1 LPA-219.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 219 OF 2010 IN WRIT PETITION NO.6638 OF 2010 WITH CIVIL APPLICATION(L) NO.279 OF 2010 Shri. Vitthal Sahakari Sakhar Karkhana Ltd. ...Appellant. Vs. The Collector, Solapur and ors. ...Respondents. Mr. A.Y.Sakhare, Senior Advocate with Mr. Sarang Satish Aradhye for Appellant. Ms. Neha Bhide B­ Panel, AGP for Respondent Nos. 1 to 3 & 5. Mr.P .K.Dhakephalkar, Sr.Advocate with Mr. A.S.Desai and Mr.Raja S. Ghadge for Respondent No.4. Coram : Dr. D.Y.CHANDRACHUD & SMT. R.P .SONDURBALDOTA, JJ. Date : 8th September, 2010 JUDGMENT : ( Per Dr. D.Y. Chandrachud, J.) 1 Admit. With the consent of Counsel appearing on behalf of the Appellant and the Respondents, the appeal is taken up for hearing and final disposal. 2 LPA-219.odt 2 This appeal arises out of an order dated 2 September 2010 by which the learned Single Judge, after the process for the holding of an election of a specified Co­operative Society had commenced (i) allowed a petition under Article 226 of the Constitution of India; (ii) set aside an order passed by the District Collector and Election Officer, Solapur rejecting objections to the voters’ list; and (iii) directed the Collector to include in the voters’ list the names of the 610 persons whose names were mentioned in Exhibit­C to the petition. 3 The issue which falls for determination in this proceeding is whether the learned Single Judge was justified in interfering with the election process, it being a settled principle of law that the publication of a voters list is an intermediate stage in the election process. 4 The appellant is a specified society governed by the provisions of the Maharashtra Specified Co­operative Societies 3 LPA-219.odt Elections to Committee Rules, 1971. The bye laws of the Co­ operative Society were amended on 18 June 2000 in pursuance of a resolution of the General Body by which the share capital of the society was increased. Consequently, the value of each share was increased from Rs.3000/­ to Rs.5000/­. This amendment was initiated in pursuance of the directions issued by the Registrar on 7 March 2000. The amendment was approved by the Registrar on 5 August 2000. The term of the existing Managing Committee was to expire on 23 August 2010. The Collector in exercise of powers conferred by Rule­4, fixed a cut off date as 23 August 2008, having regard to the provisions of Section 27 of the Act. Sub Section­3A of Section 27 of the Maharashtra Co­operative Societies Act, 1960 provides that an individual member of a society shall not be eligible for voting in the affairs of that society for a period of two years from the date of his enrolment as a member of such society. The cut off date was thus prescribed as 23 August 2008 so as to ensure that only those members who had two years’ standing prior to the end of the term of the Managing Committee would be entitled to vote. The case of the Co­operative society is that by 4 LPA-219.odt notices addressed to the members on 24 May 2006 and 4 December 2006, a demand was made for the balance amount due from each member on account of the increase in the value of the share capital. On 19 July 2007, the Managing Committee by a resolution allowed an extension of one year to pay the increased amount. This was confirmed in a resolution of the General Body dated 28 December 2007. The provisional list of voters under Rule 4 (i) was published on 9 June 2010. The Collector and District Election Officer, Solapur by an order dated 23 July 2010 disposed off objections filed by 613 persons who claimed that they are members of the Society but their names did not figure in the provisional list of voters. The Collector by his order dismissed the objections, following which a writ petition was filed before this court. 5 The learned Single Judge by the impugned order allowed the petition. The learned Judge held that in the present case, the cut off date for preparation of the voters’ list was 23 August 2008. On this date, the original petitioners and others like them who had been members of the society since its inception, 5 LPA-219.odt were the members of the society. The learned Judge held that these persons had not ceased to be members although they had not paid the increased value of the share as they were given the liberty to pay the amount by 27 December 2008. The petition before the learned Single Judge was instituted by six petitioners. The learned Judge, however, came to the conclusion that all the 610 persons who had not ceased to be members on the cut off date were entitled to membership as on that date and their names could not have been removed from the Membership Register. 6 Two objections were raised on behalf of the appellant before the learned Single Judge; the first being that a petition filed by six persons was not maintainable as regards the larger group of persons mentioned in Exhibit­C and the second that the interference of the court was not warranted when the election process has commenced in view of the law laid down by the Supreme Court in Sant Sadguru Janardan Swami (Moingiri Mahara) Sahakari Dugdha Utpadak Sanstha Vs. State of Maharashtra.1 As regards the first objection the learned Single 1 2001(8) SCC 509 6 LPA-219.odt Judge rejected it on the ground that it is “hyper technical”. As regards the second objection, the learned Single Judge noted that in a subsequent decision of the Supreme Court which considered the earlier decision in Sant Sadguru (supra), it has been held that when there is an illegal amendment to the bye laws on the basis of which the Electoral roll was prepared , the question of maintainability of the writ petition takes a ‘backseat’. On this ground rule was made absolute in terms of prayer clause (a), consequent upon which, the order of the Collector dated 26 July 2006 dismissing the objections has been set aside and a direction has been issued to include the names of the petitioners and other persons mentioned in Exhibit­C into the voters’ list and to allow them to participate in the election of the Managing Committee of the Co­operative Society. 7 Counsel appearing on behalf of the appellant submits that the the petition ought not have been entertained on both the preliminary objections which questioned the maintainability of the petition. First, it has been urged, the petition was filed by six persons. There was no averment in the petition that the petitioners 7 LPA-219.odt were authorized by 610 persons whose names are contained in Exhibit­C. The petition was not filed in a representative capacity. Out of the persons who lodged objection before the Collector, only six persons chose to espouse the remedy in this Court. In these circumstances, it is submitted that the learned Single Judge erred in holding that the objection was hyper technical. 8 Secondly, it was submitted that the principle of law which must ordinarily be applied in a proceeding under Article 226 is that the jurisdiction of the court should not be exercised once the election process has begun. An exceptional situation arose before the Supreme Court in Ahmednagar Zilla S.D.V. & P. Sangh Ltd. and anr. Vs. State of Maharashtra and ors. 2 where an entire amendment to the bye laws had been struck down as illegal. In such a situation, the Supreme Court upheld the decision of this court by which the entire Electoral roll was held to be vitiated. It is urged that this was an exceptional situation for which there is no parallel in the facts of the present case. 2 2004 (5) ALL MR (S.C.) 236 8 LPA-219.odt 9 On the other hand, it is urged on behalf of the original petitioners that while only six persons have filed the writ petition, identical objections were filed before the Collector by 613 persons. Hence, it was submitted that the learned Single Judge was justified in rejecting the objection to the maintainability of the petition as technical. On the issue as to whether the interference of the writ court under Article 226 was warranted, counsel submitted that the rule of non interference is a self imposed restraint which does not preclude the court from exercising its jurisdiction in an appropriate case. In the present case, a large number of persons were removed from the Register of Members without due process of law and hence, it was submitted that in a situation where such persons were on the register as on the cut off date, the learned Single Judge was justified in directing that their names should be included in the final list of the voters’. 10 Each of the submissions can now be considered. 11 The petition before the learned Single Judge was 9 LPA-219.odt instituted by six persons. The petition contained at Exhibit­C the names of nearly 610 persons. The petition was not filed in a representative capacity. There was no averment in the petition to the effect that the petitioners have been authorised to file a proceeding on behalf of the other persons. Evidently, the other persons who had objected before the Collector chose not to espouse their remedy against the rejection of their objections by the order passed by the Collector on 23 July 2010. The right to the inclusion of the name of a voter in the voters’ list is a right personal to a voter. A remedy is provided in the Rules. Rule­4 of the Maharashtra Specified Co­operative Societies Elections to Committee Rules, 1971 provides for the preparation of a provisional list of voters by every society for the year in which a general election is due to be held. Rule­5 provides that a provisional list of voters, in the case of individual shareholders, shall contain the name, father’s or husband’s name, surname (if any) of every person entitled to be registered as a voter and such other particulars as may be necessary to identify him. Rule 6 provides that when any provisional list of voters is published for 10 LPA-219.odt inviting claims and objections, any omission or error in respect of the name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorized to vote on behalf of such society. Every claim or objection has to be preferred in writing and must state the grounds on which the claim is based or the objection is raised. The Collector, after considering each claim or objection has to give his decision thereon in writing to the person concerned. The list as finalized by the Collector after deciding all claims and objections shall be the final list of voters. 12 The provisions of Rules 4, 5 and 6 came up for consideration before a Division Bench of this court in Dhondiba Parshuram Lakade and others Vs. Someshwar Sahakari Sakhar Karkhana Ltd.3 The Division Bench, while construing the provisions of Rule 6 observed as follows. “From Rule 6(1) emerges the extent of the powers or jurisdiction of the Collector. Under this Rule, 3 1979(0) BCI 43 11 LPA-219.odt certain things can be brought to the notice of the Collector. What can be brought to the Collector’s notice? And by whom? The answers are to be found in Rule 6(1) itself; An omission or error regarding the name or address or other particulars in the list can be brought to his notice, not by anyone, but only by the Member of the Society who himself is a voter. This is the plain reading of Rule 6(1). There is no reason to give to this Rule a different interpretation or to induct a concept other than what the plain reading thereof reveals. Thus it would be open under this Rule to the voter to bring to the notice of the Collector, that the particulars required in the voters’ list are erroneous inasmuch as they do not tally with the particulars in the Register of Members. Thereupon, under this Rule, the Collector would be competent to correct the provisional voters’ list so as to bring it on a par with the particulars in the Register of Members. Hence, the identity of the voter is assured. Furthermore, the 12 LPA-219.odt phraseology in Rule 6(1), “or other particulars in the list”, is significant. The nature of the particulars in the voters’ list is to be found in Rule 5 which is headed, “Particulars to be included in provisional list of voters”. What those particulars are, have already been stated above. Thus the words in Rule 6(1), “other particulars in the list”, necessarily have reference to Rule 5. Rules 5 and 6 are complementary of each other and as such they must be read in their plain and natural meaning”. 13 Counsel appearing on behalf of the original petitioners, from the statement of fact contained in the order of the Collector submitted that 613 persons had lodged their objections before the Collector and hence, the Single Judge could have granted relief in a petition filed by six of them to the earlier group of 613 individuals, This argument is specious. The writ petition before the learned Single Judge was presented only by six persons. The other persons whose objections were rejected chose not to espouse the remedy available to them to challenge the decision of the Collector. The persons affected by the rejection of their objection, have failed 13 LPA-219.odt to challenge the decision of the Collector. Hence, there is merit in the submission of the appellant that the learned Single Judge was not justified in granting relief at the behest of the six petitioners to the entire list appended at Exhibit C, consisting of about 610 persons. The effect of the order of the learned Single Judge is to direct the inclusion of the names of entire body of persons mentioned in Exhibit­C to the petition, in spite of the fact that only six persons had chosen to espouse their grievance before this court. In matters of election, the jurisdiction under Article 226 has to be exercised with circumspection and in a manner consistent with statutory provisions. The right to raise objections and to seek inclusion in the voter’s list is personal to each voter . For it is the voter alone who can establish his or her identity and produce relevant material in support of the particulars required to be furnished under the Rules. We are therefore, of the view that the petition ought not to have been entertained by granting relief to persons who were not before the court and who had not authorized the filing of the petition. 14 LPA-219.odt 14 The wider ground on which the maintainability of the petition has been challenged is that the election process has commenced and therefore, the interference of this Court under Article 226 was not warranted. 15 In Someshwar Sahakari Sakhar Karkhana Limited Vs. Shrinivas Patil and others, 4 a learned Single Judge of this court held that it would not be proper for this court to interfere in a petition under Article 226 when the dispute relates to an intermediate stage in the process of election and it would indeed be better to leave parties to raise a dispute by way of a substantive election petition as provided for under Section 144­T of the Maharashtra Co­operative Societies Act, 1960. This decision has been cited with approval in the judgment of the Supreme Court Sant Sadguru Janardan Swami Vs. State of Maharashtra and ors. 5 The Supreme Court held that the preparation of the voters’ list forms part of the election process and in fact, is an intermediate stage in the process of the election of a specified society governed by the Maharashtra Specified Co­operative 4 1992(1) Bombay C.R .590 5 (2001) (8) SCC 509 15 LPA-219.odt Societies Elections to Committee Rules, 1971. The Supreme Court held that having regard to this principle, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged breach of a rule while preparing the electoral roll. 16 In a subsequent decision in Ahmednagar Zilla S.D.V. And P. Sangh Ltd. Vs. State of Maharashtra, 6 the Supreme Court had occasion to revisit its earlier decision in Sant Sadguru (supra). In the subsequent decision, an amendment to the bye laws of a Specified Society was held to be illegal by the Joint Registrar of Co­operative Societies. Both the revisional authority and, this court in a petition under Article 226, affirmed that decision. Consequent upon the amendment of the bye laws, a voters’ list had been prepared for holding elections to the Managing Committee of the society. The Supreme Court held that the decision in Sant Sadguru deals with a situation where a voters list has been prepared in terms of the extant rules but certain irregularities were committed therein. However, in a situation where the voters list 6 2004(5) ALL MR (S.C.) 236 16 LPA-219.odt has been prepared on the basis of non existent rules, the voters’ list would be illegal. In other words, once a conclusion was arrived at that the amendments to the bye laws was contrary to law, the electoral roll prepared on the basis of an invalid bye law would not stand scrutiny . Hence, in the judgment of the Supreme Court in the Ahmednagar Zilla case, a distinction has been drawn between a situation where a voters list is prepared under existing rules. In such a situation, if there are irregularities in the preparation of the voters’ list, the interference of the High Court under Article 226 would not be justifiable once the election process is under way. However, where a voters list has been prepared on the basis of a bye law which is invalid for contravention of a mandatory requirement, the voters list would necessarily have to be disregarded once the bye law itself is invalidated. In the present case there is no issue of the amended bye laws being challenged as invalid. There is no challenge to the amended by laws. Hence, the situation which arose before the Supreme Court in the subsequent decision in Ahmednagar Zilla did not arise in the case at hand. The learned Single Judge should have therefore, followed 17 LPA-219.odt the ordinary rule of non interference when the election process had commenced. 17 On behalf of the appellant, it was sought to be urged that even on merits, the learned Single Judge was in error in coming to the conclusion that the objectors were entitled to be included in the voters’ list on the ground that they continued to be members as on the cut off date. Counsel submitted that despite several notices to the objectors, they had not paid their dues to the Co­operative Society and under bye law 8 read with bye laws 9(A) and 26 they would not be entitled to exercise rights as members of the society. Moreover, it was submitted that the decision of the Co­ operative society to terminate their membership was communicated to them on 28 March 2009 and as a matter of fact a refund of the share capital was effected on or about 26 March 2010. We are of the view that in view of the conclusion arrived at earlier, it is not necessary for this court to enquire into the issue as to whether the membership of the petitioners was validly terminated. The enquiry before the Collector under Rule 6 is a 18 LPA-219.odt summary enquiry. The Judgment of the Division Bench in Someshwar Sahakari Sakhar Karkhana (supra) emphasises that there is nothing in Rule (6) which empowers the Collector to make a detailed enquiry whether the person is entitled to be a member. The Division Bench held that power of the Collector, under Rule 6, though not without responsibility, is mechanical or ministerial. The Collector has to ensure that the identity of every person whose name appears in the provisional voters’ list tallies with the person in the Register of Members. The intention behind Rules 4, 5 and 6 is to ensure that the name of every person which appears in the Register of Members, should also appear in the voters’ list, so that no person in the Register of Members is left out from the provisional voters’ list by reason of some omission or error in respect of the particulars enumerated in Rules 5 and 6. The Division Bench observed that the Collector is not empowered to hold a detailed enquiry, to call for documents to establish eligibility for membership, examine or cross examine witnesses or otherwise dwell on the question whether a member deserves to be included in the Membership Register. Having regard to the 19 LPA-219.odt summary nature of the enquiry, we are of the view that the learned Single Judge erred in finding fault in the exercise of powers of the Collector. Moreover, even assuming that there had occured some irregularity in the preparation of the voters’ list, the interference of this Court under Article 226 was not warranted. The voters’ list was prepared on the basis of bye laws which are not challenged. The election process has begun. A judicious exercise of discretion under Article 226 required restraint and non interference at this stage, by the learned Single Judge. 18 For all these reasons, we are of the view that the directions which have been issued by the learned Single Judge are wholly unsustainable and the interference of the learned Single Judge in the election process was not warranted. The Appeal is accordingly, allowed. The judgment of the learned Single Judge impugned in this proceeding is set aside. The petition filed by the original petitioners before the learned Single Judge shall stand dismissed. There shall be no order as to costs. 20 LPA-219.odt CIVIL APPLICATION NO.279 OF 2010 1 In view of the order which has been passed in Letters Patent Appeal No.219 of 2010, the civil application is dismissed as infructuous. (DR. D.Y. CHANDRACHUD, J.) (SMT. R.P. SONDURBALDOTA, J.)