RAMCHANDRA GANPAT SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Leave granted.

(2.) Important twin questions of law, namely, whether the Court while exercising its power under Art. 226, could give direction contrary to the statutory mandate, if so whether such an order is liable to judicial review by an independent proceeding under Art. 226 and if so under what circumstances and to what extent, arise for decision in this appeal. Shri Vithal Sakhar Sehakari Karkhana Ltd., Venu Nagar, Gurusale in Solapur Dist., the 4th respondent, for short "the Society" is a specified Co-operative Society under the Maharashtra Co-operative Societies Act, 1960 (Act 21 of 1961) for short 'the Act'. Its term of office is 5 years. It was due to expire by December 3, 1991. The Dist. Collector, 2nd respondent is the competent authority under the Act to initiate election process in accordance with the Act and the Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971 for short 'the Rules'. The Dist. Collector accordingly initiated the process pursuant to which the society submitted to the Collector on October 18, 1991 the list of voters as on June 30, 1991. Thereon the Collector issued the following programme to finalise the list of voters. November 12, 1991 was fixed as the date to display on the notice board of the provisional voters list inviting claims or objections or suggestions for the inclusion or omission from the provisional list. November 20, 1991 was the last date to present such claims or objections to the Collector in terms of Rule 6(2) of the Rules. Tile Collector had to take a decision therein under Rule 6(4) on December 7, 1991 and the final list of the voters should be published under Rule 7 on December 17, 1991. In terms of the programme the provisional list was published on November 12, 1991 and after consideration of the objection or claims the final list was published on December 17, 1991.

(3.) The Government in exercise of its power under S. 77-IB of the Act postponed the conduct of election to the committees of all Co-operative Societies except those covered by orders of the Courts till September 30, 1992. Two members by name Narayan Ganpat More and Mahadeo Bhanudas Mule, filed Writ Petition No. 2970 of 1992 in Bombay High Court on July 13, 1992 for a .mandamus to the Dist. Collector and election officer to conduct election to the Committee of the Society forthwith that is to say after the expiry of 30-9-1992 in accordance with S. 73G and Chapter XI-A of the Act and the Rules and to complete the same within the minimum period as provided under the Act. By consent of the society, through its Chairman A. M. Patil, the 5th respondent herein, the Division Bench passed minutes order that since the Govt. postponed the election up to September 30, 1992, the process of election to the Society shall commence from October 1, 1992 and the Collector shall accordingly take suitable steps for holding the election. Following its heels More and Mule again filed another Writ Petition No. 4107 of 1992 on September 15, 1992, for a direction to hold election on the basis of final voters list published on December 17, 1991. Again A. K. Patil, Chairman took notice put forth consent minutes and the Division Bench accepted it and directed by order dated September 28, 1992 that "respondent No. 4 (Society) shall submit provisional list of voters as on June 30, 1992 as per Rule 4 of the Rules on or before October 10, 1992. The Collector thereupon shall complete the finalisation of the said list under Rule 6 and then shall pronounce election programme under Rule 116 for holding the elections of the Committee of the Society and to complete the same within the prescribed time under the Rules." Thereafter on October 6, 1992 the election officer asked the Society to submit fresh provisional list as on June 30, 1992. On becoming aware of the above order, on October 16, 1992, the appellants filed Writ Petition No. 4400 of 1992 to modify the order dated September 28, 1992 made in Writ Petition No. 4107 of 1992 and to direct the respondents 1 to 3 the State Govt. (Dist. Collector and Election Officer) to hold election to the Committee on the basis of the final voters list published on December 17, 1991 and to set aside the consequential orders. The Division Bench by the impugned judgment dated October 19, 1992 dismissed the writ petition in limine. Thus this appeal by special leave. Notice was served on all the respondents in this appeal. A. K. Patil, Chairman, respondent No. 5 was served on December 23, 1992. More, 6th respondent was served on December 18, 1992 and Mule, 7th respondent was served on December 16, 1992. They did not appear either in person or through counsel. The society was represented by counsel.