1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Letters Patent Appeal Nos. 65/2011 and 66/2011 Shri Vasant Ramdas Mahajan, Director Vs. Distt. Deputy Registrar Cooperative Societies Wardha and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- LPA No. 65/2011 Dr. Anjan De, Advocate for the appellant. Mr. S. M. Bagde, AGP for respondents 1 to 3. Mr. Jayant Mokadam, Advocate for the respondent no.24. LPA No.66/2011 Dr. Anjan De, Advocate for the appellant. Mr. Kadu, A. G. P. for respondents 1 to 3. Mr. Mokadam, Advocate for respondents 4, 5, 10, 12 and 16. CORAM : S. A. BOBDE & R. M. SAVANT, JJ. Reserved on : 11/2/2011. Pronounced on : 25/2/2011. ORDER. (Per R.M. SAVANT, J) 1] The above Letters Patent Appeals take exception to the orders dated 2nd February 2011 passed in the Writ Petitions filed by the Appellants above named by learned Single Judge of this Court by 2 which the learned Single Judge has refused to interfere with the election process and has observed that the petitioner would be entitled to file an Election Petition under the relevant statutory provisions. 2] The facts involved in the above appeals are identical except that they relate to two different electoral constituencies. The facts in L.P.A. No. 66/2011 would be referred to for the sake of convenience. 3] The question, which arises for consideration in the above Letters Patent Appeals, as to whether an interdiction is called for within the election process in the matter of finalization of the voters list? 4] The appellants/original petitioners in Letters Patent Appeal No.66 of 2011 are the members of the Agricultural Produce Market Committee, Samudrapur, District Wardha. The controversy relates to the Traders as commission agents constituency in Letters Patent Appeal No.66 of 2011, and the Hamals and Weighmen constituency in Letters Patent Appeal No.65 of 2011. For the election to be held to the said Committee, a provisional list of voters 3 was published on 12.11.2010 for both the constituencies. The petitioners in the above Letters Patent Appeals filed an objection to the inclusion of respondent Nos. 5 to 26 in LPA No.65/2011 and respondent Nos. 5 to 22 in LPA No.66/2011. The concerned District Deputy Registrar directed the Assistant Registrar to make an enquiry and submit his report as regards the objections of the petitioners. The Assistant Registrar thereafter conducted an enquiry and submitted his report dated 24.12.2010 which was furnished to the petitioners on 4.1.2011. 5] The petitioners were heard through their Counsel and the counsel appearing for the petitioners were furnished the relevant documents as also inspection was given to the counsel of the record. Thereafter the District Deputy Registrar by order dated 30.12.2010 rejected the objections filed by the petitioners. The District Deputy Registrar relied upon the Minutes of the meeting of the General Body of the A.P.M.C. dated 28.3.2008, 30-4-2009 and 27-6-2010. In the meeting dated 28.3.2008 the General Body of the A. P. M.C. as per the Resolution no.4 had resolved to grant new licences to the non-applicant Nos. 1 to 16 and in terms of the decision taken in the meeting of the Licence Sub-Committee dated 26-3-2008 the said licences have been temporary renewed pursuant 4 to the General Body Resolutions dated 30-4-2009 and 27-6-2010 (Resolution of the Licence Committee dated 21-6-2010 and Minutes of the General Body Meeting dated 27-6-2010 in so far as Letters Patent Appeal No.65 of 2010 is concerned). The District Deputy Registrar, therefore, by his order dated 30.12.2010 rejected the objections filed by the petitioners. The final list of voters was accordingly published in respect of the constituencies i. e. Hamal Constituency, Weighman Constituency and Traders as Commission Agents constituency on 30.12.2010. The petitioners thereafter filed an application under Order 36(12) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 for brevity sake referred to as the “said Rules”. The said application was rejected by the D. D. R. by his order dated 17.1.2011. The said order, inter alia, records that the said application has been rejected in view of the report of the Assistant Registrar. It is the said two orders dated 30.12.2010 and 17.1.2011 which were impugned in the two Writ Petitions in which the above Letters Patent Appeals are filed. 6] The Writ Petitions were dismissed by the learned Single Judge on the ground that it would not be appropriate to entertain the writ petitions keeping in mind the stage at which the election 5 process was in terms of the election programme dated 19.11.2011. The learned Single Judge was of the view that since the date of filing of nomination papers were already over and the date of scrutiny being 5.2.2011, the District Deputy Register could not be directed to reconsider the objections raised by the petitioners in terms of Rule 36(12) of the said Rules. The learned Single Judge has observed that the petitioners would be entitled to file an Election Petition under Rule 88 of the Rules 1967. 7] We have heard the learned counsel for the parties. 8] On behalf of the petitioners/appellants, Shri De, the learned counsel in so far as interdiction with the election process is concerned submitted that it is not an inviolable Rule that the election process should not be interfered with. The learned counsel contended that the instant case is a case where illegality has been committed in finalizing the provisional list of voters in as much as the persons, who are not entitled to be in the said list have been so included. The learned counsel further contended that the District Deputy Registrar was enjoined in terms of Rule 36(12) of the Rules to apply his mind and take an independent decision. But what the District Deputy Registrar has done in the instant case is that he has 6 merely relied upon the report of the Assistant Registrar and, therefore, the said decision cannot be said to be a decision taken in terms of Rule 36(12) of the Rules. The learned counsel in support of his contention that the election process could be interdicted at the stage of final voters' list relied upon the judgment of a Division Bench of this Court reported in 1994 Mh. L. J. 1527 in the matter of Karbhari Maruti Agawan and others Vs. State of Maharashtra and others. The learned counsel contended that it has been held by the Division Bench that if an enquiry into the preparation of the final list of voters can be ordered without much disturbing the election schedule then there is no impediment in so ordering an enquiry. The learned counsel relied upon paragraph 21 of the said report to butrest his submission, which is reproduced hereunder:- “We have already discussed the propriety of the exercise of the powers of this Court under Article 226 of the Constitution of India and the matters relating to the elections. Since in the instant case we find that without much disturbing the scheduled time of the poll, the necessary enquiry can be ordered and since we find that there is a prima facie case made out for the further enquiry, 7 we propose to give directions to the respondent No.3. We have already observed that we are not satisfied by the manner in which enquiry was conducted by the respondent No.3. No finding can be recorded on the oral information when the Karkhana had not produced original record. We are also satisfied that the names of the dead members were not removed from the roll despite the mandatory provision in section 25A of the Co- operative Societies Act and sufficient material was placed before us to order a further enquiry by the Registrar. A question was raised whether this Court can exercise its powers under Article 226 after the list is finalised. The objections which we are considering were raised before the list was finalized and those were not properly enquired into. Therefore, we do not see any harm in exercising our powers in respect of those objections which were raised in time before the list was declared to be final. Even in proper cases the High Court would be justified in directing the enquiry even after the voters' list is final. This 8 court in Eknath Ashiram Alekar and others vs. State of Maharashtra and others (cited supra) did exercise its powers after the list was final. But it should be done only in exceptional circumstances. It should always be kept in mind that the schedule of the election should not be so disturbed that the entry of the newly elected body would be unduly delayed”. 9] The learned counsel then placed reliance upon the election programme and submitted that in the instant case though the voters' list was finalised and nominations filed, however, voting is to take place on 16.3.2011 and therefore there is time during which the objections can be considered afresh by the District Deputy Registrar without disturbing the election schedule. 10] Per contra, it is submitted by Mr. Mokadam, learned counsel appearing for respondents 4, 5, 10, 12 and 16 that while considering the objections of the petitioners apart from considering the report of the Assistant Registrar, the District Deputy Registrar has also considered the material placed on record by the A. P. M. C. The learned counsel contended that the persons in question have been 9 granted licences and renewal of licences pursuant to the Resolutions which have been referred to in the order dated 30.12.2010. The learned counsel contended that the order passed by the learned Single Judge refusing to interdict with the election process considering the facts and circumstances of the case cannot be faulted with. 11] We have heard learned counsel for the parties at length and we have bestowed our anxious consideration to the rival contentions. 12] As indicated above, the question is whether the impugned order passed by the learned Single Judge is to be interfered, as also whether it would be proper to interdict at this stage in the election process. 13] It is required to be noted that the petitioners in both the petitions had filed their objections to the provisional list of voters. The objection of the petitioners were to the effect that the non-applicants have been wrongly included in the provisional list of voters as they do not fulfill the requirement for being so included in the categories to which they belong. The District Deputy Registrar 10 had granted hearing to the petitioners and their counsel in respect of the objections and by his order dated 30.12.2010 has rejected the said objections, that order of the District Deputy Registrar discloses that the District Deputy Registrar has taken into consideration the material placed on record by the A. P. M. C. The said material is in the form of Minutes of the meetings of the General Body of the A. P. M .C. The said Minutes, according to the District Deputy Registrar, inter alia, disclose that the licences were granted as well as renewed. The District Deputy Registrar, therefore, on the said basis did not deem it fit to entertain the objections filed by the petitioners and accordingly, rejected the same. No doubt, the District Deputy Registrar has relied upon the report of the Assistant Registrar the said report of the Assistant Registrar can be said to be a fact finding report and can be said to be only an input for the District Deputy Registrar to arrive at a finding regarding the objections filed by the petitioners. Insofar as the application under Rule 36(12) is concerned, the District Deputy Registrar, in view of his order dated 30/12/2010, was not required to record separate findings in respect of the non-applicants, as he has already dealt with the objections in his order dated 30-12-2010. The District Deputy Registrar, therefore, has observed that in view of the report of the Assistant Registrar, the objections of the petitioners to the final voters' list was without any 11 merit. We, prima facie, do not find any infirmity in the order dated 17-1-2011 of the District Deputy Registrar on the ground that the District Deputy Registrar was required to conduct an enquiry himself and could not have relied upon the report of the Assistant Registrar. 14] Insofar as the interdiction in the election process is concerned, though not cited before us, a reference could be made to the judgment of the Apex Court reported in (2005) 7 SCC 181 in the matter of Pundlik Vs. State of Maharashtra and others. The said case concerns the election to a Specified Cooperative Society which has a Federal Society. The Zilla Sangh or the District Societies are the members of the Federal Society and are required to send their delegates for the purposes of election to the Federal Society. In the said case the District Society was the Aurangabad Zilla Sahakari Doodh Utpadak Sangh Ltd., Aurangabad and the Federal Society was Maharashtra Rajya Sahakari Doodh Maha Sangh Maryadit, Mumbai. As per earlier directions of the Collector who is the Returning Officer for the Specified Society name of the delegate was to be sent. Accordingly, the District Society had communicated the name of respondent no.7 as its delegate. Thereafter the Collector in terms of the fresh election programme, communicated to the Society that if it wanted to change the delegate it could do so by 10.6.2005. 12 Accordingly, the Resolution came to be passed on 9-6-2005 in favour of the appellant before the Apex Court and his name was communicated to the Collector as being the delegate of the District Society for the purposes of the election of the Federal Society. The Collector thereafter informed that the Resolution passed earlier in favour of the respondent no.7 was correct and the change in delegate was not proper as there was no subject on the Agenda of the meeting dated 9-6-2005 for changing the name of representative of the Zilla Sangh and, therefore, the change of name of representative in the meeting dated 9.6.2005 was not proper whereby Zilla Sangh had taken decision to change the delegate from the respondent no.7 to the appellant. Since the Collector was obliged under Rule 5 (2) to effect the change, and having not done so, the Apex Court was of the view that interference of the voters' list was warranted as the Collector had cited contrary to law.. Paragraph 16 of the said report is material and reproduced hereunder :- “In the instant case, the respondent Sangh had taken immediate action on receiving the fax message from Respondent no.2 the Collector. As per the said communication by the Collector, an action could be taken for change of representative of the respondent 13 Sangh latest by 10.6.2005. A meeting was, therefore, convened by issuing an agenda to that effect by the respondent Sangh on 2.6.2005. The meeting was accordingly convened on 9.6.2005 and a resolution was passed being Resolution 7 wherein it was decided that instead of Respondent no.7, the appellant would represent the respondent Sangh in the election of the Maha Sangh. Since the action was taken strictly in conformity with the provisions of Rule 5 of the Rules as also the communication of Respondent 2 the Collector dated 30.5.2005, Respondent 2 ought to have effected the change. The ground put forward for rejecting the resolution was not correct inasmuch as in the agenda notice issued by the respondent Sangh dated 2.6.2005, Subject 7 had clearly been mentioned and in pursuance of the said agenda notice, a meeting of the Managing Committee of the respondent Sangh was convened and a decision was taken. The grievance of the appellant, therefore, was justified that by not effect the change and by ignoring the resolution passed by the Managing Committee of the respondent Sangh, the Collector had acted contrary to law. 14 15] The aforesaid decisions therefore lay down that there can be an interdiction in the election process if it does not interfere with the election schedule or where the finalization of the voters list is in breach of statutory Rules and Regulations. In the instant case, as can be seen, the District Deputy Registrar has taken into consideration the material on record and has come to the conclusion that the persons concerned were entitled to be shown in the final list of voters. Merely because the petitioners feel that a different view is possible on the basis of certain documents, would not be a ground to interdict in the election process. He is required to be borne in mind that the voters' list has already been finalised and nominations have also been filed and presently the election process is at the stage where the next step is for filing of Appeals against the rejection of nomination forms. The facts of the above Writ petitions prima facie do not indicate that the said voters list was finalised in breach of any statutory provision. We, therefore, do not deem it fit to interfere with the order passed by the learned Single Judge. The Letters Patent Appeals are accordingly dismissed. 16] However, we make it clear that the observations made 15 by us herein above are only prima facie and in the event the Election Petitions are filed by the petitioners above named, they would be entitled to prosecute them by leading evidence etc. and the instant order would not come in their way of prosecuting the said Election Petitions. JUDGE JUDGE Ambulkar