1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION WRIT PETITION NO.6292 OF 2009 Shri Dudhganga Vedganga Sahakari Sakhar Karkhana Ltd., Bidri, Mouni Nagar, Taluka Kagal, Dist.Kolhapur. ...Petitioners. v. 1 State of Maharashtra 2 The Collector of Kolyapur and Returning Officer of Shri Dudhganga Vedganga Sahakari Sakhar Karkhana Ltd., Bidri, Mouni Nagar, Taluka: Kagal, District Kolhapur 3 The Regional Joint Director (Sugar), Kolhapur Region Kolhapur ...Respondents. Mr.S.S.Patwardhan, adv. For the Petitioners. Mr.V.S.Masurkar, AGP for the Respondent Nos.1 and 3. CORAM : Ferdino I. REBELLO & J.H. BHATIA, JJ. DATED : 5th November , 2009 ORAL JUDGMENT: (Per Ferdino I. Rebello, J.) 1 Rule by consent. Heard forthwith. 2 The Petitioner is a specified society as classified under Section 73(G) of the Maharashtra Co-operative Societies Act, 1960 which hereinafter referred to as the ‘M.C.S. Act’. On 23.6.2009 2 respondent no.2 published the programme for finalisation of the voters’ list . The society on 16.7.2009 published the provisional voters’ list under Rule 4(2) of the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971 hereinafter referred to as ‘Election Rules’. The objections to the provisional list of voters were to be submitted on or before 24.7.2009. It is the case of the petitioners that some objections have been filed to the said provisional list of voters. 3 Petitioners state that simultaneous with the publication of the programme for finalisation of the voters’ list, respondent no.2 directed respondent no.3 to hold an enquiry under Sections 25 and 25-A of the M.C.S. Act, 1960 and the said enquiry was to be completed on or before 7th July, 2009 and the report was to be forwarded to respondent no.2 by 8th July, 2009. Respondent No.3 has accordingly asked the petitioners to furnish all records in respect of the members registered in Form I and J Register and hence, the present petition. 4 It is urged on behalf of the petitioners that the respondent no.2 has no jurisdiction to pass the order in nature of order dated 23.6.2009 under the said Rules as no such powers have been expressly conferred upon him under 6(2) of the Election Rules. Direction, therefore, by the respondent no.2 to respondent no.3 to 3 conduct an enquiry as to membership is totally without jurisdiction and on this count, the communication dated 23.6.2009 is liable to be quashed and set aside. 5 On behalf of the respondents, the learned counsel submits that this is not a fit case for this Court to exercise its extraordinary writ jurisdiction. 6 Holding of election to the prescribed society is governed by the provisions of Election Rules. Relevant provision is Rule 6. Under Rule 6, when any Provisional list of Voters’ is published claims are to be invited also objections, any omission or error in the list have to be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society. Any person making claim or objection must do so on or before 31st July, during office hours or time extended. The procedure is then laid down as to how the objections have to be dealt with, which includes Rule 6(6) whereby Collector after receipt of applications, is authorised to forward the same to the District Deputy Registrar to make enquiry arising out of claims, objections, etc. and submit the report to him. On such report being submitted, Collector has to communicate its decision in writing to the persons concerned after considering the 4 applications and the report and thereafter, voters’ list be accordingly be finalised. Under Rule 7 copies of the final list of voters of every society shall be displayed on the notice board of offices of the Collector, the District Deputy Registrar and the society. 7 In the instance case, provisional list of voters’ was published on 16.7.2009. Enquiry was ordered on 23.6.2009. In other words, the letter addressed by respondent no.2 to 3 to consider the provisions of Section 25 and 25A of the Act are not relatable to any objections filed under Rule 6 of the Election Rules. Also the objections can be only by a member or a authorised delegate. 8 Next question is whether apart from the power conferred by the Rules and Election Rules, respondent no.2 has any jurisdiction to call the respondent no.3 to enquire as to whether the society has complied with the requirements of Section 25 and 25A of the M.C.S. Act after the election process has commenced under the Election Rules the jurisdiction of the respondent no.2 commenced when firstly to publish the election programme and then to consider the objections, etc. to the provisional Voters’ list. It is well settled that power can be exercised and when such power is conferred by the Act. An exercise of power by an authority not conferred by such Act would be without jurisdiction more 5 so in a case which would involve rights of another person like the petitioners herein. Provisional list of voters’ has to be prepared by the society in terms of Rule 4 of the Election Rules. In other words, neither the second respondent nor the third respondent has any jurisdiction to interfere with the process of preparing provisional list of voters’. Respondent Nos.2 and 3, can exercise their powers as set out to the proviso to Rule 4(1). We are really not concerned with that exercise which involves extention of time to prepare the voters’ list or other matters set out therein. 9 We enquired with the learned counsel for the respondents to show us any provision either under the Act or Election Rules under which respondent no.2 can direct respondent no.3 to conduct an enquiry as to membership as Respondent no.3 has called upon the petitioners to make available their books to comply with the direction issued by the respondent no.2 in terms of the communication dated 23.6.2009. The learned counsel was unable to show us any such provision under the Act or the Election Rules. We, are, therefore, of the opinion that communication by the respondent no.2 dated 23.6.2009 addressed to the respondent no.3 and the consequent communications by the respondent no.3 to the petitioners herein 6/7/2009 and 7/7/2009, are clearly without 6 authority of law and hence, devoid of jurisdiction. We make it clear that in respect of any objections received subsequent to publication of provisional list of voters’ and objections, which are within the Rules, shall be enquired by the respondent no.2 according to the procedure as set out and this order will not stand in the exercise of such jurisdiction. 10 On behalf of the respondents, the learned counsel has sought to draw our attention to the judgment of the Division Bench of this Court in Karbhari Maruti Agawan and others v State of Maharashtra and others 1994 Mh.L.J. 1527. We have perused the impugned judgment. Several questions were for consideration. One of the questions was if before the finalisation of voters’ list by the Collector if some objections and claims are filed with the collector, whether those objections and claims had to be forwarded by the Collector to the District Deputy Registrar for enquiry under the Specified Societies Rules . The learned Division Bench after considering the provisions answered issue in paragraph 18 of the judgment held that there is no such power. We concur with that view. However, that issue is not directly in issue in that petition. 11 For the aforesaid reasons, communication dated 23.6.2009, 6.7.2009 and 7.7.2009 being without authority of law and are set 7 aside. Rule made absolute accordingly with no order as to costs. (J.H. BHATIA,J.) (F. I. REBELLO,J.)