S N MISRA Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner, amember of the Panchshila Cooperative House Building Society Ltd. respondent No.4 has filed this writ petition under Article 226 of the Constitution of India for issue of a writ. Order or direction for quashing the voters list/list of members dated 13.4.1990 issued by the aforesaid Society to the Registrar of Cooperative Society, respondent No.3 and the Care Taker, respondent No.5 to finalize the voters list in accordance with Rule 37 of the Delhi Co-operative Societies Rule 1973 (hereinafter referred to as Rules) after inviting objections from the Society and considering the same and for removing the dis-qualified members from the rolls and allow only the first named members in case of joint members to cast vote, further ordering Mr. George P.Peter, Sub Inspector of Co-operative Societies-cum-Election Officer, respondent No.6 or any other officer appointed by the Registrar to .hold elections of the Managing Committee in accordance with the corrected list and in the meanwhile restraining the respondents from holding elections to the Managing Committee.

(2.) 6th respondent issued a notice dated 21-2-1991 (copy Annexure 8, page 39) for holding the elections of Managing Committee of the Society on 10-3-1991. It is alleged that the list of members/voters purposrted to have been issued on 13.4.1990 (copy Annexure 2 running pages 33 A to 33Z) contains names of 24 members, who are actually no longer members of the society and the names of serveral persons who are dis-qualified to be members under Rule 25 of the 1973 Rules. It is further alleged that Rule 37 contemplates that every Co-operative society shall prepare a list of its members as on the last day of each Co-operative year and the said list of members shall be revised 30 days prior to the date of election meeting. Such a revised list should include the members admitted and exclude the members removed during the intervening period. But the 6th respondent directed the holding of the election meeting in contravention of Section 31 of the Delhi Co-operative Societies Act, 1972. Despite several personal requests made to the third respondent and officials working under him vide representations dated 27.10.1990 for correction of the list, it has not been corrected and, therefore, the election meeting called for 10-3-1991 by the 6th respondent was illegal. Third respondent should have actually issued directions to the Society as well as the Care Taker to update the list of members/voters in consonance with Rules 25 to 28 and 37 to 39 of the Rules and relevant Bye laws of lhe Society.

(3.) Notice to show cause was issued to the respondents as to why rule nisi be not issued and meanwhile elections were also stayed. Answer to show cause was filed on behalf of respondent No. 4 and another by respondents 3 and 6. Respondent No. 4 said that the matter in connection with lhe preparation of the list of members and conduct of election to the Managing Committee on account of any alleged differences where actually covered by Section 60 of lhe Act, and therefore, this writ petition was not maintainable. The petitioner should have approached the third respondent for arbitration. It was further stated that the petitioner approached this court on 7.3.1991 only when lhe election was scheduled to be held on 10-3-1991. The election process having already set in motion, this petition should not have been entertained. The Society in question was registered on 1-12-1955 under the Bombay Co-operative Society Act, 1925 and then extended to lhe State of Delhi. The Bye laws of lhe Society were also framed in 1955 and duly registered. According to the Act and lhe Bye laws framed by the Society, any person or his spouse or evern dependent children owning a residential house or plot in lhe Union Territory of Delhi, could become member of the Society and in fact some such persons did become members of the Society. Section 98 proviso (b) of Delhi Co-operalive Societies Act, 1972 specifically saved any right, privilege, obligation or liability acquired or accrued under the repealed Act. The society did weed out some known plot holders and plot holder members who acquired any dis-qualification under Rule 25(2) of the 1973 Rules. In this way, initially the number of the members of the Society enrolled under the 1925 Act which stood at 619 on 30-9-1971. was reduced to 504 against a total number of 465 plots. This situation presently continues because some members are independently holding separate shares of the society and exercising their right of vote under Section 18(1) of the 1925 Act becuase their rights and privileges were saved by Section 89, proviso(b) of the 1973 Act. Incase of persons holding jointily a share of the society, only the person whose name was at the top in the share certificate had a right to vote. But it was legal and competent for independent members having separate shares of society other than husband, wife and dependent children or joint plot holder members to exercise their right of vote qua the separate share certificates held by them. Therefore, in the light of the aforesaid facts, the election officer appointed by the third respondent in liaison with the 4th respondent had brought out an updated voters' list of members, eligible to cast their votes. Thereafter the statutory notice was issued to the members for the election to be held on 10.3.1991 at 10 AM.