MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE WRIT PETITION NO. 6247 OF 2008 WRIT PETITION NO. 6247 OF 2008 WRIT PETITION NO. 6247 OF 2008 Mohan Karbhari Gunjal............Petitioner Versus Yeola Agricultural Produce Market Committee & Ors. ..Respondents Mr. M.S.Kaernik, for the Petitioner Mr. V.A.Sonpal, AGP for Respondent Nos. 2 and 3. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 19TH SEPTEMBER,2008 DATED : 19TH SEPTEMBER,2008 DATED : 19TH SEPTEMBER,2008 P.C. P.C. P.C. . This petition is directed against the order dated 21st August, 2008 passed by the Deputy Registrar, Co-operative Societies, Nashik, removing the name of the petitioner from the final voters list which was published on 21st August, 2008. 2. The learned Counsel appearing for the petitioner submits that the order passed by the respondent No.2 is beyond the scope of its jurisdiction and that the respondent No.2 has unilaterally removed the name of the petitioner from the final voters list without giving any hearing to the petitioner. 2. At the outset no interference with the impugned order is called for in view of the commencement of the election process as held by Apex Court in the case of Someshwar Someshwar Someshwar -2- Sahakari Sakhar Karkhana Ltd. vs. Shrinivas Patil & Ors., Sahakari Sakhar Karkhana Ltd. vs. Shrinivas Patil & Ors., Sahakari Sakhar Karkhana Ltd. vs. Shrinivas Patil & Ors., 1992 (1) Bom. C.R.590 and Shri Sant Sadguru Janardan Swami 1992 (1) Bom. C.R.590 and Shri Sant Sadguru Janardan Swami 1992 (1) Bom. C.R.590 and Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra 2002 (1) Mh.L.J. 659. State of Maharashtra 2002 (1) Mh.L.J. 659. State of Maharashtra 2002 (1) Mh.L.J. 659. 3. Since the petitioner has urged and raised some of the contentions notwithstanding availability of the alternate remedy, I am constrained to record my reasons for rejecting those contentions. Under Rule 36(7) of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 the objection to the provisional voters list can only be lodged by the person whose name finds in the list. In other words the objector has to be a voter. The submission is that that the respondent No.4, who has raised an objection is not a voter. In the entire Petition nowhere this contention is to be found. Nowhere in the petition, a statement is made that the respondent No.4 is a person, whose name has not been included in the voters list or that he is not a voter in the election. In the absence of factual foundation, the submission made cannot be entertained. 4. Learned Counsel appearing for the petitioner further submits that he was appointed as a Director of the Managing Committee of Dhulgaon Vividh Karyakari Society Ltd., Dhugaon, Taluka Yeola, District Nasik on the vacant post. He submits that the provisions of Section 77A of the Maharashtra Co-operative Societies Act are not applicable. The submission in this behalf is also misplaced in view of -3- Bye-law 33-B, which makes it mandatory to follow the procedure laid down under Section 77A of the Act, if the person is to be appointed as a substitute of the deceased or to fill the vacant post. Obviously, therefore, the prior approval as contemplated under Section 77A was necessary. Thus the appointment of the petitioner on the society itself was not legal and valid. If his appointment was not legal and valid then he could not be a representative of the societyon A.P.M.C. to represent his parent society. 5. The learned A.G.P. rightly placed reliance on the judgment of the Division Bench of this Court in the case of Mir Islam Ali vs. Panchayat Samiti, Telhara & Ors., 1973 Mir Islam Ali vs. Panchayat Samiti, Telhara & Ors., 1973 Mir Islam Ali vs. Panchayat Samiti, Telhara & Ors., 1973 (h. L.J. 867 (h. L.J. 867 (h. L.J. 867. The reliance placed by the petitioner on the judgment in the case of Dhondiba Parshuram Lakade & Ors. Dhondiba Parshuram Lakade & Ors. Dhondiba Parshuram Lakade & Ors. vs. Someshwar Sahakari Sakhar Karkhana Ltd., & Ors, 1979 vs. Someshwar Sahakari Sakhar Karkhana Ltd., & Ors, 1979 vs. Someshwar Sahakari Sakhar Karkhana Ltd., & Ors, 1979 Mh. L.J. 311 Mh. L.J. 311 Mh. L.J. 311 is misplaced. 5. The learned A.G.P. is also right in contending that if the impugned order is quashed then it will result in restoring the appointment of the petitioner, which is illegal. He thus submits that the writ Court is not expected to issue writ to restore an illegal position. Reliance is placed on the Apex Court judgment in Maharaj Maharaj Maharaj Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., AIR Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., AIR Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., AIR 1999 SC 3609 1999 SC 3609 1999 SC 3609, wherein the Apex Court has observed as under:- "13. In Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 S.C. 828: (1966) 2 SCR 172 this Court considered the action of the State -4- Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power." 6. In view of the above ratio laid down by the Apex Court, I hold that assuming for the sake of submission that the objector/Respondent No.4 had no authority to raise an objection to the inclusion of the name of the petitioner, no exception can be taken to the said order since the appointment of the petitioner itself is not in accordance with law. 7. In the result the petition is without any substance and is liable to be dismissed. Hence petition is dismissed with no order as to costs. (V.C. DAGA, J.) (V.C. DAGA, J.) (V.C. DAGA, J.)