WP.1208-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 1208 OF 2011 Mr. Pandit N. Katore ...Petitioner Vs. The Returning Officer & Ors. ...Respondents *** Mr. P. S. Dani i/b Drupad Patil, for the Petitioner. Mr. Pramod Pawar, for Respondent No.2. Mr. S. N. Bhosale, AGP for Respondent No.3. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 10, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner, respondent No.2, and the learned AGP appearing on behalf of respondent No.3. The petitioner by this petition is challenging the order dated 17-1-2011 passed by the Election Returning Officer of Chimbali Vividh Karyakari Sanstha Ltd., Chimali, Taluka Khed, District Pune. 2. Brief facts are as under- . Respondent No.2 is a cooperative Society, registered under WP.1208-11 - 2 - the provisions of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the “Act”). It is an admitted position that the said Society is an ordinary Cooperative Society and is not a Specified Society or a Notified Society, as defined under the said Act and the Rules thereunder. The grievance of the petitioner is that respondent Nos. 4 to 22 are persons whose names are illegally and wrongly inserted in the provisional list of voters, declared on 3-1-2011 by the respondent No.1. The petitioner filed his objection for the insertion of names of respondent Nos. 4 to 22 and 3 others in the provisional list of voters, by filing an application to the respondent No.1. However, the Returning Officer was pleased to dismiss the said objection by an order dated 17-1-2011. Respondent No.1 has published the election program of election of respondent No.2 Society on 3-1-2011. 3. The learned counsel appearing on behalf of respondent No.2 Society has raised preliminary objection regarding maintainability of the petition under Art. 226 and 227 of the Constitution of India, and contended that no writ can be issued against an Election Returning Officer. It is submitted that bye-laws of the Society do not provide an appointment of an Election Returning Officer by the Assistant Registrar. He submitted that in the present case a request was made by the Society WP.1208-11 - 3 - to the Assistant Registrar to appoint a Returning Officer in order to ensure that no allegations are made by either party regarding the impartiality of the Election Returning Officer and accordingly, the Assistant Registrar was pleased to appoint the said Election Returning Officer by his order dated 9-4-2010. 4. Mr. Dani, learned counsel appearing on behalf of the petitioner submitted that the writ petition filed under Art. 226 and 227 of the Constitution of India, challenging order of the Returning Officer is maintainable. In support of the said contention, he has relied on the Division Bench judgment of this Court in the case of – Pandurang Hindurao Patil, Petitioner v. State of Maharashtra & Ors., Respondents [1983 Mh.L.J., 1081]. 5. On the other hand, the learned counsel appearing on behalf of respondent No.2 has relied upon judgment of the learned Single Judge of this Court in the case of – Rajaram Annappa Balgar & Ors., Petitioners vs. The Dy. Registrar, Cooperative Societies & Ors., Respondents [ Writ Petition No. 1011 of 2011, dated 3rd February, 2011]. 6. In my view, there is some substance in the submissions of the learned counsel appearing on behalf of respondent No.2. It is an admitted position that respondent No.2 Society is an ordinary Society, WP.1208-11 - 4 - and therefore, the said Society is not a “State” within the meaning of Art. 12 of the Constitution of India. 7. So far as Returning Officer is concerned, the bye-laws do not state or authorise the Assistant Registrar to appoint an Election Returning Officer. In the present case, the Society requested the Assistant Registrar to appoint an Election Returning Officer and consequently the Assistant Registrar by an order dated 9-4-2010 was pleased to appoint an Election Returning Officer. The said Election Returning Officer, therefore, in my view, cannot be said to be a statutory authority appointed under the directions or appointed under the statutory authority, or a person who is appointed by the Assistant Registrar, while exercising his powers, vested in him, under the provisions of the Cooperative Societies Act or the Rules thereunder. There is no provision under the Cooperative Societies Act or Rules which authorises the Assistant Registrar to appoint an Election Returning Officer in respect of an ordinary cooperative Society. In such circumstances, therefore, in my view, neither the decision taken by the Returning Officer in respect of any issue pertaining to the elections can be questioned, nor can a direction be given to the Assistant Registrar or the Election Returning Officer by issuing the writ under Art. 226 and 227 of the Constitution of WP.1208-11 - 5 - India. The Full Bench of this Court in the case of – Shamrao Vithal Cooperative Bank Ltd. & Anr., Appellants vs.Padubidri Pattabhiram Bhat & An., Respondents [1993(1) Mh.L.J. 1] has clearly so held in paragraph 27 and 29 of the judgment, which reads as under- “27. Accordingly, we answer the issue which is referred to us as follows : 28. A Co-operative Society, registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 and under the Multi State Cooperative Societies Act, 1984 which carries on the business of banking, and is therefore, governed by the Banking Regulation Act, 1949 does not thereby fall within the expression “State” under Article 12 of the Constitution of India. The appellant-Bank cannot, therefore, be considered as “State” under Article 12. 29. A writ cannot, therefore, be maintained against the appellant-Bank. This disposes of the entire appeal. Hence, the appeal is allowed and the writ petition is dismissed.” 8. So far as judgments on which the reliance is placed by the learned counsel appearing on behalf of the petitioner is concerned, in my view, the ratio of the said judgment will not apply to the facts of the present case. In the said case, the Returning Officer had rejected the nomination papers with respect to the elections of the Managing Committee of a Specified Society. So far as Specified Society or Notified WP.1208-11 - 6 - Society is concerned, writ petition under Art. 226 and 227 of the Constitution of India is maintainable. In the said case, the questions which fell for consideration before the Court was - “whether a writ could be issued as against a Returning Officer?”; and secondly, “if the Returning Officer is amenable to the jurisdiction of this Court under Art. 226 of the Constitution?” In the said case, apart from the fact that the said Society was a Specified Society, the bye-laws which were styled as “Election Rules” provided that the Managing Committee should suggest name of the Returning Officer and the said name shall be approved from the District Dy. Registrar, and therefore, the Division Bench held that “when the Returning Officer acts contrary to the provisions of Section 73 of the Act when he rejects nomination paper wrongly or accepts nomination paper wrongly, then he is amenable to the writ jurisdiction of this Court. The ratio of this judgment will not apply to the facts of the present case, since the bye-laws do not make any provision, seeking approval of the Registrar or Dy. Registrar, and therefore, in my view, the said ratio cannot be made applicable to the facts of the present case. I am of the view, therefore, that the writ petition is not maintainable. Apart from that, the process of election is commenced on 3-1-2011 and therefore, this Court cannot even otherwise WP.1208-11 - 7 - interfere with the election process. The petitioner has always an alternative remedy of filing the Election Petition, after the election is over. Writ Petition is, therefore, dismissed. [ V. M. KANADE J.]