- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 3797 OF 2010 Bhikaji D. Parle .. Petitioner Vs. Returning Officer, The North Mumbai Central & Ors ..Respondents Mr. S. A. Pawar, for the Petitioner. Mr. Vijay Patil, for Respondent No.1. Mr. R. M. Patne, AGP fpr Respondent No.2. CORAM : R. C. CHAVAN, J. DATED : APRIL 30, 2010. P.C. : . Not on board. Upon mentioning, taken on board. 1. This petition by a prospective candidate at the elections of respondent No.2 Society, is directed against the order passed by the District Dy. Registrar rejecting the appeal, against the rejection of the nomination of the petitioner, by the Returning Officer. 2. The facts which are material for decision of the petition areas under: . The petitioner is authorized by the MIG Consumers Society - 2 - to take part in the election of respondent No.2 Society. The respondent No.2 Society had secured approval to raise the share capital to Rs. one crore, by amending the bye-laws, on 13th August 2008. As a consequences, the bye-laws also increased the face value of shares. Each share was to have face value of Rs.1,000/-. Earlier face value of the share was Rs.25/-. In respect of B-Class members of the Society, it was prescribed that such members would have to have 20 shares. For the purpose of contesting elections, B-Class members were required to have 25 shares of Rs.1,000/- each i.e. they should have contributed share capital of Rs.25,000/- to the Society. These byelaws were approved by the Dy. Registrar, Cooperative Society on 10th November, 2008. 3. The learned counsel for the petitioner submitted that the petitioner or the MIG Society, Bandra were not informed about these changes in bye-laws. The MIG Society nominated the petitioner for contesting from the category of B-Class voters. The nomination of the petitioner was rejected, since the MIG Society, which had delegated the petitioner, did not have share capital of Rs.25,000/-. This rejection of candidature by the Returning officer on 8th April, 2010 was questioned by the petitioner by filing an appeal, which was dismissed by the District Dy. Registrar by his order dated 19th April, 2010, propelling the - 3 - petitioner to this Court. 4. I have heard the learned counsel for the petitioner and the learned counsel for respondent No.2 Society as also the learned AGP for respondent No.5. The learned counsel for petitioner placed reliance on the judgment of the Division Bench of this Court in that case of Sanjivraje Vijaysinha Naiknimbalkar & Ors. Vs. Rajan Dinkarrao Pharate & Ors. [1997(1) Mh.L.J. 803] . He submitted that even in that case the Society had increased face value of its shares and had required higher contribution from the members, behind their back, and then had disqualified them from participating at the election to the Board of Directors. He submitted that the Division Bench had considered various provisions of the Maharashtra Cooperative Societies Act, including provisions of section 26 and concluded in paragraph 16 and 17 as under- “16. Now, once the amount payable at the relevant time is already paid and the persons have become members of the Society, it will be difficult to hold that those members ceased to be members of the Society as the increased share amount was not paid on or before 31st December, 1995 which according to the petitioners is the cut-off date for deciding membership. As such, time ot make payment towards the - 4 - increased share value is admittedly extended upto 31st July, 1997. If that is so, then therre is no question of failure on the part of the members to make payment towards membership as prescribed by the bye-law of the Society. The amended bye- laws itself provide for making payment on or before a particular date which may be extended by the Board of Directors. In the present case, admittedly, the Board of Directors and thereafter the A.G.M. Extended the time upto 31st July, 1997. 17. However, the learned counsel for the appellants and the learned counsel appearing for the State submitted that Section 26 is incorported to infuse discipline in the Society to make the payment towards the membership before exercising the right as members. In our view, this submission would be of no avail in the present case because, admittedly, the persons whose names are excluded were members of the Society. They have paid the amount due at the relevant time and nothing was due for acquisition of the membership at the relevant time when they became members. Therefore, there is no question of disqualifying them from exercising their right as voters as - 5 - section 26 is not applicable in the present cas. Further, considering section 26 quoted above, it would be apparent that the member would not be entitle to exercise the rights of the membership if he has not made payment in respect of the membership prescribed by the rules or bye-laws of the Society. In the context, the phrase ‘payment prescribed by the rules or the bye-laws of the Society: would mean prescribed membership charges within prescribed time. Prescribed time for payment of increased amount, under the bye-law, is upto 31st July, 1997.” 5. He submitted that in the face of these observations it would have to be held that the petitioner could not be excluded from exercising rights as member since he represented a Society which was a shareholder and a member of respondent No.2 Society. I have considered this submission. It has to be noted that the judgment recounts that extension of time to pay deficit share capital had been granted by the Society itself and the members were expected to make good the deficit by 31st July, 1997. Therefore, obviously, exclusion of the names of members therein by the order of 5th July 1996 i.e. before the extended date for making good deficit i.e. 31st July 1997 was over, was held by the - 6 - Division Bench to be incorrect. Such are not the facts of the present case. There is nothing to show that respondent No.2 Society had extended time to make good the deficit in payment of share capital. 6. The learned counsel for the petitioner submits that increase in requirements of holding shares and the face value of the shares has been given effect to by respondent No.2 surreptiously behind the back of the petitioner in order to ensure that the petitioner was left out of the fray. The learned counsel for the respondent No.2 made available for my perusal an intimattion which had been sent to the Society of which the petitioner is delegate on 1st of June, 2009, requiring the petitioner’s parent Society to make good dificiency of Rs.19,000/-. He also showed to me a document from the post office, showing that this intimation has been sent by speed post on 29th June, 2009. In any case, the byelaws were not amended in closed doors. Such amendment is always carried out in General Body Meeting. The motion amending the byelaws is also not moved at the eleventh hour at the General Meeting of the Society and notice of such meeting would always include the proposed amendment. It also requires approval of the District Dy. Registrar. Therefore, the petitioner’s contention that the petitioner had no idea of change in the byelaws cannot be countenanced. If the petitioner has not - 7 - been vigilent about his rights and obligations, he has to suffer. No fault can be found with exclusion of the petitioner by the Returning Officer and also rejection of the petitioner’s appeal by the District Dy. Registrar. Writ petition is ttherefore, dismissed. Sd/- [R. C. CHAVAN, J.]