JUDGMENT
N.V. Dabholkar, J.
1. The Petitioner, who claims to be founder/ sugar-cane producer member of Respondent No. 3-sugar factory, by this petition, challenges the order passed by Respondent No. 2, rejecting the objections to the voters’ list and particularly by fixing cut off date as 30.6.2004 (in fact, 31.12.2004). We may reproduce the prayer clauses, by which the petitioner has sought substantive relief, which read as under;
(B). To issue writ of certiorari, or any appropriate writ or direction in the like nature, the order dated 31/8/2007 and the final voters list published on 12/10/2007, may kindly be quashed and set aside.”
(C). To issue writ of mandamus or any other appropriate writ or direction in the like nature, the respondent No. 2 may kindly be directed to publish fresh voters list as on 30/6/2006.
2. Respondent No. 3 is a specified cooperative society within the meaning of Section 73G(1)(v) of the Maharashtra Cooperative Societies Act, 1960 (henceforth, referred to as ” the MCS Act” for brevity). Respondent No. 1 had appointed administrative committee (provisional managing committee) as per Section 73(1A)(b) of the MCS Act, the term of which ended on 22.3.2007. Thus, the elections for the managing committee are due and Respondent No. 2 is the statutory authority to hold the elections under the Maharashtra Specified Cooperative Societies Elections to Committee Rules 1971 (hence forth, referred to as “Rules 1971” for the sake of brevity). Respondent No. 2, on 23.4.2007, published a provisional voters list, containing 2350 voters. According to Petitioner, this list is prepared, by taking 31.12.2004, as cut off date (i.e. those members who are enrolled on or before 31.12.2004, having completed two years on 31.12.2006.). Petitioner and some other members lodged written objections to the said provisional voters list, by pointing out that since the term of provisional administrative/managing committee expired on 22.3.2007, cut off date should be 30.6.2006 and not 31.12.2004 (probably, petitioner desires to say that the date for preparation of provisional list of voters should be taken as 30.6.2006 and, therefore, cut off date for enrollment for membership would be 30.6.2004, in view of Section 27 of the MCS Act.)
Respondent No. 2 heard the objections raised to the provisional list of voters and decided those, by common judgment/order dated 31.8.2007. Five points were framed and considered and couple of objections are upheld, by affirmative findings on point Nos. 1 and 5. In the light of such findings, Respondent No. 3-factory, was also directed to submit a revised provisional list of voters. The text of the vernacular order is available at paperbook pages 126 to 138 and the learned Counsel for the petitioner has placed reliance upon issue No. 1, which objection is upheld. Free English translation of the first objection, which is upheld, reads thus;
Applicants are the founder members of the sugar-factory, still their names are not incorporated in the proposed voters’ list published on 23.4.2007. The term of the provisional administrative committee appointed by the State expires on 29.3.2007 (in fact, 22.3.2007) and, therefore, elections are being held in the calender year 2007. Hence, the eligibility date fixed, which is 31.12.2004, is wrong and it should be 23.6.2006 (in fact, 30.6.2006).
Respondent No. 3-factory, in compliance of the order, submitted fresh provisional list of voters, but, according to the petitioner, Respondent No. 3 played a mischief while doing so, by taking 31.12.2004 as cut off date. This time, no objections were invited, nor hearing is given. Ultimately, Respondent No. 2 published a final voters list, on 12.10.2007, having cut off dated 31.12.2004 and containing 2,350 voters. According to the petitioner, in the light of judgment of the Hon’ble Apex Court in Ramchandra Ganpat Shinde v. State of Maharashtra and Ors. , and in view of Rule 4 of Rules 1971, cut off date should have been 30th June of the previous year of the year in which election is being held, i.e. 30.6.2006. Election programme is declared on 23.11.2007 and Respondent No. 2 is likely to hold the election on the basis of final voters list which, according to the petitioner, is incorrect. The valid voters list is the basis of valid election and feeling that Respondent No. 2 is proceeding with the election on the basis of incorrect voters list, this petition for the reliefs as reproduced hereinabove.
3. Reply is filed on behalf of sugar-factory. Reply and its annexures together are at paperbook pages 304A to 333. Learned Government Pleader has filed a copy of the order dated 5.10.2007 passed by Respondent No. 2, accompanied by copies of office notings in the file, at paperbook pages 334 to 339.
Since it is informed that as per the election programme, the members are to go to poll on 5.1.2008, the matter was heard for final disposal by mutual consent and the parties have agreed for delivery of judgment during vacation on 31.12.2007. A consent pursis to that effect is filed and the same is taken on record and marked Exh.X for the purpose of identification (now paperbook page 340).
4. Learned Advocate Shri Salunke for the petitioner has placed reliance on Rule 4 of the Rules 1971, as also, to some extent; on Section 73(1A) of the MCS Act. He has pointed out that, according to Rule 4, since the election is being held in the calender year 2007, the persons, who have completed minimum period of two years as members from the date of their enrollment before the 30th June of the year immediately preceding the year in which such election is held, are required to be included in the provisional list of voters. Therefore, the provisional list of voters is required to be prepared by taking into consideration all the members on the register of membership, as on 30.6.2006 and in the light of Section 27(3A) of the MCS Act, only those members, who were enrolled on or before 30.6.2004 shall find place in the final list of voters, because only those members can be considered to have completed two years as on 30.6.2006, which is the date for preparation of provisional voters’ list. The action on the part of Respondent No. 2 to consider all the members, who are enrolled on or before 31.12.2004 to be eligible for voting is, therefore, according to Advocate Shri Salunke; an illegality crept in, in the process of election.
By referring to Section 73(1A) and clauses
(a) and (b) of the MCS Act together, learned Advocate Shri Salunke, hypothetically calculated that a provisional administrative/managing committee can occupy a maximum period of six years and three months i.e. first provisional committee, as appointed by first general meeting of the society held within three months from the date of registration, to function for a year and thus will cover a period of one year and three months. If the government appoints the provisional committee after expiry of period of one year of provisional committee appointed by first general meeting, the same can continue for a maximum period of five years and thus, according to Advocate Shri Salunke, the election of the managing committee for Respondent No. 3-factory was overdue, taking into consideration admitted fact that the specified cooperative society is registered on 26.8.1988. According to him, technically; first elected managing committee ought to have taken over sometime in the year 1995.
In any case, now that the elections are being held in the year 2007, according to Advocate Shri Salunke, only those members who are enrolled on or before 30.6.2004 shall have right to vote, as a result of cumulative effect of Rule 4 and Section 27(3A). According to learned Counsel, the order dated 31.8.2007, passed by Respondent No. 2 is an order under Rule 6(4) of Rules 1971 and after having upheld the objections, Respondent No. 2 ought to have proceeded in accordance with the findings arrived at. There is no power of review and, therefore, Respondent No. 2 could not have reverted to a position that ignored his findings on the objections to the provisional list of voters.
5. Learned Government Pleader Shri N.B. Khandare for Respondent Nos. 1 and 2, pointed out that the election scheduled, is the first election of Respondent No. 3-factory. According to him, Rule 4 of the Rules 1971, and more particularly clause “…30th June of the year immediately preceding the year in which such election is due shall be included in the provisional list.” is, therefore, not at all applicable.
Learned Government Pleader advanced a bold proposition that, in fact, no cut off date is fixed under the statute for the first election. In order to support the proposition and cut across argument of learned Counsel for the petitioner that the election is due in the year 2007, or it was due, in fact, in the year 1995 itself on expiry of 6-1/4 years since the date of the registration of the specified cooperative society, he has placed reliance upon Section 77A and argued that, the Registrar should have appointed another member or members of the society to fill in the vacancies or a committee consisting not more than three members of the society, as administrator. Therefore, according to learned Government Pleader, the notion of “cut off” date, as arising out of Rule 4 of Rules 1971, cannot operate for the purpose of first election. According to him, at the first election, spirit of the Act requires that there should be an endeavour to allow all the members, a voting right because this is going to be the first elected managing committee.
Learned Government Pleader also added that, Section 73(1A) of the MCS Act, has an effect overriding Section 27 and, therefore, this being the first election, rule 4 has no application. He placed reliance upon judgment of this Court in Vasantrao Ubale v. State of Maharashtra Mh.L.J.2003 (1) 313. Learned Government Pleader also relied upon a copy of the order dated 5.10.2007, passed by Respondent No. 2 in exercise of the powers as conferred by Rule 8 read with proviso, as contained in Rule 4(1) of the Rules 1971. According to him, Respondent No. 2 has taken the date for preparation of the provisional voters list to be 31.12.2006 and, therefore, 31.12.2004 to be “cut off” date for admission of members as valid voters in consultation with the Registrar of the Cooperative Societies.
It was also added that, petitioner, not having complied with rule 19, as can be seen from Exh.R-3(1); is not a member and hence, has no locus to challenge provisional or final list of voters.
6. Learned Counsel Shri S.S. Choudhari for Respondent No. 3-factory has prayed for dismissal of the petition at the threshold because, according to him, the petitioner is guilty of latches. He submitted that the petitioner is challenging the order passed by Respondent No. 2 on 31.8.2007, as also final voters list as published on 12.10.2007. This is done by the petitioner, by filing writ petition only on 3.12.2007, when the election is due on 5.1.2008. Learned Counsel also submitted that the election programme was published on 26.11.2007 and by now, nominations of 79 candidates are already accepted.
Learned Advocate Shri Choudhari, pointed out that the order dated 5.10.2007 passed by Respondent No. 2 in exercise of powers conferred by Rule 8 read with Rule 4(1), is also not challenged by the petitioner.
Shri Choudhari also challenged locus of the petitioner to raise any objection. According to him, the petitioner is not a member of the society. Although he may be a founder member, because he was one of the applicants at the time of registration of the society, he has not complied with requirement of paying the amount of Rs. 5000/= for purchasing requisite number of shares, in spite of repeated requests, as can be seen from Exh. R-3(1). Placing reliance upon Rule 19 of Rules 1971 and Section 26 of the MCS Act, it was submitted that the petitioner has not acquired a right of voting and, therefore, he has no locus to challenge any part of the election process. Shri Choudhari did not fail to point out that the petitioner was a party to resolution dated 17.12.2004, by which 1,044 members were admitted, to whose right of voting now the petitioner is taking exception.
Learned Counsel Shri Choudhari has drawn our attention and requested us to compare prayer clause of the writ petition and also prayer clause in the objection petition dated 30.4.2007. It was urged that the scope of objection and scope of writ petition is quite different. By the objection, the petitioner was claiming to include names of applicant and 6,193 others in the voters list.
7. While replying, Advocate Shri Salunke pointed out that the petitioner could not have challenged the order dated 5.10.2007, because he was unaware of such an order passed by Respondent No. 2 in consultation with the Registrar. So far as latches are concerned, it was urged that, by order dated 31.8.2007, Respondent No. 2 has upheld the objection of the petitioner and, therefore, there was no question of challenging the said order earlier. The petitioner approached this Court only after he learnt that Respondent No 2 has not acted upon the said order and deviated from the same, after consultation with District Deputy Registrar. According to him, the date cannot be extended to accommodate more voters. According to Advocate Shri Salunke, till the time refusal for admission as a member of a society is not communicated to the petitioner, as required by Section 22 of the MCS Act, it is not open for Respondents to contend that the petitioner is not a member or that, therefore, he has no locus.
As an alternate argument, Advocate Shri Salunke urged that the elections were due in 1995 and, therefore, amendment to Section 27 of the MCS Act, by addition of Sub-section (3)(A) effected on 23.8.2000, cannot be applicable to the case.
8. Before proceeding to discuss the reasons for acceptance or rejection of the case of either sides, we may reproduce the provisions relied upon by the respective counsel. Relevant portion of Rule 4 of 1971 Rules reads thus;
4. Provisional list of voters:
(1) A provisional list of voters shall be prepared by every society for the year in which general election is due to be held. The persons who have completed minimum period of two years as members from the date of their enrollment before the 30th June of the year immediately preceding the year in which such election is due, shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of voters shall be arranged constituencywise as laid down in the bye-laws; Provided that, if, in any case, the preparation of the provisional list of voters falls due after expiry of the period of six months from 30th June, the Collector may, in consultation with the Registrar, in respect of the societies of the categories mentioned in Clauses (i), (v) (vi) and (vii) of Sub-section (1) of Section 73G, and in consultation with the District Deputy Registrar in respect of the societies of the other categories mentioned in Sub-section (1) of Section 73G, by order, change the date of the 30th June and subsequent dates and fix revised dates for the purpose of these rules.
Rule 8, which empowers the Collector to alter the date for list of voters, reads;
8. Power to Collector to alter dates for list of voters:
Notwithstanding anything contained in the foregoing rules, the Collector may, in the case of all or any of the societies of the categories mentioned in Clauses (i), (v)
(vi) and (vii) of Sub-section 1 of Section 73G in consultation with the Registrar and in case of all of any of the societies categories mentioned in other clauses of Sub-section (1) of Section 73G in consultation with the District Deputy Registrar, by general or special order, alter all or any of the dates prescribed therein and appoint such revised dates as he deems fit.
Rule 8, so also proviso to rule 4(1), which are identically worded, are incorporated by Government notification dated 8.9.1978. The incorporation in rule 4(1) is as a part of procedure and rule 8 is demonstration of the powers of the Collector.
Relevant portion of Section 73 reads thus;
73. Committee, its powers and functions:
(1) xxx
(1AB) xxx
1A. Notwithstanding anything contained in this Act, the rules made thereunder or in the bye-laws of any society or class of societies,
(a). the first general meeting of the society shall be convened within three months from the date of its registration to appoint a provisional committee and to transact other business as may be prescribed. The term of the members of such provisional committee shall be for a period of one year from the date on which it has been first appointed or till the date on which a regular committee is duly constituted in accordance with the provisions of the rules or bye-laws made under this Act, whichever is earlier; and all the members of such provisional committee shall vacate office on the date of expiry of such period or such constitution of the committee;
(b). Notwithstanding anything contained in Clause (a), the provisional committees for the Co-operative Sugar Factories and Co-operative Spinning Mills and such other class of societies, as the State Government may, by special or general order, in the Official Gazette, specify in this behalf, shall be appointed by the State Government; and the members thereof shall hold office for a period of three years, which period may be extended by one year, at a time, so however that, the total period shall not exceed five years, in the aggregate;
Provided that, the State Government shall have the power to change or reconstitute such committee or, any or all members thereof at its discretion even before the expiry of the period for which a member or members were nominated thereon;
Provided further that, the member or members assuming office on such change or re-constitution of the committee shall hold office for the period for which the provisional committee has been appointed under this clause.
(c). pending the first constitution of the committee of a society, the provisional committee of the society shall exercise the powers and perform the duties of the committee of such society as provided in this Act, the rules and bye-laws and make necessary arrangements for holding election of the committee, before the expiry of its term.
Portion relied upon from Section 77A, by learned Government Pleader reads thus;
77A. Appointment of member of committee, new committee or Administrator, where there is failure to elect member, to constitute committee or where committee does not enter upon office.
(1). Where the Registrar is satisfied that,
(1-a) a provisional committee has failed to make necessary arrangements for holding election for the constitution of the first committee, before the expiry of its term as specified in Sub-section (1A) of Section 73;
(a) to (f) xxx the Registrar may, either suo-motu or on the application of any officer of the society, by order appoint
(i). any member or members of the society to be the member or members of the committee to fill the vacancies;
(ii). a committee, consisting of not more than three members of the society, or one or more administrators, who need not be members of the society, to manage the affairs of the society till a new committee enters upon office;
Provided that,….
9. By relying upon Rule 4 of the Rules 1971, as also reported judgment of the Supreme Court in the matter of Ramchandra Shinde v. State of Maharashtra , it was urged by Advocate Shri V.D. alunke, for petitioner that since the extended term of the provisional committee was to expire on 22.3.2007, elections must be said to be due in the calender year 2007 and, therefore, by virtue of rule 4, provisional voters’ list should contain names of all members, who are enrolled on or before 30.6.2004, and by effect of Section 27(3A), members registered during the period 1.7.2004 to 30.6.2006 shall get eliminated while preparing final list of voters. According to him, 30.6.2006 must be taken as cut off date for the purpose of preparation of voters’ list, that being 30th June, immediately preceding the year in which such election is due.
Eventually, after production of order dated 5.10.2007 by learned Government Pleader (paperbook pages 334-339), the argument of learned Advocate Shri Salunke has lost its sharpness. We must say that Shri Salunke advanced submission, by totally ignoring the powers vested with the Collector, by proviso to Rule 4 read with Rule 8. Even the case of Ramchandra Shinde (supra) relied upon by learned Counsel, does not lay down elimination of these powers, in spite of reference to those powers in the judgment.
In the matter of Ramchandra Shinde (supra), the society concerned, was a specified society-a sugar factory. The term of the office was due to expire on 3.12.1991. From the facts, as elaborately narrated in paragraphs 2 and 3, it is not clear whether the managing committee, whose term was to expire on December 3, 1991, was a provisional committee or an elected committee. The District Collector initiated the election process pursuant to which, the society submitted to the Collector, on 18.10.1991, list of voters as on 30.6.1991. November 12, 1991, was the date fixed to display on the notice board, the provisional list of voters, inviting claims/objections, if any, for inclusion or omission. Last date for lodging claims/objections was 20.11.1991 and the Collector was to take decision on such claims/objections on 7.12.1991.
Final list of voters was to be published on 17.12.1991. Accordingly, final list of voters was published on 17.12.1991. The Government, in exercise of powers under Section 77-IB of the MCS Act, postponed the conduct of elections to the committees, of all cooperative societies, except those covered by orders of the court, till September 30, 1992. Two members, namely, More and Mule, by writ petition No. 2970/1992, wherein, the chairman Shri A.M.Patil was the 5th Respondent, obtained a consent order to commence the election process on 1.10.1992 and that the Collector should accordingly take suitable steps for holding the election. Thereafter Sarvashree More and Mule filed another writ petition No. 4107 of 1992, on 15.9.1992 for directions to hold the election on the basis of final voters list published on 17.12.1991. The chairman Shri Patil was respondent and the minutes of the order by consent were filed, consequent upon which, the court directed Respondent No. 4-society to submit provisional list of voters as on 30.6.1992, as per rule 4 of the Rules 1971. The Collector, thereafter was expected to complete the finalisation of the list under Rule 6 and then pronounce the election programme under Rule 16. The election officer, on 6.10.1992, asked the society to submit fresh provisional list of voters as on June 30, 1992. After becoming aware of this order, Shri R.G.Shinde (appellant before the Supreme Court) and another, filed writ petition No. 4400 of 1992 for modification of the order dated 28.9.1992 passed in Writ Petition No. 4107 of 1992 and for directions to the State, the Collector and the Election Officer to hold election to the committee on the basis of final voters list, as published on 17.12.1991. Division Bench of the Bombay High Court dismissed the writ petition in limini.
In the appeal before the Supreme Court, although original Petitioners Sarvahsree More and Mule, as also chairman Shri Patil, were recited as Respondents and served, they neither appeared nor filed any replies. It was alleged by the appellants that, the petitioners More and Mule and the chairman Shri Patil had admitted 2000 members, after finalization of voters list on 17.12.1991 and, therefore, they had obtained orders by collusion (in Writ Petition Nos. 2970 of 1992 and 4107 of 1992), by playing fraud upon the court, in order to ensure that these 2000 voters were admitted as valid voters. By rule of non-traverse, the court has upheld this contention, by observations in paragraph 8 of the judgment.
On going through the judgment and more particularly paragraphs 5 to 8, relied upon by learned Counsel Shri Salunke for the petitioner, although it can be said that as a general rule, it is laid down that, the provisional list of voters of every society is required to be prepared in the year in which general election is due and persons who are members as on 30th June of the year immediately preceding the year in which such election is due, shall alone be included in the provisional list, the Hon’ble Apex Court nowhere laid down that Rule 4(1) of Rules 1971 supersedes the proviso as contained in the same sub-rule or rule 8, thereby making the powers of the Collector to change the dated 30th June in consultation with the Registrar/District Deputy Registrar as permissible by the proviso and Rule 8, nugatory. On the contrary, in both, paragraph 5 and 7, the Supreme Court has referred to this proviso and also indicated as to when it becomes operative. We may reproduce those contents.
In paragraph 5,later half, it is observed;
But the persons who are members of the society as on 30th June of the year immediately preceding the year in which such election is due, should alone be included in the provisional list and eligible to vote at the election. Under the proviso, if the preparation of the provisional list falls due after the expiry of the period of six months from 30th June, then the Collector is enjoined to consult the Registrar or the Dist. Deputy Registrar as the case may be, based on the class of society envisaged under S.73-G; he should pass an order changing the date of 30th June and prescribe a subsequent date; fix revised date for the purpose of preparing the provisional list and ensure the procedure for declaration of the final list.
The period which was relevant in the reported matter and also the time when the judgment was rendered, Sub-sections (3) and (3A) of Section 27 laying down the limit of three years and two years qualifying period of membership for society-member and individual member to acquire a voting right, were not on the statute book. The same is introduced with effect from 23.8.2000. Consequently, the sentence, “persons who are members as on the 30th June of the year immediately preceding the year in which such election is due, shall be included in the provisional list” as contained in Rule 4, is substituted by amendment dated 18.2.2002 with “the persons who have completed minimum period of two years as members from the date of their enrollment before the 30th June of the year immediately preceding the year in which such election is due, shall be included in the provisional list.”
In the later half of paragraph 7, the apex court observed thus; regarding operation of proviso as contained in Rule 4(1):
The proviso would operate only in case the preparation of the provisional list of voters falls due after the expiry of the period of six months from the 30th June, then only, after consultation with the designated officer, the Collector, by an order, may change the date of 30th June and fix subsequent date as revised date to submit the provisional list of voters. In this case, the proviso has no application for the reason that the provisional list had already been approved and published by the Collector as per the law on December 17, 1991. It was not challenged. Therefore, the year in which the general election to the society is due is the date as per the operation of law i.e. 1991 but not due after the expiry of the period as postponed by the State Govt.
From the narration of facts and reproduction of part of the observations of the Hon’ble Apex Court as above, it is evident that the case relied upon renders no assistance to the petitioner for multiple reasons. In the reported matter, it cannot be ascertained that the election was the first election to the managing committee, as in the matter at hands. The Supreme Court nowhere lays down that the proviso to rule 4(1) cannot be used. It is specifically observed in paragraph 7 that, the proviso was not applicable in the reported matter, because election was due in the year 1991 and the list of voters was already finalized on 17.12.1991, by considering cut off date to be 30.6.1991. The term of existing committee was to expire on 3.12.1991.
In the matter at hands, the term expired on 22.3.2007. The work of preparation of provisional list of voters is undertaken thereafter, which is more than six months after 30.6.2006. Thus, proviso to Rule 4(1) and powers as contained in Rule 8 to change and postpone the date 30th June were available.
In the reported matter, there were unchallenged allegations of collusion between earlier writ petitioners and the chairman. There was clear attempt to induct overnight members as valid voters, by admitting 2000 members after finalization of voters list on 17.12.1991 and before expiry of the period till which the elections were postponed by the State Government in exercise of powers under Section 77-IB. In the matter at hands, there are no such allegations. A set of 1,305 persons is admitted to membership on 18.3.2002 and they completed two years membership, even if provisional list of voters is published on 30.6.2006 and, therefore, cut off date, regarding admission of membership, is taken as 30.6.2004. Another set of 1,044 members was enrolled on 17.12.2004, who are the beneficiaries of getting voting right, as a result of postponement of date 30.6.2006 to 31.12.2006, thereby making 31.12.2004 as the cut off date for enrollment of membership.
It is the contention of Advocate Shri Chaudhari for the factory that the petitioner was a member of the committee when this resolution dated 17.12.2004 admitting 1,044 members, was passed. In any case, the provisional managing committee, which was appointed on 22.3.2001, was ordinarily to continue upto 22.3.2004. The term of the committee was extended for one year, by each of the orders dated 15.4.2004, 19.4.2005 and 10.4.2006. Taking into consideration the date of resolution i.e. 17.12.2004 and couple of extensions to the term of provisional committee thereafter, it does not permit us to believe the enrollment of 1,044 members on 17.12.2004, to be malafide. In any case, there are no such allegations by the petitioner.
Viewed thus, it is evident that reliance on rule 4 of Rules 1971, as also the judgment of the Hon’ble Apex Court in Ramchandra Shinde (supra) does not serve the purpose of the petitioner. This is because, cut off date of the 30th June of the year immediately preceding the year in which election is due, can be shifted by the Collector in consultation with the Registrar / District Deputy Registrar and such power can be exercised, if the work of preparation of provisional voters list commences after more than six months since the 30th June.
In the matter at hands, provisional committee requested the Collector for holding election, by resolution dated 4.12.2006, about 3-1/2 months before expiry of its term. Although committee submitted provisional list of voters along with a copy of resolution dated 4.12.2006 to the Joint Deputy Registrar, by communication dated 20.12.2006, the Collector commenced the work of preparation of voters list by publication of provisional list on 23.4.2007. Having commenced such preparation of voters list after more than six months since the 30th June of the preceding year, proviso to Rule 4(1) of Rules 1971 was available. That is why we have expressed that after production of the order dated 5.10.2007, the argument of Advocate Shri Salunke for the petitioner for sticking to cut off date, has lost its sharpness.
10. In fact, in order to counter the argument of Advocate Shri Salunke that the elections are due in the year 2007 and, therefore, cut off date for preparation of voters list should be 30.6.2006 and only those members who are enrolled on or before 30.6.2004 would find place in the final list of voters, learned Government Pleader has come out with a very bold proposition. According to him, there is no cut off date fixed under the statute for first election. In other words, according to him, first election cannot be said to be due in any particular year. The argument of Advocate Shri Salunke that taking liberal construction of Section 73(1-A) of the MCS Act, the first election must be held after 6-1/4 years was countered, by saying that there may be appointment of arbitrator as under Section 77A and, therefore, the clause, “…the year in which such election is due…” as contained in rule 4, does not apply to the first election to the managing committee. Advocate Shri Salunke had calculated maximum period of 6-1/4 years from the date of registration of society, as the period, when the election to the first managing committee must be held on the basis of Clauses (a) and (b) of Sub-section (1-A) of Section 73 i.e. members constituting provisional committee after three months from the date of registration, provisional committee continuing for one year and the State Government exercising its powers under Clause (b) thereafter to appoint another provisional committee, which can continue for a maximum period of five years. According to learned Government Pleader, Section 77A empowers the Registrar to appoint either a new committee or administrator and, therefore, election cannot be said to be due, when the provisional committee nominated by the State Government is to complete its tenure of three years, or tenure of five years on grant of extension.
We have already reproduced portions of Section 73(1A) and Section 77A of the M.C.S. Act. It is evident that the provisional committee appointed by the General Meeting within three months from the date of registration of the society cannot continue beyond one year. The outer limit prescribed by Clause (a) of Sub Section (1A) of Section 73 is:
(a) …The term of the members of such provisional committee shall be for a period of one year from the date on which it has been first appointed or till the date on which a regular committee is duly constituted in accordance with the provisions of the rules or bye-laws made under this Act, whichever is earlier;….
It is evident that in any case, the first provisional committee cannot remain in office for a period exceeding one year. The State Government is empowered with powers by Clause (b) to appoint provisional committees and even in supersession of Clause (a) which empowers the general meeting to appoint the provisional committee for one year. For this committee also, there is limit as to how long it can continue, as contained in terminal part of Clause (b), as follows:
…and the members thereof shall hold office for a period of three years, which period may be extended by one year, at a time, so however that, the total period shall not exceed five years, in the aggregate:
The provisos to Clause (b) indicate that even the provisional committee reconstituted by change of some or all the members has to observe the same outer limit as the first provisional committee constituted. The emphasis on vacation of the office after expiry of this term is evident from terminal part of Clause (c) of Section 73(1A), which reads:
…and make necessary arrangements for holding election of the committee, before the expiry of its term.
Thus, provisional committee appointed either by the members in general meeting or by the State Government cannot continue till eternity.
The learned Government Pleader has urged that Section 73(1A)(b) is not the end of the period when unelected committees can continue to exercise all the powers and to perform all the duties of the committee in which the control of the society vests by virtue of Section 72. According to him, Section 77A empowers the Registrar to appoint new committee or administrator. We have reproduced the provision in paragraph 8 of the judgment. Eventually, subsection (3) of Section 77A also provides outer limit to the tenure of the committee of members or the administrator/s appointed by the Registrar in exercise of the powers conferred by Section 77A of the M.C.S. Act. The said provision reads:
(3) The Committee or Administrator so appointed shall hold office for a period of six months from the date of assuming the management of the society and shall make necessary arrangements for constituting a new committee within the said period and….
Thus, it is obligatory on the committee of the members or the Administrator/s nominated by the Registrar to complete the process of constituting a new committee, presumably duly elected committee within its tenure of six months and hand over the management of the society to the representatives elected by the members.
The learned Government Pleader has placed reliance upon the proviso to Sub-section (3) in order to say that there is no due date for election of the first committee. Such an argument is based upon assumption that there is no limit to the term of the committee of members or administrator/s appointed by the Registrar in exercise of powers conferred by Section 77A. The proviso reads thus:
Provided that, if a new committee is not, or cannot be constituted at the expiry or termination of the term of office of the committee or Administrator, for any reason beyond the control of the committee or Administrator, the term of office of the committee of Administrator, as the case may be, shall be deemed to be extended, until the new committee is duly constituted.
The emphasis by learned Government Pleader on the terminal clause and by saying that there cannot be any due date for the election of the committee when it is election for constitution of first elected committee; he has impliedly argued that the committee of members or Administrator/s nominated and appointed by the Registrar in exercise of powers under Section 77A can continue till eternity.
On reading Sub-section (3) of Section 77A as a whole, together with proviso relied upon by the learned Government Pleader with emphasis, we are unable to agree with such a submission. The term of office of the committee or Administrator nominated by the Registrar is fixed. They are enjoined with a duty to ensure that duly elected committee is in the office by the time term of the nominated committee/ Administrator expires. The proviso that enables the nominated committee / Administrator to continue until new committee is duly constituted is an exception to the rule. The rule is substitution of nominated committee/ Administrator by duly elected committee. By virtue of exception if the newly constituted committee is not ready to take over on the day next upon expiry of the term of nominated committee / Administrator, the nominated committee or Administrator are allowed to continue in the office until new committee is duly constituted. It is a stop gap arrangement prescribed, in the interest of society and in exceptional circumstances. We are also unable to agree with the submission of the learned Government Pleader because such an interpretation of Sections 73(1A) linked with section 77A will be against the spirit of the Act and counterproductive. If such an interpretation is accepted, a Cooperative Society although registered, will continue to be governed by the Registrar and not by the representatives of the members. The preamble of the M.C.S. Act reads: “Whereas, with a view to providing for the orderly development of the co-operative movement in the State of Maharashtra….”
The Statute is legislated for development of co-operative movement and, therefore, management of a duly registered co-operative society continuing with the provisional committee nominated either by the State Government or by the Registrar or with Administrator nominated by Registrar would be against the spirit of the legislation and such an arrangement hypothetically being considered as possible till eternity, therefore, is an unacceptable argument. The proviso to Sub-section (3) of Section 77A relied upon by the learned Government Pleader is an exception and not the rule. The date on which the term of the provisional committee/administrator expires will have to be considered as a date on which election is due, irrespective of the fact that it may be election for the first committee elected by members.
The submission of learned Government Pleader that Rule 4, therefore, would apply only when one elected body is to be substituted by newly elected body on expiry of its term and not when election is for constitution of first committee elected by the members, cannot be acceded to, since the same also would be against the spirit of the statute. One elected body continuing beyond its tenure would be at least a representative body exceeding the tenure but, committees nominated or appointed either by the State or Registrar, continuing for unlimited period will be mockery of the Statute. We, therefore, do not agree with the submission of the learned Government Pleader that Rule 4 has no applicability to the election, when it is election for constitution of first elected committee because there cannot be said to be any date when the election is due. Neither in paragraphs 18 and 19 of the judgment in the matter of Vasantrao Ubale v. State of Maharashtra nor in the judgment of the Supreme Court relied upon by the learned Government Pleader in the matter of Dudhganga Vikas Sewa Sanstha Maryadit v. Distt. Collector, Kolhapur and Ors. 2006 AIR SCW 6177, we are able to find any material that would lend support to such a proposition advanced by learned Government Pleader that expiry of the tenure of provisional committee, either nominated by the State or by the Registrar or expiry of the term of the Administrator nominated by Registrar is not the date when election is due for constitution of first representative committee of the society.
11. In fact, the judgment in the matter of Vasantrao, a decision of the Division Bench of this High Court, was relied upon by both, Counsel for the petitioner as well as Government Pleader. They relied upon different portions of the judgment. The learned Government Pleader relied upon paragraphs 18 and 19 and the learned Counsel for the petitioner relied upon conclusions recorded in paragraph 29 of the judgment. With due respect, we have not been able to find any material or ratio that would be useful for either side in the matter before us. As can be seen from the judgment in the matter of Vasantrao and more particularly, paragraphs 12 to 16, the Court was seized of the issue:
What happens to the voting rights of the members who were enrolled in between two years prior to coming into force of the Maharashtra Amending Act No. 41 of 2000?
The disputes in all the writ petitions considered together by earlier Division Bench were the disputes which arose because of qualification laid down by subsection (3) and (3A) of Section 27 of the M.C.S. Act by amendment dated 23.8.2000, by which member society and individual members were required to be enrolled respectively 3 and 2 years before they could acquire right to vote in the affairs of the society. The learned Brother Judges have recorded that Amendment Act No. 41 of 2000 is prospective in its application, mainly because the members who were registered within two years preceding the date of amendment had already voted in other affairs of the society, if not in election of a new committee and right which was already exercised before the amendment could not be said to have been taken away by the amendment in the absence of express words making the amendment retro-active. We are not concerned with the bar of Section 27 nor we are confronted with the issue as to what happens to the newly registered society when it has to elect first committee within less than one and quarter years and as to how the members would be qualified for voting. The society in our case was registered as back as on 26th August, 1988 and was controlled by a managing committee nominated by the State from 22.3.2001 onwards. We are, therefore,not required to address ourselves as to what should be the position in case a society registered is required to go to poll after one and quarter years as required by Section 73(1A)(a). However, on this issue the Court observed in paragraph 19 thus:
19. …What we find is that both the provisions though ex-facie appear to be conflicting with each other, are not conflicting with each other. Section 73(1A)(a) is a special provision which regulates the constitution of provisional committee on registration of a society.
It starts with non obstante clause to the effect that “Notwithstanding anything contained in this Act….” Therefore, it has to be read as notwithstanding anything contained in section 27 of the Act, and therefore, what we find is that while implementing the provisions of section 73(1A)(a) there is no conflict with section 27 of the Act and the Committees can be constituted and elected as provided in Sub-section (1A)(a) of Section 73 of the Act irrespective of the fact that the voting power of the member society or individual member regulated under Sub-section (3) proviso and Sub-section (3A) of section 27 of the Act.
The observations of the Court are for the purpose of reconciliation of Section 73(1A)(a) and Section 27 as amended by Act No. 41 of 2000. We are not dealing with the issue of constitution of a provisional committee as under the said provision and, therefore, it is needless to rely upon the observations quoted hereinabove. The above observations recorded by the Court are in order to meet the arguments that the amendment effected by Act No. 41 of 2000 is inconsistent with the existing provisions because members enrolled as members of the society at the time of registration will not be able to take part in the first general body meeting, for election of provisional committee.
Observations in the matter of Vasantrao are also not applicable because in that matter the Court was dealing with the issue of members registered within two years next before the date of amendment. In the matter at hands both groups of members are registered after amendment, first group of 1305 on 18.3.2002 and second group of 1044 on 17.12.2004.
12. Honourable the Apex Court has already recorded in the matter of Dudhganga (supra) that there is no inconsistency between section 27 of the M.C.S. Act and Rule 4 of the said Rules. We have already referred earlier to the amendment to Rule 4 as effected in the year, 2002. By the said amendment, Rule 4 is brought in harmony with Section 27(3A). The hypothetical difficulty that was expressed before the Division Bench in the matter of Vasantrao (supra), which is dealt with by the earlier Division Bench in paragraphs 18 and 19 of the judgment, gets a solution or relief in the form of proviso as contained in Rule 4(1). The Collector is empowered with the powers to change the date “30th June” and needless to say that he can postpone it in order to accommodate more members in the final voters’ list. Neither in Rule 4(1) nor in Rule 8 there appear any parameters as to when can he change the date “the 30th June” and fix a revised date. The spirit of this proviso and that of section 27, at first blush, appear conflicting but are not conflicting in the real sense and in fact, the purposes of the two provisions which appear conflicting, provide the clue as to when the Collector in consultation with the Registrar / District Deputy Registrar shall be justified in revising the date of “30th June”.
It is evident that the proviso to Rule 4 and the Collector’s powers as contained in Rule 8, enable the authorities to accommodate maximum voters in the final list of voters’. This is aimed at ensuring that a body representative of all the members is brought in power as constituted managing committee. Section 27(3A) requires a member to remain attached with the society at least for a period of two years before exercising his right of voting not only at the election to constitute managing committee but, for the purpose of all the affairs of the society. The purpose behind such qualifying period of membership is obvious in the preamble of the Amendment Act No. 41/2000 which is reproduced by the Division Bench in paragraph 16 of its judgement in the matter of Vasantrao. Merely, because revised date accommodates more members, the shifting of date “30th June” by the Collector need not be looked with suspicion and that provides us the parameters which we may crystalise as under:
i) If it is the first election for constitution of elected managing committee, the authorities should be liberal to accommodate maximum members in the voters’ list by revising the date “30th June”. The authorities may be slow when already elected body was in the power for its full tenure and when there is a possibility of a psychology of continuing in power, may be by enrolling members at the eleventh hour, who may vote in favour of the outgoing committee again enabling it to come back.
ii) The proviso is available only if the work of preparation of voters’ list commences after lapse of more than six months from “30th June”. In case, the work of preparation of voters’ list is delayed due to lapse or fault on the part of outgoing committee, the authorities may be slow in revising the date. But, if the outgoing committee is not responsible for delay in commencing the work of preparation of voters’ list, the authorities may not look to the committee with suspicion while considering the issue of revision of date “the 30th June.
On reference to Rule 16, it is evident that period statutorily required for holding the election is 45/46 days and final voters’ list is required to be displayed keeping a time gap of 30 days between publication of final list of voters and commencement of schedule for elections. If the outgoing committee has commenced the process for election by leaving more than 75 days before expiry of its term, no mala fides may be attributed to the committee while considering the issue of revising and extending the cut off date.
iii) The authorities should be slow in case, prima facie, there are mala fides apparent as in the case of Ramchandra Shinde of hurriedly registering a bunch of members at the eleventh hour.
Considering the facts at hands, we believe that the extension of date “the 30th June” to 31st December, 2006 by the authorities in this case does not appear vitiated.
13. The respondents and especially, the factory has seriously challenged the locus of the petitioner in filing the present petition. Although it is not disputed that the petitioner is a founder member i.e. one of those persons who had signed the application when the society applied for registration and also the fact that he was one of the members of the committee nominated by the State Government in exercise of the powers conferred by Section 73(1A)(b) of the M.C.S. Act, it was the contention of the respondents that the petitioner, not having purchased shares of the society of requisite value, has not acquired right to vote in the affairs of the society either for the purpose of election of managing committee or for any other reason.
In order to claim that the petitioner still happens to be a member and his locus cannot be challenged, learned Counsel for the petitioner has placed reliance upon definition of member as contained in section 2(19)(a) of the M.C.S. Act and also some reliance is placed upon subsection (2) of Section 22 for the purpose of claiming that the petitioner continues to be a member till the time refusal of admission as member is not communicated to him by the society.
Section 2(19)(a) defines:
Member” means a person joining in an application for the registration of a co-operative society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, associate or sympathiser member.
Nominal, associate or sympathiser members are further defined by Clauses (b), (c) and (d) of the said subsection (19) of Section 2. It is not the claim of the petitioner that he belongs to either of these categories. It is claim of the petitioner that he is a member being a person who had joined in applying for the registration of the society.
Section 22 of the M.C.S. Act is pertaining to to “Person who may become member” and subsection (2) of section 22, which is relied upon with emphasis states:
(2) Where a person is refused admission as a member of a society, the decision (with the reasons therefor) shall be communicated to that person within fifteen days of the date of the decision, or within three months from the date of receipt of the application for admission, whichever is earlier. If the society does not communicate any decision to the applicant within three months from the date of receipt of such application the applicant shall be deemed to have been admitted as a member of the society. If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties.
No doubt, as defined by Section 2(19)(a), the petitioner if he was a person having signed the application for registration of society, he would come within the definition of a member. However, reliance upon subsection (2) of Section 22 is misplaced and not applicable in the fact situation. It is not the contention of the petitioner that he had applied for registration as a member and he has become a deemed member because refusal is not informed to him within the time limit specified in first half of subsection (2) above. We are, therefore, also not concerned with determination of the dispute whether the petitioner has / has not become a deemed member.
As against these submissions by learned Counsel for the petitioner, the respondents have placed reliance upon section 26 and it was contended that merely being a member is not sufficient. In order to acquire the legal right to challenge election process, the petitioner ought to have acquired a voting right and petitioner not having fulfilled the requirement for the said purpose, he has not become a voter at the election nor he has acquired a right to vote in the affairs of the society. It is, therefore, contended that the petitioner has no locus standi to challenge the election process and file either any objection before the Returning Officer or present writ petition.
Section 26 relied upon for the purpose reads thus:
26. No rights of membership to be exercised till due payments are made: No person shall exercise the rights of a member of a society, until he has made such payment to the society in respect of membership, or acquired such interest in the society, as may be prescribed by the rules, or the by-laws of such society.
On reading the three provisions relied upon by two sides together, it is evident that being a member of a society and being a member having a right to vote in the affairs of a society are two distinct things. It is evident from Section 27(8) that nominal and sympathiser members have no right to vote, although, they are members as defined by Section 2(19)(c) and (d). On reading section 27(2), it is evident that every associate member (as defined by Section 2(19)(b)) does not have a right to vote but, only one associate member whose name stands first in the share certificate, has a right to vote. Thus, a membership without voting right is not unknown to the statute.
Advocate Shri Salunke for the Petitioner, has also relied upon bye-laws 7 and 8. It appears that by virtue of bye-law 7 (as it stands at present, probably after amendment), face value of a share is Rs. 5,000/= and person desirous of being a member, is required to deposit Rs. 500/= with the application. Thereafter, the applicant is required to be informed, regarding allotment of a share to him and his being admitted as a member. He has liberty to deposit balance Rs. 4,500/= within one year since such intimation. By Clause 4 of bye-law 7, the amounts as in Clauses (1) and (2) i.e. Rs. 5,00/= and Rs. 4,500/= can also be recovered from the price of sugarcane supplied by the petitioner.
Bye-law 8 is regarding default by a member to pay balance amount within prescribed time limit and consequences to follow. If the member, in spite of a notice of fifteen days, does not pay the balance amount and does not offer satisfactory explanation, the share certificate reverts to the society and is available for re-allotment / re-sale.
We are unable to appreciate the reliance by learned Counsel for the petitioner, on these two bye-laws, especially in the absence of any material on record, indicating that the petitioner had filed an application, or that he had given intimation to deduct the amount from the price of sugarcane supplied by him. In fact, it is not his claim that he has replied the notice Exh. R-3(1).
Respondents have filed on record at Exh.R-3(1) a notice that was sent to the petitioner on 10.11.2000. The petitioner was cautioned that he has not completed the amount of share of Rs. 5000/-. Value of the share was so increased by approved amendment in the bye-laws and if he does not make the deficit of Rs. 1600/- good, his membership may be required to be cancelled. The petitioner has not complied with the said notice, which is evident from the fact that in the writ petition, as an alternative prayer, the petitioner has shown willingness to make good the deficit. On reference to the order passed by the Collector on 31st August, 2007 and more particularly, discussion on internal page 8, during the course of discussion on Issue No. 2, it is evident that value of the share was determined to be Rs. 2000/-. The petitioner had deposited only Rs. 1650/-. This was the position at the time of registration of the society and when the value of the share is increased to Rs. 5000/-by amendment, the petitioner is still in deficit. Thus, the petitioner has not complied the requirement of purchasing shares of requisite value for the purpose of acquiring voting rights. Being a member is one thing and being a member having acquired right to vote in the affairs of the society is another thing. Petitioner fails on the second count and, therefore, it must be stated that the petitioner had no locus standi to challenge any part of election process, either by raising an objection to the voters’ list before Returning Officer or by this writ petition.
14. The issue of latches was argued by Shri Chaudhari, learned Counsel for Respondent No. 3 factory, with all possible force. He has pointed out that the order dated 31.8.2007 and final list of voters published on 12.10.2007 is being challenged by writ petition filed only 3.12.2007, when the members are to go to polls on 5.1.2008. According to Advocate Shri Chaudhari, to be guilty of latches, the petitioner need not approach the court by delay of any particular number of days or months or number of years. The time lapse that may be sufficient to brand the petitioner of guilty of latches may be different in different cases. In the matter at hands, the resolution to hold the election was passed on 4.12.2006. According to Advocate Shri Choudhari, the petitioner ought not to have waited at least between 12.10.2007 to 3.12.2007.
According to Advocate Shri Salunke for the petitioner, the order dated 31.8.2007 was partly in favour of the petitioner and, therefore, there was no question of petitioner challenging the same and that the petitioner has approached this Court only when he realized that, in spite of accepting his objection of taking 30.6.2006 to be cut of date, returning officer published the list by shifting the date.
In view of findings on merits, as also on the issue of locus, the fate of the writ petition is already determined and, therefore, we do not wish to discuss elaborate reasons on the point of “latches”.
15. It was contended by learned Counsel for the petitioner that Respondent No. 2, after passing the order dated 31.8.2007, could not have published final voters list by shifting the date “the 30th June”. It was submitted that, this is a review of the order dated 31.8.2007, without there being statutory power to review.
No doubt, it is settled legal position that unless there are powers to review, an authority cannot review its own order. The ratio would be applicable to judicial orders. Order passed by Respondent N0.2-Returning Officer after considering the objections of petitioner, cannot be termed as “judicial order” in the strict sense. It can, at the most, be a quasi-judicial order. It is evident that, the returning officer has not reviewed the order, but the deficiency that could have remained in taking any other cut off date than 30.6.2006, for want of consultation with the Registrar/District Deputy Registrar, was removed after the order dated 31.8.2007 and only thereafter, a decision was taken to shift the date “the 30th June” to “31st December”, by exercising powers as conferred by proviso to Rule 4(1) read with Rule 8 of the Rules 1971.
Moreover, having held that the petitioner has no locus to raise the objections, the part favourable to the petitioner, in the order dated 31.8.2007 has lost its significance. Even otherwise, the petitioner has now challenged before us even the order dated 31.8.2007, although it was partly in his favour and while acting under Article 226 of the Constitution, we shall be justified in setting right whatever irregularity or illegality that may come to our notice. The argument of Shri Salunke, learned Counsel for the petitioner that, having passed the order dated 31.8.2007, Respondent No. 2-Returning Officer could not have subsequently changed the date “the 30th June”, therefore, does not obstruct us.
16. For all above reasons, writ petition merits dismissal and the same is, accordingly, dismissed. Rule discharged.
