Tanaji Baburao Bhande Vs The Secretary, Department of Cooperation and Others

Santosh Bora, J.@mdashHeard learned Counsel for respective parties. Rule. By consent, matter is taken up for final hearing.

2. By this petition under Article 226 of the Constitution of India, petitioner seeks to challenge provisional list of voters in respect of scheduled elections of a multipurpose cooperative society, contending, inter-alia, that names of 127 members have been included in the voters list, though these persons are not eligible to cast vote and this was done by Returning Officer at the behest of the Chairman of Society on the face of ensuing election. In brief, grievance of petitioner pertains to preparation of provisional voters list.

3. Vividh Karyakari Seva Sahakari Society Ltd. Dhamangaon, Tq. Udgir, District Latur, [Hereinafter referred to as society for the sake of brevity] is a multipurpose cooperative society. It is registered under provisions of Maharashtra Cooperative Societies Act, 1960. It is a primary society at village level. It is also a notified society. It is not in dispute that, terms of five members of Board of Directors of society expired in May, 2008 and as such, Assistant Registrar, Cooperative Societies, Udgir, Dist. Latur [resp. No. 3 herein] by order dt. 11/6/2008, appointed Shri B.N.Sutar, as Returning Officer for conducting said election. On 23/6/2008, Returning Officer [resp. No. 4] notified election programme and same was published in local newspapers.

4. It seems that, there were total 347 voters, who are shown in category of borrowers and non-borrower members of society. As per rules of society, members who have been enrolled two years prior to expiry of term of Board of Directors are eligible and entitled to cast vote in election. Accordingly, Returning Officer [resp. No. 4] verified relevant record available with society and included their names in provisional voters list. It is not in dispute that, names of said members were enrolled by Board of Directors in a meeting held on 30/4/2006. Thus, said members were eligible and entitled to vote in scheduled election to be held on 3/8/2008.

5. Petitioner is a member of resp. No. 5 - society. Petitioner and other members of Managing Committee objected for inclusion of names of 127 voters, which are shown at sr. nos. 220, 222, 223 to 289, 291 to 313 and 317 to 347. It is contended by petitioner that, said 127 persons were not enrolled as non-borrower members of society and therefore, an objection was raised on 25/6/2008 by petitioner and others. Returning Officer [resp. No. 4] considered objection so raised, however, he declined to accept request of petitioner to delete names of 127 members from provisional voters list. Respondent No. 4 stated that, record maintained by society in, due course, clearly shows that names of objected voters are found in resolution as well as they have deposited requisite membership fees at relevant time. There were other objections by some other members and same were also considered and rejected. Feeling aggrieved by order contained in letter dt. 25/6/2008 [Exh. P-4, page 27], petitioner approached this Court and hence, the instant petition. In brief, contention of petitioner is that the Returning Officer failed to exercise jurisdiction vested with him by law in not entertaining objection filed by petitioner. It was wrong on the part of the Returning Officer to say that he does not have power and jurisdiction to delete or add names of members in the voters list. The Returning Officer, without perusing the record of the resp. No. 5 society, under political pressure and in collusion with the Chairman and the Secretary of the resp. No. 5, has acted to protect their interest and get them elected again.

6. Initially, this Court issued notice before admission and in response, Returning Officer [resp. No. 4] filed reply denying allegations made by petitioner, specifically contending that, there is no substance in contention raised by petitioner that names of objected 127 voters appearing in provisional voters list deserve to be deleted. Returning Officer states that, record of resp. No. 5 - society clearly shows that there are total 347 borrower and non-borrower members who have been enrolled two years prior to expiry of terms of Board of Directors and they are entitled to caste vote in election. Names of these 127 members have been included in voters list on the basis of record of society, which includes resolution dt. 30/4/2006 as well as corresponding entries in register showing payment of membership fees. It is also pointed out that, as per election programme, all stages of elections are completed as per schedule and nomination of contesting candidates were to be finalized by 25/7/2008 and elections are to be held on 3/8/2008.

7. Respondent No. 5 - Society filed its affidavit in reply through its Secretary. It is pointed out that, names of 127 persons have been included after following due procedure and they are valid members and membership is confirmed on them by following due procedure as prescribed in bye-laws. These persons were enrolled as member by passing a resolution on 30/4/2006. They have deposited requisite membership fees as well. Thus, membership has been confirmed two years before cut off date. They they are eligible to be voters as per provisions of Section 27(3A) of the Maharashtra Cooperative Societies Act, 1960 and accordingly, their names find place in provisional voters list. Allegation of pressure being applied on resp. No. 4 was also denied.

8. It is pertinent to note that Maharashtra Cooperative Societies Act, 1960, makes provision for different types of societies, such as, specified societies, notified societies, etc. and it is, therefore, necessary to understood distinction between voters of these societies.

9. Shri N.P.Patil - Jamalpurkar, Advocate for resp. No. 5, argued that, this writ petition filed under Article 226 of the Constitution of India, is not maintainable, in as much as, writ court cannot interfere in the manner preparation of a provisional voters list, if it was not contrary to previsions of the Act and the relevant Rules. He points out that, preparation of an electoral roll is an inter-mediate stage in an election process and once an election process is set in motion, writ court may not be justified in interfering in the election process. A reliance has also been placed on a judgment of the Hon''ble Supreme Court in case of Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. 2002 (1) MhLJ 659.

10. It is, no doubt, true that, normally High Court shall not interfere in an election process, however, ratio laid down in case of Sant Sadguru [Supra] is not applicable in instant case, since resp. No. 5 - society is not a specified society. In present case, elections pertain to notified society. It is also pertinent to note that, in case of Bapu Maruti Rakshe and Ors. v. State of Maharashtra and Ors. AIR 2007 Bom R 636 this Court considered above aspect and declined to consider similar objection, when objection as to preparation of an electoral roll was raised by filing a writ petition. We may usefully refer to relevant observations made in the said case, in para No. 8, which reads thus:

8. On behalf of the State - respondents and the applicants, it is contended that the petition filed was not maintainable as the preparation and publication of the voters list is a stage in the election process and as such it was open to the petitioners to file an Election Petition and in these circumstances this Court ought not to interfere in the exercise of its extra-ordinary jurisdiction. For this purpose, reliance is placed on the judgment of the Supreme court in Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, . The Supreme Court in that case considered the provisions pertaining to the specified cooperative societies. In the instant case, we are concerned with notified society. The Supreme Court noted that u/s 144X of the M.C.S. Act, power had been conferred on the Government to make rules relating to various stages of the elections including preparation of list of voters. The Court also noted Rule 81 of the Election Rules to specified societies which under ground (d) (iv), provided that an election could be declared void for any non-compliance with the provisions of the Act or any rules made therein by filing an election petition. The Court held that the preparation of electoral roll is part of the election process and if there is any breach of rules in preparation the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the Tribunal. Relying upon the ratio of this judgment, the respondents contend that this Court should not exercise its extra-ordinary jurisdiction and leave the petitioners if aggrieved to file an Election Petition. The provisions pertaining to notified societies, it is submitted is similar to the provisions for specified societies. On behalf of the petitioners, their learned Counsel submits that the judgment in Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, , has been considered by the Supreme Court in subsequent judgments. Reliance firstly is placed on the judgment in Ahmednagar Zilla S.D.V. and P. Sangh Ltd. and Another Vs. State of Maharashtra and Others, . This again was a case of specified society. The issue was of inclusion of names in the voters list for election to the Managing society, consequent to an amendment to the bye-laws being held to be illegal. In that context, considering the judgment in Shri Sant Sadguru Swami (supra), the Supreme Court was pleased to observe as under:

In Shri Sant Sadugur Swami, this Court made the aforementioned observations keeping in view the fact therein that the voters'' list was prepared in terms of the extant rules but certain irregularities were committed therein, but where the voters'' list has been prepared on the basis of nonexistent rules the same would be illegal." It is submitted, that if the voters list is prepared by violating the rules, it is open to this Court to interfere. Reliance is next placed on the judgment of Pundlik Vs. State of Maharashtra and Others, . In this case, once again Shri Sant Sadguru Swami (Supra) was considered. The issue was of a delegate representing the society. A contention was raised on the maintainability of the petition relying on the judgment of Shri Sant Sadguru (Supra). The High Court was pleased to dismiss the petition. The Supreme Court noted that in several decisions, the Supreme Court has consistently taken a view that preparation of the electoral roll is an intermediate and integral process of election and it cannot be interfered with at that stage. The contention that the petition should not be entertained was rejected, by holding that "we are unable to uphold the contention." The court noted that normally the High court would not interfere in exercise of its powers under Article 226 of the Constitution at the stage of preparation of the list of voters, but such action must be in accordance with law. The court noted that, in Shri Sant Sadguru Swami (Supra) the election process was already in motion and prayer of the petitioner was for quashing of the schedule for holding election. Next reliance is placed on a judgment in Dudhganga Vikas Seva Sanstha Maryadit Vs. Distt. Collectors, Kolhapur and Others, . The challenge to non-inclusion in the voters'' list was rejected by the Collector as well as by the High court and the interpretation of the provisions of the Act and Rules. The Apex Court however held it to be not a correct reading of the Act and the Rules and the appellant was held eligible to have its name included in the provisional list of voters and accordingly allowed the appeal. Lastly, reliance was placed in the judgment of Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel and Ors. (2006) 8 SCC 200 : AIR 2006 SCW 4670. The issue there was the election of the post of President and Vice President. In the election held, there was a tie. Pursuant to draw of lots, the respondent was declared elected, which was challenged before the Gujarat High Court. The Gujarat High Court noted that two voters supporting the appellant were arrested just before the election and not allowed to cast their votes. Considering the affidavit filed by those two voters, the election of the appellant was set aside and the respondent was declared as elected. In the challenge before the Supreme Court, the Supreme Court did not interfere with setting aside the election but interfered with the declaration declaring the respondent as elected on the ground that it was not open in the exercise of judicial review to have declared the respondent as elected. On a consideration of these judgments, it is obvious that the judgment in Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, has been explained subsequently and it is still open to the Court in exercise of its extraordinary jurisdiction, on facts of a case to interfere even at the stage of preparation of provisional voters list. Provided this list was prepared based on non-existing rules or rules that were illegal or wrongly interpreted or by violating the rules, but in case of irregularities the Court will not interfere, if an election petition is maintainable on that ground.

11. Normally, it would not be proper for this Court to interfere in the process of election in exercise of powers under Article 226 of the Constitution. However, there cannot be a straight jacket formula. There are several local bodies, trusts, institutions, etc. which are governed by different enactments and as we are governed by Rule of Democracy, it is necessary to interfere in the process of election, wherever there is an obstacle in the process of election. Interference in such a case cannot be said to be interference in the election process. On the other hand, interference in such a case is required to remove blockage, obstacles, stoppage in a process of an election, in order to maintain purity of elections. In case of Save Moreshwar Dina Nath Vs. Shantaram Kale and Others, , a Division Bench of this Court [Coram : B.N.Deshmukh and I.G.Shah, JJ], has held that, High Court can interfere to remove obstacle in election though it cannot interfere in an election process itself under its writ jurisdiction. In the matter of an election to the post of Mayor of Municipal Corporation, after voting and even counting of ballot papers, a petition was filed in this Court calling for interference as the Mayor of Corporation, who was presiding the meeting, committed certain irregularities, which were apparent on the face of record. After considering the peculiar facts of the case, the Division Bench, observed thus:

59...The cancellation of the election proceedings operated as an obstacle in the election progress. The petition is filed by the petitioner to remove that obstacle in the way of the election process. If the election would have been concluded on that date and taken to logical end by declaration of result, the question of interference by this Court under Article 226 of the Constitution at this stage would not have been necessary. But, this Court is called upon to interfere and use the discretion vested in it to remove the obstacle which was created by passing a resolution, which was in excess of the powers vested in the Corporation. Interference to remove obstacle in the election is different thing than interference in the election process itself.

12. In the light of facts of this case and observations made by a co-ordinate Division Bench, in case of Bapu Maruti Rakshe [Supra], as referred to hereinabove, instant petition filed under Article 226 of the Constitution of India, is maintainable. So far as merits of case are concerned, we do not propose to interfere with the election process, since we are satisfied, pursuant to affidavits in reply field so by resp.nos. 4 and 5, that contention of petitioner, about wrong inclusion of names of 127 members, does not appear to be correct in the light of record available with resp. No. 5. Respondent No 4 - Returning Officer, as also, resp. No. 5 - Society, by their affidavits have clearly stated that, names of 127 members have been included in provisional voters list, as they were granted membership two years prior to scheduled elections by accepting their membership fees.

13. It is pertinent to note that, resp. No. 4 - Returning Officer is an independent authority and cannot be attributed with allegations of mala fide, as alleged by petitioner and except the bald allegation that, resp. No. 4 was under the influence of the Chairman and the Secretary of resp. No. 5 - Society, nothing has been placed on record, whereas, resp. No. 5 - Society has categorically denied allegation so levelled against resp. No. 4. It has also been denied that, names of 127 persons have been included in provisional voters list, as members of society, at the behest of the Chairman. It has been pointed out that, names of 127 persons have been included on the basis of resolution passed on 30/4/2006 and accordingly, they have paid requisite membership fees. Thus, they are valid members and eligible to cast vote in view of provisions of Section 27(3A) of the Maharashtra Cooperative Societies Act.

14. Apart from merits of this case, it is pertinent to note that, writ petition was filed on 2/7/2008 and arguments were heard on 25/7/2008, Scheduled date for withdrawal of nomination forms is 25/7/2008. Elections are to be held on 3/8/2008. Considering the fact that, election process is in advance stage, it would not be proper for this Court to interfere in election process, at this stage.

15. In the light of above, there is no merit in the petition and same deserves to be dismissed. Accordingly, petition stands dismissed. Rule discharge. There shall be no order as to costs.