lpa21.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 21 OF 2011 Shri Maruti Laxmanrao Landge & another .. APPELLANTS VERSUS Sow Meenakshi w/o Gulab Landge & others .. RESPONDENTS Mr. N.V.Gavare, advocate for the appellants. Mr. G.K. Naik-Thigale, advocate for respondent no. 1. Mr. P.P. More, AGP for respondent nos. 44 and 45. ===== CORAM : D.B. BHOSALE & R.M. BORDE, JJ. DATE : 3 rd FEBRUARY, 2011 PER COURT : ( PER R.M. BORDE, J.) 1 Appellants herein – respondent nos. 3 and 4 in Writ Petition no. 10916/2010 are raising exception to the order passed in writ petition by the learned Single Judge on 14 th January, 2011, whereby the learned Single Judge while allowing the petition has directed quashment of the order passed by the Deputy Registrar, Co-operative Societies, Ahmednagar (respondent no.2 in the writ petition) and further directed to restore the lpa21.11 2 names of 79 members in the voters’ list for borrowers’ constituency for election of the Managing Committee of original respondent no. 5 – society ( in the petition). 2 Petition was presented before the learned Single Judge by respondent nos. 1 to 41 herein thereby complaining transfer of their names in voters’ list for non-borrowers category by the Returning Officer. Dispute in respect of inclusion of names in the voters’ list relates to election to Committee of original respondent no. 5 – village level co-operative society. The elections to the Managing Committee of the society were due in 2008. It appears that there are disputes between the members of the Managing Committee of the society and two groups are claiming control over the management. The record of the society was also with two different individuals who claim to be the Secretary of the society. In an earlier petition presented by one Rambhau Haribhau Landge, being Writ Petition no. 6943/2010, directions were issued by this court to the District Deputy Registrar to take steps to appoint officer of the Co-operation department for holding elections to the Managing Committee of the society. It was further directed that the officer so appointed shall secure record of the society from the persons concerned as well as both the secretaries who claim to possess part lpa21.11 3 of the record of society. Directions were issued to the District Deputy Registrar in respect of finalisation of the voters’ list. It was also further directed that the elections to the society shall be held by the officer appointed by the District Deputy Registrar, who shall complete the process within three months from the date of the order. This court issued directions in Writ Petition 6943/2010 in respect of completion of the process of election, on 30-9-2010. 3 In pursuance to the directions issued by this court, the officer appointed by the Co-operation department published the provisional list of voters on 3-11-2010. Provisional list was objected by the appellants herein by tendering two objection applications on 15-11-2010. One of the objections tendered by appellant no. 1 herein relates to inclusion of names of 49 voters in the provisional voters’ list. It is contended in the objection application that 49 members whose names are included in the provisional voters’ list are not at all the members of the society and as such their names shall be deleted. Whereas another objection application tendered to the Returning Officer by appellant no. 2 herein relates to inclusion of 30 members in the borrowers category. It is contended that 30 members whose names are enlisted in the objection application are not the borrower members and as such, their lpa21.11 4 names are liable to be transferred to the list of non-borrowers voters’ category. Returning Officer after considering the objections, passed an order directing transfer of names of all the 79 members in non-borrowers category. Order passed by the Returning Officer directing transfer of 79 members from borrowers category to non-borrowers category was subject matter of challenge in Writ Petition no. 10916/2010 at the instance of respondent nos. 1 to 41 herein. Learned Single Judge after considering the rival contentions was pleased to allow the petition and directed restoration of names of 79 members in borrowers category voters’ list. 4 We have heard arguments advanced by respective counsel appearing for the parties. Mr. Gaware, learned counsel appearing for the appellants has vehemently contended that learned Single Judge has exceeded in his jurisdiction in causing interference in the electoral matter and issuing directions to restore names of 79 members in borrowers’ constituency for elections of Managing Committee of the village level society. It is contended by appellants that there was no material before the learned Single Judge to record finding as regards permissibility of categorisation of names of 79 members in borrowers’ category. It is contended that the Returning Officer on perusal of the record has rightly lpa21.11 5 upheld the objections raised by the appellants and it was not open for the learned Single Judge to cause interference in the matter in exercise of writ jurisdiction. It is also contended by the appellants that once the process of election is set in motion, it was impermissible for the learned Single Judge to cause interference in the electoral matter. It is contended that preparation of list of voters is a step in aid in the process of election and in view of law laid down by the Apex court in the matter of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & another vrs. State of Maharashtra & others reported in 2002(2) Bom.C.R. 149, the learned Single Judge ought not to have entertained the writ petition. 5 On perusal of the objection application tendered by appellant no. 1 herein to the Returning Officer on 15-11-2010, it is evident that the objection raised was in respect of inclusion of names of 49 members in the voters list. Names of 49 voters who are included in provisional voters list are serialised in the objection application. It is the specific contention of the objector – appellant no. 1 that those 49 members are not at all members of the society and as such their names shall not be included in the voters list. Another objection application presented by appellant no.2 herein relates to inclusion lpa21.11 6 of names of 30 members in the borrowers category. It is requested to the Returning Officer to transfer names of 30 members whose names are enlisted in the objection application from borrowers category to non-borrowers category. So far as 49 members are concerned whose inclusion in the voters’ list is objected to by appellant no. 1, the only argument advanced was in respect of their inclusion in the voters’ list itself. There was no dispute raised before the Returning Officer in respect of categorisation of those members in the borrowers category. It was further not open for the Returning Officer to pass order directing transfer of names of 49 members from borrowers category to non-borrowers category. In the instant appeal, appellants have included 41 members of the society as respondents. Appellants are not in a position to demonstrate inclusion of name of which of the respondents is objected to by either appellant no.1 or appellant no. 2. Appellants are not in a position to demonstrate as to which of the respondents fall in the category of 49 members whose inclusion is objected to by appellant no. 1 on the ground that such of those members are not at all entitled to be included in the list of voters. Another objection application tendered by appellant no. 2 is in respect of 30 members and, categorisation of those 30 members in the borrowers’ category is objected by appellant no. 2. Direction issued by Returning Officer in respect of categorisation of lpa21.11 7 members in non-borrowers’ category so also the order passed by the learned Single Judge quashing the order passed by the Returning Officer relates to 79 members. The net result of the order issued by the learned Single Judge is that 79 members of the society are directed to be included in the voters’ list prescribed for borrowers category whereas appellants have impleaded 41 members as respondents to the appeal. Appeal, therefore, is liable to be dismissed, firstly on account of non-inclusion of all the 79 members in the appeal and, secondly, on the ground that appellant no.1 himself has not raised any objection in respect of categorisation of 41 members in borrowers category. Therefore it was not open for the Returning Officer to transfer names of 41 members to non-borrowers category in pursuance to the objection raised by appellant no. 1. Learned Single Judge was therefore justified in causing interference in the matter and directing inclusion of names of 79 members in borrowers’ category. 6 We have perused affidavit in reply tendered by the Deputy Registrar, Co-operative Society, Ahmednagar on 6-12-2010. It is recorded in the reply that the Returning Officer initially has included names of 79 members in the borrowers’ category relying upon the entries in cash book and loan ledger book maintained by the society whereas the Returning Officer has recorded lpa21.11 8 in his order that as he could not ascertain or confirm that those 79 members are the borrower members, he shifted the names of those members to non- borrowers category. Reason recorded by the Returning Officer was obviously frivolous. Learned Single Judge has taken into consideration that there was sufficient record in the form of cash book and loan ledger book before the Returning Officer which demonstrates that 79 members in question have borrowed loan from the society, while he prepared the provisional voters’ list. Merely because the Returning Officer was not satisfied, that itself cannot be a ground for transferring names of those members to non-borrowers category. Objectors herein also could not bring any record before the Returning Officer to demonstrate that 79 members in respect of whom objection was raised are infact not the borrower members or that they did not borrow loan from the society. The order passed by the learned Single Judge is well reasoned, logical and proper and as such, does not call for any interference. 7 So far as maintainability of the writ petition is concerned, learned counsel for the appellant has placed reliance on the judgment in the matter of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & another vrs. State of Maharashtra & others (cited supra). lpa21.11 9 The Apex Court while considering the question in relation to the elections to a specified society has observed that in view of provisions of Chapter XI-A of the Maharashtra Co-operative Societies Act and Rules, preparation of electoral roll is an intermediate stage in the process of election. The Apex Court considering the provisions of Chapter XI-A of the Act which are in respect of a specified society as well as provisions of Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971, has a taken a view that preparation of electoral roll is an intermediate stage in the process of election of a specified society. It was also further observed that in view of provisions of Rule 81(d)(iv) of the Rules and provisions of Chapter XI-A of the Act, the same can be called in question after declaration of election by means of objection application before the tribunal. Considering the provisions of the Act and the Rules in reference to the specified society, the Apex Court ruled that the petition ought not to have been entertained by the High Court. However, in the instant matter, elections relate to an ordinary village level society. Learned Single Judge while considering the objection raised by the appellants herein in respect of maintainability of the petition, placing reliance on the Division Bench judgment in the matter of Mayaraju Ghavghave Vs. Returning Officer & another reported in 2004(5) lpa21.11 10 Bom.C.R. 146, has taken a view that the petition can be entertained and interference is permissible when election can be furthered without any disturbance in the election program. The view taken by the learned Single Judge cannot be said to be erroneous. 8 For the reasons recorded above, we are of the considered opinion that no interference is called for in the instant appeal. Appeal is devoid of merit hence stands dismissed. 9 Learned counsel for the appellants requests for continuation of interim relief granted by this court on 29 th January, 2011, for a period of two weeks to enable him to approach the Apex Court. Request is accepted and interim relief granted by this court on 29 th January, 2011 is directed to be continued for further period of two weeks from today. ( R. M. BORDE ) ( D.B. BHOSALE ) JUDGE JUDGE dyb