( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10916 OF 2010 1. Sow. Meenakshi w/o. Gulab Landge, 2. Baban s/o. Govind Landge, 3. Mahesh s/o. Govind Landge, 4. Mahendra s/o. Gulab Landge, 5. Balasaheb s/o. Baburao Landge, 6. Dwarka w/o. Baburao Landge, 7. Tulsabai w/o. Govind Landge, 8. Archana w/o. Deepak Landge, 9. Suman w/o. Gangadhar Landge, 10. Shantabai w/o. Kundlik Landge, 11. Vinayak s/o. Baburao Shinde, 12. Shivaji s/o. Baburao Shinde, 13. Narmada w/o. Shivaji Shinde, 14. Surekha w/o. Shivaji Shinde, 15. Dattatraya s/o. Chandrabhan Landge, 16. Ashok s/o. Kantilal Mohite, 17. Kusum w/o. Ashok Landge, ( 2 ) 18. Lahanubai w/o. Kisan Landge, 19. Prakash s/o. Namdeo Chandne, 20. Yogesh s/o. Shridhar Landge, 21. Chandrakala w/o. Shridhar Landge, 22. Natha s/o. Chandrabhan Landge, 23. Chandrabhan s/o. Sawleram Landge, 24. Mahesh s/o. Machindra Landge, 25. Dattatraya s/o. Vishwanath Landge, 26. Raosaheb s/o. Mohan Landge, 27. Sudhir s/o. Ambadas Jawle, 28. Asrabai s/o. Shivaji Landge, 29. Bebi w/o. Raghunath Karale, 30. Bhamabai w/o. Maruti Landge, 31. Dattatraya s/o. Fakira Landge, 32. Dropada w/o. Namdeo Landge, 33. Vikram s/o. Asaram Kumatkar, 34. Ramesh s/o. Kashinath Kumatkar, 35. Alka w/o. Dattatraya Kumatkar, 36. Shahabai w/o. Murlidhar Landge, 37. Santosh s/o. Raosaheb Landge, ( 3 ) 38. Raosaheb s/o. Murlidhar Landge, 39. Nandu s/o. Khandu Landge, 40. Hirabai w/o. Babasaheb Landge, 41. Gulab s/o. Kisan Landge, All aged : Major (i.e. above 21 years), All are agriculturists and R/o. Pimpalgaon (Landga), Taluka & District : Ahmednagar. .. Petitioners. versus 1. The District Deputy Registrar, Cooperative Societies, Ahmednagar. 2. The Deputy Registrar, Cooperative Societies, Taluka : Nagar, District : Ahmednagar, Through Election Officer (Returning Officer). 3. Maruti s/o. Laxman Landge, Age : 40 years, Occupation : Agriculture & Service, R/o. Pimpalgaon (Landga), District : Ahmednagar. 4. Pandurang s/o. Mhatardeo Landge, Age : 50 years, Occupation : Agriculture, R/o. Pimpalgaon (Landga), District : Ahmednagar. ( 4 ) 5. Pimpalgaon (Landga) Vividh Karyakari Seva Sahkari Sanstha, Pimpalgaon, Dist. : Ahmednagar. .. Respondents. ....................... Mr. G.K. Thigle (Naik), Advocate, for the petitioners. Mr. D.R. Korde, Assistant Government Pleader, for respondent nos. 1 and 2. Mr. N.V. Gaware, Advocate, for respondent nos.3 and 4. Mr. V.V. Tarde, Advocate, for respondent no.5. Mr. P.V. Barde, Advocate, for respondent no.5. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 14TH JANUARY 2011 ORAL JUDGMENT : 1. Heard learned Counsel for the respective parties. Respondent no.5 is appearing before this Court, through two Counsel, namely, Mr. V.V. Tarde and Mr. P.V. Barde, as there is some dispute inter se in the management. In the light of ( 5 ) arguments advanced, this Court is not required to go into that dispute. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. The short contention of Mr. G.K. Thigle, learned Counsel appearing for the petitioners, is that names of 41 petitioners were added to the voters' list in borrowers' constituency. Suddently, without any notice and opportunity of hearing to them, by the impugned order dated 23-11-2010, their names are directed to be deleted from that category and shifted to non-borrowers' category. His contention is, all the petitioners have borrowed loan and their names have been rightly included in the borrowers' category. He states that there are total 79 such voters. He has invited attention to objection, as raised by respondent nos.3 and 4, and also to impugned orders passed by the Election Officer. His contention is, when Election Officer was not satisfied with the objection, as raised, he could not have directed deletion of names of the petitioners. The exercise undertaken is, therefore, without jurisdiction. He further points out that, as yet, dates of elections are not declared and hence this Court should interfere in exercise of its extraordinary jurisdiction. In this situation, 79 deleted names should be ( 6 ) restored to borrowers' category. He has placed reliance upon judgment of Division Bench of this Court, in the case of Dalsing Shamsing Rajput Vs. State of Maharashtra & others (2006(5) Bom.C.R. 691), to urge that interference in such circumstances is possible. 4. Mr. N.V. Gaware, learned Counsel appearing for respondent nos.3 and 4, has urged that the petition is filed by 41 persons, while relief claimed is in relation to 79 members. According to him, when other members have chosen not to approach this Court, no relief can be given to them. In the alternative and without prejudice, he has contended that after publication of programme on 3-11-2010 by the respondent no.4 (through his authorized officer), the election process is already set into motion and hence, at this stage, this Court should not interfere. He is relying upon several judgments to urge that preparation and finalization of voters' list is a stage in election programme and hence, any error therein needs to be assailed only after results of election are declared and in accordance with the statutory remedy i.e. election petition. He has relied upon following judgments in support of his contentions : ( 7 ) (1) Judgment of the Honourable Apex Court, in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another (2002(2) Bom.C.R. 149). (2) Judgment of learned Single Judge of this Court, in the case of Someshwar Sahakari Sakhar Karkhana Limited, through its authorised representative Vs. Shrinivas Patil and others (1992(1) Bom.C.R. 590). (3) Judgment of Division Bench of this Court, in the case of Ramesh s/o. Rajaram Patil & others Vs. Shivaji Kachru Patil & others (2000(1) Bom.C.R. 829), and (4) Judgment of the Honourable Apex Court, in the case of Manda Jaganath Vs. K.S. Rathnam and others ((2004) 7 Supreme Court Cases 492). 5. The learned Counsel appearing for respondent nos.3 and 4 has taken me through the objections as raised, to point out that the objections are based on audit report of the Society. As per that audit report, status of petitioners, as borrowers, is not seen and hence, the respondent no.2 has correctly found that their names could not have been retained in borrowers' category. He has also attempted to urge that the act of discarding audit report totally by the respondent no.2 is not proper. He has also ( 8 ) relied upon judgments of learned Single Judge of this Court, in the case of Tarasingh Gopalsingh Jadhav Vs. District Deputy Registrar, Cooperative Societies & others (2010(5) Bom.C.R. 446), and in the case of Pradeep Yogeshwar Nimje Vs. State of Maharashtra & others (2005(5) Bom.C.R. 227), to state that when disputed questions arise, election petition is held to be the right remedy. According to him, whether the petitioners have borrowed loan or not, is a disputed question and when audit report prima facie shows that they have not borrowed any loan, the impugned order calls for no interference at this stage. 6. The learned Counsel appearing for respondent nos.3 and 4 further points out that but for this litigation, the election could have proceeded further and hence, merely because further part of election programme is not yet published, that does not enable this Court to interfere in the matter. 7. Mr. D.R. Korde, learned Assistant Government Pleader appearing for respondent nos.1 and 2, has supported the arguments of Mr. N.V. Gaware, learned Counsel appearing for respondent nos.3 and 4. He states that as the election programme has already commenced, this Court should refrain from interfering in the matter. ( 9 ) 8. I have considered the controversy in the light of arguments advanced. Perusal of the impugned order would show that the Returning Officer has found that reliance on audit report by respondent nos.3 and 4, to substantiate their objections, to the inclusion of names of petitioners, as borrowers, is unwarranted and he has also recorded reasons for his observations. The consideration reveals that the Society has not maintained the list of members in Form "I" and the voters' list has been prepared on the basis of the daily cash register and a document, "Ekatrit Karja Khatawani". According to the learned Assistant Government Pleader, it means, "Loan Ledger Book", while according to the petitioner, it is "Ledger". 9. The reasons given by the respondent no.2 for not accepting audit report appear to be valid. It is apparent, that cash book and the above mentioned ledger carry entries showing disbursement of loan to borrowers and on that basis, respondent no.2 earlier added their names to borrowers category. The audit report, on which the respondent nos.3 and 4 have placed reliance, perhaps do not carry any reference to this cash book and loan register. The respondent no.2, therefore, has chosen not to rely upon the audit report. 10. The objection, as filed by respondent no.3, so far as ( 10 ) relevant for present adjudication, is not based upon any other fact except the knowledge derived by him from the audit report. It is not his case that cash register and ledger are fabricated documents. He has not even disclosed his personal knowedge in this respect. If the Returning Officer found audit report unacceptable, it is apparent, he could not have taken exception to inclusion of names of the petitioners in borrowers' category. The concluding paragraph of his order shows that the persons in relation to whom objection was raised, were members of the Society. He has further found that he was not in a position to verify the fact of disbursement of miscellaneous loan to them and because of this inability, he has directed deletion of their names from borrowers' category and addition to voters' list in non-borrowers' category. 11. The burden to show that petitioners were persons who have not borrowed any loan from Society was upon respondent nos.3 and 4. On earlier occasion, while preparing voters' list provisionally, the cash book and above mentioned loan register was looked into and on that basis, voters' list has been prepared. If this action was to be shown as incorrect, the respondent nos.3 and 4 ought to have produced some document to discredit the cash and loan register. They have not produced any other document to substantiate the audit report. The ( 11 ) respondent no.2 has chosen not to act upon audit report. It is, therefore, apparent that there was no material whatsoever with the respondent no.2 to alter the position in provisional voters' list. The objection raised by the respondent nos.3 and 4 was not substantiated and they could not discharge their burden. 12. The learned Counsel appearing for the petitioners has urged that the petitioners were not given any opportunity of hearing while passing the impugned order by the respondent no. 2. Perusal of the election programme, as produced, reveals that 16-11-2010 was the date scheduled for taking objections and on 23-11-2010, respondent no.2 was to decide that objection. Accordingly, the objection has been decided. It is, therefore, apparent that the petitioners cannot complain that they had no notice of such hearing. If they were interested, they ought to have remained present before respondent no.2 and participated in the process. 13. The final voters' list has been published on 30-11-2010 and thereafter present Writ Petition has been filed before this Court on 30-11-2010 itself. This Court has issued notice in the matter on 2-12-2010 and thereafter matter was adjourned to 7-12-2010. On 7-12-2010, matter came to be adjourned to 8-12-2010 and on 8-12-2010, this Court has stayed ( 12 ) effect, execution and operation, as also, implementation of the impugned order dated 23-11-2010. That interim order continues to operate even today. The respondent no.2 has, therefore, not published any further election programme. 14. Perusal of judgments, to which Mr. Gaware, learned Counsel appearing for respondent nos. 3 and 4, has made reference, show that preparation of voters' list is an integral part of the election process and normally the court should not interfere in the process so as to disturb further elections in the matter. In two judgments, relied upon by him and decided by me, the availability of remedy of election petition has been held to be a bar. However, in the case of Tarasingh Gopalsingh Jadhav (supra), the question was whether specific description or identification of constituencies from which three Directors were to be elected, was itself sufficient to vitiate the election. This Court, there found that such description itself was not sufficient to hold election programme itself bad. Whether the said wrong description of constituency in election programme or in nomination paper will materially affect elections in any way was held to be a disputed question to be resolved in future and, therefore, not at that stage. It is apparent that here, question of such nature does not arise. In the case of Pradeep Yogeshwar Nimje (supra), facts show that the elections were already over ( 13 ) and result was also declared. The observations made are, therefore, at that stage. 15. Mr. G.K. Thigle, learned Counsel appearing for the petitioners, has pointed out judgment of Division Bench of this Court, in the case of Dalsing Shamsing Rajput (supra), to urge that when election can be furthered without any disturbance in election programme, interference is permissible. He has attempted to urge that the judgments relied upon by Mr. Gaware, learned Counsel for respondent nos. 3 and 4, are in relation to the Specified Cooperative Societies and, therefore, not relevant. According to him, the judgment of Division Bench, in the case of Dalsing Shamsing Rajput (supra), cited by him, considers election of an ordinary Society i.e. like one involved in the present petition. 16. However, I find that the nature of Society, whether as notified or specified or an ordinary Society, is not relevant for applying the law in this respect. The law on the point is well settled. When without disturbing the election programme, the court can correct error and, therefore, subserve the process, the court can interfere in exercise of jurisdiction available to it. Division Bench of this Court in Mayaraju Ghavghave Vs. Returning Officer & another, reported at 2004(5) Bom.C.R. 146, ( 14 ) has also taken this view and I am party to it. In this process, it is already noted that the further election programme has not been published so far and this court has already granted ad interim relief on 8-12-2010. The removal of names of the petitioners from borrowers' category is found to be arbitrary and unsustainable. It is apparent that such removal will definitely affect the election if it is allowed to continue, as it is. During the course of arguments, it was pointed out to this Court, that from non-borrowers' category only one candidate is to be elected. It is not necessary for this Court to observe more in this respect. There are total 256 voters in borrowers' category and 79 voters, therefore, constitute a major portion which can definitely affect the election itself when more than one Committee member is to be elected by them. 17. In this situation, I find that the impugned orders passed on 23-11-2010 by the respondent no.2 / Election Officer are unsustainable in law and liable to be set aside. 18. In the result, the petition is allowed. The impugned orders, dated 23-11-2010 passed by the respondent no.2, are quashed and set aside. The respondent no.2 is directed to restore names of 79 members in the borrowers' ( 15 ) constituency for election of Managing Committee of respondent no.5 / Society. 19. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. 20. At this stage, Mr. N.V. Gaware, learned Counsel appearing for respondent nos. 3 and 4, seeks stay of this judgment for a period of two weeks. The request is being opposed by Mr. G.K. Thigle, learned Counsel appearing for the petitioners. 21. However, in the interest of justice, the respondent no. 2 shall not proceed further with the election programme for a period of two weeks. The interim order shall cease to operate automatically thereafter. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10916