1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1387 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.: 1387 OF 2011 *** 1. The election program of petitioner society is going on and today is stated to be the date of scrutiny. Actual polling is scheduled on 3rd April, 2011. 2. In this background Shri Khandagale Patil, Advocate for Petitioner society contends that direction to delete names of 1070 members/ voters by Assistant Registrar by impugned order is unsustainable. He also contends that the order passed in appeal under section 152 of Maharashtra Cooperative Societies Act, 1960 [Act of 1960, hereinafter] by Divisional Joint Registrar on 5th February, 2011 confirming that order in respect of everybody except two persons viz. Smt. S. B. Shinde and Smt. C. A. Shinde suffers from same vice. He points out 13 more persons are also "Khatedars" i.e. they possess agricultural land and hence even in 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1387 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. accordance with by-law No.6 (4) of society they are entitled to become members and to vote in the elections. In the alternative and without prejudice, he points out that these 1070 persons, whose names were directed to be deleted, were also voters in earlier elections. According to him, by-law 6 (4) of the Society runs contrary to section 73-B of Act of 1960 and to that extent it needs to be ignored. He relies upon section 73-B (3) to urge the weaker section has got reservation on Board of Directors and weaker section is defined in the order dated 5th May, 2001 issued in exercise of powers under clause (c) of explanation to Section 73-B of 1960 Act by the Cooperative Department of Government of Maharashtra. He contends that as per clause (2) these 1070 persons or most of them are agricultural labourers and, therefore, they should not possess any agricultural land and if it is shown that they possess a homestead 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1387 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. and derive more than fifty per cent income from agricultural wages they are liable to be included in weaker section and are thus entitled to become members of the petitioner society. He, therefore, states that By-law No. 6 (4) to the extent of repugnancy with this provision/ position is liable to be ignored. 3. Shri Hon, Advocate for Respondent No.4 and learned A.G.P. for Respondent Nos.1 to 3 supported the impugned order. They contend that some disputed questions arise for determination here and the remedy of revision under section 154 of the 1960 Act is available to aggrieved persons. It is urged that petitioner before this Court is a society and society itself cannot claim that its by-law is inconsistent with provisions of section 73-B (3) of 1960 Act. It is also argued that none of these 1070 members have chosen to file any appeal under section 152 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1387 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 1960 Act or then have chosen to approach this Court. Learned counsel request that as there is no jurisdictional error or perversity, this Court should not interfere in the matter. 4. The provisions of By-law No. 6 (4) of petitioner society are very clear. The person in order to be eligible to become member must possess agricultural land and that by-law prescribes its minimum area to be 10 Ares. By-law also require him to attach 7/12 extract in support of this position. 5. It is not the contention of the petitioner/ society that by-law has been amended, modified or deleted. In the face of by-law, therefore, the action of enrolling persons who do not possess any agricultural land cannot be sustained. However, effort is to urge that provisions of section 73-B (3) of the 1960 Act permit such enrollment if these persons are shown as agricultural 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1387 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. labourers. The provision of section by itself do not define who is agricultural labourers. The said provision at the most uses the word "weaker section". Explanation (c) appearing in section 73-B (3) states that "a member belonging to weaker section" means a member or such class of members as State Government may by general or special order from time to time declare. The declaration on which reliance is being placed is dated 5th May, 2001. The said declaration states that agricultural labour is a person belonging to weaker section and then it defines what is meant by agricultural labour. However, section 73-B cannot be stretched to mean that it permits all persons falling in weaker section to become member of any society. Eligibility to become member is something else and that eligibility here prima facie is decided by By-law No. 6 (4). 6. At this stage when elections are going 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1387 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. on, as I find that petitioners have got remedy of filing revision under section 154 of 1960 Act and also the disputed question about status of these 1070 members arise, I am not inclined to interfere in the matter. Petition is, therefore, rejected. No costs. [B.P.DHARMADHIKARI, J.] Dated:08/03/2011. ans/1387