1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1080 OF 2010 1. Ganesh S/o Niranjan Ingole Age : 45 years, Occ : agriculture, R/o Kurunda, Tq.Vasmat, Dist. Hingoli. 2. Dattarao Sd/o Begaji Dalvi Age : 46 years, Occ : Agriculture, R/o Kurunda, Tq.Vasmat, Dist. Hingoli. ...PETITIONERS -VERSUS- 1. State of Maharashtra through Secretary Co-operation Department Maharashtra State, Mantralaya, Mumbai. 2. The Regional Joint Director and Joint Registrar Co-operative Societies (Sugar), Nanded, Tq. & Dist. Nanded. 3. The Collector, Hingoli and Returning Officer for the elections of Tokai Sahakari Sakhar Karkana Ltd., Kurunda, Tq. Vasmat, Dist. Hingoli. 4. The Tokai Sahakari Sakhar Karkhana Ltd., Kurunda, Tq. Vasmat, Dist. Hingoli through its Managing Director. ...RESPONDENTS. 2 ------------------------------------------------------ Mr.V. D. Salunke, Advocate for petitioners. Mr.R.P. Phatake, AGP for Respondent no.1. Mr.E.P. Sawant, Advocate for respondent no.4. ------------------------------------------------------ WITH CIVIL APPLICATION NO.2693 OF 2010 1. Ashok Devrao Karhale, Age : 40 years, Occ : Agriculture, R/o Girgaon, Tq.Basmat, Dist. Hingoli. 2. Janardhan S/o Gangaram Karhale Age : 40 years, Occ : Agriculture, R/o Girgaon, Tq.Basmat, Dist.Hingoli. ...APPLICANTS -VERSUS- 1. Ganesh S/o Niranjan Ingole Age : 45 years, Occ : agriculture, R/o Kurunda, Tq.Vasmat, Dist. Hingoli. 2. Dattarao Sd/o Begaji Dalvi Age : 46 years, Occ : Agriculture, R/o Kurunda, Tq.Vasmat, Dist. Hingoli. 3. State of Maharashtra through Secretary Co-operation Department Maharashtra State, Mantralaya, Mumbai. 4. The Regional Joint Director and Joint Registrar Co-operative Societies (Sugar), Nanded, Tq. & Dist. Nanded. 3 5. The Collector, Hingoli and Returning Officer for the elections of Tokai Sahakari Sakhar Karkana Ltd., Kurunda, Tq. Vasmat, Dist. Hingoli. 6. The Tokai Sahakari Sakhar Karkhana Ltd., Kurunda, Tq. Vasmat, Dist. Hingoli through its Managing Director. ...RESPONDENTS. ------------------------------------------------------ Mr.Deelip Bankar Patil, Advocate for applicants/ intervenor. Mr.V. D. Salunke, Advocate for respondent nos.1 and 2. Mr.R.P. Phatake, AGP for Respondent no.3. Mr.E.P. Sawant, Advocate for respondent no.6. ------------------------------------------------------ CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE :4TH MARCH,2010 :PER COURT : 1. Heard learned Counsel for the parties. 2. By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order passed by the Collector, Hingoli, dated 22nd January, 2010 and the Returning Officer rejecting the objection of the petitioners to delete the names of 1006 persons from the voters list, on the ground that 4 they are bogus members. 3. Besides raising objection to the provisional voters list, which includes the names of such 1006 members, the petitioners also filed application before the appropriate Authority under section 11 of the Maharashtra Co-operative Societies Act, 1960 for taking appropriate action against such 1006 members by removing them being ineligible to become members of the society for want of half acres sugar cane cultivation as owner or possessor and not supplied sugar cane to the respondent factory, which is eligibility criteria for being enrolled as member of the Karkhana under Rule 19 of the Maharashtra Co- operative Societies Rules, 1961 r/w Bye-Laws 17(A)(5) (6) and (7). It is stated that while the said application Under section 11 of the Act remained pending, the objections regarding the inclusion of names of such ineligible persons as voters came to be rejected by the Collector, on the ground that so long as the said persons continued to be on the roll of members of Karkhana and otherwise not disqualified to be voters, it was not possible to exclude their names 5 from the voters list. Accordingly, the present Petition is filed not only to challenge the said decision of the Returning Officer as well as Collector but for further directions against the respondent no.2 to decide the status of 1006 persons in proceedings under section 11 of the Act filed by the petitioners on 27.11.2009 and if the members who are found ineligible in the said proceedings, their names be removed from the voters list. 4. It is not in dispute that the provisional voters list was published on 28th October, 2009. After considering all the objections, Returning Officer proceeded to publish the final voters list on 27.11.2009. The objection regarding the inclusion of 1006 persons as the voters in the published voters list at the instance of the petitioners has been rejected by the Returning Officer as well as Collector. So far as, those decisions are concerned, we find no basis to interfere with the same as it is in accord with the requirement of Rule 4 of the Election Rules applicable to the specified society. 6 5. We were at the first blush impressed with the grievance of the petitioners that on the one hand the objection regarding the provisional voters list has been hastened by the Returning Officer and Collector and on the other hand the application preferred by the petitioners under section 11 to initiate the appropriate action including to remove ineligible persons from the membership of Karkhana has been kept pending. 6. The petitioners are relying on the official documents to contend that going by the disclosures in the said documents, it would be obvious that about 1006 persons out of the total membership of 6300 are bogus members as they are neither having landed property nor possessing tenanted property or cultivating sugar cane much less supplying sugar cane to the respondent-factory. If those facts are established against the said 1006 persons, their names will have to be struck out from the membership. In which case, those persons would not be entitled to participate in the ensuing election process. 7 7. However, we find merit in the submission canvased on behalf of the respondents that this cannot be ground for interfering with the election process as expounded by the Apex Court in case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another V/s State of Maharashtra and others reported in {(2001) 8 Supreme Court Cases 509}. Reliance is also rightly placed on the decision of the Single Judge of this Court in the case of Ramkishan Bhanudas Shinde and others V/s State of Maharashtra and others reported in (1994(2) Mh. L. J. 1115). The substance of the legal position expounded in the above decisions is that the breach of or non-compliance with mandatory provisions of Rules during preparation of electoral roll can be challenged in an election petition. If so, where election process has already commenced, the Court should be loath to interfere in exercise of writ jurisdiction. 8. The learned Counsel for the petitioners, however, has countered the above legal position by relying on the subsequent decisions of the Hon'ble Apex Court in the case of Pundlik V/s State of Maharashtra and 8 others reported in (2005) 7 SCC 181 and in the case of Ahmednagar Zilla S.D.V. & P.Sangh Ltd. and another V/s State of Maharashtra and others reported in {(2004) 1 SCC 133}. It was argued that this decisions have distinguished the decision in the case of Shri Sant Sadguru Janardan Swami (supra). According to the petitioners, the action of the respondents is not in accordance with law. In as much as, the persons who are ineligible have been enrolled as members, as a result whereof, they have become entitled to vote. Such bogus members have been enrolled in large number almost about 1006 out of total membership of 6300 of the Karkhana. 9. After having carefully considered the subsequent two decisions pressed into the service, we are of the considered opinion that the legal position stated by the Apex Court in Shri Sant Sadguru Janardan Swami's case would squarely apply to the fact situation of the present case. In the case of Pundlik (supra), the Court noticed that the Collector overlooked the fact that the action of Sangh was within the four corners of Rule 5(2), for which reason the request for change 9 of name of representative ought to have been acceded to. In case of Ahmednagar Zilla Sangh Ltd. (supra), the electoral roll was prepared on the basis of Bye- Laws which were held to be illegal. It was found that the voters list was prepared on the basis of non- existent Rules. 10. In the present case, the grievance essentially is in respect of breach of or non-compliance with the mandatory provisions of Rules regarding admitting the persons as members of the Society and including their names in the electoral roll. That issue can be answered in the election petition to be filed after declaration of the results. Besides, we are in agreement with the grievance made by the respondents that this is yet another attempt by the petitioners and their henchmen to delay the election process notwithstanding the earlier directions issued by this court on 10th July, 2009 in Writ Petition No.5515/2008 to conclude the election within five months, which period has elapsed long back in December, 2009. Significantly, one of the petitioner's father is the Director in the outgoing Managing Committee. The 10 outgoing Managing Committee, which was constituted after the establishment of the society as first committee successfully continued even beyond their term had expired and remained in office for over 10 years. In any case, it is not in dispute that 1006 persons in respect of whom, the objection is now taken by the petitioners have been enrolled as members as back as in 1997 to the knowledge of the Managing Committee of which the father of one of the petitioner was part and parcel. 11. Considering the above, we see no justification to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India. We, however make it clear that disposal of this Petition will not come in the way of the petitioners either to pursue their remedy under section 11 of the Act or for that matter to resort to election dispute after declaration of the results. In either case, proceedings will have to be decided on its own merits in accordance with law. All questions in that behalf are kept open. Accordingly this Petition is disposed of on the above terms. 11 12. In view of this order, nothing survives in the companion civil application, even the said application stands disposed of. (S.S. SHINDE, J.) (A.M. KHANWILKAR, J.) GAS/wp1080.10