1 WP9773.11.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9773 OF 2011 Smt. Anuradha Arun Deshpande ...Petitioner. Vs. District Deputy Registrar & Ors. ..Respondents. Shri R.V. Govilkar for the Petitioner. Shri S.D. Rayrikar,AGP for Respondent Nos. 1 and 2. Shri S.S. Kanetkar for the Respondent No.5. CORAM : R.M. SAVANT , J. DATE : 17TH NOVEMBER, 2011. P.C. 1. The issue in the above petition is as regards the voters list prepared for the ensuing election to the Respondent No.5 Cooperative Bank, which is a notified society within the meaning of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the Said Act) . With a view to facilitate the elections to the respondent No.5, the process of preparing the final voters list was commenced. The provisional voters list was published on 19th September, 2011. The above petitioners and some others similarly placed whose names did not appear in the provisional voters list took 2 WP9773.11.sxw exception to the said list. 2. At this stage, it would be relevant to note that the bye-law No.9(b)(iv) of the bye-laws of Respondent No.5 Bank which is the relevant bye law in so far as the voting rights are concerned under went a change, in view of the amendment, which was approved in the meeting of respondent No.5 Bank held in the year 2000. The amended bye-law reads as follows: "The individual or the person has subscribed to and fully paid for at least ten shares of the bank his application has been duly approved by the Board of Directors. The member holding less than ten shares shall subscribe additional shares to make his total shares at a minimum ten shares upto 31st March 2010 in order to exercise his membership rights, for which the society shall make such demand to each members holding less than ten shares by sending such demanding by UCP on the address last known to the society, and if the members fails to fulfill the demand within the prescribed time, the society shall cancel the membership and refund the amount of his shares by deducting necessary charges." The said bye-law came to be challenged by some members by filing a dispute in the cooperative Court being Dispute No. 53 of 2010. In the said dispute an application for interim relief was filed, which was allowed by the order dated 31st March, 2010, and the operative part of the said order reads as follows: 3 WP9773.11.sxw " 1) The application is allowed. 2) The non applicant Bank is hereby restrained from implementing bye law no. 9(b)(iv) till the decision of the dispute. 3) The non applicant Bank is further restrained from restraining the applicants from exercising their membership rights." 3. Being aggrieved by the said order dated 31st March, 2010, the bank filed an appeal before the Cooperative Appellate Court being Appeal No. 44 of 2010. In the said appeal an application was moved for interim stay of the order passed by the Cooperative Court dated 31st March, 2010. The said application for interim relief filed in the said appeal was partly allowed and the operative part of the said order passed by the Cooperative Appellate Court dated 21st August, 2010, reads thus: 1 Clause (2) of the impugned order is hereby partly stayed, whereby learned lower court has restrained appellant bank from implementing the ye law No. 9(b)(iv) till decision of dispute. 2. The bank is at liberty to enforce bye law No. 9(b)(iv) till disposal of appeal asking individual members to subscribe the shares from 1 to 10 or more if they so desire. However, the bye law No.9(b)(iv) dealing with cancellation of the membership of individual members for not purchase of 10 shares as per appeal memo, the injunction will continue till disposal of appeal 3. With this application Exh.5 stands disposed off. 4. Adjourned for final hearing on 16.9.2010." 4. The matter therefore, in so far as the challenge to the bye-law is 4 WP9773.11.sxw concerned, at present rests at the said stage. In so far as, the objections to the provisional voters list are concerned in terms of the programme, the said objections were to be decided within a particular time frame in terms of the bye-law outer limit for which according to the learned counsel for the petitioner was 24th October, 2011. However, the District Deputy Registrar by order dated 25th October, 2011, passed in respect of objections raised by each of the objectors has disposed of the said objections either accepting the said objections and including the name of the objector concerned or rejecting the said objection. In so far as the petitioner No.1 is concerned, initially by the order dated 25th October, 2011, her name was included but later on by another order passed on 1st November, 2011 she was communicated that the earlier order was passed through inadvertence, on account of which her name was wrongly included and by the said order dated 1st November, 2011 she was informed that her name has been excluded. The subject matter of the above petition is the challenge to the said orders dated 25th October, 2011 Exh. D and E to the petition. 5. In so far as the order passed in respect of the objections of the petitioner No.2 is concerned, in the said order the reasons why the objections raised by the petitioner No.2 have been overruled are mentioned. It has been stated in the said order that bye-law No.9(b)(iv) has been 5 WP9773.11.sxw amended and in terms of the said amendment an old member, that is a members as on 15th August, 2009 has to purchase 9 additional shares so as to make a total number of Ten shares to exercise the voting rights which are an adjunct of membership and since the persons whose inclusion is sought have not done so, their names could not be included. The said ground is common ground according to the learned Counsel Shri Govilkar to deny the right of inclusion in the voters list to a large number of members. The learned Counsel therefore, sought to make submissions on the order passed by the Cooperative Court as according to him it is the said order which ultimately is the key to whether the person who had not bought additional shares would be entitled to voting rights. The learned Counsel would contend that though the bank was allowed to enforce the bye-law No.9(b) (iv) till the disposal of the appeal in question by asking the individual members to subscribe to the shares from 1 to 10 or more, the same was made optional namely that if the members, if they so desire. By the subsequent part of the order the said bye law in so far as it deals with the cancellation of membership of the members who have not purchased 10 shares, the Co-operative Appellate Court has not granted stay, and therefore the injunction of the Cooperative Court still operates. It is the submission of the learned Counsel that in view thereof whether a person subscribes to 9 more shares or not would make little difference as his membership could not 6 WP9773.11.sxw cease in view of the injunction passed by the Cooperative Court which is still operating, and therefore, there is no impediment for his name being included in the voters list.. Though in the first blush the said argument seems attractive, however, looking to the statutory provisions, the same does not hold much water. It is required to be noted that insofar as the cooperative societies are concerned, the voting rights cannot be equated with membership. For a member to be a voter he has to comply with the Bye- laws as posited in Section 26 of the Said Act and only if he makes the required payments etc. he would be entitled to exercise his voting rights. It is in the context of the said statutory scheme as contained in the Said Act that the Co-operative Appellate Court therefore in clause 2 of the operative part has observed that the bank is at liberty to enforce bye-law 9(b)(iv) by asking individual members to subscribe to the shares from 1 to 10 or more, if they so desire, meaning thereby that the members who are desirous to vote would have to comply with bye law No. 9(b)(iv) by subscribing to the additional shares. In my view, therefore, submission of Shri Govilkar that in view of the of the second part of clause (2) of the order of the Co-operative Appellate Court, the persons who had not subscribed to the additional shares would still be entitled to exercise their voting rights and therefore, their names would have to be included in the voters list, cannot be accepted. 7 WP9773.11.sxw 6. The next challenge to the order dated 25th October, 2010, is that the same has been passed in the breach of the principles of natural justice inasmuch as the objectors have not been heard. The right of a member for the inclusion in the final voters list as stated hereinabove, hinges upon the interpretation of the order passed by the Cooperative Appellate Court. The interpretation in view of the statutory scheme can only be one as stated above namely that even if a person is a member, unless he subscribes to 9 more shares, he would not be entitled to vote though he may continue to be a member, there can be no other interpretation as otherwise there was no reason for the Appellate Court allowing the Bank to implement the said amended bye law. That can only be the purport and intent of the first part of the said order. The violation of the principles of natural justice in my view, cannot be put in a straight jacket formula. The Court has to see whether any purpose would be served by granting a hearing. It is trite in view of the catena of judgments of this Court, that the inquiry into the provisional voters list is a summary inquiry restricted to the identity of the person etc. and cannot be extended to the adjudicating of the rights of the parties. In my view, therefore, in the light of what is stated hereinabove, no useful purpose would be served by remanding the matter to the authority concerned for a de novo consideration. 8 WP9773.11.sxw 7. It is required to be noted that the name of the petitioner No.2 has been included in the voters list. The above petitioners seek to espouse the cause of about 15,000/- members, who according to them, on account of the application of the said bye-law No. 9(b)(iv) have not been included in the voters list. It is well settled that right to participate in an election, apart from being a statutory right is also personal. The petition in the nature of espousing the cause of 15,000/- alleged members cannot be filed. In my view, therefore, the petition as filed is not maintainable and is, therefore, required to be rejected on the said ground also. It is also required to be noted that in Writ Petition No.8930 of 2011, a Division Bench of this Court was seized with the issue of the disposal of the objections at an interim stage when the objections were yet to be decided. In the said petition before the Division Bench, the petitioners made a statement that they desired to challenge the orders passed on the objections by filing appropriate proceedings, the Division Bench vide order dated 8th November, 2011, observed that "since the election process is set in motion,the same does not call for any interference so as to stay the election or to postpone it." In so far as the instant petition is concerned it would be relevant to note that the final voters list has been published on 9th November, 2011. The learned Counsel for the Respondent No.5 placed reliance on the judgment of the Apex Court reported in (2001) 8 SCC Pg 509 in the matter of Sant 9 WP9773.11.sxw Sadguru Jandardan Swami Vs. State of Maharashtra and others wherein the Apex Court has held that the preparation of voters list forms part of the election process and in fact is an intermediate process, and therefore having regard to the said principle, it is well settled that the High Court shall not stay the continuation of the election process. The learned Counsel also placed reliance on the judgment of a Division Bench of this Court in Letters Patent Appeal No. 219 of 2010 in Writ Petition No. 6638 of 2010 with Civil Application (L) 279 of 2010, in the matter of Shri Vitthal Sahakari Sakhar Karkhana Ltd. Vs. The Collector, Solapur and Ors. wherein the Division Bench following the Apex Court judgment has held that the preparation of voters list is an intermediate stage in the election process and therefore no intervention was called for, that the original petitioners could not espouse the cause of 610 objectors in a representative capacity, and that the inquiry in respect of the voters list is a summary inquiry and the authority is not enjoined to make a detailed inquiry whether a person is entitled to be a member. In that view of the settled position of law as above, I do not find any merit in the challenge in the petition. The petition is accordingly dismissed. 8. Since the dispute as regards the challenge to the amended bye law 9(b)(iv) is pending, same would be decided on its own merits and in 10 WP9773.11.sxw accordance with law uninfluenced by the instant order as observations made in the instant case are only prima face having regard to the interim order passed by the Co-operative Court, and the Co-operative Appellate Court. ( R.M. SAVANT, J. )