1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2995 OF 2010 (Premkumar Shivkumar Jaiswal vs. State of Maharashtra & Ors.) with WRIT PETITION NO. 2996 OF 2010 (Sanjay Ramesh Bisesn vs. State of Maharashtra & Ors.) and WRIT PETITION NO. 2997 OF 2010 (Prafull Gopaldasji Agrawal vs. State of Maharashtra & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. AUGUST 05, 2010. Heard Shri A.S. Jaiswal, learned counsel for the petitioners, Shri Khapre, learned counsel for respondent No. 4, Shri Bramhe, learned counsel for respondent No. 5 in all writ petitions and Shri Sonare and Shri J.B. Jaiswal, learned AGPs for respondents No. 1 to 3 in respective writ petitions. The petitioners in all these three matters are aspiring to be delegates of Respondent No. 5 – Society on Federal Society – Respondent No. 4 to which Respondent No. 5 is affiliated. The regular elections of Respondent No. 4 are scheduled on 14.08.2010. Election Programme thereof has already commenced. On 27.04.2010, provisional voters list was published and final voters list was also published on 25.06.2010 as per Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971, (hereinafter referred to as the Rules). The petitioners, 2 thereafter claimed that they have moved applications before Respondent No. 2 – Collector for adding their names as voters/ delegates of their respective societies on 11.06.2010. Their contention is, those applications have been rejected behind their back without extending any opportunity of hearing. Shri Jaiswal, learned counsel for the petitioners, has pointed out that as per notice issued by the office of the Collector, such applications under Rule 6, sub-rule (5) were to be filed by 12.06.2010 and the petitioners did file those applications on 11.06.2010. Those applications have been rejected by impugned order dated 26.06.2010 holding that the members of Respondent No. 5 – society failed to remain present before Respondent No. 3 for verification. The respective learned counsel has invited attention to reply affidavit filed by Respondents No. 3 & 4 to urge that no notices were served upon Respondent No.5. The respective learned counsel for respondent No. 5 in all writ petitions state that respective Respondent No. 5 did not receive any such notice from the office of Respondent No.3. The learned AGPs have pointed out that the reply of Respondent No.3 filed before this Court contains a statement on affidavit that notices were issued on 17.06.201, 18.06.2010 and 19.06.2010 to respective Respondent No. 5 and were duly served and they chose to remain absent. 3 Shri Khapre, learned counsel for respondent No. 4 – Federation has contended that notices were attempted to be served by Respondent No. 3 through Respondent No. 4. The employees or representatives of Respondent No. 4 have in fact effected the service well within time and he has relied upon assertion in this respect in para 22 of the reply affidavit filed before this Court by Respondent No.4. He contends that respective Respondents No. 5 deliberately avoided to give necessary seal of society and also put the date of service. He further points out that there was one more society i.e. Gajanan Dugdha Utpadak Sahakari Sanstha and notices forwarded by Respondent No. 3 to Respondent No. 4 were duly served and acknowledged by that society and that society appeared for hearing and name of its representative has been taken on record. According to learned counsel, in view of this position and according to Respondents No. 3 & 4, disputed questions arise which cannot be gone into by this Court. His contention is issue needs to be left open for consideration in Election Petition. Shri Khapre, learned counsel has invited attention to provisions of Rules 5 and 6 of the Rules together. His contention is, the respective Respondent No. 5 did not forward names of their delegates as required by Rule 5(2) of the Rules to Respondent No. 4. His contention is, the entire scheme of Rule 5(2) or Rule 6 contemplates a situation in which the names are so forwarded. He also states that the application under 4 Rule 6(5) of the Rules has to be by Respondent No. 5 – society and in present matter Respondent No. 5 society has not filed any such application and there is no assertion by Respondent No. 5 society that though it had forwarded the name of its delegate to Respondent No. 4, the said name did not appear in the provisional voters list. His contention is that recourse to provisions of Rule 6(5) of the Rules is, therefore, unwarranted. Shri Jaiswal, learned counsel for the petitioner, in reply, has contended that in Election Programme, liberty to file application under Rule 6(5) of the Rules is contemplated and that application has been moved. The application cannot be opposed by Respondent No. 4 and all arguments of Respondent No. 4 before this Court are misconceived. His contention is, Respondent No. 4 lacks locus to raise such objections. The fact that respective Respondent No.5 is a member of Respondent No. 4 is not in dispute. The fact that name of its delegate is not appearing in voters list is also not in dispute. The fact of filing of application by the petitioners for inclusion of their respective names as delegates within time with competent authority is also not in dispute. Rule 6(5) of the Rules contemplates such opportunity to a person whose name is not included in final list of voters by the Collector under sub-rule (4) of the Rules if he is desirous of being registered as a voter. He has in that event to apply to the Collector in Form 1- A within 15 days from the date of display of final voters list. Accordingly, the petitioners have moved that 5 application. The further adjudication of that application, its legality, maintainability are the aspects in the domain of Respondent No.3. This Court at this stage is not required to look into that aspect. The remedy is made available by statute and also in Election Programme and that has been invoked. The only disputed question is about the service of the notice of hearing by Respondent No.3. After receipt of applications from the petitioners, Respondent No. 2 has asked Respondent No. 3 to undertake verification and hearing was to be conducted by Respondent No. 3 for said purpose. Respondent No.3 claims to have issued three notices to Respondent No. 5 – Societies for said purpose. However, none of those notices are attempted to be served directly by the office of Respondent No.3. The notices were sent to Respondent No. 4. The affidavit filed by Respondent No. 3 only mentions that notices were issued on 17.06.2010, 18.06.2010 and 19.06.2010. The reply by Respondent No. 3 nowhere asserts dates on which those notices were served upon respective Respondent No. 5 – societies and in spite of service, Respondent No.5 remained absent. The reply states that though notices were issued “Respondent No. 5 – society preferred to remain absent on these dates though served upon them”. The notices allegedly served upon Respondent No. 5 are not annexed with the reply and records are also not available for perusal of this Court. The perusal of notices which are annexed by 6 Respondent No. 4 along with its reply show that first notice is dated 17.06.2010, second notice is dated 18.06.2010 and third notice is dated 19.06.2010. All these notices appear to carry words “Fax message” on its top. The Fax messages annexed by Respondent No.4 are purportedly signed by Respondent No. 3 are addressed to Respondent No. 4 society. Its copies are given to Assistant Registrar and to Managing Director of Respondent No. 4 society. These notices nowhere show that Respondent No. 4 was given those notices for carrying or effecting service upon respective Respondent No. 5. The affidavit filed by Respondent No. 4 in para 21 shows that notices were handed over by Respondent No. 3 to Respondent No. 4 for service. The affidavit does not disclose that Fax message was received by Respondent No. 4 from Respondent No.3 with a request to forward it to Respondent No. 5. The contents of para 22 further show that the employees of Respondent No. 4 failed to mark the name of the society by placing tick mark and, therefore, office could not ascertain on whom the notice was served hence Respondent No. 3 again asked Respondent No. 4 to serve fresh notice on all four societies. It is, therefore, obvious that at least service of one of the notice is found not proper by Respondent No. 3 and, therefore, fresh service was ordered. The affidavit filed by Respondent No.3 does not disclose even this state of affairs. In view of this position on record, it is apparent that it is not necessary for this Court to go into 7 more details. Respective Respondent No. 5 did not stand to gain anything by remaining absent at given time for hearing and verification. The petitioners had sought inclusion of their names as delegates of Respondent No. 5 and thus avoiding presence is an act pre-judicial to their own interest. The affidavit of Respondent No. 4 also shows that service was effected even by one Mahesh Kariya, an employee of Government Milk Scheme i.e. not in employment of Respondent No.4. The said Mehesh Kariya is stated to be representative of Gajanan Dugdha Sahakari Sanstha, who is claimed to have attended hearing and his name has been added as delegate of that society. In the circumstances, the impugned orders rejecting the applications moved by the petitioners are quashed and set aside. The petitioners are directed to appear before Respondent No. 3 on 7th August 2010. The respective Respondent No. 5 – societies are present before this Court through their respective counsel. The said societies shall also remain present before Respondent No.3 on said date with records. Respondent No. 3 shall conduct necessary verification and pass fresh orders in the matter in accordance with law. Writ Petitions are disposed of. Rule is made absolute accordingly. No order as to costs. A copy of this order be furnished to AGP. JUDGE *GS.