WP/5284/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5284 OF 2010 Shivaji Balbhim Patil & Ors. ... Petitioners V/s. The Collector Solapur District, & Ors. ... Respondents Mr.Y.S. Jahagirdar with S.S. Shah and Prasad Dani for Petitioners Mrs.M.P. Thakur, AGP, for Respondent State Mr.A.S. Desai For Resp. No.2 CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 18, 2010 P.C.: 1. The petition challenges the order passed by the Collector rejecting the applications filed by the petitioners and several others to include their names in the provisional voters' list has been rejected. The Collector has found that these persons had become members of Respondent No.2 society only in March 2010. Therefore, their names have not been included in the provisional voters’ list. 2. The petitioners and about 900 persons like them had in the year 2000 deposited Rs.5,000/- with Respondent No.2 society towards the purchase of shares of the society. According to them no application was sought by the society for the last 9 years after the deposit of Rs.5,000/- was made for including them as members of the Society. Elections of the society are to be held soon. The provisional voters' WP/5284/2010 : 2 : list was prepared. The petitioners and 900 others like them found that their names were not included in the provisional voters' list. They therefore raised objections before the Collector, Solapur and sought orders from him for inclusion of their names in the voters' list. About 301 persons out of these 900 filed applications before the Collector contending that they did not have any objections about their names not being included in the voters' list. The Collector rejected the applications on the ground that the petitioners and others like them had applied for membership of the Society only in February 2010. According to the Collector, in view of the provisions of section 27(3)(a) of the Maharashtra Cooperative Societies Act their names could not have been included in the voters' list. The decision of the Collector was confined only to 242 persons who had raised objections before him. About 104 applications were rejected on the ground that the applicants were not residing in the area of operation. 3. Mr.Jahagirdar, learned Counsel appearing for the petitioners, takes exception to this order of the Collector. He submits that each individual, whose application has been rejected by the Collector, had deposited Rs.5,000/- with the society and the society had used this amount for the past nine years. According to him, the petitioners and others like them have been permitted to exercise their rights as members of the society for all these years. He therefore submits that there is no reason to exclude their names from the voters' list. 4. The issue which arises for consideration is whether the writ Court should interfere with the order of the Collector when the voters' list is under preparation. In Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak WP/5284/2010 : 3 : Sanstha vs. State of Maharashtra, 2002 (1) Mh.L.J. 659, the Supreme Court has observed that preparation of the voters' list is an intermediary stage in the process of the election to the managing committee which should not be interfered with by the High Court. The Supreme Court has approved of the consistent view of this Court in several judgments, refusing to stay or interfere with the election process. The Court therefore was of the view that normally the High Court should not interfere in the exercise of its powers under Article 226 of the Constitution of India at the stage of preparation of the list of voters when such action undertaken is in accordance with law. 5. In the case of Ahmednagar Zilla S.D.V. & P. Sangh Ltd. & Anr. vs. State of Maharashtra & Ors., (2004) 1 SCC 133 a 3-Judge bench of the Supreme Court after considering the judgment in the case of Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra (supra), departed from the rule propounded in that judgement. The Court noted that since the voters' list in Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra (supra) was prepared in terms of the extant rules but certain irregularities had been committed therein the Supreme Court had taken the view that the Writ Court should not interfere when the election process is set in motion. The Court observed that when the voters' list is prepared on the basis of non-existent rules the same would be illegal and the High Court can interfere even at the stage of preparation of the voters' list. WP/5284/2010 : 4 : 6. In the case of Pundlik v. State of Maharashtra & Ors., AIR 2005 SC 3746 the Supreme Court has again departed from the rule enunciated in Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra (supra) by distinguishing the facts in the case before it. It has instead taken support of the judgment in Ahmednagar Zilla S.D.V. & P. Sangh Ltd. & Anr. vs. State of Maharashtra & Ors. (supra). The Court was of the view that the action of the Collector in not effecting a change in the name of the representative of the society was in violation of Rule 5(2) of the Maharashtra Cooperative Societies Rules and could be challenged in a petition under Article 226 of the Constitution of India. 7. Similarly, in a judgment of the Division Bench of this Court in the case of Tanaji Baburao Bhande vs. The Secretary Department of Co-operation, Mantralaya, 2008 (6) ALL. M.R. 686, it has been observed that the principle enunciated in Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra (supra) cannot be used as a strait-jacket formula as it is necessary to interfere in the process of election whenever there is an obstacle to the rule of democracy. 8. Another Division Bench in the case of Shri Vitthal Sahakari Sakhar Karkhana Ltd. vs. The Collector, Solapur & Ors., Letters Patent Appeal No.219 of 2010 has considered the judgment in Shri Sant Sadguru Janardhan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra (supra) and Ahmednagar Zilla S.D.V. & P. Sangh Ltd. & Anr. vs. State of Maharashtra & Ors. and has held that interference under Article 226 is not warranted when preparation of the voters' list is underway on the basis of the bye-laws applicable. The Division Bench WP/5284/2010 : 5 : has observed that a judicious exercise of discretion under Article 226 requires restraint and non-interference at this stage. 9. Considering the judgments cited at the bar, in my opinion, it would not be proper to interfere with the order of the Collector at this stage. This is more so because the petitioners applied for membership of the society only in February 2010. Thus, the petitioners had not fulfilled the conditions laid down in Rule 19 of the Maharashtra Cooperative Societies Rules and bye law 17. They are not eligible for voting as they became members only after the cut-off date decided for preparing the voters' list 308 persons became became members on 24.3.2010. 10. In these circumstances, in my opinion, the petition deserves to be rejected. Petition is accordingly rejected. 11. In view of the disposal of the Writ Petition, nothing remains in civil application No.2439 of 2010 and the same is disposed of accordingly. 12. Mr.Jahagirdar seeks a stay of this order. This application made by Mr.Jahagirdar orally is vehemently opposed by Ms.Thakur, learned Assistant Government Pleader. Considering the fact that the membership of more than 400 persons is in issue the stay granted earlier to continue for 10 days.