1 W.P. 9421.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9421 OF 2011 1. Amrutdhara Dudh Utpadak Sahakari Sanstha Dangar Budruk Tal. Amalner, Dist. Jalgaon Through its Secretary Rajesh Sarjerao Wagh Age : 34 Yrs., Occ. Agriculture, R/o : Dangar Budruk, Tq. Amalner, Dist. Jalgaon. 2. Shetkari Sahakari Bagayatdar Sangh Ltd. Amalner, Tq. Amalner, Dist. Jalgaon Through its Secretary zRajesh Sarjerao Wagh Age : 34 Yrs., Occ. Agriculture, R/o : Dangar Budruk, Tq. Amalner, Dist. Jalgaon. ..... PETITIONERS V E R S U S 1. The State of Maharashtra Through its Secretary Co-operation Department Maharashtra State, Mantralaya, Mumbai. 2. The Collector, Jalgaon Dist. Jalgaon and the Returning Officer for 2 W.P. 9421.2011 - [ J ] the General Elections of the Board of Directors of Amalner, Tq. Shetkari Sahakari Sangh Ltd. 3. The District Deputy Director Co-operative Societies, Jalgaon Dist. Jalgaon. 4. The Amalner Taluka Shetkari Sahakari Sangh Ltd., Amalner Dist. Jalgaon Through its President. ..... RESPONDENTS Mr. V.D.Salunke, Advocate for the petitioners. Mr. K.B.Choudhari, Addl.Govt. Pleader for State. Mr. S.R.Bharad, Advocate for Respondent No. 4. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 17/12/2011 JUDGMENT : 1. Rule. Rule returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The Petitioner – Societies are the Co-operative Societies. The petitioners applied to the respondent no. 4 – Sangh for membership on 14/06/2002. They also paid share deposit amount and the entrance fee 3 W.P. 9421.2011 - [ J ] on 14/06/2002. 3. On 21/10/2011, respondent no. 2 published the programme for publication of the voters’ list for the election of respondent no. 4 – Sangh. The petitioners raised objection as the names of the petitioners did not appear in the provisional voters’ list. The said objection came to be rejected by respondent no. 2. The said order is assailed in the present Writ Petition. 4. Mr. V.D.Salunke, the learned counsel for the petitioners submits that even respondent no. 2 in its affidavit in reply has accepted the fact that the petitioners have deposited the share deposit amount and the entrance fee on 14/06/2002. There is no dispute in regard to the payment of the share deposit amount and the entrance fees. In such circumstances, Section 22 ( 2 ) of the Maharashtra Co-operative Societies Act, 1960 [ For short, ‘ said Act ’ ] would come into operation. Respondent no. 4 never communicated to the petitioners that their application for membershipis rejected. In view of the same, the petitioners would be deemed members of respondent no. 4. The learned counsel further contends that in view of Section 27 ( 3 ) of the said Act, the Society which has invested any part of its funds in the share of any federal society, may appoint any one of its member. The learned counsel 4 W.P. 9421.2011 - [ J ] submits that in view of these provisions, the petitioners are entitled to be enlisted in the voters’ list. 5. The learned Assistant Govt. Pleader submits that there is nothing on record to show that the petitioners were given membership of respondent no. 4, though it is on record that they have paid the share amount and the entrance fees. In view of that, the order passed by respondent no. 2 is legal and proper. 6. Mr. Bharad, the learned for respondent no. 4 accepts the fact that on 14/06/2002, the share amount and the entrance fees has been deposited by the petitioners along with application of membership. 7. Before adverting to the contentions raised, it would be appropriate to refer to the relevant sections, “ 22. Person who may become member : (1) Subject to the provisions of Section 24, no person shall be admitted as a member of a society except the following, that is to say - (a) an individual, who is competent to contract under the Indian Contract Act, 1872 ; 5 W.P. 9421.2011 - [ J ] (b) a firm, company or any other body corporate constituted under any law for the time being in force, or a society registered under the societies Registration Act, 1860; (c) a society registered, or deemed to be registered, under this Act ; (d) the State Government or the Central Government (e) a local auathority ; (f) a public trust registered under any law for the time being in force fo the registration of such trusts ; (g) the depositor or the financial service user ”. “ 27. Voting powers of members : (1) Save as otherwise provided in sub-section ( 2 ) to ( 7 ), both inclusive, no member of any society shall have more than one ote in its affairs; and every right to vote shall be exercised personally and not by proxy ; Provided that, in the case of an equality of votes the Chairman shall have a casting vote : 6 W.P. 9421.2011 - [ J ] (2) Where a share of a society is held jointly by more than one person, [ the person whose name stands first in the share certificate. If present, shall have the right to vote. But in his absence the person whose name stands second, and in the absence of both, the person whose name stands next, and likewise, in the absence of the preceding persons the person whose name is next on the share certificate, who is present and who is not a minor, shall have the right to vote ]. (3) A society which has invested any part of its funds in the shares of any federal society, may appoint one of its members to vote on its behalf in the affairs of that federal society; and accordingly such member shall have the right to vote on behalf of the society ; Provided that, any new member society of a federal society shall be eligible to vote in the affairs of that federal society only after the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society ”. 8. The undisputed facts can be culled out as under : (a) The petitioners are the primary level co-operative societies ; (b) Respondent no. 4 is a federal society ; 7 W.P. 9421.2011 - [ J ] (c) The petitioners have given an application for membership along with share deposit amount and the entrance fees on 14/06/2002 ; (d) Respondent no. 4 has never communicated the petitioners that their application for membership is rejected. 9. The above factual matrix would make it abundantly clear that the petitioners have deposited the share amount and the entrance fees and respondent no. 4 has accepted the said share amount and the entrance fees. Section 22 of the said Act lays down as to who may become a member. There is no dispute about the eligibility of the petitioners to be the member of respondent no. 4. When the respondent no. 4 has not communicated the petitioners about the status of their membership, then in such circumstances, by deeming fiction as is laid down in sub section ( 2 ) of Section 22 of the said Act, the petitioners would be deemed to be the members of respondent no. 4 – Federal society. Sub section ( 2 ) of Section 22 is clear and unambiguous. The moment the period as stated in sub section ( 2 ) of Section 22 lapses and the federal society does not communicate to the petitioner/societies, then the petitioner/societies shall be deemed to have been admitted as the member of the society. It is by fiction of law the membership vest in such a Society. 10. Even sub section ( 3 ) of Section 27 of the said Act lays down 8 W.P. 9421.2011 - [ J ] that the society which has invested any part of its funds in the shares of the federal society, may appoint any of its members to vote on its behalf in the affairs of that federal society. The said sub section ( 3 ) of Section 27 of the said Act does not warrant that a specific membership has to be conferred on the society. It only mandates that the said Society should have invested any part of its funds in the shares of any federal society. In the present case, none of the respondents dispute the fact that the petitioners have invested part of their funds in the shares of the respondent no. 4 – Society. The only embargo put on the rights of such a Society to vote is that it should have completed three ( 3 ) years from the date of its investing any part of its funds in the share of any federal society in view of proviso ( 3 ) to Section 27. In the present case, the petitioners have invested their part of the funds in the shares of respondent no. 4 in the year 2002. Even the said restriction laid down in proviso would not apply in this case. 11. In view of the above conspectus of the matter, there was no impediment to include the name of the petitioners in the valid voters’ list for the election of respondent no. 4 – Society. 12. In light of the above, the impugned order passed by respondent no. 2 can not be sustained and as such is quashed and set 9 W.P. 9421.2011 - [ J ] aside. 13. Rule is accordingly made absolute in terms of prayer clause A and B. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9421.2011 - [ J ]