State.Mr v. H. Dighe
Facts
WP-13315-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.13315 OF 2023Prabhat s/o Daulatrao PatilAge: 80 years, Occu.: Agri.,R/o. Digras, Tq. Udgir, Dist. Latur... PetitionerVersus1.The State of MaharashtraThrough Principal Secretary,Cooperation Department,Mantralaya, Mumbai-32.2.State Cooperative Election Authority,Maharashtra State, Pune,Central Building, Pune,Through its Commissioner/Secretary3.District Cooperative Election Officer,Latur @ District Deputy Registrar,Cooperative Societies, Latur.4.Assistant Registrar,Cooperative Societies,Udgir, Tq. Udgir, Dist. Latur. 5.Udgir Taluka Shetkari SahakariKharedi Vikri Sangh, Maryadit,Udgir, Through its Secretary.6.Deoni Taluka Shetkari SahakariKharedi Vikri Sangh, Maryadit, Deoni, Through its Secretary.7.Jalkot Taluka Shetkari SahakariKharedi Vkiri Sangh, Maryadit, Jalkot, Through its Secretary.[1]
Legal Reasoning
WP-13315-2023.odtII)Pundlik Vs. State of Maharashtra and others,(2005) 7 SCC 181;III)Ankita Gaurav Mungad and others Vs. The State ofMaharashtra and others, decided by this Court in WritPetition No.511 of 2023 dated 27.03.2023.IV)Ankushbhau s/o Juglal Baghele and others Vs.State of Maharashtra and others, decided by this CourtBench at Nagpur on 13.04.2022.V)Union Territory of Ladakh and Ors. Vs. Jammuand Kashmur National Conference and another, AIR Online2023 SC 739.7.He further submitted that though in the affidavit-in-reply ofrespondent No.5 it is said that it is a premature action of the petitioner aselections are not proposed to be held, yet in Ahmednagar Zilla S. D. V. andP. Sangh Ltd. (Supra), it has been observed where the voters list has beenprepared on the basis of non-existant rules, it would be illegal and theCourt could interfere under Article 226 of the Constitution of India. Thepreparation of voters list as per the rules is necessary, then only theelections can be held properly in a fair manner.8.The affidavit-in-reply has been filed by one Sangmeshwar s/oVishvambhar Badnale, District Deputy Registrar, Cooperative Societies andDistrict Cooperative Election Officer, Latur. It is on behalf of respondent[7] WP-13315-2023.odtNos.2 and 3. He admitted the fact that the names of certain members havenot been deleted from the membership register of respondent No.5, but inthe last election of respondent No.5 which took place in the year 2016,those members in fact participated in the elections as their names were notdeleted. The application/representation has been given by the petitioner tothe office of respondent No.2 on 05.06.2023 and thereafter thecommunication has been made by respondent No.2 to respondent No.3.Respondent No.5 appears to have responded to the communication ofrespondent No.3, wherein the respondent No.5 had stated that there is noprovision to cancel the membership under Section 25 of the MaharashtraCooperative Societies Act. There was Administrator on respondent No.5 till11.09.2014, but the Administrator had not taken any steps in respect ofdeletion of the names. The same objection was taken when the elections of2016 were held that certain members are residing outside the jurisdictionof the society. Those objections were rejected by the Election Officer, Laturon 31.03.2016. No steps were taken by any person to set aside the saidorder. The term of respondent No.5 Udgir Sangh is already expired anddue to the postponement of election by the Government, elections have notbeen held. Now, the stay imposed by the government in holding theelections has been lifted. The process would be undertaken including thestage of preparation of voters list. The provisional list would be thenpublished in accordance with Rules 6 to 11 of Maharashtra Cooperative[8]
Arguments
WP-13315-2023.odt8.Shirur Anantpal Taluka ShetkariSahakari Kharedi Vkiri SanghMaryadit, Shirur Anantpal,Through its Secretary.9.Chakur Taluka Shetkari SahakariKharedi Vikri Sangh Maryadit,Chakur, Through its Secretary.10.Latur Taluka Shetkari SahakariKharedi Vikri Sangh Maryadit,Latur, Through its Secretary.(Respondent Nos.7 to 10 deletedas per Court order dated 07.11.2023).. Respondents……….Mr. M. S. Deshmukh, Advocate for the Petitioner.Mr. P. S. Patil, AGP for Respondent Nos.1 and 4 – State.Mr. V. H. Dighe, Advocate for Respondent Nos.2 and 3.Mr. A. N. Irpatgire, Advocate for Respondent No.5.Mr. K. P. Rodge, Advocate for Respondent No.6.………. CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.RESERVED ON : JANUARY 09, 2024. PRONOUNCED ON : JANUARY 19, 2024.JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :- .Rule. Rule made returnable forthwith. Heard learned Counsel for theappearing parties finally by consent.2.Present writ petition has been filed by the petitioner for followingreliefs :-[2] WP-13315-2023.odt“A)Issue Writ of Mandamus and or other appropriateWrit or order in the like nature thereby direct RespondentNo.2 to 4 to direct the Respondent No.5-Udgir Sangh tosubmit list of valid members to prepare provisional voters listfor the purposes of ensuing election of Respondent No.5-Udgir Sangh only containing names of members who arefalling within the area of operation of Respondent No.5-UdgirSangh by keeping in mind statutory order passed byRespondent No.4-Assistant Registrar Cooperative Society,Udgir dated 18.04.2012 (Anne.-F) as well as report submittedby Respondent No.4 dated 18.08.2023 (Anne.-K).B)By an interim order the Respondent Nos.2 to 4 bedirected to direct the Respondent No.5-Udgir Sangh to submitlist of valid members to prepare provisional voters list for thepurposes of ensuing election of Respondent No.5 Udgir Sanghonly containing names of members who are falling within thearea of operation of respondent No.5 Udgir Sangh by keepingin mind statutory order passed by respondent No.4 AssistantRegistrar Cooperative Society, Udgir dated 18.04.2012(Anne.-F) as well as Report submitted by Respondent No.4dated 18.08.2023 (Anne.-K), pending hearing and finaldisposal of instant petition.”3.The petitioner contends that he is resident of Digras, Taluka Udgir,District Latur and he is a valid member of respondent No.5 and, therefore,entitled to participate and vote in the election process of respondent No.5.Respondent No.5 was established and registered in the year 1974 havingarea of operation of entire Udgir Taluka, however, in the year 1999, two[3] WP-13315-2023.odtTalukas, namely, Deoni and Jalkot came to be established carving out somearea from erstwhile Udgir Taluka. Thereafter, two independent CooperativeKharedi Vikri Sangh namely respondent Nos.6 and 7 came to be establishedin the year 2002 under the provisions of Maharashtra Cooperative SocietiesAct, 1960 having area of operation of those respective Talukas. RespondentNo.3 was bound to ask respondent Nos.6 and 7 to prepare validmembership list by incorporating names of members in the membershipregister from the respective Talukas as per their by-laws and uponpreparation of such list, the consequence should have been to remove thenames of those persons from the register of membership from respondentNo.5. Respondent No.5 failed to hold elections within specified time and,therefore by invoking powers under Section 73H of the MaharashtraCooperative Societies Act, 1960, Administrator came to be appointed on10.10.2011. Thereafter the elections of Managing Committee of respondentNo.5 was held in the year 2016 for the term of 2016-2021. The ManagingCommittee which came to be elected still continued to hold the office tillthe filing of the petition. But prior to that when Government Administratorwas appointed in 2011, a resolution was passed to send a proposal dated31.10.2011 for request to transfer members of respondent No.5, who wereresiding within the area of operation of newly established respondent Nos.6and 7. The said proposal was forwarded by respondent No.4 to respondentNo.3 by letter dated 02.11.2011. Resolution No.2 was adopted by[4] WP-13315-2023.odtrespondent No.5 in the meeting held on 07.04.2012 thereby cancellingmembership of those members, who were not falling within the area ofoperation of respondent No.5, in view of Section 25 of the MaharashtraCooperative Societies Act, 1960. The share amounts of those memberswere kept in suspense account. In spite of repeated requests, the newlyestablished respondent Nos.6, 7 and 9 were not incorporating the names ofthe members those falling within their jurisdiction, who were the membersof erstwhile respondent No.5. Respondent No.4 thereafter addressed aletter dated 28.02.2012 to respondent No.3 to issue directions to respectiveSangh’s to effect the said enrollment of the members. Even after lapse ofmore than ten years of order dated 20.03.2012 issued by respondent No.3to take action as per the letter of Administrator appointed on respondentNo.5 dated 27.02.2012, respondent Nos.6, 7, 9 and 10 have failed to makecompliance of the same. The petitioner has given a letter on 05.06.2023 torespondent No.2 pointing out all these facts and to carry out the orders andin view of his representation, the respondent No.2 asked respondent No.3by order dated 13.06.2023 to take appropriate action in the light of therepresentation. Still, there is no progress, hence, the petitioner has filed thepresent petition. 4.Heard learned Advocate Mr. M. S. Deshmukh for the petitioner,learned AGP Mr. P. S. Patil for respondent Nos.1 and 4, learned Advocate[5] WP-13315-2023.odtMr. V. H. Dighe for respondent Nos.2 and 3, learned Advocate Mr. A. N.Irpatgire for respondent No.5, and learned Advocate Mr. K. P. Rodge forrespondent No.6.5.Learned Advocate for the petitioner has taken us through thedocuments produced on record to support the contention of the petitioner.The fact is not in dispute that after the two Talukas were established fromthe jurisdiction of erstwhile Taluka Udgir, respondent Nos.6 and 7 wereformed and, therefore, the learned Advocate for the petitioner submits thatthe list of members ought to have been therefore prepared. The petitioneris agitating since long, but still the earlier elections were held withoutadhering to the resolution passed and order passed as aforesaid. When oneSangh i.e. respondent No.5 had passed the resolution regardingcancellation/transfer of members, then the consequent or reciprocal actionought to have been taken by respondent Nos.6 and 7. Respondent No.2had also directed respondent Nos.6 and 7 to carry out those resolutions,but respondent Nos.6 and 7 appear to be stubborn on the point. 6.The learned Advocate for the petitioner has relied on the decisions ofthe Hon’ble Supreme Court as well as this Court, which are as follows :-I)Ahmednagar Zilla S. D. V. and P. Sangh Ltd. Andanother Vs. State of Maharashtra and others, [AIR 2004 SC1329];[6]
Decision
WP-13315-2023.odtSocieties (Election to Committee) Rules, 2014.9.Learned Advocate for respondent Nos.2 and 3 by submitting thesubmissions on the basis of the affidavit-in-reply submitted that theschedule has been published in respect of preparation of provisional voterslist. The petitioner may raise any objection, if he want.10.Affidavit-in-reply on behalf of respondent No.5 has been filed by oneMaroti Kerba Biradar, who is the Manager of respondent No.5. It is statedthat the writ petition virtually seeks the execution of communication dated18.04.2012, which cannot be allowed in the year 2023. Petitioner hadadded respondent Nos.6, 7, 9 and 10, but chosen to delete the names ofthose respondents at his own risk. In the said circumstance, writ petitionsuffers from non-joinder of necessary parties. The provisional voters listwould be prepared by exercising powers under the provisions ofMaharashtra Cooperative Societies (Election to Committee) Rules, 2014,but in that process respondent Nos.2 to 4 have no authority to decide theentitlement of a particular person to hold the membership. The petition ispremature as regards the act of preparation of the voters list. Thepetitioner is having remedy to object the said list, after its publication.11.Learned Advocate for respondent No.5 while supporting the saidaffidavit-in-reply submitted that the petition is premature. He submitted[9] WP-13315-2023.odtthat a membership of a member of Cooperative Society will not ceaseautomatically that too on the basis of action taken by Administrator. Herelied on the decision in S. M. Kamble and others Vs. Jt. Registrar, Co-operative Societies, CIDCO, Navi Mumbai and others, [2007 (6) Mh.L.J.819]. In the above said decision, it was held that a person ceases to be amember of the society on his resignation being accepted or on his transferof the whole share or interest in the society to another member or on hisdeath or on his removal or expulsion from the society. Further, in the saiddecision, the Administrator appointed on the co-operative society hasdeclared that 27 members of the society were not eligible to be membersand ceased to be members since they are not residing in the State ofMaharashtra for required period of 15 years or more. The action ofAdministrator was held to be illegal by this Court.12.Here, we echo the observations by this Court in S. M. Kamble andothers (Supra) on the point that Section 25 of Maharashtra CooperativeSocieties Act, 1960 provide for Cessation of membership in a particularway. Section 25 of the Maharashtra Cooperative Societies Act, 1960 readsthus :-“25.Cessation of membership – A person shall cease to be a member of a society on hisresignation from the membership thereof being accepted, or on thetransfer of the whole of his share or interest in the society to another[10] WP-13315-2023.odtmember, or on his death, or removal or expulsion 'from the society,or where a firm, company, any other corporate body, society or trustis a member on its dissolution or ceasing to exist.13.Here, it has not been pointed out by the petitioner that any such actas stated in Section 25 of the Maharashtra Cooperative Societies Act hastaken place in respect of the members of erstwhile respondent No.5 orpresent respondent No.5. In view of the creation of the two Taulkas, theAdministrator could not have taken a decision to transfer the membershipon his own. In fact, there is no provision for transfer at the behest ofAdministrator. Whatever action was taken by the Administrator was wayback in the year 2011. Whether passing of unilateral resolution orunilateral action by respondent No.5 would have amounted the cessation ofmembership is a factual aspect, which cannot be gone into in the writjurisdiction of this Court, but the fact remains is that those members appearto have participated in the election of 2016. There is no documentaryproof produced by the petitioner to prove that he had raised the similarobjection or taken objection to the voters list prepared at the time ofelection of 2016. Whatever representation he has made is on 05.06.2023.14.The Election Officer has given it in writing and also that theprogramme of preparation of provisional voters list would be undertakenand then, certainly, there would be a liberty to the petitioner to takeobjection which will have to be decided by the concerned authority. We[11] WP-13315-2023.odthave gone through the decisions relied upon by the petitioner, but those arenot applicable to the facts of the present case. Under the saidcircumstance, we are of the considered view that no case is made out forexercise of constitutional powers of this Court under Article 226 of theConstitution of India. 15.The writ petition thus stands dismissed. 16.Rule stands discharged.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[12]