( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7209 OF 2010 Saw. Mirabai w/o Bhagwat Yadav PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS WITH WRIT PETITION NO. 7210 OF 2010 Arjun Sadashiv Dongare PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS WITH WRIT PETITION NO. 7211 OF 2010 Chatrabhuj s/o Satwa Kagne PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS .... Mr. D.J. Choudhari, advocate for the petitioner in all the three petitions. Mr. D.R. Korde, AGP for the respondents No. 1 and 2 in all the three petitions. Mr. S.S. Thombre, advocate for the respondents No. 3 and 4 in all the petitions. Mr. V.D. Salunke, advocate holding for Mr. S.R. Bharad, advocate for the respondent No. 5 in all the petitions. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 17th August, 2010] ( 2 ) PER COURT : 1. These three (3) petitions are being disposed of together at the stage of admission after hearing learned counsel for the parties and learned A.G.P. 2. By these petitions, the petitioners, who had filed their nomination forms from the reserved categories available to women, Scheduled Caste and Nomadic Tribe (N.T.), allege that they have been illegally deprived of the opportunity to contest the elections of a Cooperative Society styled as “Seva Sahakari Society Limited, Dhunkwad” (Tq. Dharur). Petitioner Smt. Mirabai had filed her nomination as a women candidate, petitioner Arjun had filed his nomination as a candidate from Scheduled Caste for the seat reserved and available to Scheduled Caste and Scheduled Tribe category whereas petitioner Chatrabhuj had filed his nomination for reserved post available to Nomadic Tribe category. 3. The Returning Officer rejected the application of petitioner Smt. Mirabai for the reason that her name appeared in non-borrowers list of the voters and, therefore, she was ineligible to contest the election for the post which was ( 3 ) reserved and so available to category of “women”. The other two (2) nomination forms were rejected on different grounds. The nomination form of petitioner Arjun was rejected on the ground that his name as shown by him in the nomination form did not appear in the voters’ list and moreover, his proposer was from non-borrowers category. The nomination form of petitioner Chatrabhuj was rejected for the reason that the proposer was from non-borrowers category and whose name appeared from the list of non-borrowers. 4. The petitioners had preferred appeals against the orders, which came to be dismissed. 5. Upon hearing learned counsel for the parties and on going through the relevant bye-laws, election Rules and the substantive provisions in the Maharashtra Cooperative Societies Act, 1960 (for short, “the MCS Act”), broadly two (2) things are clear. First, there is a categorisation of “borrowers category” and “non-borrowers category” and the members are required to be elected from the category of these two (2) separate classes. This classification of the categories is very significant in as much as restrictions are imposed vide Section 73C of the MCS Act on permissible ( 4 ) election from non-borrowers category. It is explicit that only one (1) seat could be made available to non-borrowers category and the same has to be elected from the members who are in the list of non-borrowers category. In other words, the members from borrowers category cannot elect the members of the Committee from the borrowers category, which is a reserved seat. So also, the nominations from either of the category are required to be as per the bye-laws provided. 6. So far as the case of petitioner Arjun is concerned, it is amply clear that his name did not figure in the voters’ list. His contention is that there was a mistake in showing his name. He submitted a certificate dated 04-08-2010, issued by the Secretary of the Cooperative Society which purports to show that there was mistake in showing his name in the voters’ list. Though his name is shown in the voters’ list as `Arjun Sandipan Dongare’, yet, in fact, the name should have been `Arjun Sadashiv Dongare’, as claimed by him. The election programme was published on 23rd February, 2010. Since then till obtaining of the certificate dated 4th August, 2010, petitioner Arjun did not seek any rectification of the error from the list of voters. Secondly, the election programme (Exh-A to the petition) purports to show that the nomination ( 5 ) forms were to be scrutinized on 22nd July, 2010 and thereafter, the list of eligible candidates was to be published on next date i.e. 23rd July, 2010. He obtained the Secretary’s certificate on 4th August, 2010. The post scrutiny and post publication of this document viz. the certificate cannot be regarded as sufficient substratum to infer that in fact, there was a genuine mistake in the list of voters and, therefore, the nomination form was required to be accepted by the Returning Officer. The conduct of the petitioner shows that he did not immediately take steps for rectification of the mistake which figured, allegedly, in the voters’ list. Secondly, the proposer was from the non-borrowers category. The classification of the seats as per the election programme shows that out of 13 seats, only one (1) seat was available to the non-borrowers category and, therefore, it is obvious that the rest of the seats available to the general category of borrowers which were seven (7) in number, and other seats also were required to be filled up from the same category i.e. the borrowers category. The restriction under section 73C (3) of the MCS Act will have to be duly considered in this behalf. The Election Rules, particularly Rule 7 (3) goes to show that the proposer and seconder also ought to be from the same category from which the nomination form is required to be ( 6 ) filed. This difficulty could not be surmounted by petitioner Arjun and so also, the same legal impediment is equally applicable to the case of petitioner Chatrabhuj. His proposer was also from the category of non-borrowers whereas the N.T. category seat was from the available seats which could be filled in from the borrowers class. 7. Counsel for the petitioners would point out that the bye-laws of the Society are stayed by order of Division Bench of this Court and, therefore, it could not be regarded by the Returning Officer as operative. This argument is of no avail. It appears that the stay order was granted by the Division Bench of this Court on 28th July, 2010 whereas the scrutiny of the nomination papers was to be effected on 22nd July, 2010. It is obvious that the stay was subsequently granted by the Hon’ble Division Bench and as such, it could not have impacted the scrutiny process which was carried out about 5/6 days earlier. 8. Counsel for the petitioners would further submit that in any case, the bye-laws are contrary to the provisions of section 73 and 73-BBB of the MCS Act and, therefore, they could not be considered as valid for the purpose of rejecting ( 7 ) the nomination forms of the petitioners. He invited my attention to certain observations in “Veena Kumari Tandon v. Neelam Bhalla and others” 2008 (1) Bom.C.R. 438. It is not necessary to elaborately deal with this argument in as much as validity of the bye-laws is not the subject matter of the present dispute and the scope of the present petitions is rather limited. The bye-laws have been already challenged in writ petition No. 6741/2010 and the matter is subjudice before the Hon’ble Division Bench. Therefore, I need not enter into the controversy pertaining to legality and validity of the bye-laws which are subjudice. 9. So far as the case of petitioner Smt. Mirabai is concerned, the learned counsel for the petitioner seeks to rely on “Mrs. Tarabai Bhimrao Kale v. The Returning Officer and others” (1994 C.T.J. 561). A Single Bench of this Court held that mere fact that a member representing non-borrowers will have only one (1) seat on the Managing Committee, does not mean that a non-borrower cannot represent the interest of women. The learned Single Judge duly considered the impact of Section 73BBB as well Section 73B of the MCS Act. The relevant observations may be usefully quoted as follows : ( 8 ) “The justification for restricting the representation of the non-borrowers was recognized by the Division Bench in this case. But it rejected the contention that the non-borrowers have separate constituency. This case was referred and relied by the learned Single Judge of this Court in the case of (Utrane Vividh Karyakari Seva Sahakari Society Ltd & others v. Laxman Dalpat Patil & others), 1989 Mh.L.J. 1125 : 1990 (1) Bom. C.R. 217. The words, “that representative shall be elected only from amongst members who have not taken loans”, were interpreted by this Court not to mean that the non-borrowers’ representative should be elected by non-borrower members alone. The learned Judge was pleased to observed thus : “The provision for election of a representative from amongst non-borrowing members under Section 73-C (3) does not mean that election of a representative of non- borrowers should be by the non-borrower alone. It held that in the absence of any provision for election of such a representative by non- borrowing members alone, the right of borrowing members to exercise their vote in this election cannot be denied....The Division Bench held that virtue of the provisions of Section 73-C (3) there is no restriction on the right of borrowing members to vote for the candidates of all categories; nor is there a restriction on the right of non-borrowing members to vote for the candidates of all categories.” In (Babaji Kondaji Garad & others v. Nasik Merchants Co-operative Bank Ltd., Nasik and others), AIR 1984 S.C. 192 : 1984 (1) Bom.C.R. 399 ( 9 ) (S.C.), Supreme Court categorically pointed out thus : “Let there be no mistake that there is no reserved constituency which may divide the society or the electorate. The constituency is the general constituency. Only the seats are reserved. This would imply that the general body of members will elect persons eligible to fill in reserved seats.” Therefore, if the elections to a Cooperative Society governed under the Maharashtra Co-operative Societies Act, 1960, the seats are reserved for different categories, but the constituency is one and the same. Constituency is the body of voters to elect representative. The New Webster’s Dictionary gives the meaning of the word “Constituency” as `A body constituents; the body of voters, or, loosely, of residents, in a district represented by an elective officer. Therefore, the scheme of the elections to the Committee under Section 73 as explained by other provisions of the Act is that all the members of the Society have right to vote to all the candidates contesting all the seats including all reserved seats.” 10. Perusal of the above observations would make it manifest that for a seat reserved in respect of women, the purport is to give representation to such a class on basis ( 10 ) that due representation is available on account of gender justice. It is for such reason that this Court held that even women from non-borrowers category can represent interest of women and that, can contest the election for such a seat. My attention is invited to the amended bye-laws and particularly, the bye-law No. 9 sub-clauses (5) and (6). It appears that such amendment was not in existence at the relevant time when the judgement was rendered by the Hon’ble Single Bench in the case of “Mrs. Trarabai Bhimrao Kale v. Returning Officer and others” (supra). It does not, however, materially change the legal effect of the observations which have been quoted earlier. It is, therefore, difficult to uphold the order of rejection of the nomination form of petitioner Sow. Mirabai. 11. For the reasons aforestated, it will have to be said that rejection of the nomination paper of petitioner Sow. Mirabai is per se illegal and, therefore, she deserves opportunity to contest the election, which is scheduled on 22nd August, 2010. The other two (2) petitions i.e. W.P. Nos. 7210/2010 and 7211/2010 are without substance and are liable to be dismissed. 12. In the result, writ petition No. 7209/2010, filed by ( 11 ) petitioner Sow. Mirabai Bhagwat Yadav, is allowed and the impugned order is set aside. The Returning Officer shall accept her nomination form and shall allow her to contest the election as a `woman’ candidate for the seat reserved for `women’ category. The other two (2) petitions (W.P. No. 7210/2010 and 7211/2010) are dismissed. No costs. 13. The parties may act on copy of this order, duly authenticated by the Court Shirestedar. [V.R. KINGAONKAR] JUDGE NPJ/wp7209-10-group