Ashokrao Narke,
Age:- 41 years, Occ. Agri.,
R/o As above
53. Sitabai Ramkisan Narke,
Age:- 85 years, Occ. Agri.,
R/o As above
54. Kalpana Arun Narke,
Age:- 55 years, Occ. Agri.,
R/o As above
55. Sunanda Ashok Narke,
Age:- 60 years, Occ. Agri.,
R/o As above
56. Shirish Arun Narke,
Age:- 35 years, Occ. Agri.,
R/o As above
57. Meerabai Bapusaheb Kadbane,
Age:- 55 years, Occ. Agri.,
R/o Dhangaon, Tq. Paithan,
Dist. Aurangabad
58. Purnabai Harischandra Bobde,
Age:- 85 years, Occ. Agri.,
R/o Wahegaon, Tq. Paithan,
Dist. Aurangabad
59. Sheshrao Shamrao Gorde,
Age:- 62 years, Occ. Agri.,
60. Snehal Sheshrao Gorde,
Age:- 36 years, Occ. Agri.,
61. Alok Shehshrao Gorde,
Age:- 33 years, Occ. Agri.,
Petitioner No.59 to 61,
R/o Balanagar, Tq. Paithan,
Dist. Aurangabad
62. Shaukat Pathan Patel Khan,
Age:- 45 years, Occ. Agri.,
R/o Changadpuri, Tq. Paithan,
Dist. Aurangabad
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63. Baban Ganpat Bomble,
Age:- 45 years, Occ. Agri.,
R/o Pachalgaon, Tq. Paithan,
Dist. Aurangabad
64. Digambar Rangnath Ravas,
Age:- 45 years, Occ. Agri.,
R/o As above
65. Vishwanath Kashinath Ravas,
Age:- 33 years, Occ. Agri.,
R/o As above
66. Pramod Bapurao Rodi,
Age:- 59 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
67. Sunil Digambar Rodi,
Age:- 40 years, Occ. Agri.,
R/o As above
68. Balaji Sakharam Rodi,
Age:- 60 years, Occ. Agri.,
R/o As above
69. Raghunath Baburao Ghodke,
Age:- 58 years, Occ. Agri.,
R/o Wahegaon, Tq. Paithan,
Dist. Aurangabad
70. Nivrutti Laxman Bobde,
Age:- 54 years, Occ. Agri.,
R/o As above
71. Ankush Sahebrao Bobde,
Age:- 63 years, Occ. Agri.,
R/o As above
72. Badrinath Pandurang Bankar,
Age:- 56 years, Occ. Agri.,
R/o Shrungarwadi, Tq. Paithan,
Dist. Aurangabad
73. Shankar Pandurang Bankar,
Age:- 63 years, Occ. Agri.,
R/o As above
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74. Vishnu Pandurang Bankar,
Age:- 56 years, Occ. Agri.,
R/o As above
75. Harishchandra Pandurang Bankar,
Age:- 61 years, Occ. Agri.,
R/o As above
76. Rambhau Rangnath Bankar,
Age:- 56 years, Occ. Agri.,
R/o As above
77. Ankushrao Rangnath Bankar,
Age:- 59 years, Occ. Agri.,
R/o As above
78. Nanasaheb Ramnath Najan,
Age:- 60 years, Occ. Agri.,
R/o Hingani, Tq. Paithan,
Dist. Aurangabad
79. Dattatray Babasaheb Aute,
Age:- 52 years, Occ. Agri.,
R/o Apegaon, Tq. Paithan,
Dist. Aurangabad ...PETITIONERS
VERSUS
1. The State Co-operative Election Authority,
Maharashtra State, Mumbai
2. District Co-operative Election Officer
@ Regional Joint Director (Sugar),
Chhatrapati Sambhaji Nagar
3. Sant Eknath Co-operative Sugar Factory,
Eknath Nagar, Tq. Paithan,
Dist. Aurangabad Through its Administrator ..RESPONDENTS
WITH
WRIT PETITION NO.23 OF 2024
1. Katpur Vividh Karyakary Seva Sahakari,
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Deepak Devichand More,
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(10)
Age:- 36 years, Occ. Agri.,
R/o Katpur, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
2. Nandar Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Ravindra Shivajirao Kale,
Age:- 48 years, Occ. Agri.,
R/o Nandar, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
3. Avde Unchegaon Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Eknath s/o Kacharu Belge,
Age:- 42 years, Occ. Agri.,
R/o Nandar, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
4. Vihamandva Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Bhausaheb Sarjerao Kale,
Age:- 40 years, Occ. Agri.,
R/o Vihamandva, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
5. Chanakwadi Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Pandurang s/o Laxman Patkal,
Age:- 55 years, Occ. Agri.,
R/o Chanakwadi, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
6. Pachalgaon Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Badrinath Dhondiram Bomble,
Age:- 58 years, Occ. Agri.,
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R/o Pachalgaon, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
7. Takli Ambad Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Sharad s/o Ashok Narke,
Age:- 42 years, Occ. Agri.,
R/o Takli Ambad, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
8. Saygaon Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Badam s/o Uttamrao Daspute,
Age:- 45 years, Occ. Agri.,
R/o Saygaon, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
9. Paithan Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Eknath s/o Narhar Khisti,
Age:- 42 years, Occ. Agri.,
R/o Paithan, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
10. Balanagar Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Pravin s/o Laxman Gorde,
Age:- 55 years, Occ. Agri.,
R/o Takli Ambad, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
11. Amrutvahini Mahila Dudhutpadak Sahakari
Sanstha, Indegaon, Tq. Paithan, Dist. Aurangabad
Through its Secretary
Sharad Shripatrao Navthar
Age:- 41 years, Occ. Agri.,
R/o Indegaon, Tq. Paithan,
Dist. Aurangabad
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(12)
(Chhatrapati Sambhaji Nagar)
12. Mudalwadi Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Ganesh Rambhau Jadhav,
Age:- 45 years, Occ. Agri.,
R/o Mudalwadi, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
13. Dhangaon Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Vishnu Apppasaheb Bobade,
Age:- 40 years, Occ. Agri.,
R/o Dhangaon, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar)
14. Dhakephal Vividh Karyakary Seva Sahakari
Tq. Paithan, Dist. Aurangabad
Through its Authorized Person,
Ravindra Bhaurao Sisode,
Age:- 38 years, Occ. Agri.,
R/o Dhakephal, Tq. Paithan,
Dist. Aurangabad
(Chhatrapati Sambhaji Nagar) ...PETITIONERS
VERSUS
1. The State Co-operative Election Authority,
Maharashtra State, Mumbai
2. District Co-operative Election Officer
@ Regional Joint Director (Sugar),
Chhatrapati Sambhaji Nagar
3. Sant Eknath Co-operative Sugar Factory,
Eknath Nagar, Tq. Paithan,
Dist. Aurangabad
Through its Administrator ..RESPONDENTS
WITH
WRIT PETITION NO.371 OF 2024
1. Sulochana w/o Suresh Daspute,
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Age:- 50 years, Occ. Agri.,
R/o Maygaon, Tq. Paithan,
Dist. Chhatrapati Sambhajinagar
2. Chatrabhuj Narayan Babar
Age:- 45 years, Occ. Agri.,
R/o Indegaon, Tq. Paithan,
Dist. Chhatrapati Sambhajinagar ...PETITIONERS
VERSUS
1. The State Co-operative Election Authority,
Maharashtra State, Mumbai
2. District Co-operative Election Officer
@ Regional Joint Director (Sugar),
Chhatrapati Sambhaji Nagar
3. Sant Eknath Co-operative Sugar Factory,
Eknath Nagar, Tq. Paithan,
Dist. Chhatrapati Sambhajinagar
Through its Administrator ..RESPONDENTS
WITH
WRIT PETITION NO.372 OF 2024
Dipak s/o Devichand More,
Age : 36 years, Occu : Agri,
R/o. Katpur, Tq. Paithan,
Dist. Chhatrapati Sambhajinagar ..PETITIONER
VERSUS
1] State Co-operative Election Authority
Maharashtra State, Pune.
through its Commissioner/Secretary
2] District Co-operative Election Officer,
Chhatrapati Sambhajinagar @
Regional Joint Director (Sugar)
Chhatrapati Sambhajinagar Region,
Chhatrapati Sambhajinagar.
(Copies of Resp. no. 1 and 2 to be served through
Standing Counsel of Respondent No.1 Bombay High Court
Bench at Chhatrapati Sambhajinagar)
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3] Sant Eknath Sugar Factory Ltd.
Tq. Paithan, Dist. Chhatrapati Sambhajinagar
through its Administrator/Incharge
Managing Director ..RESPONDENTS
WITH
WRIT PETITION NO.380 OF 2024
Ranjangaon Dandga Vikas Karyakary
Seva Sahakari Sanstha Ltd.,
Rajangaon Dandga, Tq. Paithan,
Dist. Chhatrapati Sambhajinagar,
Through its Chairman
Ejaj Ahmed Ismail Khan Pathan,
Age : 64 years, Occu : Agri,
R/o. Rajangaon Dandga, Tq. Paithan,
Dist. Chhatrapati Sambhajinagar ..PETITIONER
VERSUS
1] State Co-operative Election Authority
Maharashtra State, Pune.
through its Commissioner/Secretary
2] District Co-operative Election Officer,
Chhatrapati Sambhajinagar @
Regional Joint Director (Sugar)
Chhatrapati Sambhajinagar Region,
Chhatrapati Sambhajinagar.
(Copies of Resp. no. 1 and 2 to be served through
Standing Counsel of Respondent No. 1 Bombay High Court
Bench at Chhatrapati Sambhajinagar)
3] Sant Eknath Sugar Factory Ltd.
Tq. Paithan, Dist. Chhatrapati Sambhajinagar
through its Administrator/Incharge
Managing Director. ..RESPONDENTS
...
Advocate for Petitioners in WP/6/2024, 31/2024, 8/2024 : Mr. M.S.
Deshmukh h/f Mr. Dhananjay S. Patil
Advocate for Petitioners in W.P./372/2024 & 380/2024 : Mr.
Dhananjay S. Patil a/w Mr. Rahul Cheble and Mr. S.R. Mantri
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Advocates for the Petitioners in WP/23/2024 & 371/2024 : Mr. S.S.
Gangakhedkar
Advocate for Respondent Nos.1 & 2 in WP/6/2024, 8/2024,
371/2024, 372/2024, 380/2024 : Mr. V.H. Dighe
Advocate for Respondent Nos.1 & 2 in W.P./31/2024 & 23/2024 : Mr.
S.K. Kadam
Advocate for Applicants in civil applications : Mr. K.J. Suryawanshi
a/w Mr. N.B. Khandare
Advocate for Respondent No.3 (Authorized Officer/Administrator) in
all writ petitions : Mr. D.J. Choudhari & Mr. P.K. Nikam
...
CORAM : S.G. MEHARE, J.
RESERVED ON : JANUARY 11, 2024
PRONOUNCED ON : JANUARY 16, 2024
JUDGMENT :
-
1. Rule. Rule made returnable forthwith and heard finally
with the consent of the parties.
2. By these writ petitions, an order dated 14.12.2023 of
District Co-operative Election Officer cum Regional Assistant Director
(Sugar), (DCEO for short), Chattrapati Sambhaji Nagar
(Aurangabad)/respondent No.2 passed on 14.12.2023 has been
impugned.
3. The petitioner, namely Sanjay Yadavrao Waghchaure, had
raised the following objections to the provisional voters list published
on 24.11.2023 for the elections of Managing Committee of Sant
Eknath Sugar Factory Ltd, Taluka Paithan, District Chattrapati
Sambhajinagar:
(i) The voter list is an outcome of fraudulent activities.
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(ii) So long as around the original 18,645 members were
inappropriately dealt with by modifying the membership list.
(iii) The provisional voter list violated Section 25-A of the
Maharashtra Co-operative Societies Act, 1960 ( the M.C.S. Act for
short). No proceedings contemplated under that Section were
undertaken to remove the members. Still, many members were
removed from the list at the whims and fancies of the present
Managing Committee.
(iv) A large number of members who were not the residents of the
area of operation of the Society were incorporated as members of the
said Society.
(v) A large number of members who were holding no lands
required as per the law were incorporated.
(vi) No audit was conducted to arrive at the conclusive figures of the
members as is expected under law.
(vii) Around 5000 members who did not satisfy the basic
qualifications to be members have been shown as members of the
Society. Many members have not satisfied the sugarcane supply
criteria for five continuous years. Hence, they were not qualified as
per clause No.17(A)(3)(IV).
(viii) The applications for transferring the shares made by the legal
heirs of the original members were not decided, and the provisional
voters list was prepared hastily.
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(ix) Respondent No.2 has not properly appreciated the concept of
Bye-laws No.6 and 8 of the Society's Bye-laws.
(x) The voters who were disqualified under Section 27(10) of the
M.C.S. Act have been approved as valid voters in the provisional
voters list. Unless the member is legally disqualified for the reasons of
defaulter, such members cannot be ineligible to be a member or voter
as maintained as per Schedule-I of the M.C.S. Act. In the present case,
there is no reference to the submission of I-Register; even
maintenance of the same is strictly not in compliance with the M.C.S.
Act and by-laws, which provide additional qualification or
disqualification. The provisional voter list was inconsistent with
Section 38 r/w Schedule-I of the M.C.S. Act.
(xi) Respondent No.2 has not appreciated the certificates issued by
the Talathi, incurring disqualification of the members included in the
voters list correctly.
4. The other objections in other petitions were ;
(i) The agriculturists who were not residents of the area of the
operation of the Society were added to the voters list.
(ii) The agriculturists with no land were illegally admitted as
members and added to the voter list.
(iii) A minor not qualified to be a member was admitted as a
member of Society.
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(iv) The members were not defaulters for not paying the difference
of raised share value.
5. Heard the respective learned counsels at length.
6. The following points arise for consideration :
i) Did the petitioners/objectors have a locus to raise objections to
deleting and adding the names of the members from the provisional
voters list?
ii) What is the scope of enquiry on the objection under Rule 11 of
the M.C.S. Election Committee Rules, 2014?
iii) Whether the issuance of notice to the persons against whom the
objections were noticed was essential in the facts and circumstances
of the case?
iv) Whether the provisional list is defective for changing the cut-off
date?
v) Does By-law no.8 extend three years to clear the difference of
raised share value as provided under By-law no.6?
vi) Whether the judgment of the Division Bench of this Court
passed in Writ Petition No.15083 of 2023 filed by the petitioner
Sanjay @ Raosaheb Yadavrao Waghchaure Vs. the State of
Maharashtra and others with other connected writ petitions decided
on 08.01.2024 has bearing on these petitions?
As to Point No.(i) :
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7. Learned counsel for the petitioner, Mr. Mahesh S.
Deshmukh, for the petitioners in Writ Petition Nos. 6 of 2024 and 8 of
2024 vehemently argued that the Managing Director In charge had no
power to submit the voter list. It was not in the prescribed form E-III
(I). Respondent No.2 had to publish the list, but he did not. The
petitioner is admittedly a member of the Society. Hence, under Rule
11(i) of the Maharashtra Co-operative Societies (Election to
Committee) Rules, 1914 ( the Rules 1914 for short), he has a locus to
object to the provisional voters list. It was a composite objection and
should have been entertained as a large number of voters have been
deleted/removed. He referred to Sections 11, 25, 25-A, 35, 38 and 40
of the M.C.S. Act and vehemently argued that in no way the persons
who had been expelled/removed from the provisional voters list were
not disqualified from being voters. He also argued that the Society did
not follow the procedure for removal/expulsion of the members.
8. On the point of the locus standi of the objectors, relying
on the case of Babasaheb Bapusaheb Patil and Ors Vs. The State of
Maharashtra, 2016 (1) ALL MR 777 of this Court, the learned counsel
for respondent No.3, argued that no member of the Society other than
the defaulter could raise objections about delisting him from the
provisional voters list. The learned counsel, Mr. Nikam, has
vehemently argued for respondents Nos 3 in Writ Petition Nos.8 of
2024, 372 of 2024 and 380 of 2024 that the members against whom
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the objections were raised were not the parties to the objections. In
Writ Petition No.6 of 2024, referring to pages nos.45 and 46 of Writ
Petition No.6 of 2024, he pointed out that the objections do not bear
the signatures of the objectors. He added that all the objections were
stereotypes. In Writ Petition No.6 of 2024, the objector, Swabhimani
Shetkari Sanghatna, was not a member of the Society. Hence, their
objections were not tenable.
9. Advocate Mr. Dighe for respondent No.1 argued that
the petitioner, namely Sanjay Yadavrao Waghchaure, had no
locus to raise the objection for the members who did not
individually raise the objections. He cannot raise the objection
in a representative capacity. He was not an aggrieved person.
He was not the member disqualified to be a voter. Therefore,
the objection for the members who were not listed in the
provisional voters list could not be considered. Rule 11 of the
Election Rules, 2014, debars from raising objec tions for the other
members. The Rule is specific that the members should have raised
their objections individually. The objections were vague.
10. Learned counsel Mr. Deshmukh for the petitioners in Writ
Petition No.6 and 8 of 2024 replied that the case of Babasaheb
Bapusaheb Patil (supra) did not deal with Rule 11 of the Election
Rules. The findings were without the spirit of the said Rule. Hence, it
is not binding in view of the facts of this case.
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11. The petitioner Sanjay Waghchaure has raised the
objection before respondent No.2 under his signature for a few
persons, and the rest of the list of the persons was signed by Shri
Mauli P. Mule, President, Swabhimani Shetkari Sanghatna. Objections
in the names of Shivaji Shagwat Landage, Sadhna Shivaji Landage,
and Shilabai Bhagwat Landage do not bear their signatures, and the
objection on page no.63 neither discloses the name of the objector nor
his signature.
12. The petitioners in Writ Petition No.371 of 2024 raised the
objections in person that they were the Sugarcane Producer members
of the Sugar Factory. However, their names have been deleted from
the provisional voters list. Hence, their names be added. Their
objections have been illegally rejected because they did not produce
evidence of their membership.
13. The petitioners in Writ Petition Nos. 372 of 2024 and 380
of 2024 raised the objection that the persons named in their
objections have been illegally added to the voters list because they do
not reside in the area of the operation of the Society and have no
land. One of the reasons for rejecting their objection was that they did
not produce evidence of their membership. The rejection means that
they were not the member of the Society.
14. Both parties interpreted Rule 11 of the Rules 2014.
Hence, for ready reference, the Rule is reproduced;
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"11. Claims and objections to the provisional list of voters and
the final list of voters for the societies having Society or
societies and individuals as members.
(1) When any provisional list of voters is published for
inviting claims and objections, any omission or error in
respect of names or addresses or other particulars in the list
may be brought to the notice of the District Co-operative
Election Officer Taluka or war Co-operative Election Officer in
writing by any member of the Society concerned who is voter
or any representative authorized to vote on behalf of such
Society during office hours within ten days from the date of
publication of the provisional list of voters.
(2) ............"
15. The above Rule provides for objection to the provisional
and final voters list by any member of the Society concerned.
However, he shall be a voter. Where a society is a voter, the
authorized representative may raise objections.
16. There is no quarrel that the District Co-operative Election
Officer has to decide the claim and objections to the provisional list of
the voters and the final list of the voters for the Society having Society
or societies and individuals as members as provided under Rule 11 of
Rules, 2014. It is evident from the impugned order that a fair
opportunity of hearing was granted to the objectors. The claims and
objections were considered and decided within the ambit and scope of
Rule 11 of Rules 2014. The petitioners have no case that the defaulter
in person had raised objections.
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17. Learned counsel for the petitioners argued that Rule 11
of Rules 2014, unambiguously provide that any member of the
Society may raise the objection. The member who is in default is not
necessarily an objector. He indirectly argued that the members
interested in contesting the Election are concerned with the legality
and validity of the voter list. He is the watchdog on the voter list. He
prevents the members/voters not entitled to vote from being voters.
Rule 11 was not considered in the case of Babasaheb Bapusaheb Patil
(supra). Hence, it is not applicable to the case at hand.
18. This Court, in the case of Babasaheb Bapusaheb Patil
(supra), on the fact that the objections of the petitioners to their
exclusion in the voters list of the societies were considered by the
returning officer discussing the Election Rules, 2014, in paragraph
No.6, observed thus :
"However, in the present petition, general prayers are made
against all others whose names were deleted by following due
procedure of law by the concerned Society initially and
confirmed by the authority later on. The members whose names
were deleted did not raise objections at the relevant stage of
proceedings after provisional list published by the Society. The
issue even, if any, whether they are the defaulters or not needs to
be objected and/or raised by the concerned member only. The
Society and authority are under obligation to consider the
objections raised by the individual member as the rules as
referred above contemplate "the hearing and the decision to be
given for and against the member concerned". This itself means,
if there is no objection raised by the defaulter and/ or member
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who is delisted from the provisional list or other list at
appropriate time, no third person and/or the member on their
behalf specifically when they are declared defaulters, insist to
include their names, when they themselves never took
appropriate steps within the statutory period. There is nothing
on record to show that all other members have been any power
of authority and/or provide them an authority in writing to raise
objection on their behalf."
19. With the above observations, it has been held that the
locus of such third person/members in this background to file such
objection and to insist on others' inclusion without removing the tag
'defaulter' by those defaulter members, in my view, is not permissible.
This Court, in the above case, has considered the relevant rules in
force with effect from 11.09.2014 called the Maharashtra Co-
operative Societies (Election to Committee) Rules 2013 and
considered Rules ranging from 6 to 11, which deal with the
preparation of voters list in Part III of the said Rules. Therefore, it
could not be accepted that Rule 11 was not considered in Babasaheb
Bapusaheb Patil (supra).
20. In this case, the objectors were not the members in
person, or the members who were delisted from the list did not
individually come forward. As discussed above, a few applications
were filed without signatures, and they were not yet admitted as
members of the Society. One of the signatories to the objector, namely
the President of Swabhimani Shetkari Sanghatna, was not prima facie
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satisfied that he was a member of the Society. Learned counsel for the
respondents has correctly pointed out that since the said union is not
a member of the Society, its President has no locus to raise the
objection.
21. In view of the above facts and law, point no.1 is answered
that the person other than the defaulters/members not listed in the
provisional voters list has no locus to raise the objections before the
DCEO/respondent No.2.
As to Point Nos.(ii) and (v) together :
22. These issues have been hotly contested by arguing that
the objections that were proved were not considered on the ground
that such objections were beyond the jurisdiction of respondent No.2.
The objections, in brief, were that many voters who are not defaulters
had been deleted from the provisional voters' list. Many voters who
are not residents of the area of the operation of Society have been
added to the voter list, and the agriculturists who have no land have
also been added to the voter list. Such voters should be deleted from
the voter list. The minor who was not qualified to be a member of the
Society has also been listed as a voter. The evidence placed on record
was not considered. Bye-law No.8 of the Society extends a year to pay
the difference amount of the raised share value, and it was yet to be
over on the day of preparing the voters list. Respondent No. 2 did not
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consider this legal aspect to hold that the members who have been
deleted were not disqualified.
23. Learned counsel for petitioners Mr. Deshmukh pressed
into service Section 26 of the M.C.S. Act and argued that the said
Section would not apply to the case at hand as none of the members
were disqualified or defaulters. He argued that Bye-law Nos. 6 and 8
should be read together. Referring to Bye-law no.8, he vehemently
argued that after the last notice calling upon the shareholders to
deposit a difference amount of raised share value, the Society was to
wait for one year from 08.08.2023. Therefore, not paying the
difference amount of the raised share value would not disentitle the
members to qualify to vote at the Election. Since one year after the
last notice dated 08.08.2023 was not over, they cannot be branded as
defaulters as provided under Section 26 of the M.C.S. Act. Referring
to the impugned order, he submitted that respondent No.2, on the one
hand, denied deciding the objections, holding that the enquiry about
objection is a summary proceeding and he has no jurisdiction to
decide the objection as regards the members who had no lands and
not the residents within the area of the operation of the Society. On
the other hand, he relied upon Section 38 of the M.C.S. Act and
illegally held that the register maintained by the Society is prima facie
evidence of the membership. He also argued that respondent No.2 has
deliberately not exercised the powers to consider the legal and proper
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objections. Relying on the case of Ankushbhau s/o Juglal Beghale and
others Vs. State of Maharashtra through its Secretary, Ministry of Co-
operation, Marketing and Textile, Mantralaya Mumbai and others of
Nagpur Bench passed in Writ Petition No.1686 of 2022 dated
13.04.2022, he argued that the entry in the register of members has a
presumptive value. There was no evidence in rebuttal by the Society.
Therefore, members shown in the I-Register should have been listed
in the voters list. Respondent No. 2 did not pay heed to the statutory
presumption and passed erroneous orders.
24. Learned counsel Mr. S.S. Gangakhedkar for the
petitioners in Writ Petition Nos.23 of 2024, 31 of 2024 and 371 of
2024 has vehemently argued that the petitioners moved objection
individually in writing for adding their names. The term of the earlier
body was over on 31.07.2021. Though the share value was raised in
2013, they cast votes in the Election of 2016. Therefore, their names
should not have been deleted from the provisional voters list. He
referred to the impugned order, page no.132, and argued that, as per
the Auditor's report, 7,116 members were disqualified. Many
applications from the legal heirs of deceased members were
deliberately kept pending. The powers under Sections 25 and 25-A
were of the Registrar only. He also argued that it was brought to the
notice of respondent No.2 that the audit report was defective. As per
By-law no.8, the notice should be for three years. The report did not
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mention the notice dated 06.11.2023; hence, the members could not
be disqualified. Not recording the entries of the legal heirs is contrary
to the law. The agriculturists outside the sugar factory's operational
area are not entitled to become members. Around 5000 members of
similar type were added to the list. In a nutshell, he would submit
that the provisional voter list was defective mainly on the grounds
that the agriculturists who are not the residents of the operational
area of the sugar factory and have no land have been illegally listed in
the provisional voter list. For petitioners in Writ Petition No.371 of
2024, he argued that the petitioners replied to the notice dated
08.08.2023 calling upon them to pay the difference of the increased
share value on 27.09.2023. The objection was raised that general
meetings were not called in the last three years. The balance sheet
and audit report were not supplied to the members. No intimation
about the liabilities was deliberately given for the last three years.
These material aspects were deliberately not considered, and the
objections were outrightly rejected. Referring to By-law no.8, he again
submits that to date, no action has been taken to forfeit the defaulters'
share for not paying the difference amount of raised share value. On
the contrary, from time to time, they have extended the period to pay
the difference of the raised share amount by issuing notices. The
petitioner did not violate a statutory provision to be disqualified from
voting. Considering this fact, the names of the eligible members
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should not have been deleted from the voter list, and members who
were not qualified could be added to the voter list.
25. Learned counsel Mr. Dhanjay S. Patil for petitioners in
Writ Petition No.372 of 2024 has argued that the objections were
raised that Village Vijaypur was not in the area of the operation of the
factory and the agriculturist of Village Anantpur had no agricultural
land. One of the members was the minor. Her age proof was also
placed before respondent No.2. However, that document was not
considered. Similarly, the agriculturists from Village Dhakephal did
not have agricultural lands. Hence, they were not entitled to become
the members of the Society. This fact was also brought to the notice of
respondent no.2. He referred to Bye-law no.17-A and argued that a
person below 18 years could not become a member, but the minor
was admitted as a member of the Society. However, this material
defect and illegality have not been considered.
26. The learned counsel for petitioners in Writ Petition
No.380 of 2024 argued that the objection was raised for the illegal
inclusion of the Societies. These societies were not co-operative
societies and had the sugarcane business. Those societies had the
object of social and vocational services. These facts were brought to
the notice of respondent no.2, but such a serious objection has been
illegally rejected. The objection was rejected on technical grounds
that the Vakalatnama does not bear the signature. Another illegal
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reason was that no proof of depositing the difference amount was
produced. The objector did not produce evidence that he is a member
of the Society. However, his name was included in the provisional
voters list.
27. Per contra, learned counsel Mr. V.H. Dighe for
respondents nos.1 and 2 argued that the share amount was raised in
2013 by a resolution. Individual notices calling upon the members to
pay the difference amount of the raised share value were served upon
them. The members who failed to pay the difference amount were
dis-entitled to be voters on the provisional voter list. It is not the case
that the members qualified to be voters were deleted. Only the
members who were not qualified to be voters have been deleted.
Respondent No.2 has discussed the facts and his jurisdiction in detail.
A fair opportunity was granted to the persons who appeared before
him. They were heard in detail. For respondent Nos.1 and 2 in Writ
Petition No.382 of 2024, he replied that page no.64 i.e the age proof
of the so-called voter, was produced for the first time before this
Court. Hence, such an objection cannot be considered in this writ
petition.
28. Learned counsel Mr. S.K. Kadam for respondent nos.1
and 2 in Writ Petition No.23 of 2024 and 31 of 2024 has vehemently
argued that the person may be a member, but he may not be a voter.
The member and voter are two different concepts. The M.C.S. Act
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provides for the procedure for preparing the voters list and the
qualifications of the members to be voters. Since a large number of
members did not pay the difference amount of the share value even
after notice, they became disqualified to be voters, and hence, their
names were not included in the provisional voters list. He has
vehemently argued that the statutory period to pay the difference of
raised share value was not over in 2016. Hence, they were allowed to
cast votes in the Election of 2016. He referred to Section 26 of the
M.C.S. Act, particularly the first proviso and argued that the member
shall not exercise the rights unless he has made such payments to the
Society in respect of membership or acquired such interest in the
Society and he has to pay the difference of increased minimum
contribution after the reasonable notice. From time to time, the
notices, as required under the second Proviso to Section 26 of the
M.C.S. Act, were issued to the members to pay the difference.
However, they failed to pay the difference in raised share value;
therefore, they are not entitled to be listed on the voters' list. He also
referred to Section 23 and argued that under its powers, the
Committee had framed the Bye-laws nos.6 and 8 by following the due
procedure of law. Its validity was never challenged. He submits that
the order impugned before the Court was legally valid and correct.
29. Advocate Mr. Nikam referred to Bye-law no.17-A sub-
clause (2) and argued that in case the concerned person is from the
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joint family, he has a right based upon the minimum acre of the
sugarcane, in such a situation, the names of such persons should be in
7/12 extract is not essential. Therefore, barely having no name in the
7/12 extract is not the test to determine whether the person listed in
the provisional voter list has or has no agricultural land within the
operational area of the sugar factory. The question whether the person
has land or not or resides outside the area of the operation of the
factory is dealt with under Section 11 of the M.C.S. Act. Respondent
No. 2 had a limited scope to decide such objections under Rule 11. He
has no jurisdiction to touch the business of the Committee accepting,
removing or denying the membership. Referring to Bye-law no.8, he
argued that it is about the confiscation of the shares if the member
fails to pay the difference amount of the raised share value within
three years. However, for such confiscation, the Committee must
grant the member one year. The plain reading of this Rule does not
show that it extends the period of three years to deposit the difference
amount. Three years were over on 29.07.2016. The first notice was
issued on 12.04.2021, the reminder notices were issued on
08.08.2023, and the Newspaper publication notice was published on
17.08.2023, calling upon the members to pay the difference amount
of the raised share value. All members in arrears to pay the difference
amount were served individually. Even then, the members who were
not listed in the provisional voter list did not pay the difference
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amount of the increased share value in time. The counsel for the
petitioners has misinterpreted Bye-law no.8 and misconceived that
extended further one year to pay the difference of raised share value.
30. He further argued in Writ Petition No.23 of 2024 that all
the societies had paid the amount after the cut-off date. Hence, they
were not eligible to become the voter. In Writ Petition No.31 of 2024,
he further argued that 78 objectors are still defaulters. Only petitioner
no.1 had paid the amount due; hence, he was correctly added to the
voters list. The petitioners in Writ Petition No.32 and 34 were not
members of the sugar factory. Hence, they had no right to claim that
he was the voter of the proposed Election. The petitioner no.1 in Writ
Petition NO.371 of 2024 was a defaulter, and petitioner no.2 was the
member. To bolster his arguments, he relied on the case of Dhondiba
Parshuram Kakade Vs. Shri Someshwar Sahakari Sakhar Karkhana
Ltd, 1979 Mh.L.J. 311 on the point of the scope of enquiry by the
election officers. In the said case, the Additional Collector, deciding
the claims, directed the inclusion of 36 names out of 115 claimants in
the provisional voters list. Under this premise, the Bombay High
Court, referring to Section 11 of the M.C.S. Act, held that any
question pertaining to a person being an agriculturist or not or a
person residing in the area of the operation of the Society or not shall
be decided by the Registrar. In para 43, it has been observed that it
must also be remembered that the scope of enquiry by the Collector
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under Rule 6 is not only limited in nature but is also extremely
summary. He relied on the case of Zamsingh s/o Bhuraji Yerne Vs.
District Co-operative Election Officer and others, a decision of Nagpur
Bench in Writ Petition No.1146 of 2023 dated 09.03.2023 and argued
that the question whether the petitioner was defaulter of the Society
considering that the allegations of fraud was made in this regard was
beyond the pale and purview of the enquiry as contemplated under
Rule 11 of the Rules of 2014. He further relied on the case of Jalinder
Tukaram Kharat Vs. The State of Maharashtra, 2022 (3) Mh.L.J. 547,
argued that the nature of objections could only be considered under
Section 11 of the M.C.S. Act, and the said legal position has been
reiterated in the said case. He further relied on the case of Pundalik
Vs. District Deputy Registrar, Co-operative Societies, Chandrapur and
Ors, (1991) 2 SCC 423 and argued that once the member incurred
disqualification on the ground of default will cease to be a member of
the Committee. He also relied on the case of Shivaji Appasaheb Shejul
and ors Vs. The District Deputy Registrar Co-operative Societies and
Ors, 2017 (1) Mh.L.J. 832, and argued that this Court held that firstly,
notice to each member ought to have been given and further
reasonable period ought to have been given by the Society to the
member to make the payment. Pasting of notice in the Society is not
sufficient in view of the requirement of the second proviso to Section
26 of the M.C.S. Act. The second proviso controls the first proviso. He
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further argued that in this case, individual notices were served upon
the members, and in addition, the paper publication was also made.
31. On the point of the cut-off date, he relied on the case of
Manchak Vs. The State of Maharashtra and Ors, 2011 (3) Mh.L.J.
833. In this case, the dispute was about the payment of the crop loan.
The crop loans were paid after the cut-off date for filing the
nominations. Under this premise, this Court held that if there was no
repayment and postponement of recovery, a notice to the borrowers
and guarantors should be served, calling upon them to make
repayment within a specific time. Both respondents were aware of
their defaults and attempted to clear outstanding loans only after the
last date. In the facts of the case that the loan was tried to be repaid
after the cut-off date, the Court held that there was no breach of
principles of natural justice. Finally, the Court rejected the nomination
of the respondents for the reason that they had attempted to clear the
outstanding loan only after the last date of nomination.
32. Section 26 of the M.C.S. Act disqualifies a member from
exercising rights who is in default of payment to the Society, and if he
fails to pay the increased share value, provided, the Society should
give a notice of demand and reasonable period to comply with.
33. Section 11 of the M.C.S. Act speaks of the powers of the
Registrar to decide certain questions. Whether a person is an
agriculturist or not, or whether any person resides in the area of
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operation of the Society or not, are decided by the Registrar under
this Section.
34. Bye-law no.6 provided the outer limit to pay the
difference money of the raised share value and the mode of payment.
The member was either to pay the difference amount by cash or by
intimating the Society to deduct the difference amount from the bills
for sugarcane.
35. Bye-law no.8, which the petitioners have interpreted as
extending a further one year to clear/pay the difference amount,
provides that if the member does not pay the difference amount
within a period as per the bye-laws, the Society will forfeit the
amount of such share and the deposit amount of such shares.
However, before forfeiting such an amount, such a member should be
given a year. The Society should give a show cause notice by a
registered post of fifteen days to the member asking why such an
amount should not be forfeited.
36. Section 25 of the M.C.S. Act provides for the cessation of
membership. A person shall cease to be a member of a society on his
resignation on its acceptance, or by transferring his whole shares or
interest to another member, or on his death, or removal or expulsion
from the Society, or on the dissolution of the Society, company.
37. Under Section 25-A of the M.C.S. Act, the Society has to
remove the name of the member who has ceased to be a member
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from the membership register or who stands disqualified by or under
the provisions of the Act.
38. The Society in 2013, by following a due procedure, raised
the face value of shares from Rs.100 to 10,000 and determined three
years to pay the difference amount by framing Bye-law No. 6. It is not
disputed that the said period of three years was over on 29.07.2016 .
A last notice was issued on 08.08.2023. It is admitted that many
members did not pay the difference amount of raised share value,
though notices were served on them from time to time.
39. The petitioners have a contention that unless the name of
the member has been removed from the register of members,
membership continues, and for any reason other than the cessation,
removal, expulsion, resignation, transfer of shares or death. The
persons who have not been added to the voters list were the members
on the register of members. The said register is the source for
preparing the voter list. Hence, deleting their names from the voter
list is illegal. Respondent No.2 had jurisdiction to decide such
objections.
40. Rule 6 of the Rules 2014 provides for the preparation of
the provisional voter list. Under that Rule, the active members shall
be included in the provisional voters list as laid down in Sections 26
and 27 of the M.C.S. Act.
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41. Section 25 of the M.C.S. Act does not say that any
member in default to pay the member fee or the difference amount of
rise in the share value shall cease to be a member of the Society.
Similarly, Section 25-A also does not say the member should be
removed from the membership register for the above reasons.
Reading Rule 6 with Sections 26 and 27, it is explicit that the
members who are defaulters as provided therein shall not be added to
the provisional voters list. The learned counsel Mr. Kadam, has
correctly argued that to be a member and a voter are two distinct
concepts. A voter must be a member, but a member may not be a
voter. Therefore, it could not be accepted that Section 26 of the
M.C.S. Act does not apply to the present case.
42. In the case of Dhondiba (supra) relied upon by the
respondents on the scope of enquiry under Rule 11, it has been held
that the inquiry on objection to the voters by the Election Officer is
limited and extremely summary. Section 11 of the M.C.S. Act
explicitly empowers the Registrar to decide whether a person is an
agriculturist or not or a person is a resident of the are of the operation
of the Society. Reading this Section and the scope of enquiry under
Rule 11, it is explicit that the objections regarding the members that
they are not the residents of the areas of operation of the Society and
few are not the agriculturists were not within the ambit of Rule 11
and jurisdiction of Respondent No. 2.
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43. Bye-laws Nos.6 and 8 are distinct. Bye-law No. 6 has
provided the outer limit of three years to pay the difference amount of
the raised share value. Bye-law No.8 seems to be a penal action to
forfeit the shares that were with the Society if the member fails to pay
the difference amount of raised share value within a year by giving
fifteen days' notice. Both these Bye-law are independent. These By-
laws cannot be read together to interpret that Bye-law No. 8 extends a
further period of a year to clear the difference in the amount of the
raised share value.
44. There was a substance in the arguments of learned
counsel Mr. Kadam that since three years to pay the difference
amount were not completed in 2016, the members in arrears of the
difference amount of raised share value were not removed from the
voter list. Hence, they were allowed to vote in the Election of 2016.
The petitioners cannot take the benefit of such a past.
45. It has been established that before deleting the names of
members in default to pay the difference amount, the notices were
served upon them individually on 12.04.2021 and 08.08.2023, and
the Newspaper notice was published on 17.08.2023. Learned counsel
for respondent no.3 has correctly pointed out that 78 petitioners in
Writ Petition No.31 of 2024 were the defaulters. The petitioner no.1
in Writ Petition No. 371 of 2024 was also the defaulter. All the
societies in Writ Petition No. 23 of 2024 paid the amount after the
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cut-off date. Hence, they were not added to the provisional voter list.
The findings of Respondent No.2 in this regard are legal and correct.
In view of the facts of the petition, the answer to Point No.(ii) is that
Respondent No.2 has a summary power to make an enquiry on the
objections, and the objection which falls under Section 11 of the
M.C.S. Act is not within his jurisdiction. The answer to point No.(v) is
that Bye-law No. 8 does not extend a year period in addition to the
period of three years as prescribed in Bye-law No.6 to pay the
difference in the raised share value in share.
As to Point No.(ii) :
46. The vehement arguments have been advanced that
respondent no.2 failed to issue the notice to the members against
whom the objections were raised. The learned counsels for the
respondents have submitted that it was primarily the objector's duty
to give their details and request respondent No.2 to issue them
notices. Secondly, none of the members who were deleted from the
voter list appeared in person, raising objections against deleting their
names from the voters list. The list submitted with the objection
barely shows the names of the persons. However, no details of their
address were given. Therefore, there was no question of issuing the
notices at his behest. That apart, the burden was on the petitioners to
prove the objections. This Court, while answering point No.(ii) held
that the objections raised were not within the ambit and scope of Rule
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11, and only the Registrar has the power to deal with such objections.
In this set of facts, this Court is of the view that non-issuing the notice
to the persons whose names were deleted and added to the
provisional voter list was not essential, and this point is answered
accordingly.
As to Point No.(iv) :
47. Learned counsel Mr. Gangakhedkar argued that the
Regional Deputy Director (Sugar) had declared 01.02.2023 as a cut-
off date by his order dated 20.03.2023. However, without the notice
and knowledge of the voters, the State Co-operative Election
Authority ('SCEA' for short) has changed the cut-off date from
01.02.2023 to 1.10.2023. It was the misuse of the powers. Since the
members were not made aware of the change in the cut-off date, they
did not get an opportunity to make the deficit good. It was an
illegality on the part of the respondents. It has also been argued that
Society meetings were not called for three years. The balance sheet
and audit report were not supplied to the members of the Society.
48. Learned counsel Mr. Kadam argued that the earlier
Committee did not submit the provisional voter list. Hence, the
Registrar appointed the authorized officer as empowered under
Section 77-A of the M.C.S. Act. The cut-off date was not changed to
deprive any voter. The cut-off date was changed as the Government
had postponed the elections. Rule 6 of the Rules 2014, second proviso
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provides that in case of societies where the elections could not be held
before the expiry of the term of the Committee due to unforeseen
situations or any other reasons, the provisional list of the voters shall
be prepared on the basis of the date fixed by SCEA. Since the
Government had postponed the elections, the cut-off date was
changed, and it is not illegal.
49. There appears substance in the arguments of learned
counsel for respondent Mr. Kadam that the State Co-operative
Election Authority, under the exercise of Rule 6 of Rules, 2014, had
correctly extended the cut-off date as the Government has extended
the Election of the Society. It is not in dispute that the members in
default were served individually with the notices calling upon them to
pay the difference amount of the increased share value, but they
failed and became defaulters. The State Co-operative Election
Authority appears to have correctly exercised its powers under Rules 6
and 9 of Rules 2014. The objection about not supplying the audit
report and balance sheet to the voters before sending the provisional
list of voters to respondent no.2 has no relevance. Hence, the answer
to this point is that the provisional list was not defective in changing
the cut-off date.
As to Point No.(vi) :
50. Learned counsels for the petitioners have argued that the
judgment of the Division Bench of this Court in Writ Petition No.
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15083 of 2023 has not dealt well with the issues involved in this writ
petition. Hence, it would not come in the way of the petitioners. The
learned counsel for the petitioners referred to said judgment,
particularly para 44. In the said para, the Hon'ble Division Bench has
discussed the failure of thousands of members not paying the
increased value of the share for more than three years. The said para
also discussed about the issue of notices to all those members. It has
also been observed that payment of the increased value of shares was
a mandatory requirement. Whether individual persons received such
notices is a matter of dispute and would require the recording of oral
and documentary evidence. The same is the case with those persons
who are the legal heirs of deceased shareholders. These two aspects
have not been raised before us by these two petitioners, as they were
already raised before the returning officer.
51. Advocate Mr. Dighe argued that similar issues were raised
in Writ Petition No.15083 of 2023. The judgment of the Hon'ble
Division Bench in that writ petition directly affects the issues involved
in this case. Therefore, this Court need not re-examine the same
issues again. The other lawyers for respondents also argued on the
same line.
52. Since the respondents have strongly relied on the
judgment of Writ Petition No.15083 of 2023 and argued that the said
judgment has a bearing on these petitions, the learned counsel, Mr.
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Deshmukh, argued that the issues raised in these petitions were not
involved in those petitions. He would submit that Rule 11 of the Rules
2014 was not before the Hon'ble Division Bench. It was based on
Rules 9 and 10 of the M.C.S. (Election and Dispute) Rules. The issues
to be dealt with before this Court are different from those dealt with
in the said writ petition. He also argued that the Hon'ble Division
Bench did not dwell upon the aspects raised in this petition. Reading
para 49 of the judgment of the Hon'ble Division Bench, he argued that
the Hon'ble Division Bench has kept open the rights of the aggrieved
persons to avail the remedy as permissible in law. Hence, this Court
may independently test and examine the legality and validity of the
impugned order. He also argued that the Hon'ble Division Bench in
para 40 had crystallized the other things. The Hon'ble Division Bench
has discussed the facts of not paying the difference amounts of the
share value raised by the Society. However, no findings on its effects
have been recorded. Therefore, the judgment would not come in the
petitioner's way.
53. The learned counsel, Mr. Gangakhedkar, relied on the
case of Tata Chemicals Limited Vs. Commissioner of Customs
(Preventive), (2015) 11 SCC 628 and argued that if the law requires
that something be done in a particular manner, it must be done in
that manner, and if not done in that manner, it has no existence in the
eye of law. On this ratio, he further argued that the objections raised
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could be considered independently in the present petitions. The
earlier judgment was on another issue. Therefore, it would not bar
this Court from considering the disputes raised in these petitions.
54. Considering the earlier judgment of the Hon'ble Division
Bench in Writ Petition No.15083 of 2023, the Court is of the view that
the points regarding the objection raised before respondent No.2 were
not considered on merit. However, this Court has considered the
objections and submissions of both the parties and recorded the
finding thereon except the appointment of the Administrator as it was
dealt with in the said petition. Thus, point No. (vi) is answered
accordingly.
55. The learned counsel, Mr. Deshmukh, argued that there is
no absolute bar to exercise the writ jurisdiction by the High Court in
interfering with the election process of the co-operative societies. To
bolster his arguments, he relied on the judgment of Dattatray Genaba
Lole and others Vs. Divisional Joint Registrar, Co-operative Societies
and others, 2021 S.C.C. Online Bom 4579, particularly para 83 and
84. He also relied on the case of Dhanraj Dattatray Patil and others
Vs. State Co-operative Elections Authority, Nanded and others, 2023
(5) Mh.L.J. 419, Pundlik Vs. State of Maharashtra and others, (2005)
7 SCC 181, Judgment of this Bench of Ankita Gaurav Mungad and
others Vs. The State of Maharashtra and others in Writ Petition
No.511 of 2013, decided on 27.03.2023, a judgment of this Court
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(Nagpur Bench) in the case of Ankushbhau s/o Juglal Baghele and
others Vs. The State of Maharashtra and others in Writ Petition
No.1686 of 2022 decided on 13.04.2022, Ahmednagar Zilla S.D.V.
and P. Sangh Ltd and another Vs. State of Maharashtra and others,
A.I.R. 2004 SC 1329, and lastly, on the case of Union Territory of
Ladakh and Ors Vs. Jammu and Kashmir National Conference and
Anr, A.I.R. Online 2023 SC 739 . Further, he relied on the case of V.S
Krishnan and Ors Vs. West-Fort Hi-tech Hospital Ltd and Ors, (2008)
3 SCC 363.
56. The learned counsel for the petitioners, along with other
case law, relying on the case of Dhanraj Dattatray Patil (supra),
argued that a large number of members had been deprived of casting
votes only for non-paying the difference amount of increased share
value. There is patent illegality in the impugned orders. The Act of
deleting such a large number of voters is apparently deliberate. Lastly,
he referred to the judgment of Dattatray Genaba Lole (supra) and
argued that the petition in nature before this Court is maintainable.
57. The learned counsels for the respondents have replied
that in the above case, the ratio was that for invoking the writ
jurisdiction, there should be patent illegality dealing with the
objections by applying a non-existent rule of provisions to the election
process or failing to adhere to a mandatory provision. In the case at
hand, the existing rules were applied, and respondent No.2 adhered
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to the mandatory provisions. Hence, the ratio in the case of Dhanraj
Dattatray Patil (supra) is distinguishable on facts. The Court has
considered all the relevant provisions referred to by the respective
counsels and finds that the objections raised before respondent no.2
were not within his jurisdiction. The defaulters did not personally
raise the objection. One of the objectors was not a member of the
Society. Respondent No.2 has considered all these relevant aspects
and acted within the ambit of law, rules and By-laws of the Society.
Therefore, the ratio in Dhanraj's case would not assist the petitioner.
58. Learned counsel Mr. Dighe argued that the disputed
questions of facts have been involved in this case. Hence, the
objections could not be adjudicated while exercising Writ Jurisdiction.
The remedy is under Section 91 of the M.C.S. Act. He also submitted
that the election program had been declared on 05.01.2024. Few of
the nominations were received. Hence, this Court cannot exercise the
jurisdiction under Articles 226 and 227 of the Constitution of India.
He heavily relied on the case of Dattatray Genaba Lole (supra) and
argued that such questions should be dealt with under Section 91 of
the M.C.S. Act r/w Rule 78 of the Rules 2014. The impugned order is
well reasoned. The alternate remedy is an appeal/election dispute. He
also relied on the judgment of this Court (Aurangabad Bench) of
Ravindra Vithal Kadus and others Vs. The State of Maharashtra and
others in Writ Petition No.3202 of 2021 decided on 01.03.2021, and
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Ramkrishna Sarjerao Jagtap and others Vs. The State of Maharashtra
and others in Writ Petition No.4727 of 2022 decided on 27.04.2022 of
the Hon'ble Division Bench of this Court, and Sardar Dallu Tadvi Vs.
The State of Maharashtra and others in Writ Petition No.4679 of 2022
decided on 28.04.2022 of the Hon'ble Division Bench of this Court (in
which I was a member). He reiterated the arguments that in the writ
of petitioner Sanjay Raosaheb Waghchaure bearing no.6 of 2024, the
Hon'ble Division Bench has already considered the similar questions
that were raised before it, held that those were the questions of facts
and could not be dealt with under the writ jurisdiction. The findings
and the judgments of the Division Bench bind this Court. He
vehemently argued that there is no substance in the petitions. Hence,
the petitions are liable to be dismissed.
59. Advocate Mr. Nikam for respondent No. 3 relied on the
case of Someshwar Sahakari Sakhar Limited and Ors Vs. Shrinivas
Patil and Ors, 1992 (1) Mh.L.J. 883, and argued that the preparation
of the voter list for the Election to the Managing Committee of a
specified society is an intermediate stage in the process of Election. It
would not be proper for the High Court to interfere in a petition
under Article 226 of the Constitution of India. He relied on the case of
Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari
Dugdha Udpadak Sanstha and Ors Vs. State of Maharashtra and Ors,
(2001) 8 SCC 509 and argued that the Hon'ble Supreme Court held
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that once a statute provides for the preparation of a voter list, it shall
be treated as part of the election process. It cannot be said that the
preparation of electoral rolls is not an intermediate stage in the
process of Election of a specified Society. It is well settled that the
High Court shall not stay the election process even though there may
be some illegality or breach of rules while preparing the electoral
rolls. Once the Election results are declared, the parties aggrieved
have the option to challenge the Election by means of an election
petition before the Election Tribunal.
60. The above cases were relied upon to canvass the
jurisdiction of the High Court under Article 226 of the Constitution of
India about judicial review of the election process. Upon reading the
said case law, the judicial pronouncement was that the High Court
could interfere with the election process under certain circumstances.
Referring to the judgment of Dattatray Genaba Lole (supra), the
observations recorded in para 83 were read, and in the other
judgments of the Hon'ble Supreme Court, it was held that there is no
absolute bar in exercising a writ jurisdiction by this Court in
interfering with the election process of Co-operative Societies.
However, the same has to be exercised only in case of patent
illegalities coupled with other factors such as the Election stage and
the effect of the interference on the ongoing elections. He argued that
respondent No.2 had not committed patent illegality by not
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considering the illegalities in preparing the provisional voters list. The
members who were defaulters and dis-entitled to be added to the
voter list were correctly deleted. The election is at the advanced stage.
Hence, the petitions have no force.
61. The law is well settled, as discussed in the case law (cited
supra), that the High Court shall not stay the election process, though
there may be illegalities or breaches of rules while preparing electoral
rolls. The election petition is the remedy for the petitioners. There is
no substance in the submissions of the learned counsel for the
petitioners that if the objections are allowed, the election process
would not be disturbed. There appears to be no patent illegality in
preparing the voters list, the relevant rules and laws that were in
existence have been applied, and the mandatory provisions have been
correctly adhered to by respondent No.2. The election is at an
advanced stage, and there would be an adverse effect on the election
process if the Court interferes with it. These are not the fit cases to
exercise the powers under Writ jurisdiction.
62. For the reasons discussed above, the Court does not find
any substantial ground to warrant interference with the impugned
orders of respondent No.2 rejecting the objections. Hence, all writ
petitions stand dismissed.
63. Rule is discharged.
64. No order as to costs.
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65. Civil Application No.455 of 2024 for intervention and
Civil Application No.454 of 2024 stand disposed of.
(S.G. MEHARE, J.)
Mujaheed//
