lpa241.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.241 OF 2011 IN WRIT PETITION NO.5354 OF 2011 1) Shri Bhausaheb s/o Raosaheb Mohite, Age-45 years, Occu:Agriculture, R/o-Utaka, Tq-Ausa, Dist-Latur, 2) Yuvraj s/o Panditrao Patil, Age-50 years, Occu:Agriculture, R/o-Ashiv, Tq-Ausa, Dist-Latur. ...APPELLANTS. VERSUS 1) Balaji s/o Gopal Gire, Age-41 years, Occu:Agriculture, R/o-Borphal, Tq-Ausa, Dist-Latur, 2) Govind s/o Vishvanath Jagtap, Age-40 years, Occu:Agriculture, R/o-Ashiv, Tq-Ausa, Dist-Latur, 3) Sudhakar s/o Dharmraj Madule, Age-50 years, Occu:Agriculture, R/o-Ashiv, Tq-Ausa, Dist-Latur, 4) Dnyandeo s/o Ram Jagtap, Age-38 years, Occu:Agriculture, R/o-Ashiv, Tq-Ausa, Dist-Latur, lpa241.11 2 5) Shivaji s/o Yeshwantrao Patil, Age-40 years, Occu:Agriculture, R/o-Ramegaon, Tq-Ausa, Dist-Latur, 6) Anil s/o Yuvraj Lokhande, Age-35 years, Occu:Agriculture, R/o-Ashiv, Tq-Ausa, Dist-Latur, 7) The State of Maharashtra, Through the Secretary in the Department of Co-operation, Mantralaya, Mumbai, 8) The Collector, Latur, Tq. & Dist-Latur, 9) The District Deputy Registrar, Co-operative Societies, Latur, Tq. & Dist-Latur, 10) Shri Sant Shiromani Maruti Maharaj Sahakari Sakhar Karkhana Ltd., Mauli Nagar, Belkund, Tq-Ausa, Dist-Latur, Through its Managing Director. ...RESPONDENTS. ... Shri.V.D. Salunke Advocate for Appellants. Shri.V.D. Hon Advocate for Respondent Nos. 1, 5 and 6. Shri.K.G. Patil, A.G.P. for Respondent Nos. 7 to 9. Shri.A.N. Irpatgire Advocate for Respondent No.10. ... lpa241.11 3 CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. RESERVED ON: 16TH SEPTEMBER, 2011. PRONOUNCED ON: 21ST SEPTEMBER, 2011. ORDER [PER NARESH H. PATIL, J.]: 1. The elections of Respondent No.10 - Shri Sant Shiromani Maruti Maharaj Sahakari Sakhar Karkhana Ltd., Mauli Nagar, Belkund, Tq-Ausa, Dist-Latur, were held in the year 2006. The Committee of the Respondent No.10 Karkhana was constituted on 14th August, 2006. It is not disputed that Respondent NO.10 is a specified co- operative society. The term of it's Committee is for five years. The next elections of the Committee were to be held, according to the Appellants, before 13th August, 2011, in accordance with the provisions of Section 73H of the Maharashtra Co-operative Societies Act, 1960 (for short 'the Act of 1960') and the Maharashtra Specified Co-operative Societies Election to lpa241.11 4 Committee Rules, 1971 (for short 'the Rules of 1971'). The Managing Committee of Respondent No.10 Karkhana had prepared list of members enrolled as on 31st December, 2008. The Collector, Latur, published provisional voters list on 7th June, 2011 and called claims and objections under Rule 6(2) of the Rules of 1971. The present Appellants raised objections to the voters list. By an order dated 12th July 2011, the Collector, Latur allowed their objections and held that members who were enrolled as on 30th June, 2008 would be eligible to vote and the names of the Respondent Nos.1 to 6 were struck off from the voters list. The order of the Collector was questioned in Writ Petition No.5354 of 2011. The Writ Petition was finally allowed by the learned Single Judge of this Court by Judgment and order dated 28th July, 2011. The impugned order passed by the Collector on 12th July, 2011 was quashed and set aside and it was held that the members who were enrolled two years prior to 14th August, 2011 were eligible to be lpa241.11 5 included in the list of voters. In the present Letters Patent Appeal, the said Judgment of the learned Single Judge is questioned. 2. Shri. Salunke, learned counsel appearing for the Appellants submitted that there is no inconsistency between Section 27 (3A) of the Act of 1960 and Rule 4 of the Rules of 1971. The counsel further submitted that Judgment of Full Bench in the case of Sandip Vasantrao Lahare vs. State of Maharashtra and others, 2005(4) B.C.R. 863, is not applicable to the facts of the case as it relates to the election of a notified society. In the submissions of the counsel, considering the provisions of Section 27(3A) of the Act of 1960 and Rule 4 of the Rules of 1971, provisional voters list has to be prepared including the names of the voters who completed two years as on 30th June of the year immediately preceding the year in which election is due. In the present case, election was due on 13th August, 2011, therefore, lpa241.11 6 the voters list shall be prepared of the members who completed two years as on 30th June, 2010. In the submissions of the counsel, the Judgment in the case of Dhule Gramin Vikas Bhajipala Phal Phalawal Va Phule Kharedi Vikri Sahakari Sanstha Ltd., Dhule and others vs. State of Maharashtra and others, 2008(1) Mh. L.J. 171 does not lay down correct law in the light of the Judgment of the Apex Court in the case of Ramchandra Ganpat Shinde and another vs. State of Maharashtra and others, A.I.R. 1994 S.C. 1673. 3. Shri. Salunke, learned counsel appearing for the Appellants, placed reliance on the following reported Judgments, in support of his submissions: (1) Ramchandra Ganpat Shinde and another vs. State of Maharashtra and others, A.I.R. 1994 S.C. 1673, lpa241.11 7 (2) Sambha Gangaram Pikale vs. State of Maharashtra and others, 1996 (2) B.C.R. 700, (3) Purushottam Yeshwant Patil and others vs. State of Maharashtra and others, 2002 (1) Mah. L.R. 377, (4) National Insurance Company Ltd. vs. Swaransingh and others, A.I.R. 2004 S.C. 1531, (5) Sandip Vasantrao Lahare vs. State of Maharashtra and others, 2005(4) B.C.R. 863, (6) Dudh Ganga Vikas Seva Sanstha Maryadit vs. District Collector, Kolhapur and others, 2006 (4) B.C.R. 617, (7) Dhule Gramin Vikas Bhajipala Phal Phalawal Va Phule Kharedi Vikri Sahakari Sanstha Ltd., Dhule and others vs. State of Maharashtra and others, 2008(1) Mh. L.J. 171 lpa241.11 8 4. Shri. Hon, learned counsel appearing for Respondent Nos. 1, 5 and 6 submitted that the issue raised by the Appellants in respect of harmonious interpretation of provisions of Section 27(3A) of the Act of 1960 and Rule 4 of the Rules of 1971 is no more res integra. The issue is covered by the Judgment of the Apex Court in the case of Dudh Ganga Vikas Seva Sanstha Maryadit vs. District Collector, Kolhapur and others, 2006 (4) B.C.R. 617 and Dhule Gramin Vikas Bhajipala Phal Phalawal Va Phule Kharedi Vikri Sahakari Sanstha Ltd., Dhule and others vs. State of Maharashtra and others, 2008(1) Mh. L.J. 171. The counsel submitted that in the light of the Judgments cited supra, Rule 4 of the Rules of 1971 cannot be read de-hors the provisions of the Act of 1960. According to the counsel, there is no inconsistency between Section 27 (3A) of the Act of 1960 and Rule 4 of the Rules of 1971 and even if there is any inconsistency appearing, then the provisions of the Act of 1960 would prevail over lpa241.11 9 the Rule 4 of the Rules of 1971. 5. The learned A.G.P. appearing for the Respondent Nos. 7 to 9 supported the order passed by the Collector. 6. We have perused the order passed by the Collector, the impugned Judgment delivered by the learned Single Judge, relevant documents placed on record and the case laws cited supra. The Judgment delivered by the Apex Court in the case of Ramchandra Ganpat Shinde and another vs. State of Maharashtra and others, A.I.R. 1994 S.C. 1673 (cited supra), was delivered prior to the enactment of Section 27(3A) of the Act of 1960. 7. In the case of Dudh Ganga Vikas Seva Sanstha Maryadit vs. District Collector, Kolhapur and others, 2006 (4) Bom.C.R. 617 (cited supra), the Apex Court observed in Para 11 as under: lpa241.11 10 "11) Learned counsel appearing on behalf of the State of Maharashtra as well as the intervenors submitted that under Rule 4, though there were no express words to that effect, the eligibility of a society for its name to be included in the provisional voters list has to be considered in the light of the provisions of Section 27 of the Act. It was, therefore, submitted that unless a society is a member of the specified society for a period of atleast 3 years on the 30th of June of the year immediately preceding the year in which such election is due, its name cannot be included in the provisional list of voters. The submission is wholly misconceived. Rule 4 of the Rules does not provide that a person whose name is to be included in the provisional list of voters should be one who has completed a minimum period of 3 years as a member as on 30th June of the year immediately preceding the year in which election is due. In lpa241.11 11 fact, the express words of Rule 4 provide that he should have completed minimum period of 2 years. To read Rule 4 in the matter suggested by the respondents would amount to rewriting the rule. It was submitted that Rule 4 must be read into Section 27 and so read there may be inconsistency between the Act and the Rules. In fact, the District Collector as well as the High Court took the view that the District Collector was bound by the Rules and, therefore, it has rejected the claim of the appellant society. On a careful consideration of the provisions of the Act and the Rules, there is no inconsistency between Section 27 of the Act and Rule 4 of the Rules. Even if there was any inconsistency as argued by the respondents, the Act must prevail over the Rules." 8. In the case of Dhule Gramin Vikas Bhajipala Phal Phalawal Va Phule Kharedi Vikri lpa241.11 12 Sahakari Sanstha Ltd., Dhule and others vs. State of Maharashtra and others, 2008(1) Mh. L.J. 171 (cited supra), the Division Bench of the Bombay High Court, Bench at Aurangabad, to which one of us (Naresh H. Patil, J.) was party, considered the Judgment delivered in the case of Dudh Ganga Vikas Seva Sanstha Maryadit vs. District Collector, Kolhapur and others, 2006 (4) B.C.R. 617 (cited supra), and the Judgment delivered by the Full Bench in the case of Sandip Vasantrao Lahare vs. State of Maharashtra and others, 2005(4) B.C.R. 863 (cited supra). The Division Bench observed in para 18 and 19 as under: "18) We find from perusal of the provisions of Section 27(3) of the Act, 1960 that there is no ambiguity in its application. Considering the interpretation put up by the Apex Court and the Division Bench of the Bombay High Court in their judgment to the provisions of Section 27 of lpa241.11 13 the Act read with Rule 4 of the Committee Rules it can be safely held that the members society of the federal society shall be eligible to vote in the affairs of the federal society after completion of period of three years from the ate of its investing funds in the shares of the federal society." 19. The view of the Collector of fixing the cut off date as 30th June, 2002 would go contrary to the interpreting put to these provisions by the Apex Court and the Division Bench of this Court. It is necessary to be pointed out that the Apex Court observed in the case of Dudhganga Vikas Seva Sanstha (supra) that to read Rule 4 in the manner suggested by the respondents therein would amount to rewriting the rule. And even if there was any inconsistency the Act must prevail over the Rules. The provisions of Rule 4 of the Committee Rules could not override the provisions of lpa241.11 14 Section 27(3) of the Act, 1960. As the provisions of the Act, 1960 would prevail over the rules the period of three years has to be plainly calculated from the date of investing of the part of the funds by a society in the shares of any federal society." 9. Considering the provisions of the Act of 1960 and the Rules of 1971 and the case laws cited supra, harmonious interpretation of the provisions of the Statute and Rules was made by the Division Bench and it was observed that even if any inconsistency was found between the provisions of Section 27(3), 27(3A) of the Act of 1960 read with Rule 4 of Rules of 1971, the provisions of Statute would prevail over the Rules. 10. In the light of the view expressed by the Apex Court, Full Bench and the Division Bench of this Court in the Judgment cited supra, we are not inclined to accept the submissions of the learned lpa241.11 15 counsel Shri. Salunke appearing on behalf of the Appellants. We do not notice any error in the view adopted by the learned Single Judge of this Court. The Judgment of the learned Single Judge is well reasoned one. There is no merit in the Letters Patent Appeal. The Letters Patent Appeal is dismissed. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/SEPT11 11. After pronouncement of the order, learned counsel for the Appellants prays for continuation of interim relief for four weeks. Counsel for the Respondent has objected to the same. We are not inclined to continue interim relief. Request is rejected. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/SEPT11