: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1539 OF 2009 1. Chandrakant Mahadev Patole, Om Shivakripa C.H.S.Ltd., Room No.303, Bhantewadi, College Lane, Dadar(West) Mumbai 400 028. 2. Shailesh Jayantilal Mehta, B/93, 2nd Floor, Palan-Shojpal Bldg. S.K.Bole Road, Dadar(West), Mumbai-400 028. ...Petitioners Versus 1. The State of Maharashtra, through the Government Pleader, High Court(O.S.), Bombay. 2. The Divisional Joint Registrar, (Co-op.Societies), Mumbai, 6th Floor, Malhotra House, Opposite G.P.O., Fort, Mumbai-400 001. 3. The Shushrusha Citizens’ Co-op. Hospital Ltd., 698-B, Ranade Road, Dadar(West), Mumbai – 400 028. 4. Dr.Nandakishore Shamrao Laud, Chairman, The Shushrusha Citizens’ Co-op. Hospital Ltd., 698-B, Ranade Road, Dadar(West), Mumbai- 400 028. : 2 : 5. Dr.Rajeev Gurunath Redkar, Dean, The Shushrusha Citizens’ Co-op. Hospital Ltd., 698-B, Ranade Road, Dadar(West), Mumbai -400 028. 6. Shri C.H.Narkar, Returning Officer, The Shushrusha Citizen’s Co-op. Hospital Ltd., 698-B, Ranade Road, Dadar(West), Mumbai 400 028. 7. Dr.(Mrs.Rekha Prakash Bhatkhande 8. Dr.Dilip Mohanlal Jain, 9. Dr.Pravin Champalalji Jain, 10. Dr.Nandkishore Shamrao Laud, 11. Dr.Ramchanddra Rao, 12. Dr.Vivek Madhusudan Rege 13. Dr.Amitkumar Laxman Talele, 14. Dr. Shreesh Govind Upadhye, 15. Shri Dinesh Kisan Afzulpurkar, 16. Shri Ashish Shashikant Chitre, 17. Shri Nagesh Krishna Fovkar, 18. Shri Medhekar Ramesh Dewoo, 19. Shri Sanjay Dattatraya Panse, 20. Shri Vinod Shridhar Patade, 21. Shri Sanjay Somnath Shetye, 22. Shri Shrirang Kisan Shikare, 23. Shri Champaklal Mulchand Solanki, 24. Shri Lalit Champaklal Solanki, 25. Shri Bhavanji K. Vora, 26. Shri Sunil Shankar Vichare, 27. Shri Ramesh Dewoo Dhamankar, 28. Shri Mukesh Mohanlal Jain, 29. Dr.Ranjit Himatlal Maniar, 30. Shri Subhash Yeshwant Nikam, 31. Shri Ramesh Mahadev Patole, 32. Dr. Rajeev Gurunath Redkar, 33. Shri Sachin Madan Ramugade, 34. Shri Suresh Bhikaji Sarnobat, : 3 : 35. Smt. Vaishali Sanjay Dhote, 36. Dr.(Mrs.)Rajashri Prabhakar Kelkar, 37. Smt.Angelin Moti Marian, 38. Smt. Savita Mahadeo Gujar, 39. Shri Krishna Baloo Kajrolkar, 40. Shri Savata Yashwant Bali, 41. Shri Nivrutti Shidu Maske, 42. Shri Madhukar Shridhar Mithabavkar 43. Shri Satish Narayan Saple, 44. Shri Sandeep Narayan Bodhek, Nos. 7 to 44 all C/o. The Shushrusha Citizens’ Co-op.Hospital Ltd., 698-B, Ranade Road, Dadar(West), Mumbai 400 028. ...Respondents ...... Dr.Virendra Tulzapurkar, Sr.Counsel with Mr.S.M.Railkar for Petitioners. Mr.S.S.Desai with Ms.S.A.Kulkarni for Respondents 3 to 6. Mr.S.K.Shinde for Respondents 10, 15, 17 to 19, 27, 29, 32, 34, 39, 43 & 44. Ms.S.M.Dandekar, A.G.P. for State. ...... CORAM : SWATANTER KUMAR, C.J. AND A.M.KHANWILKAR, J. DATE : 5TH AUGUST, 2009. JUDGMENT (PER KHANWILKAR, J.) : 1. We have disposed of this Writ Petition by pronouncing operative order in Court on August 5, 2009 for reasons to be separately recorded. The operative order reads thus: : 4 : O R D E R We are of the considered view that the Returning Officer- Respondent No.6 has acted without authority of law and infact in apparent conflict with Rule 47 of the Election Rules framed by the Society and that too in a manner which shows arbitrariness on the part of the Returning Officer. This action of the Returning Officer has caused prejudice to the fairness of the election process and thus the entire process is vitiated and deserves to be set aside. Resultantly, we hereby quash the Notification/Letter issued by the Returning Officer on 10th July, 2009 changing the Election Programme midway and also set aside the Election Programme declared on 18th May, 2009 with a further direction that he shall publish Election Programme afresh in accordance with law at the earliest. Rule made absolute with no order as to costs.” Accordingly, we now proceed to give reasons in support of our order. 2. Briefly stated, the Respondent No.3 is a Cooperative Society registered under the provisions of Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as `the Act’). The Respondent No.6 being the Returning Officer, issued a notice on 18th May 2009 declaring the Election of the Board of Directors of the Respondent No.3 Society. The said notice reads thus: “NOTICE Election to the Board of Directors Notice is hereby given that Election to the Board of Directors of the Shushrusha Citizens’ Co-operative Hospital Limited, 698-B Ranade Road, Dadar(West), Mumbai-400 028 for the period of 2009-2014 will be held on Saturday the 8th August, 2009 from 9.00 a.m. to 4.00 p.m. at the hospital premises. : 5 : The Election programme will be as below : ELECTION PROGRAMME 1) Publication of Voters List : 01.06.2009 2) Inviting objections, additions or deletions from the members in respect of voters’ list : 02.06.2009 to 11.06.2009 3) Decision of the Election Committee on Item No.2 : 15.06.2009 4) Publication of final voters’ list : 16.06.2009 5) Period of Issue and Acceptance of Nomination Papers : 17.06.2009 to 30.06.2009 10.00 a.m. to 5.00 p.m. 6) Date of scrutiny : 01.07.2009 7) Publication of list of validity nominated candidates : 03.07.2009 8) Last day of withdrawal : 09.07.2009 9) Publication of final list of Contesting Candidates : 10.07.2009 10) Date, time and Place during which Poll for the Election will be taken : 08.08.2009 9.00 a.m. to 4.00 p.m. Shushrusha Citizens’ Co-op. Hospital 698-B, Ranade Road, Dadar(West), MUMBAI-400 028. (BASEMENT) Date: 18-5-2009 RETURNING OFFICER” As per the above notice, the final list of valid nominations was to be published on 3rd July 2009 and the last date of withdrawal of nomination was specified as 9th July 2009. The Respondent No.6, however, sent communication to all the members on 10th July 2009, which reads thus: : 6 : “10th July 2009 To: ALL MEMBER SUB: - ELECTION All members are hereby informed that the period of withdrawal of Nomination stands extended till 16th July, 2009. The change in the Election Programme is as per the provision of Section 152A of the Maharashtra Co-operative Societies Act, 1960. In view of above change the publication of final list of Contesting Candidates shall be published on 17th July 2009. The remaining Programme shall remain unchanged. sd/-C.H.Narkar, ADMINISTRATIVE OFFICER” 3. It is the case of the Petitioners that the initial notice issued on 18th May 2009 by the Respondent No.6 was contrary to the provisions of Section 152A of the Act. The Election Programme published in terms of the said notice, therefore, was invalid ab initio. It is the case of the Petitioners that the Returning Officer had no powers to alter or modify the Election Programme once announced and in any case, could not have done so on his own, that too, after the date of withdrawal of the nomination forms had already expired on 9th July 2009. Inasmuch as the law mandates that the Elections to the Board of Directors should be conducted in adherence to the provisions of the Act, the Rules and the Bye-laws of the Society. The : 7 : unilateral act of changing the date of withdrawal of nomination by the Returning Officer on his own, in any case, was contrary to the express provision in Rule 47 of the Election Rules, which mandates that only the Board of Directors, in exceptional circumstances, were competent to change the Election programme already fixed, that too, with the prior approval of the Registering Authority and notify the same accordingly. This is the principal grievance made in the present Petition, while praying for setting aside of the Election programme announced by the Respondent No.6 on 18th May 2009 and for consequential directions to the Respondent No.6- Returning Officer to declare fresh Election programme of the Respondent No.3 Society. It is noticed that after the issuance of communication by the Respondent No.6 dated 10th July 2009 modifying the Election programme to the limited extent stated therein, six persons who had filed their nomination forms, offered to withdraw the same on 11th July 2009. However, it appears that the Respondent No.6 rejected their request. The Petitioners have placed on record that the Petitioner No.1 made representation to the Divisional Joint Registrar, Cooperative Society as well as the Respondent No.6-the Returning Officer on 13th July 2009. The said representation reads thus: : 8 : “ Mr.Chandrakant Mahadeo Patole R/o Omshiv Krupa CHS, R.No.303, Bhante Wadi, Collage Lane, Dadar(W), Mumbai. Dt.13th July, 2009. To, 1. Divisional Join Registrar, Co-op. Society, G/North Wad, Malhotra House, V.T., Mumbai 400 001. 2. Mr.C.H.Narkar, Returning Officer, Shushrusha Citizen Co-op. Hospital, Dadar(W), Mumbai 400028. Respected Sir, I, Mr. Chandrakant Mahadeo Patole, residing at above said address, I have to address you as under. 1. I am the member of abovesaid Shushrusha Citizen Co-op. Hospital, Dadar, Mumbai – 400 028 and my membership No.I-10244. 3. I say that there is election program in the said hospital and one of the officer staff Mr. C.H. Narkar, who is the Administrative Manager in said hospital has been appointed as Returning Officer for the election of 2009-2014. That the said returning officer is under influence of existing body and he is favouring to them and changing the election program once it display in the notice board. But the said officer has not been publish in the local news paper and there for all members will not be convey about the election program. 4. That once the program is declare he is not published the Voter list and final voter list and valid candidates list on the notice board as per election program and he is misguiding the candidate. 5. That as per the program valid list to be declare on 10/7/2009 but he has not declare the said list on that date and on contrary he has extended the date further on 16/7/2008 but he has not given specific reason why the said list extended for that date. : 9 : 6. That the said officer is favouring to the existing body under coercion of old body because of his job to be secured. 7. That I have strongly objection for appointment of returning officer and also the changes made in the program is not at all reason for changes and therefore he is in definite about misleading to candidate, moreover he is not distributed election symbol to the candidate as it is routine procedure. 8. That some of candidate are working in the Government and semi Government and in corporation sector and they have been declare as valid candidate therefore scrutiny of valid candidate is not proper as per the provisions of settle law as such it has been done under influence of old body to select those candidate unopposed for majority of their panel. 9. That the hospital authority has not been declare sub-election of committee and there names also not declare on notice board as they have been hidden for the sake of favouring the existing body. 10. I, therefore pray that the said election may be stayed till the date of final decision of your proceedings as I have specific ground mentioned herein above. I further pray that proper enquiry to be made as per the provision of law under Section 91(1) of M.C.S. Act, 1960 and direction may be given to said hospital to change the returning officer and further declare new election program. Yours faithfully, Mr.Chandrakant M. Patole. Encl: 1. Election Programme. 2. Letter dated 4/7/2009 for election symbol. Letter dated 3/7/2009.“ According to the Petitioners, this representation remained unreplied. It is in this backdrop, present Petition came to be filed on 23rd July 2009 for the reliefs as mentioned earlier. : 10 : 4. The Respondent No.6 filed affidavit sworn on 30th July 2009 and additional affidavit sworn on 3rd August 2009. Even the Respondent No.15 filed his affidavit sworn on 3rd August 2009. The Respondents in the first place have taken preliminary objection regarding maintainability of the Writ Petition. According to them, the Election programme having been set in motion, it is not open to this Court to interdict the same. Besides, if the Petitioners have any grievance regarding the improper conduct of the Election on any available ground, the same can be remedied by way of Election Dispute under Section 91 of the Act. 5. On merits, according to the Respondents, the Returning Officer has merely corrected the infirmity which had crept in while publication of the notice regarding Election to the Board of Directors dated 18th May 2009. In other words, the subsequent communication issued by the Respondent No.6 on 10th July 2009 was intended to ensure that the Election programme was in conformity with the provisions of Section 152A of the Act. It is contended that the Petitioners have not demonstrated as to what prejudice will be caused to them due to such change. Moreover, it was argued that the six persons whose request for withdrawal of nomination forms has been : 11 : rejected by the Returning Officer, have not come forward to challenge that decision of the Returning Officer. In any case, according to the Respondents, the Petition is devoid of merits and ought to be dismissed. 6. Having considered the rival submissions, the first question that needs to be addressed is about maintainability of the Writ Petition to challenge the Election programme. In fact, it is a question which relates to the exercise or the non-exercise of the power under Article 226 of the Constitution of India. By now, it is well established that the jurisdiction of the High Court under Article 226 of the Constitution of India remains unaffected. Indeed, the question as to whether the Court would exercise that jurisdiction in a given case, will have to be answered on the basis of facts and circumstances of the case. The Division Bench of our High Court in the case of Pandurang Hindurao Patil v. State of Maharashtra & Ors. reported in 1983 Mh.L.J. 1081 had occasion to consider similar objection. While answering the said argument, the Court opined that the exercise of power under Article 226 of the Constitution of India must be governed by the well known principles. One such principle which can be considered is: whether the order of the Returning Officer is, on the face of it, so patently erroneous or without jurisdiction. In the event, the Court was to be convinced that the : 12 : order of the Returning Officer or steps taken in the election process were patently erroneous or without jurisdiction, it will be improper to ask the Petitioner to wait till the whole process of election is over and then challenge that order by way of an Election Dispute under Section 91 of the Act, which is a time consuming procedure. This principle is expounded in Para 22 of the said decision. The Court then went on to observe that it would be wholly erroneous approach to argue that powers and jurisdiction of this Court under Article 226 of the Constitution of India can be taken away. The Court in fact went to the extent of observing that this Court cannot abdicate its power under Article 226 of the Constitution of India and decline to look into the legality of the orders of the Returning Officer, even though amenable to the writ jurisdiction of the Court and ask the aggrieved parties to wait till the elections take place and then challenge those elections under Section 91 of the Act, which is a time consuming process. The settled legal position expounded by the Division Bench of our High Court is restated even in the decision of the Apex Court in the case of Ahmednagar Zilla S.D.V. & P. Sangh Ltd. v. State of Maharashtra reported in (2004) 1 SCC 133. In that case, the challenge was to the electoral roll prepared on the basis of Bye-laws which were held to be illegal. The Apex Court repelled the argument that the preparation of electoral roll being : 13 : intermediary stage of the election process, challenge to the electoral roll cannot be entertained in exercise of writ jurisdiction. The Apex Court instead took the view that where the voters’ list had been prepared on the basis of the non-existent rules, it would be illegal and the Court could interfere under Article 226 of the Constitution. This view is quoted with approval in the subsequent decision of the Apex Court in the case of Pundlik v. State of Maharashtra & Ors. reported in (2005) 7 SCC 181. 7. Suffice it to observe that the argument of the Respondents that it is not open to entertain Writ Petition under Article 226 of the Constitution questioning the Election programme or the order/communication issued by the Returning Officer is without any substance. Counsel for the Respondents pressed into service decision of the Apex Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. v. State of Maharashtra & Ors. reported in AIR 2001 SC 3982 to buttress the argument that election process once commenced, ought not to be interdicted in exercise of writ jurisdiction. This Judgment has been considered and distinguished by the Apex Court in the case of Pundlik v. State of Maharashtra (Supra). : 14 : 8. The core question to be considered is: whether the publication of election programme and the subsequent modification thereof by the Returning Officer-Respondent No.6 is in accordance with the requirements of the Act, Rules and the Bye-laws of the Society. If the Court were to hold that the same was not in conformity with the said requirement, interference in exercise of writ jurisdiction would be inevitable, as the Court cannot abdicate its authority by asking the Petitioners to wait till the whole process of election was over and then challenge the same by way of an Election Dispute. We will proceed on the assumption that the grounds urged in this Petition can be the basis to challenge the Election as provided by law. Nevertheless, as observed by our High Court in the case of Pandurang Hindurao Patil (Supra), the Court cannot abdicate its powers and ask the Petitioners to wait till the whole process of election was over - inspite of the opinion that the action or orders of the Returning Officer were unlawful. 9. We shall first consider the efficacy of the notice issued by the Returning Officer on 18th May 2009. It is common ground that the Election programme notified as per the said notice was not in accord with the provisions of Section 152A of the Act. That position is conceded even by the Returning Officer in its subsequent communication dated 10th July 2009. : 15 : Thus understood, it would necessarily follow that the election programme as notified was contrary to the requirements of the Act and for that reason, the same could not be allowed to be continued any further. Instead, the Returning Officer was obliged to issue a fresh election programme, which were to be in adherence to the provisions of Act, Rules and the Bye-Laws of the Society. 10. It is well established position that once the election programme has commenced, the same cannot be modified or altered unless the law permits such alteration and modification. We would proceed on the assumption that modification of the election programme so as to bring it in conformity with the provisions of Section 152A of the Act could be resorted to. There can be no dispute that the election to the Board of Directors is required to be conducted in conformity with the provisions of the Act, the Rules and the Bye-Laws of the Society. That position is restated even in Rule 9 of the Election Rules. The powers of the Returning Officer are specified in Rules 16 and 17 of the Election Rules, which read thus: “16.The Returning Officer shall: i) be responsible for the conduct of the election proceedings and counting of the votes as per the rules under the guidance of the election sub-committee. : 16 : ii) issue to intending candidates nomination forms as prescribed by the Board of Directors. iii) receive the nomination forms, withdrawal letters, appeal etc. Note: A receipt shall be given for every nominations received in “Form No.2” appended hereto . iv) place these before the election sub-committee v) place the final list of eligible candidates on the Notice Board as per the election programme communicated to members vi) inform the nominees and the nominators concerned the reasons for the rejection of any candidature. vii) maintain record of the time when the election started on t he date fixed for the purpose and the time of the closure of the election. viii) dispose of the all question arising out of and during the actual election period in consultation with such member/s of the sub-committee as are present on spot and his decision shall be final. ix) Seal all the election papers and hand over the sealed packets to the Administrative Officer of the Hospital. 17. The Administrative Officer shall be responsible for preserving these sealed packets for a period of 6 months after the date of election or till the decision on any dispute arising out of the elections as per the Act and Rules made thereunder, whichever is later.” Even on plain language of the abovesaid Rules, it is not possible to uphold the argument that the modification or alteration of the election programme could be permitted and that too, by the Returning Officer on his own. Emphasis was placed by the Counsel for the Respondents on Clause (viii) of Election Rule No.16, which authorises the Returning Officer to dispose of all questions arising out of and during the actual election period : 17 : in consultation with such member/s of the Sub-Committee as are present on the spot and which decision shall be final. This Rule is a general provision authorising the Returning Officer to take decision in respect of questions that may arise during the actual election period. However, that by itself, does not authorise the Returning Officer to alter or modify the election programme as such. The doubt, if any, is answered with reference to Rule 47 of the Election Rules. The same reads thus: “47. The Board of Directors under the exceptional circumstances may change the election programme already fixed with the prior approval of the “Registering Authority” and notify accordingly.” 11. We have examined the relevant provisions of the Act, Rules and the Bye-laws and are in agreement with the argument of the Petitioners that the election programme once published, the prerogative to alter and modify the same is only with the Board of Directors of the Society. The prerogative of the Board of Directors in that behalf is not unqualified. For, that power has to be exercised only in exceptional circumstances. Further, before the decision of the Board of Directors of changing the election programme already fixed is implemented, prior approval thereof of the Registering Authority is essential. Only on issuance of such approval by the Registering Authority, the change in the Election programme can be notified. As a : 18 : matter of fact, Bye-law No.26 which deals with the subject meeting and functions, “Note” thereunder clearly postulates that the election of the office bearers including the members of the Board of Directors shall be by ballot and shall be governed by Model Election Rules framed by the Registrar from time to time or any other Election Rules approved by the Registrar. On conjoint reading of the Society Bye-laws and the relevant provisions in the Election Rules referred to earlier, it would logically follow that election programme once published, cannot be changed or modified, except under exceptional circumstances, if the Board of Directors so intend, that too, with the prior approval of the Registering Authority. In the present case, the communication issued by the Respondent No.6-Returning Officer on 10th July 2009 makes no reference to the fact that the Board of Directors intended to change the election programme, which was already fixed and that prior approval of the Registering Authority thereof has been obtained. Moreso, there is nothing in this communication to indicate as to what was the exceptional circumstances that impelled the Board of Directors to decide to alter or modify the Election Programme. In absence of compliance of these requirements, the