JUDGMENT
A.B. Chaudhari, J.
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1. Rule returnable forthwith. Heard finally by consent of the parties.
2. By the present writ petition, the petitioners have challenged orders dated 20.9.2007 (Annexure F, F-1 and F-2) filed with the writ petition, so also order dated 25.9.2007 (Annexure-J) made by the Collector, Yavatmal.
FACTS:
3. In the elections to the Board of Directors of the District Central Co-operative Bank Ltd. Yavatmal, the petitioner No. 1 applied to the Collector for inclusion of his name as delegate of Res. No. 7-Wagholi Adivasi Vividh Karyakari Sahakari Sanstha, Wagholi under Rule 5(2) of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 on 1.9.2007. The Collector called the report under Rule 6(6) from the District Deputy Registrar (D.D.R.) who submitted his report to the Collector along with his recommendations on 11.9.2007. On1 7.9.2007 respondent No. 6Ramesh Narayan Gangshettiwar also made an application to the Collector that his name should be included as delegate in accordance with resolution dated 16.9.2007 of the said Society which was of course objected by the petitioner No. 1. The Assistant Registrar of the Co-operative Societies, Pandharkawada submitted his report with recommendations. The D.D.R. then tendered his opinion on 20.9.2007 to the Collector. The D.D.R. agreed with the report submitted by the Assistant Registrar but stated that in terms of the Division Bench decision of this Court in the case of Smt. Kamlabai Vitthal Rohankar v. The Additional Collector Chandrapur and Ors. reported in 2007 (3) ALL MR 761, it was not possible to go into the validity of the meeting dated 16.9.2007. The Collector thereafter heard parties and made the impugned order accepting the opinion tendered by D.D.R. on 20.9.2007.
The Vice Chairman of respondent No. 8 – Society applied to the Collector on 17.9.2007 for including the name of respondent No. 5 as delegate of respondent No. 8 – Society in place of petitioner No. 2 on the ground that in the meeting that was held on 12.9.2007 it was Page 2392 decided to substitute the name of respondent No. 5 in place of petitioner No. 2. The Collector called report under Rule 6(6) and the Assistant Registrar submitted his report on 20.9.2007. The D.D.R. having gone through the said report submitted his opinion that though the name of petitioner No. 2 was existing on the record of respondent No. 8 – Society as a delegate, in view of the decision of this Court in the case of Smt. Kamlabai (Supra) it is not possible to adjudicate on the validity of the second meeting dated 12.9.2007 and, consequently, the Collector accepting the said report made an order replacing the name of petitioner No. 2 by the name of respondent No. 5 as delegate of respondent No. 8 Society in the voters’ list by making an order which is at Annexure F -2 of the petition. Hence, this writ petition.
ARGUMENTS:
4. Advocate Shri R.S. Parsodkar for the petitioners made the following submissions;
The principle ground on which the Collector made the impugned orders is that the decision of this Court in the case of Kamlabai, cited supra lays down the law that the dispute whether the meeting on the basis on which claim was made for inclusion as delegates by respondent Nos. 5 and 6 cannot be gone into by the Collector while making adjudication under Rule 6(6) and 6(7) of the Rules of 1971. According to Advocate Shri Parsodkar in the facts of the present case the said decision has no applicability as there was neither any dispute before the Collector about the factual report about these meetings which was also accepted by the D.D.R. as correct. Even in the affidavit-in-reply filed by the respondents in the present writ petition there is absolutely no material placed on record to show that the reports and opinions tendered by the Assistant Registrar and District Deputy Registrar respectively fall in the realm of dispute. He then argued that the reasons furnished by Assistant Registrar and D.D.R. for holding that the meetings nominating respondent Nos. 5 and 6 as delegates are such that the Collector ought to have accepted the factual report regarding those meetings and rejected the claims of respondent Nos. 5 and 6. He then argued that the Collector has not given a single reason for not accepting the observations made by the Assistant Registrar and D.D.R. on their comments about the meetings. He then submitted that the Collector was duty bound to consider those reports and then adjudicate accordingly. He referred to the following decisions;
(1) 1979 Mh.L.J. 311 Dhondiba Parshuram Lakade and Ors. v. Someshwar Sahakari Sakhar Karkhana.
(2) 1996 (4) All M.R. 476 Dr. Prakash Marutirao Shere v. The State of Maharashtra and Ors.
(3) 2007 (3) ALL M.R. 761 Smt. Kamlabai Vitthal Rohankar v. The Additional Collector, Chandrapur and Ors.
(4) 1995 (1) Bom. C.R. 596 Karbhari Maruti Agawan and Ors. v. The State of Maharashtra and Ors.
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(5) Ahmednagar Zilla S.D.V. & P. Sangh Ltd. and Anr. v. State of Maharashtra and Ors.
(6) Pundlik v. State of Maharashtra and Ors.
5. Per contra, Government Pleader Shri N.W. Sambre and Additional Government Pleader Mrs. B.H. Dangre opposed the writ petition and argued that the D.D.R. has in his opinion expressed that he felt perplexed about the validity or otherwise about the said second meeting in which respondent Nos. 5 and 6 were nominated as delegates and in accordance with the decision in the case of Smt. Kamlabai, cited supra the parties were required to be left to adopt the remedy available in law. According to the Government Advocates, the process of election has progressed to a great extent and at this stage it would not be appropriate for this Court to interfere since the same would interdict the election programme, which cannot be done. Both of them therefore prayed for dismissal of writ petition on that ground also.
6. Advocate Shri Bhuibhar and Advocate Shri Gawande appearing for respondent Nos. 5 and 6 vehemently opposed the writ petition and strongly relied on the decision in the case of Smt. Kamlabai, cited supra and argued that the process of election is underway and the election programme under Rule 16 was published by the Collector on
27.9.2007 and thus the election process commenced from the said date and the present writ petition also appears to have been filed on the same day in this Court. The next stage is the publication of list of validly nominated candidates on 20.10.2007 and hence this Court should not interfere. Both Counsel then argued that neither the Collector nor the Registrar possess any power to decide any dispute pertaining to the validity or otherwise of the meetings. They therefore prayed for dismissal of writ petition.
CONSIDERATIONS:
7. After hearing Counsel for the rival parties at length in relation to the respondent No. 7 – Society i.e. Wagholi Society, the text of the report made by the Assistant Registrar Co-operative Societies, Pandharkawada is that the Vice Chairman of the Wagholi Society convened the special meeting of Managing Committee on 16.9.2007 by issuing notice dated 9.9.2007 and it was decided to choose respondent No. 6 as its delegate. The original proceedings book of the Managing Committee was examined in which it was found that no meeting of the Managing Committee was held after 30.8.2007 and in that proceedings book name of petitioner No. 1 as a delegate continues to exist. The Vice Chairman appears to have prepared a new proceedings book in which the said resolution dated 16.9.2007 was recorded. The meeting was held without any intimation or permission from the office of the Assistant Registrar Co-operative Societies. The D.D.R. considered the said report of Assistant Page 2394 Registrar and he concurred with the report tendered by Assistant Registrar stating therein that in accordance with the original proceedings book of the Managing Committee, the name of petitioner No. 1 stands as a delegate and after arranging a new proceedings book the Vice Chairman appears to have called meeting and recorded resolution dated 16.9.2007 therein. He further concurred that no intimation was given to the office of the Assistant Registrar nor any permission to hold that meeting in that manner was at all sought. But the D.D.R. abruptly in his report in one line expressed that there is doubt about the validity of the meeting. There is no mention as to about which meeting the D.D.R. had doubt or confusion. On the contrary in so far as meeting dated 13.8.2007 in which the petitioner No. 1 was selected as a delegate the same has been found to be in order and looking to the tenor of the report of the Assistant Registrar and the opinion of the D.D.R. the confusion or doubt is being expressed about the second meeting dated 16.9.2007 in case of Res. – 7 Society and dtd. 12.9.2007 in respect of Res. 8 – society. The reports of Assistant Registrar, Pandharkawada in respect of Res.8-Mohadari Society i.e. pertaining to the petitioner No. 2 and respondent No. 5 are on the similar lines and, therefore, there is no need for me to quote the contents of the reports of Assistant Registrar and opinion of the D.D.R.
8. It will be useful to have look at some of the provisions of the Act and the Rules in the light of the above facts.
Section 89A of the Maharashtra Co-operative Societies Act, 1960 reads thus;
89 A. Power to inspect working of society.
1. It shall be competent for the Registrar to inspect or cause to be inspected the working of any society to ensure that-
(a) the provisions of the Act, rules and bye-laws of the society are being properly followed by the society; (b) the records and books of accounts are kept in proper forms; (c); (d)
2. For the purpose of supervision over the societies, the Registrar shall have the power-
(a) to inspect the records and books of the accounts of any society and for that purpose he shall have, at all times, access to all the records and books of accounts of the society; and
(b) to summon any officer or employee who has the custody of the records or books of accounts of the society to produce them before him.
Section 80 Sub-section (1) reads thus;
80(1) Where the Registrar is satisfied that the books and records of a society are likely to be suppressed, tampered with or destroyed, or the funds and property of a society are likely to be misappropriated or misapplied, the Registrar or the person authorised by him may apply to the Executive Magistrate within whose jurisdiction the society is functioning for seizing and taking possession of the records and property of the society.
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Rule 65 Sub-rule (1) reads thus;
(1) Every society shall keep the following accounts and books:
(1) …
(2) …
(3) …
(4) Minute book recording proceedings of general meetings.
(5) Minute book recording proceedings of committee meetings.
(6) …
(7) …
(8) …
(9) …
(10) …
(11) …
9. Now it is clear from the reading of Section 89A of the Act that the Registrar has been given a general power of control and supervision over the Societies in relation to the conduct of business and the management of Societies. Sub-section 2 of Section 89A gives a power to inspect the records and for that matter the petitioner has a power to summon any employee or officer. under Section 80 of the Act the Registrar has also been given power to seize the record and take possession thereof in the contingencies expressed in Sub-section (1) through the medium of Magistrate. Rule 65 shows that the Society has to keep minute book recording proceedings of general meetings and minute book recording proceedings of committee meetings. In my opinion, the Registrar has control and power of supervision on the Society as to whether the minute books and records are correctly maintained or not and if not to see that they are correctly maintained. Now it does not appear to me that more than one minute book of the committee meetings or general meetings or parallel minute books can be prepared and maintained as can be seen from Rule 65. If at all there is any eventuality to do so, in my opinion, permission from the office of Registrar to do so would become imperative, in the light of the above provisions wherein the powers of control and supervision are conferred on the Registrar. Now in the instant case as narrated by me earlier, the Assistant Registrar has clearly stated in his report that a parallel minute book of the meeting of the Managing Committee only for recording the resolutions dated 16.9.2007 in respect of Wagholi Society and dated 12.9.2007 in respect of Mohadari society were prepared. The original proceedings book of the meeting of the Managing Committee i.e. as contemplated by Rule 65(1)(5) did not contain any such resolutions in respect of both the societies and on the contrary the resolutions in respect of petitioner Nos. 1 and 2 choosing them as delegates were the only resolutions to be found in the original minute book. The reports in both cases further show that neither any intimation was given to the office of Assistant Registrar nor any permission was obtained from the said office for holding such meetings or preparing a parallel proceedings book. The D.D.R. concurred with the said reports in both the cases but the D.D.R. as well as the Collector expressed their Page 2396 helplessness on the ground that the decision of this Court in the case of Smt. Kamlabai, cited supra would not permit them to act on the reports and recommendations of Assistant Registrar.
10. In the case of Kamlabai, cited supra, a serious dispute was raised about meeting dated 16.11.2006 on the basis of affidavit of one Ramdas Ramteke denying his presence in the meeting in which out of 6 members, including Ramdas Ramteke four were present. Acting on the affidavit, the Assistant Registrar expressed doubt about the validity of the meeting. The Division Bench of this Court, therefore, found that affidavit of Remteke could not be made the basis to decide the validity of the meeting particularly when the record of minutes shows otherwise. This Court further observed that it was very easy to take a somersault by filing an affidavit afterthought. It is in these set of facts this Court held that the Assistant Registrar and Collector had no jurisdiction to go into the question of validity of the meeting of the Managing Committee of a Co-operative Society. But in the case in hand, there is no confusion or doubt expressed by the Assistant Registrar, D.D.R. or Collector about the meetings in which Petitioner Nos. 1 & 2 were selected as delegates and on the contrary the tenor of the opinion of D.D.R. shows doubt as discussed earlier about the meetings in which respondent Nos. 5 & 6 were chosen as delegates, who claimed their inclusion in place of petitioner Nos. 1 and 2. The facts in the case of Kamlabai, cited supra and the ratio laid down in that case has no application in the instant case. The Collector ought to have accepted petitioner Nos. 1 & 2 as the delegates of respondent Nos. 7 & 8 – Societies in the absence of any dispute about meeting relating to petitioner Nos. 1 and 2.
11. Now coming to the objection based on the decision of the Supreme Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. reported in 2001 (8) Supreme Court Cases 509 in support of the proposition that this Court should not interfere as the election process has already started, it is seen that in that case the Hon’ble Supreme Court refused to interfere with the election process because the voters’ list was prepared in terms of the extant Rules but there were certain irregularities which were committed and further in that case there was a prayer for quashing the election schedule. The decision in the case of Shri Sant Sadguru, cited supra was thus distinguished by the Hon’ble Supreme Court in the decision rendered by three Judges in the case of Ahmednagar Zilla S.D.V. & P. Sangh Ltd. and Anr. v. State of Maharashtra and Ors. .
12. Now since in the instant case I have come to the conclusion that there is a failure on the part of the Collector to exercise jurisdiction, it would be legal and proper to interfere particularly since the list of the validly nominated candidates is to be published on 20.10.2007.
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13. For all these reasons, therefore, the instant writ petition is allowed. The impugned orders made by the Collector are quashed and set aside. The Collector, Yavatmal, is directed to incorporate the names of petitioners 1 & 2 as delegates of respondents 7 & 8- societies in place of respondents 5 & 6 and take consequential steps throughout.
14. Rule is made absolute in terms of prayer Clause – (B) and (C) of the writ petition. No order as to costs.
15. It appears that the petitioners have paid only one set of court fees. Office to verify and recover the court fees.
16. Advocate Shri Bhuibhar for respondent Nos. 5 and 6 prays for suspension of this judgment. Prayer is rejected.
17. Steno copy of this judgment be supplied to the parties, as per rules.