1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2017 OF 2011 *** 1. Heard Advocate Mr. Thombre for Petitioner, Advocate Mr. Deelip Patil Bankar holding for Mr. A.A. Shelke Advocate for Respondent No.6, learned A.G.P. Mrs. Shinde for Respondent Nos.1 to 3, Advocate Mr. S. R. Bharad holding for Advocate Mr. Salunke for proposed intervenor Chandrakant Galande, Advocate Mr. Deshpande for Applicant in Civil Application St. No. 7966 of 2011. 2. Shri Thombre has invited attention to specific provisions of Rule 36 of Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 (hereinafter referred to as 1967 Rules) to urge that after addition of name of petitioner to voters list on 11th March, 2011 in terms of Rule 36 (12) there was no scope for anybody to raise objection to that inclusion and no 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. jurisdiction with Returning Officer Respondent No.2 to entertain it. He contends that the Returning Officer also does not possess jurisdiction to review his earlier order dated 11th March, 2011. He points out that the managing committee of Respondent no. 5 cooperative Society consisted of 13 elected directors and in 2006, 7 directors out of these 13 directors resigned. Those resignations were accepted on 12th June, 2006 and thereafter notice under section 78 (1) of Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as 1960 Act) was issued. That notice has been questioned by Chairman of Respondent No.5 society in a writ petition before this Court and that notice only has been stayed. His contention is, therefore, the acceptance of 7 resignations on 12th June, 2006 has attained finality. The petitioner was coopted on 28th December, 2010 against one such vacancy and 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. hence the reasons given by Respondent NO.2 in impugned order on 14th March, 2011 for deleting the name of present petitioner are unsustainable. He has urged that the finding of validity or otherwise of the requisitioned special meeting conducted on 28th December, 2010 in the light of provisions of section 91 of 1960 Act by that authority are also misconceived. According to him, that authority has no such jurisdiction and declaration about validity or otherwise must be under section 91 of the 1960 Act. Support is being taken from Division Bench judgment of this Court in the case of "Kamlabai Vitthal Rohankar V/s Additional Collector and others" reported in 2007 (3) Bom. C. R. 630" reported at 2007 (3) Bom. C. R. 630. Learned counsel states that objection was filed on 14th March, 2011. Notice for hearing was issued on same day, hearing was on very same day and impugned order, though passed later 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. i.e. after 14th March, 2011 has been anti- dated to show that it has been passed on 14th March, 2011. In the light of these contentions, he has also invited attention to the first order by which after recording a finding that meeting dated 28th December, 2010 appears to be proper, the resolution in his favour was accepted. Learned counsel therefore contends that the impugned order dated 14th March, 2011 is unsustainable. His contention is after initial publication of voters list on 15th February, 2011 the objections could have been raised only up to 1st March, 2011 and after 1st March, 2011 no such objection is contemplated in the scheme of A.P.M.C. Act or 1967 Rules framed thereunder. He also states that only addition of a name omitted erroneously is possible. 3. Respective counsel for respondents and 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Advocate Bankar Patil opposed the petition. Shri Bankar Patil pointed out that order dated 11th March, 2011 itself contemplate objections to the inclusion of name of petitioner and accordingly objection was raised. He invites attention to provisions of section 76 of 1960 Act to urge that meeting allegedly conducted on 28th December, 2010 is not IN consonance therewith. He points out that in the writ petition there is no assertion about holding of any such meeting on 28th December, 2010. His effort, therefore, is to show that proceedings of alleged meeting dated 28th December, 2010 in favour of petitioner are fabricated. For that purpose, he has invited attention to signature of one Ramnath Baburao Sankpal on the Panchanama dated 21st December, 2010 on the proceeding dated 28th December, 2010 and also to death certificate issued by competent authority to disclose that said person had 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. expired on 22nd November, 2009. The Respondent No.6 has filed on record affidavit of wife of said Ramnath, brother of said Ramnath to show that Ramnath expired on 22nd November, 2009. He also invites attention to some other name to urge that that person has in earlier proceedings placed his signature while in impugned proceedings his thumb impression appears. In this view of the matter, according to him, the authority after hearing the objections has rightly found substance in it and directed deletion of name of petitioner. 4. He points out that before Respondent No. 2 there were several objections and all those objectioners are not joined as parties before this Court. In their absence the petition is not tenable. He has invited attention to judgment of Honourable Apex Court in the case of "Shri Sant Sadguru Janardan Swami 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another V/s State of Maharashtra and others" reported in 2002 (2) Bom. C. R. 149 to urge that this Court should not interfere in the process, at this stage, as the election has progressed further and petitioner should be left to avail his remedy under Rule 88 of the 1967 Rules. 5. Advocate Shri Salgar, supporting the case of petitioner, has tendered reply affidavit. However, he has sought leave to correct the date of meeting mentioned in it. According to him that date has to be 28th December, 2010 and inadvertently it has been recorded as 21st December, 2010. 6. The perusal of judgment of Division Bench of this Court in the case of "Kamlabai Vitthal Rohankar V/s Additional Collector and others" (supra) shows that there the 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. elections of a specified cooperative society conducted as per provisions of section 144 of the 1960 Act was the subject matter of consideration. The question was whether while considering the objection to voters list the Assistant Registrar or Deputy Registrar can go to validity of meeting of managing committee of a society. The Division Bench has found that validity of meeting of managing committee can be challenged only under section 91 of 1960 Act before Cooperative Court. It has also noticed that even Collector as a Returning Officer is not empowered to go into validity and legality of a meeting of managing committee. The perusal of relevant discussion in paragraph 14 reveals that the Division Bench has found that under scheme of 1960 Act the Assistant Registrar or Deputy Registrar is not conferred with jurisdiction to decide validity or otherwise of a meeting 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of cooperative society and that jurisdiction is vested with Cooperative Court under section 91 of 1960 Act. It is because of this, division of jurisdiction between two authorities under the Act the particular view has been reached. 7. The name of petitioner has been born on record because of order dated 11th March, 2011. Petitioner has not questioned validity or otherwise of that order. That order itself stipulates that the name is added in terms of Rule 36 (12) but then same is subject to objections and complaints. Thereafter, the objections and complaints have been received and those have been decided by Respondent No.2. Perusal of Rule 36 (12) shows that after publication of list of voters finally under Rule 11, If the Collector (Returning Officer) is satisfied after such inquiry as he deems fit, that any 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. entry in the list is erroneous or defective in any particular respect, the Collector may cause a list to be amended. It is further clarified that after such amendment provisions of subrule 3 to 11 shall apply to such amendment in like manner as they apply in case of list of voters. It is, therefore, obvious that the opportunity to raise objections given on 11th March, 2011 by Respondent No.2 is neither erroneous nor perverse. It is further obvious that order dated 14th Marcy, 2011 cannot be, therefore, said to be an order passed by him in exercise of review jurisdiction. 8. Provisions of section 76 (1) contemplate a Special General Body meeting to be called after fulfillment of some conditions. Here, the alleged notice by which the meeting has been convened does not show fulfillment of those ingredients. Shri Thombre has tried to 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. urge that those ingredients are looked into by Respondent No.2 in his order dated 11th March, 2011. However, perusal of that order also does not reveal any such scrutiny. 9. The Returning Officer has, while ordering deletion of name of present petitioner, on 14th March, 2011, looked into all these aspects. Though one reason given by him viz. stay given by this Court to notice dated 12th June, 2006 and its implication may not be very correct that by itself is not sufficient to vitiate the entire order. In view of the application of mind therein, I do not see any jurisdictional error or perversity. The petitioner has got remedy of filing an election petition under Rule 88 after the election is over. All factual disputes are, therefore, left open. It is made clear that the observations in relation to any fact by this Court are only 12 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2017 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. for the purpose of indicating the nature of controversy involved and shall not bind fact finding authority. Present Petition is accordingly dismissed. No costs. 10. Authentic copy of this order is permitted as per usual procedure. [B.P.DHARMADHIKARI, J.] Dated:22/03/2011. ans/2017