1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 9170 OF 2010 1 Jalgaon Zilla Sahakari Doodh Utpadak Sangh Limited Through its Managing Director Shri Ravindra s/o Sadashiv Lahane age 49 years, occ. service r/o Jalgaon, Dist. Jalgaon. 2 Satish s/o Natthu Patil Age 58 years, occ. agriculture r/o Tarkheda, Tq. Pachora Dist. Jalgaon. .. PETITIONERS VERSUS 1 The State of Maharashtra Through the Secretary for Co-operation and Textile Department Mantralaya, Mumbai. 2 The Collector Mumbai City and the Returning Officer for the Elections of Maharashtra Rajya Sahakari Doodh Mahasangh Limited, Mumbai. 3 The Divisional Deputy Registrar Co-operative Societies (Milk) Nashik Division, Nashik 4 Pramod s/o Pandurang Patil age 45 years, occ. agriculture r/o “Ajinkyatara” Near R.K. Lawns, Bhadgaon Road Chalisgaon, Tq. Chalisgaon Dist. Jalgaon. 2 5 Mahendrasingh Limba Pawar age 56 years, occ. agriculture r/o Warkhede (Bk) Tq. Chalisgaon, Dist. Jalgaon. .. RESPONDENTS Mr. V.D. Hon, advocate for the petitioners. Smt. Y.M. Kshirsagar, AGP for the State. Mr. R.N. Dhorde, advocate holding for Mr. A.V. Deshmukh, advocate for respondent no. 4. Mr. R.T. Nagargoje, advocate for respondent no. 5. ===== CORAM : R. M. BORDE, J. DATE : 12 th OCTOBER, 2010. ORAL JUDGMENT : 1 Heard respective counsel for the parties. 2 Rule. With the consent of the parties the petition is taken up for final disposal at admission stage. 3 Petitioner claims to be the delegate of Jalgaon Zilla Sahakari Doodh Utpadak Sangh Limited nominated for the purpose of participating in elections to Maharashtra Rajya Sahakari Doodh Mahasangh Limited which is a federal society It is not controverted that the petitioner is a nominee director appointed by the State Government for a period of 10 years commencing from the year 2002. It is contended by the petitioner that the 3 administrative body of the society adopted resolution whereby the Chairman of the Managing Committee was authorised to nominate a representative of Jalgaon Zilla Sahakari Doodh Utpadak Sangh Limited for the election to the Board of Directors of Maharashtra Rajya Sahakari Doodh Mahasangh Limited. Petitioner claims that on the basis of the resolution adopted by the Managing Committee of the society, the Chairman nominated the petitioner as the delegate on behalf of the society at the election of the federal society. Resolution adopted by the Managing Committee of the society was forwarded to the Collector at the stage of preparation of preliminary voters list, alongwith the name of the delegate. The Collector while preparing the preliminary voters list in accordance with the provisions of Maharashtra Specified Co-operative Societies Election to Committee Rules 1971 ( hereinafter referred to as the ‘Rules of 1971’) directed inclusion of name of petitioner in provisional list of voters in accordance with provisions of Rule 4. 4 Respondent nos. 4 and 5 herein objected to inclusion of name of petitioner no. 2 as the nominee of the petitioner no. 1 – society in the preliminary list of voters prepared by the Collector on two grounds. Firstly, it is contended that the petitioner is an appointed director and as such he is the 4 representative of the State Government and as such, in accordance with provisions of section 27(9) of the Maharashtra Co-operative Societies Act, the petitioner no. 2 cannot have entitlement to cast vote at the elections to the federal society. Another objection raised is in respect of validity of the resolution adopted by the society – petitioner no. 1. It is contended that the resolution adopted is no in accordance with the Rule 5 of the Rules of 1971 and petitioner no. 2 cannot be considered as duly elected nominee of petitioner no. 1 – society. While objecting to the resolution adopted by petitioner no. 1, it is contended that it is not clear as to when the meeting was convened, what was the agenda of the meeting and who are the proposers or seconders of the resolution adopted by the Managing Committee, and as such, the resolution cannot be said to be a resolution duly adopted by the petitioner no. 1 – society. It is also further contended that appointment of petitioner no. 2 as nominee by the Chairman of the Managing Committee in furtherance of the resolution adopted by petitioner no. 1 – society is not in consonance with the Rule 5 of the Rules of 1971. Both the objections were taken into consideration by the Collector and after extending an opportunity of hearing to the petitioner to submit his contentions, the Collector was pleased to direct deletion of name of petitioner no. 2 from preliminary list of voters. The order is in the nature of 5 communication issued by the Collector to respondent nos. 4 and 5. It appears that the Collector has accepted both the objections raised by the objectors and directed deletion of name of petitioner no. 2 in the final voters’ list. The order passed by the Collector dt. 29-9-2010 is subjected to challenge by the petitioner in the instant petition. 5 Respondent no. 1 has raised preliminary objection to the entertainability of the petition at the Bench at Aurangabad on the ground that the election to the federal society which are subject matter of challenge is proposed to be held at Mumbai. The program of election is published at Mumbai so also the Head Office of the federal society is at Mumbai. The Officer appointed for the purpose of holding election is the Deputy Registrar Co-operative Societies of Mumbai city. An application was tendered objecting to incorporation of name of petitioner no. 2 in the list which was considered by the Election Officer at Mumbai and the order is also passed at Mumbai. As such, the principal seat of Bombay High Court shall have jurisdiction to entertain the matter as the substantial cause of action has arisen at Mumbai. Respondent has placed reliance on the judgment in the matter of Haji Abdul Razak Yasim Patel vs. Bara Imam Masjid Trust reported in 2006(1) Bom.C.R. 776. It is contended that in the 6 circumstance noted above, only principal seat shall have jurisdiction to deal with the matter. The learned Single Judge of this court while dealing with the matter has referred to the observation of the Apex Court in the matter of Kusum Ingots & Alloys Ltd. vs. Union of India reported in 2004(6) S.C.C. 254 wherein while interpreting the term ‘cause of action’ arising wholly or in part in reference to Article 226(2) of the Constitution of India, the Apex Court has adverted to the doctrine of forum conveniens enabling the petitioner to choose his forum when a part of cause of action arising within jurisdiction of one or other High court. The relevant observations of the Apex Court in the abovesaid judgment are re-produced below :- . “Keeping in view the expressions used in Article 226(2) of the Constitution indisputably even if a small fraction of cause of action accrues within the jurisdiction of the High Court, the High Court will have jurisdiction in the matter. However, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.” 6 Reference to the judgment of the Apex Court in the matter of Rajasthan High Court Advocates Association vs. Union of India reported in AIR 2001 Supreme Court 416 can also be made wherein it has been ruled 7 that in appropriate cases it is to be left to be determined in each individual case as to where the cause of action arises. Considering the precedence referred above, I am of the view that as part of cause of action in the instant matter has arisen within the jurisdiction of this Bench, the petition needs to be entertained. The petitioner no. 1 – society is located at Jalgaon having its area of operation limited to Jalgaon district which falls within the jurisdiction of this Bench. The nominee of the society who is required to be appointed for the purpose of election to the federal society is from Jalgaon district and the resolution in question has been adopted at Jalgaon. Distirct Jalgaon comes within the area of operation of federal society of which the elections are scheduled to be held. Considering these factors, I am of the view that the petition presented by the petitioners need to be entertained. Reliance is placed on a judgment in the matter of Rajasthan High court Advocate Association vs. Union of India (cited supra) by the respondents. However, the judgment is essentially in respect of the restrictive meaning attached under the rules framed by the Chief Justice while providing the definition of ‘accrual of cause of action’ which the Apex Court found to be ultra vires powers of the Chief Justice. 7 Learned counsel for the petitioner while assailing the order passed by 8 the Collector has contended that the Collector has exceeded in his jurisdiction in directing deletion of name of petitioner no. 2 from the final list of voters. My attention is invited to section 27(9) of the Maharashtra Co- operative Societies Act. Section 27(9) reads thus : 27 (9) No nominee of the Government or any financing bank on the committee of any society shall be entitled to vote at any election of officers of such committee such as the President, Vice-President, Chairman, Vice-Chairman, Secretary, Treasurer or any other officer by whatsoever designation called, who holds the office by virtue of his election to that office. . It is contended that the restrictions contained in sub-section 9 of section 27 of the Act refers to entitlement to cast vote at election of officers of such committee which according to the petitioner makes reference to petitioner no. 1 – society and cannot be interpreted to mean federal society of which the elections are scheduled. It is also contended that restriction imposed in section 27(9) only relates to the elections of the President, Vice- President, Chairman, Vice-Chairman, Secretary or Treasurer or any other officer by whatsoever designation called who holds the office by virtue of his election to that office. It is contended that the reference in the section pre- dominantly relates to petitioner no. 1 – society and not a federal society of which the elections are scheduled. It is further urged that the Collector has 9 over looked the provisions of Rule 5 of the Rules of 1971. It is contended that the Collector while finalising the voters list has to restrict the enquiry as regards father’s or husband’s name, surname of any person entitled to be registered as voter and other particulars as may be necessary to identify him. The enquiry which is contemplated at the hand of the Collector shall be restricted to ensure the identity of the voter whose name is proposed to be included in the final list of voters. It is not at all open for the Collector to scrutinise the resolution adopted by the society which has been referred to the Collector by the petitioner no. 1 – society for the purpose of inclusion of name of the nominee in the final list of voters. Reliance is placed on a judgment in the matter of Dhondiba Parshuram Lakade and others vrs. Someshwar Sahakari Sakhar Karkhana Ltd and others reported in 1979 (0) BCI 43. My attention is invited to paragraph nos. 40 to 44 of the judgment which read thus : 40 Thus, under Rule 6(1), all that the Collector is entitled to, and permitted to, do is to ensure the identity of the voter concerned, and if per chance, the identify is not sufficiently established in the provisional voters’ list to take steps within the ambit of Rule 6(1) to see that it is. There is nothing in Rule 6(1) which empowers the Collector to hold a detailed inquiry, as was done in the instant case, whether a person is qualified to be on the Register of Members, and if not to delete his name from the provisional list of voters. Under section 38(2) of the Societies At, the Register of Members is prima facie evidence of membership. It is not open to the Collector to 10 upset that Register by holding an inquiry under Rule 6(1), which contemplates a very summary inquiry, confined only to the aspects set out in that Rule and nothing; else. 41 The combined effect of Rules 4, 5 and 6 is that the powers of the Collector under Rule 6, though not without responsibility, are more in their nature, mechanical. he has to act as a guard or watch-dog and ensure that the identity of every person whose name appears in the provisional voters’ list tallies with the person in the Register of Members. The intention behind, and the scope of these three Rules is to ensure that every person whose name appears in the Register of Members, should also appear in the voters’ list, so that no person in the Register of Members is left out from the provisional voters’ list by reason of some omission or error in respect of the particulars enumerated in Rules 5 and 6. 42 Furthermore, what cannot be lost sight of is that under Rule 4(2), it is an authenticated list that has to be sent by the Society to the Collector. In the Act or the Rules, there is no definition of the word “authenticated.” However, the dictionary meaning of the word “authenticate” to be found in Random House Dictionary is : “To make authoritative or valid. To establish as genuine. To establish the authorship or origin conclusively or unquestionably.” Thus it must be assumed that the authenticated list required to be sent to the Collector under Rule 4(2) is the correct list and correctly sets out the names of the person appearing in the Register of Members. Under Rule 6, there is no presumption or any scope for inference that the Collector is expected to go out of his way and to do detection work, in the face of the authenticated list furnished to him. In this case, we are informed that the authenticated list has in fact been authenticated by the Chartered Accountant of the Society. There is nothing even remotely to suggest that this list is any other than what it purports to be, namely a correct reproduction of the names of the persons appearing in the Register of Members. 11 43 It must also be remembered that the scope of the inquiry by the Collector under Rule 6 is not only limited in nature, but is also of an extremely summary nature. Under Rule 4(2), the voters’ list must reach the Collector by 15 th July and copies of the voters’ list must be displayed by 20 th July. Under Rule 6(2), the claimant or objector who makes a petition before the Collector must do so by 31 st July and under Rule 6(4) the Collector must give his decision on such claim or objection within 10 days, namely by 10 th August. These four dates, namely 15 th July, 20 th July, 31 st July and 10 th August emphasise the summary nature of the inquiry contemplated by Rule 6. There is nothing in this Rule from which it can every remotely be inferred that the Collector is authorised or empowered to hold a detailed inquiry as done in the instant case, call for documents to establish eligibility to membership, examine or cross-examine witnesses or otherwise dwell on the question whether a member deserves to be included in the Membership Register or not. The fact that the inquiry under Rule 6, is of a summary nature is also reflected from the fact that against his decision, no appeal has been provided. This emphasises that the inquiry, such as it is, under Rule 6 is not only a very summary inquiry, but also mechanical (though not without responsibility), limited only to the aspects set out in the Rule itself and no more. 44 it was urged on behalf of the Collector that in Rule 6(1) the word, “omission”, must not be read in conjunction with the words immediately following, but must be read only with the words “may be brought to the notice of the Collector”. This contention is not borne out by the plain reading of this Rule and merits rejection. 8 Petitioner also contends that while interpreting the provisions of section 27(9) of the Act, distinction cannot be made between a nominee who is elected representative of the society or appointed member. My 12 attention is invited to section 73 of the Maharashtra Co-operative Societies Act to contend that the management of the society vests in the Committee constituted in accordance with the Act, Rules and By-laws which shall exercise such powers and perform such duties as may be conferred or imposed by the Act and Rules. The provisions of section 73 which provides for the Committee, its powers and functions do not make any distinction so far as the member of the Managing Committee who is elected or appointed by the State Government. Reference is also made to the provisions of section 78 of the act which relates to powers of removal of committee or member. Section 78(2) prescribes that the committee or administrator so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have power to exercise all or any of the functions of the committee or of any officer of the society, and take all such action as may be required in the interests of the society. It is thus contended that the committee or the administrator appointed including Director appointed by Government or financial agencies shall have all the powers and are subjected to the control of the Registrar of the society. It is thus contended that no distinction can be made so far as the member either appointed or elected who claims himself to be the delegate of such society for participating in election process on behalf of the primary 13 society at the elections of the federal society, based on provisions of section 27(9) of the Act. 9 Respondent has supported the impugned order and emphasised the contention that the nominee appointed by the State Government cannot exercise the powers at any election and that no restrictive interpretation can be put to provisions of section 27(9) of the Act. It is also contended that on bare perusal of the resolution purported to be adopted for referring the name of the delegate of the petitioner no. 1 – society, make it clear that the same is not duly adopted. It is contended that on bare perusal of the resolution it is evident that the same is not as contemplated by Rule 5(2) of the Rules of 1971. It is further contended that the Collector can exercise jurisdiction and can probe the validity of the resolution while considering the aspect of inclusion of name of delegate in the list of voters. It is also contended that the judgment in the matter of Dhondiba Parshuram Lakade and others vs. Someshwar Sahakari Sakhar Karkhana Ltd and others (cited supra) refers to interpretation of Rule 5(1) of the Rules of 1971 and does not contemplate a situation in respect of referring the name of the nominee for the purpose of election to federal society as contemplated by Rule 5(2) of the Rules of 1971. It is contended that the scheme of Rules of 1971 makes a 14 specific distinction in respect of preparation of provisional list of voters so far as it relates to the individual voters as contemplated by Rule 5(1) and in case of delegate of a society which is required to refer the name of delegate for the purpose of election to the federal society as contemplated by Rule 5(2) of the Rules of 1971. It is thus contended that the order passed by the Collector is sustainable and proper and need not be interfered. 10 So far as the argument advanced by learned counsel for the petitioner placing reliance on the judgment in the matter of Dhondiba Parshuram Lakade and others vs. Someshwar Sahakari Sakhar Karkhana Ltd. and others (cited supra) is concerned, admittedly, the matter before the Division Bench of this court relates to deletion of name of individual members of a specified co-operative society i.e. Someshwar Sahakari Sakhar Karkhana Ltd. The question raised for consideration before the Division Bench was as to limitations on the powers of the Collector. Powers exercisable by the Collector and the procedure required to be adopted in reference to the election to the society wherein individual members are required to cast vote while preparing preliminary list of voters is as laid down in Rule 5(1) of the Rules of 1971. While considering the limitations on exercise of powers of the Collector while preparing the list of voters, the Division 15 Bench of this court has held that the rules do not even remotely authorise the Collector to hold a detailed enquiry, by requiring production of documents to establish eligibility of member, examine or cross-examine witnesses or otherwise dwell on the question whether a member deserves to be included in the Membership Register or not. The court ruled that the enquiry under Rule 6 is of summary nature and is reflected from the fact that against the said decision no appeal has been provided. The reported judgment is in reference to interpretation of Rule 5(1) of Rules of 1971. In the instant matter, we are concerned with Rule 5(2) which relates to incorporation of name of a delegate in the list of voters. Rule 5(2) of the Rules of 1971 reads thus : 5 Particulars to be included in provisional list of voters :- (2) Where a society is a member of a specified society, the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of the affiliated society, so as to reach it by 2 nd July. While communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society or its committee under which the delegate is so authroised. The specified society shall include in the list of voters the names of all such delegate as have been communicated to it before the date fixed for publication of the provisional list. In addition to the names of the delegates, the list shall contain the names of the affiliated societies, their registration numbers and addresses and the names of the Constituencies, if any, to which they belong. A society which has communicated the name of its 16 delegate shall by like resolution be permitted to change the name of its delegate not later than seven days before the date appointed by the Collector under Rule 16 of said rules for making nominations. . Said rule casts an obligation on the society to send a copy of resolution of the society or its committee nominating the delegate for inclusion in list of voters. It is contended that the resolution transmitted to the Collector which is annexed at page no. 30 of the petition is not as contemplated by Rule 5(1) of the Rules of 1971. It merely authorises the Chairman of the Managing Committee to nominate a suitable representative of the society for election to the Mahasangh. It is contended that petitioner no. 2 is not nominated as a delegate of petitioner no. 1 society under the said resolution. The procedure adopted is not contemplated by the Rules. It is contended that in the election matter strict adherence to the procedure is expected and no deviation therefrom is permissible. It also transpires on perusal of the resolution that there is no reference as