BABASAHEB MURLIDHAR GADHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. Respondents waive service. Heard forthwith.

(2.) PETITIONERS are the members of Chas (Vividha Karyakari Sahakari sewa Sanstha Maryadit, Chas (Nali), taluka Kopergaon, district ahmednagar. By the present petition, the petitioners are challenging the legality and validity of the circular dt,23. 7,2003, issued by the District deputy Registrar, Cooperative Societies, Ahmednagar. By the said circular, it has been set out that in case of notified cooperative societies, while preparing draft list of voters, the names of those individual are to be included who have been enrolled before 120 days prior to the date on which the tenure of the managing committee members ends and who have completed two years'. Opposing the said circular, it is contended on behalf of the petitioners that the cut off date, as set out in the said circular, for preparation of voters list for the ensuing elections to the managing committee members has been fixed, which is contrary to the provisions of the Maharashtra Cooperative Societies Act, 1960 ( hereinafter referred to as the Cooperative Societies Act) and the Rules framed thereunder (hereinafter referred to as the Rules ). The authorities, it is contended while fixing the cut off date, have deprived several valid voters, the right of franchise, in the ensuing elections. The circular, therefore, it is contended, is contrary, to the provisions of law. Pursuant to that letter/circular, a fresh circular/letter was issued by which the cut off date, for preparing the voters list and who can be included in the voters list is set out. This letter/circular is also challenged being contrary to the provisions of the Cooperative Societies Act.

(3.) IT is the contention of the petitioners that, they are members of the society, which is a notified society, within the meaning of Section 73-IC of the Cooperative Societies Act and, therefore, the elections of the managing committee members of the said society are required to be held in accordance with the provisions of Chapter V-A of the Maharashtra Cooperative Societies Rules 1961. The petitioners, it is averred, are interested in the elections, to be held for the managing committee members, in accordance with the provisions of the Act, Rules and bye-laws. The petitioner no. l, it is averred, will be directly affected, as a result of the order passed by the Assistant Registrar as, his name is likely to be deleted from the voters list, in case cut off date is taken as 27. 4. 2001 (17. 4. 2001 ). Petitioner No. 2, it is averred, is desirous of contesting the elections and, as such, interested in getting the voters list prepared in accordance with the provisions of law. The petitioner No. 3, it is averred, is a sitting managing committee member and is interested in the election process. The petitioner no. 4 is also proposing to contest the elections. The Government, by resolution of 26th June, 2003, it is averred, have postponed the elections to Cooperative Societies in the State, on account of rainy season till 30th Sept. ,2003. The election process, which has already been set in motion, has come to a stand still and the authorities would not proceed with the election process after 30th Sept. , 2003. The Cooperative society, being a notified society, the election of the managing committee are to be held by the District Election Officer, namely, respondent no. 2 District Deputy registrar. The last elections were held on 19. 7. 1998. The first meeting for electing the chairman was held on 18. 8. 1998. According to the petitioners, the term of the managing committee would expire on 17. 8. 2003, considering that the term of every managing committee is for five years. It is further averred that Rule 56-A and Rule 56-B, which fall under Chapter v-A of the Rules framed in 1961, lay down the procedure for amendment and preparation of the provisional list of voters. It is averred that rule no. 56-B lays down the procedure for preparation of voters list and in terms thereof persons who are members as on the date prior to 180 days of the date on which the term of the committee of such society expires shall be included in the provisional voters list. Petitioners then aver that, as the elections were due, the society's managing committee had prepared the voters list of the members, registered and recorded. Two separate lists were prepared, the first being of borrower members, having a total strength of 335 members and the another list of non borrower members, having 63 members. As such, it is these 398 members who are eligible voters, which list was prepared and, by letter of 9. 5. 2003, submitted to the office of the Assistant Registrar, Kopergaon. It is further set out that the cut off date, in accordance with the rules, regulations and the circular issued by the District Deputy Registrar, was taken as 19. 7. 2001, and the voters list was prepared showing total voters as 398. It is then set out that respondent no. 2 could have declared the programme for declaration and finalization of the voters list. In the meantime, however, the government postponed the elections on 26. 6. 2003"and, since then, the authorities have not taken any further steps for finalization of the voters list. The voters list was sent back intimating that the Government has postponed the elections till 30th Sept. , 2003, and, accordingly, the voters list be sent again before 30th Sept. , 2003. Reference is then made to the circular issued by the District Deputy Registrar dt. 23. 7. 2003, whereby the said authority has communicated to all its subordinate officers to comply with the provisions of Section 27 (3a) of the Cooperative Societies act. In terms of the amended Section, to be eligible, to qualify as a voter, period of two years has been prescribed from the date of enrolment as a member of the society. It is then set out that, under rule 56-B, the requirement prescribed is a further period of 180 days apart from two years. The circular provides that the voters list be prepared and submitted accordingly. On the reading of Section 27 (3-A) and Rule 56-B, it is pointed out that the provisions of Section 27 (3-A) will have overriding effect on the provisions of Rule 56-B and the Society will have, therefore, to prepare the voters list, showing the eligibility of two years. The society, of which the petitioners are members, had prepared voters list showing the cut off date as 19. 7. 2001 i. e. exactly two years from the date of expiry of the term of the society, which expired on 17. 8. 2003 and the society prepared the voters list in accordance with the provisions of Section 27 (3-A ). The assistant Registrar, it is pointed out, has no occasion to issue any fresh direction, which would run contrary to the provisions of Section 27 (3-A)and also rule 56-B. The Assistant Registrar of the Cooperative Societies, it is pointed out, has passed an order dt. 22. 8. 2003, informing the chairman of the society that the society will have to submit the voters list by 15. 9. 2003 and for the' said voters list, the cut off date for preparation of the voters list would be 27. 4. 2001. It is pointed out that the authority, in his order, has observed that the term of the outgoing committee has commenced on 18. 8. 1998 and expired on 17. 8. 2003. 120 days prior to the expiry of the term would come to 17. 4. 2003 and, thereafter, a further period of two years is required to be kept and, considering that period of two years plus 120 days, the cut off date is taken as 27,4. 2001. Based on this cut off date, direction has been issued to the Society to submit the voters list. This order, it is pointed out, is contrary to the provisions of section 27 (3-A) and the provisions of Rule 56-B and, as such, the authorities acted mala fide under political pressure and, thereby, disturbed the entire election process. It is pointed out that the cut off date ought to be 19. 7. 2001 and not 27. 4. 2001 as has been set out by the Assistant Registrar. It is further pointed out, the authorities cannot take advantage of the postponement of the elections and, thereby interfere in the voters list, by issuing orders and changing the cut off date at their whims and fancies. The order dt. 22. 8. 2003, therefore, it is pointed out, is bad, void and unconstitutional. The fixing of cut off date as 27. 4. 2001, is without any basis and the change is without any power and authority. The respondent nos. 2 and 3, it is pointed out, are also acting mala fide, arbitrarily and have practised discrimination. Reference is made to some other society, of which elections have been held where the cut off date has been fixed in terms of section 27 (3-A ). By an amendment to the petition, rule 56-B, as amended on 18. 2. 2002, has been set out. It is pointed out that, by the amendment of rule 56-B, what has happened is that the period of eligibility for becoming a valid voter, which was 180 days prior to the expiry of the term, is changed to that of two years and the period of 120 days is contemplated for delivery of the voters list. What has happened is that, in place of 180 days, the period of two years is incorporated.