WP/6638/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6638 OF 2010 Laxman S. Maharnavar & Ors. ... Petitioners V/s. The Collector, Solapur & Ors. ... Respondents Mr.P.K. Dhakephalkar i/b R.S. Ghadge for Petitioners Mr.S.N. Patil, AGP, for Respondent Nos.1 to 3, 5 Mr.P.S. Dani i/b for Respondent No.4 CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 2, 2010 P.C.: 1. Rule. By consent of the parties, Rule made returnable forthwith and heard finally. 2. The petition has been filed by members of Respondent No.4 society against the order passed by Respondent No.1 excluding their names from the voters list for elections to be conducted to the society. 3. The face value of the shares of the respondent No.4 society was increased in June 2000 by amending the bye-laws. The members of the society were thus expected to pay an additional amount for the shares that they held. There is no dispute that the petitioners had paid the then prevailing share price while becoming members of the Respondent No.4 Society. An election to the managing committee of WP/6638/2010 : 2 : Respondent No.4 society was held in July 2005. The Petitioners' names appeared in the voters' list and they participated in the elections, despite the fact that they had not paid the call money. 4. The elections to the managing committee are scheduled to be held soon as the tenure of the committee elected in July 2005 expired in August 2010. It appears that a resolution was passed on 19.7.2007 by the Managing Committee extending the time for the A class members for payment of the call money by one year. This resolution was ratified by the general body of the Respondent No.4 society by resolution No.9A passed on 28.12.2007. Undoubtedly the Petitioners are A class members, being individual members, of the society. It appears that the Respondent No.4 society cancelled the membership of 549 members including the Petitioners as they failed to deposit the amount within the stipulated date i.e. by 27.12.2008. 5. The provisional list of voters was declared on 9.6.2010. The cut-off date for inclusion of names of individual members in the voters' list was stipulated as 23.8.2008, despite which the names of these 549 members, including the Petitioners were not included in the provisional voters' list. The Petitioners and the other individual members raised objections before Respondent No.1 regarding the exclusion of their names. These objections were forwarded by Respondent No.1 to Respondent No.2. After scrutiny, Respondent No.2 has submitted his report indicating that the membership of these individuals was cancelled by virtue of the resolution of the General Body dated 28.12.2007. The Collector while passing the impugned order observed that since the Petitioners had not paid the call money by 23.8.2008, which was the cut-off date, their names need not be included on the WP/6638/2010 : 3 : voters' list. As a result, the names of about 549 individual voters have been excluded from the voters' list. 6. Taking exception to this order, the learned Counsel for the Petitioners submits that the decision of the Collector is contrary to the provisions of law and judgments of this Court in the case of Rajan Dinkarrao Pharate v/s. State of Maharashtra & Ors. 1997 (1) Mh.L.J. 543 which has been confirmed by the Division Bench in the case of Sanjivraje Vijaysinha Naiknimbalkar & Ors. v/s. Rajan Dinkarrao Pharate & Ors., 1997 (1) Mh.L.J. 803. He submits that the membership of these petitioners and others situated like them cannot cease only because they have not paid the increased amount of the share price. According to him, when the general body of the society has decided to relax the time limit for payment of the amount upto 27.12.2008, the names of the Petitioners could not have been deleted from the voters' list existing as on 23.8.2008 which was the cut-off date for inclusion of members while preparing the voters list. He submits that the aforesaid decisions of this Court provide that the names of the members cannot be removed from the membership register without following the procedure as stipulated under section 25A of the Maharashtra Cooperative Societies Act. 7. The learned Counsel for Respondent No.4 society contends that the society had already passed a resolution on 28.12.2007 to delete the names of those members who had not paid the increased amount withing one year from the date of the resolution passed on 28.12.2007. According to him, the cut-off date for the inclusion of names in the voters' list is 23.8.2008 and, therefore, the petitioners have no right to be included in the list in view of the resolution passed. Till today, WP/6638/2010 : 4 : admittedly, the petitioners have not paid the call money. He further contends that the aforesaid judgments have no application to the present case since the judgments were passed when the time to pay the call money still subsisted. In fact, before the Division Bench it was recorded that the members whose names had been excluded from the membership of the society had paid the call money at the relevant time and, therefore they could not be disqualified from exercising their rights as voters u/s 26. The learned Counsel also raised an objection to the maintainability of the petition inasmuch as the petition has been filed by only 6 persons without seeking leave to file it in a representative capacity in respect of the members whose names have been deleted from the voters list. 8. In my view, the objections raised by the learned Counsel for the petitioners to the order of the Collector are valid. The Collector has held that the Petitioners and all the 549 members ceased to be members as they had not paid the requiste price for the shares held by each of them. 9. It is now well settled that the enquiry conducted by the Collector under Rule 6 framed under the Maharashtra Cooperative Societies Act is summary in nature though Rule 6 enables the Collector to decide whether a person can vote. The Collector cannot decide about the membership of a person as held in the case of Rajan Dinkarrao Pharate v/s. State of Maharashtra & Ors.(supra). The Collector can go into the question whether a person has made payment to the society in respect of the membership as prescribed by the Rules or bye-laws of the society. However, the Collector cannot in the garb of an enquiry in sub-rules 5, 6 and 7 of Rule 6 decide whether such a person is entitled to be a member. In case the Collector embarks WP/6638/2010 : 5 : upon such an enquiry it would be without jurisdiction. Similarly, the Division Bench while confirming this judgment has held that the names of persons who are members of the society since its inception cannot be excluded from the voters list even though they had not ceased to be members as provided under section 25 or section 25A of the Maharashtra Cooperative Societies Act inasmuch as their membership had not been cancelled. The Division Bench has further held that since the membership u/s 26 was not cancelled, they were not debarred from exercising rights as members. 10. In the present case, the cut-off date for the preparation of the voters list was 23.8.2008. On this date, the petitioners and others like them who had been members of the society since its inception, were undoubtedly members of the society. They had not ceased to be members although they had not paid the increased face value of the shares as they were given liberty to pay the amount by 27.12.2008. Therefore, on 23.8.2008, i.e. the cut-off date, they certainly were entitled to continue as members and were not debarred from exercising such rights as their names could not have removed from the membership register without complying with the provisions of law. 11. The submission of the learned Counsel for the respondent society that the aforesaid judgments do not apply to the facts in the present case is unsustainable. It is true that the members in that case had paid the differential amount in the face value of the shares within the time prescribed by the bye-laws. It is equally true that in the present case the members have not paid the amount within the time prescribed by the bye-laws. However, the date which is material for inclusion of the names in the voters list is 23.8.2008. Therefore, even if the members had not paid the WP/6638/2010 : 6 : differential amount on this date it was necessary to include their names on the voters list as the resolution of the General Body had extended the time to pay the amount by 27.12.2008. Thus, the order of the Collector excluding their names from the voters list must be set aside. 12. The objection raised regarding maintainability of the petition in its representative nature is in my view hyper technical. The Petitioners are some of the 549 members whose names have been excluded from the voters list. Admittedly, these 549 names have been excluded for the same reason i.e. non-payment of the increased face value of the share. The present order will thus cover all the individual members whose names have been excluded. 13. The learned Counsel for Respondent No.4 submits that the petition is not maintainable as the petitioners have an alternate remedy of challenging the election by filing an election petition. It is submitted that the election process has commenced since the nominations are called for by 6.9.2010. Reliance is placed on the decision of the Supreme Court in the case of Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, 2001 (8) SCC 509 in which the Supreme Court has held that the preparation of the electoral roll is an intermediary stage in the election process of the managing committee of a specified society and, therefore, a writ would not be maintainable to challenge the electoral roll. The proper remedy would be an election petition. Subsequently, a bench of 3 Judges of the Supreme Court after considering the judgment in the Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra (supra), has held that when there is an illegal amendment to WP/6638/2010 : 7 : the bye laws on the basis of which the electoral roll was prepared, the question of maintainability of the writ petition takes a backseat. 14. It is true that normally a writ petition should not be entertained when an election process has commenced and preparation of the voters list is an intermediary stage in the election process. However, the extraordinary jurisdiction of this Court can be invoked when 549 members of the society have been disallowed from exercising their franchise unreasonably, arbitrarily and without any authority of law. In these circumstances, in my view, the writ petition must be allowed and the order of the Collector must be quashed. 15. Accordingly, rule is made absolute in terms of prayer clause (a). 16. Parties to act on an authenticated copy of this order.