1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.2468/2011 [Dudhram s/o Lodkuji Sawwalakhe and others .vrs. State of Maharashtra and others] ................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... CORAM : B.P. DHARMADHIKARI AND P.D. KODE, JJ. DATE : JUNE 15, 2011. Heard Advocate Shri P.C. Madkholkar with Advocate Shri S.P. Bhandarkar for the petitioners, Government Pleader Shri N.W. Sambre for respondent nos.1 to 3 and 5 and Advocate Shri M.V. Samarth for respondent no.4. By this petition, as filed, the challenge is to election programme as claimed on 5.5.2011/7.5.2011 by respondent no.2 Collector, Nagpur in terms of the provisions of Rule 16 of the Maharashtra Specified Co- operative Societies Elections to Committee Rules, 1971 (hereinafter referred to as “ 1971 Rules”). The petition as filed initially, also sought the prayer for inclusion of names of the petitioners in the final list of voters claiming that they are the delegates 2 nominated by the respective societies. Accordingly, the persons consequentially to be displaced from final voters list as representatives of the said societies were respondent nos.6 to 22 in the petition. This prayer has not been pressed and those respondents have been deleted. The prayer is now restricted to a direction to frame election programme in accordance with the requirement of the above mentioned 1971 Rules. Advocate Shri Madkholkar has placed reliance upon the judgment of the Hon’ble Apex Court in the case of Jyoti Basu and others .vrs. Debi Ghosal and others, AIR 1982 SC 983 particularly para 8, to urge that such elections must be strictly regulated by 1971 Rules and infraction thereof must result in vitiation of the election programme. He has invited attention to the provisions of Rule 4 of the 1971 Rules to point out that provisional list of voters needs to be prepared by every society for the year in which general election is due to be held. In this background, the provisional list of respondent no.4 Bank specified society was published on 21.1.2010, objections thereto were invited by 2.2.2010, objections were then decided on 11.2.2010 and final voters list has been published on 8.3.2010. Advocate Shri Madkholkar then invites attention to the provisions of Rule 16(1)(a) to point out that it mandates preparation of election programme by 3 the Collector in consultation with the Registrar not earlier than thirty days of the date of display of the final voters list of a society under Rule 7 of the 1971 Rules. According to him, as final voters list under Rule 7 of the 1971 Rules was displayed on 8.3.2010, after expiry of period of thirty days therefrom and within reasonable time, the election programme ought to have been published. He points out that here that election programme has been published after more than one year and i.e. in the month of May 2011. He further states that elections scheduled are for the period from 2011 to 2016 and the Administrator, who had forwarded the provisional list of members to the office of the Collector, had then forwarded the list as in 2007. Thus, his contention, all those, who may have become members/representatives after 8.3.2010 till 5.5.2011 are deprived of their right to participate in the election. Advocate Shri Madkholkar has further pointed out the procedure for finalization voters list as contained in Rule 5 and Rule 6 of the 1971 Rules and urged that the provision permits any person who is a member of the society as on the 30th day of June of the preceding year in which such election is due and whose name is not included in the final list of voters to apply in writing to the Collector in Form 1-A within a period of fifteen days from the date of display of final list of voters under Rule 7 4 of the 1971 Rules. He further points out that such application is required to be considered by the Collector, after obtaining report of the District Deputy Registrar and then the Collector has to give his decision in writing about the inclusion or otherwise of such names before the first date fixed for making nominations. He points out that in May 2011 when election programme was published, all those dates, time period was already over. In the alternative and without prejudiced he has also contended that on the date on which final voters list was published i.e. on 8.3.2010, some of the representatives had applied to the Collector, Nagpur and on very same day, their names were added in the final voters list. According to him, thus the election programme being processed now in 2011 is not on the strength of the voters list as required by 1971 Rules and it, therefore, constitutes a fraud on democracy and Statute. He, therefore, states that said election programme needs to be quashed and set aside and fresh election programme needs to be ordered. Learned Government Pleader Shri Sambre appearing on behalf of respondent nos.1 to 3 and 5 has supported the election programme. He contends that objection of present nature could have been raised immediately after 8.3.2010 and here the petitioners are coming at the fag end when the election programme 5 published in May 2011 is now coming to an end as actual polling is scheduled on 19.6.2011. He further contends that if at this stage the election programme is to be set aside, those who are participating in the election will be adversely affected and they are not joined as parties before this Court. According to him, there are some disputed questions which arise in this matter and, therefore, election petition is the only appropriate remedy. Advocate Samarth for respondent no.4 Bank contends that present petitioners are not the members of respondent no.4 Bank-specified society. They are also not the representatives of any of the member societies as on today and, therefore, they have no locus to maintain to such petition. He contends that the societies, who have allegedly forwarded their names as their delegates, are also not before this Court. He further points out that these petitioners have not moved any application under Rule 5 (2) as contemplated in 1971 Rules before the Collector, Nagpur and the grievance made by them is misconceived and they have approached the Court belatedly. Advocate Rohit Deo, who appears in some other matters being heard today also seeks leave to address the Court in the matter, as according to him, adjudication in the present matter may affect interest of 6 his clients in other petitions. Learned Government Pleader Shri Sambre for respondent nos.1 to 3 and 5 and Advocate Shri Samarth for respondent no.4 - Bank pointed out that in accordance with the judgment of the Hon’ble Apex Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another .vrs. State of Maharashtra and others, 2002 (1) Mh.L.J. 659, preparation of the voters list is an integral part of the process of election and hence grievance of such a nature must wait till the result of the election are out and can be conveniently agitated in election petition. Seventeen petitioners before this Court claimed to be representatives of some societies and they have been chosen as alleged after 8.3.2010. The prayer for inclusion of their names or then for deletion of representatives of those societies whose names are already included in final voters list has been given up. The provision of Rule 5 (2) of the 1971 Rules contemplates that such societies can change the name of its delegate not later than seven days before the date appointed by the Collector under Rule 16 of the 1971 Rules for making of nominations. That date i.e. last date for making of nominations in election programme was 16.5.2011. The petitioners did not move any such application for inclusion of their names as representatives of respective societies in final voters list. 7 Had they moved any such application, they could have then approached this Court with some right or then with grievance that their applications had not been promptly dealt with. As already noted above, the entitlement to become voter has been given up. It is not the case of these petitioners that because of belated declaration of election programme in May 2011, their interest have been adversely affected. They are only pointing out the violation of provisions of law. If they were chosen as delegates, they could have also moved appropriate authority for publication or framing of election programme within reasonable time i.e. after expiry of period of thirty days from 8.3.2010 as contemplated in Rule 16 (1) (a) of the 1971 Rules. It cannot be forgotten that respondent no.4 society is under Administrator for last several years. The fact that election programme was not published was within their knowledge and after publishing of election programme either on 5.5.2011 or 7.5.2011, they have chosen to approach this Court on 16.5.2011 with grievances as mentioned above. The election programme has continued to operate and polling is now due on 19.6.2011. Those persons, who have submitted their nomination papers, are not the parties before this Court. The petitioners though claimed to be representatives have not taken any timely steps to 8 vindicate their rights and at fag end are trying to avoid the election. At this stage, Advocate Madkholkar contends that the date of nominations contemplated in Rule 5 (2) of the 1971 Rules is not the last date of nominations but the first date of nominations. The contention is misconceived. In the circumstances, we are not inclined to interfere at this stage. The petition is, therefore, dismissed. No costs. JUDGE JUDGE Gulande