Pundlik
Vs. State of Maharashtra & Ors [2005] Insc 446 (25 August 2005)
Y.
K. Sabharwal & C.K. Thakker
(ARISING
OUT OF S. L. P. (C) No. 14832 OF 2005) Hon. C.K. Thakker, J.
Leave
granted.
The
present appeal arises out of an order dated July 13, 2005 passed by the High Court of Bombay in Writ Petition No.4291
of 2005. By the said order, the High Court was pleased to dismiss the petition
filed by the appellant herein.
To
appreciate the controversy raised in the present appeal, relevant facts in
brief may be stated.
There
is a specified Society, namely, Aurangabad Zilla Sahakari Doodh Utpadak Sangh
Ltd., Aurangabad, respondent No. 6 herein ('Sangh' for short), registered under
the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as
"the Act"). The Managing Committee of the Sangh consists of several
members and the appellant as also respondent No. 7 are elected members of the
Committee. On April 5,
2005, the process for
election of respondent No.3 -Maharashtra Rajya Sahakari Doodh Maha Sangh Marvadit,
Mumbai ("Maha Sangh" for short) started. The Maha Sangh directed the Sangh
to send the name of its delegate on or before April 16, 2005. On April
7, 2005, the Sangh
called a meeting of the Managing Committee by issuing an agenda. The meeting
was scheduled to be held on April 15, 2005.
The agenda contained only one subject regarding discussion of letter dated April 5, 2005 received from the Maha Sangh. In
the said meeting a unanimous decision was taken to send the name of respondent
No. 7 as the delegate of the Sangh.
On May 19, 2005, the Maha Sangh sent a telegram to
the Sangh directing it to send the name of its representative afresh in the
light of amended bye-laws. The Sangh, therefore, convened a meeting on May 24, 2005 to discuss the matter. A decision
was again taken to send the name of respondent No. 7 subject to the
confirmation of the decision in the subsequent meeting. On May 30, 2005, the Collector published the programme
of various stages upto finalization of the voters' list in accordance with the
provisions of the Maharashtra Specified Co-operative Societies Election to
Committee Rules, 1971 (hereinafter referred to as "the Rules"). As
per that programme, any objection for inclusion of names in the voters' list
must be taken before June
10, 2005.
It was
mentioned that if the Sangh wanted to change the name of its delegate, it could
do so latest by June
10, 2005. Pursuant to
the said communication received from the Collector, a meeting of the Managing
Committee of the Sangh was convened on June 9, 2005 and it was decided to send the name
of the appellant as the delegate of the Sangh for the election of Maha Sangh. A
resolution to that effect was passed being Resolution No. 7 which inter alia
stated that earlier the name of respondent No. 7 was sent, but thereafter it
was decided to send the name of the appellant. Respondent No. 7 raised a
dispute before the Co- operative Court, Aurangabad against the said decision which is pending. It is asserted by the
appellant that the Divisional Deputy Registrar, Co-operative Societies (Dairy),
Aurangabad vide his communication, dated June 18, 2005 to the Joint Registrar,
Co-operative Societies (Dairy), Mumbai informed that Resolution No. 7 had been
passed by the Sangh which was 'correct'. On June 20, 2005, the Collector finalized voters' list and on June 27, 2005 the list was published. By an order
dated June 28, 2005, respondent No. 2 - Collector
informed the appellant that in the list of subjects of the meeting, there was
no subject for changing the name of the representative of the Sangh and,
therefore, the change of the representative in the meeting dated June 9, 2005 was not proper. Being aggrieved by
the order, the appellant filed a writ petition which, as stated above, was
dismissed by the High Court. Against the decision of the High Court, the
appellant has approached this Court by filing special leave to appeal on July 21, 2005. Notice was issued by this Court on
July 25, 2005. Affidavit-in-reply is filed by
respondent No. 7.
We
have heard the learned counsel for the parties.
The
learned counsel for the appellant contended that the order passed by the High
Court suffers from illegality and infirmity. According to him, a right has been
conferred on the Sangh to change its representative under the Rules and when
the right has been exercised within the stipulated period by passing a
resolution, it was incumbent on respondent No. 2 - Collector to effect change
as per the resolution passed by the Sangh. The counsel submitted that the High
Court had committed grave error in holding that the petition was not
maintainable as the election process started. The High Court was also wrong in
relying upon the decision of this Court in Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha & Another v. State of Maharashtra
& Ors., (2001) 8 SCC 509.
The
said decision was clearly distinguishable and the ratio laid down therein did
not apply. Since, the Sangh was exercising its statutory right, the action of
respondent No. 2 -Collector was contrary to law and ought to have been
interfered with by the High Court. It was, therefore, submitted that the appeal
deserves to be allowed by directing respondent No. 2 Collector to substitute
the name of the appellant for the name of respondent No. 7 as the
representative of the Sangh.
The
learned counsel for the respondents, on the other hand, supported the order
passed by the High Court. It was submitted by them, particularly on behalf of
respondent No. 7, that there was suppression of material facts by the appellant
and special leave to appeal may not be granted by this Court in exercise of
discretionary power under Article 136 of the Constitution. It was stated that
against an action taken by respondent No. 2 - Collector in not effecting the
change, a substantive petition has been filed by seven Committee Members of the
Sangh being Writ Petition No. 4580 of 2005 in the High Court of Bombay, Aurangabad
Bench on July 6, 2005 and the said petition is pending.
The appellant is aware of the said fact and yet that fact has been concealed
from this Court. Even on merits, the appellant has no case. In several
decisions, the High Court of Bombay has consistently taken the view that
preparation of election roll is an intermediate and integral process of
election and it cannot be interfered with at that stage. It was stated that in
the first meeting of the Sangh, unanimous decision was taken on April 15, 2005 to send the name of respondent No.
7 as the representative of the Sangh. The said decision was reiterated on May 19, 2005. It was only on June 9, 2005 that the so-called decision was
taken to change the name of the representative of the Sangh and instead of
respondent of 7, the name of appellant was sought to be substituted. The
counsel contended that the change of representative of respondent Sangh was not
on agenda and no resolution could have been passed. Further, the purported
decision was contrary to the bye-laws of the Sangh and since the appellant had
not obtained majority votes, his name could not have been sent as
representative of the Sangh. The High Court was wholly right in relying upon
Rule 81 of the Rules and in holding that if the appellant is aggrieved by the
decision of respondent No. 2 Collector, he could file election petition for
declaring election to be void. He, therefore, submitted that the appeal
deserves to be dismissed.
Having
heard the learned counsel for the parties, in our opinion, the appeal deserves
to be allowed. So far as the preliminary objection to the maintainability of
proceeding before this Court is concerned, it is no doubt true, as submitted by
the learned counsel for respondent No. 7 that the members of the Managing
Committee of the Sangh have approached the High Court of Bombay, Aurangabad
Bench by instituting a writ petition which is pending. But, it is equally true
and is not disputed by respondent No. 7 that the appellant had filed a petition
in the High Court of Bombay on June 30, 2005,
i.e. prior to the petition filed by seven Members of the managing Committee
before Aurangabad Bench. Moreover, the appellant is not a party to the said
petition. So even if it is assumed that the appellant was aware of filing of
the writ petition and pendency thereof, it was open to him to approach this
Court against a decision of the High Court after his petition was dismissed .
When
the appellant approached this Court by filing special leave petition on July 21, 2005, the petition at Aurangabad Bench
was pending and is still pending. It, however, cannot prevent the appellant in
approaching this Court. In our considered opinion, non-disclosure of fact of
filing a writ petition by members of Managing Committee of respondent Sangh in
the Special Leave Petition in this Court cannot be said to be material or vital
so as to deprive the appellant to the relief to which he is otherwise entitled.
It cannot be said that the appellant has not come with clean hands. Since the
name of representative of respondent Sangh was not changed as per the
resolution, dated June
9, 2005, the Members
were aggrieved and accordingly, they had initiated proceedings in the High
Court of Bombay, Aurangabad Bench.
Similarly,
the appellant was aggrieved since his name was not substituted for the name of
respondent No. 7 which is a distinct, separate and independent cause of action.
It was, therefore, open to him to take proceedings against such decision and
accordingly, he had approached the High Court in June, 2005 and on dismissal of
the petition, he is in this Court. The preliminary objection, therefore, is not
well founded and the appeal cannot be dismissed on that count.
On
merits, it is true that the High Court of Bombay has in several cases held that
preparation of voters' list is an integral process of election and a court
would not interfere at that stage.
In
this connection, our attention has been invited by the learned counsel to Dhondiba
Parshuram Lakde & Others vs. Someshwar Sahkari Sakhar Karkhana Ltd. &
Others, (1979) Mah LJ 311, Someshwar Sahkari Sakhar Karkhana Ltd. vs. Srinivas Patil,
Collector, (1992) 1 Mah LJ 883 and Shivnaryan Amarchand Paliwal vs. Vasantrao Vithalrao
Gurjar, (1992) 2 Mah LJ 1052.
Strong
reliance was placed on Sant Sadguru Janardan Swami. It was contended by the
respondents that preparation of electoral roll is an interim stage in the
process of election of the specified society and the Court should not stay or
interfere with the said election process.
We are
unable to uphold the contention. In Sant Sadguru Janardan Swami, this Court had
an occasion to consider the relevant provisions of the Act and the Rules.
Referring to Section 144 X of the Act, the Court observed that preparation of
list of voters is one of the stages of election. It is true that according to
this Court, normally the High Court would not interfere in exercise of powers
under Article 226 of the Constitution at the stage of preparation of list of
voters but such action must be in accordance with law.
We
have been taken through the relevant provisions of the Rules by the learned
counsel for the parties. Rule 4 of the Rules provides for provisional list of
voters. Rule 5 relates to particulars to be included in the provisional list of
voters. Sub- rule (2) of the said rule is relevant and material for our purpose
and it may be reproduced :
5.
Particulars to be included in provisional list of voters (1) (2) Where
a society is a member of a specified society, the specified society shall call
for the name of the delegate duly authorized to vote at an election on behalf
of the affiliated society, so as to reach it by the 2nd July. While
communicating the name of its delegate to the specified society, the affiliated
society shall enclose a copy of the resolution of the society or its committee
under which the delegate is so authorized. The specified society shall include
in the list of voters the names of all such delegates as have been communicated
to it before the date fixed for publication of the provisional list. In
addition to the names of all such delegates, the list shall contain the names
of the affiliated societies, their registration numbers and addresses and the
names of constituencies, if any, to which they belong. A society which has
communicated the name of its delegate shall by like resolution be permitted to
change the name of its delegate not later than seven days before the date
appointed by the Collector under Rule 16 of the said Rules for making
nominations." (emphasis supplied) Rule 6 deals with claims and objections
to provisional list of voters. Rule 7 requires a copy of final list of voters
of every society to be displayed on the notice board of office of the
Collector, the District Deputy Registrar and the Society. Rule 16 provides for
appointment of dates for various stages of election.
The
respondent No.2 - Collector passed an order on May 30, 2005, stating therein that in accordance with the provisions of
the Rules, various dates for publication of list of voters had been settled as
per Schedule I. It was mentioned in the Schedule that submission of any
objection or claim could be raised by June 10, 2005 under Rule 6. The last date for
publication of final voters' list was June 27, 2005. In the light of the above order, a
resolution was passed by the Sangh that instead of name of respondent No. 7,
the name of the appellant will be sent as representative of the Sangh. The
grievance of the appellant is that the meeting was held on 9th June, 2005 wherein Resolution No. 7 was passed
and respondent No.2 was informed about the said decision and yet he had not
changed the representative of the respondent Sangh. The said action was clearly
contrary to and inconsistent with Rule 5 of the Rules. The said rule enabled
the Sangh to change the name of its delegate not later than seven days before
the date appointed by the Collector under Rule 16 for making nominations. As
the action was in consonance with the Rules, it was obligatory on the Collector
to change the name on the basis of the resolution passed by the Sangh. Non-
implementation of the resolution and the refusal to change the name of the
representative of the Sangh was unlawful and the High Court ought to have set
aside the said decision by directing the Collector to effect the change and to
treat the appellant as representative of respondent Sangh at the place of
respondent No. 7.
We see
considerable force in the contention of the learned counsel for the appellant.
Bare reading of Rule 5(2) makes it abundantly clear that the society which has
communicated the name of its delegate can change the name of such delegate within
the period stipulated therein. It was, therefore, open to respondent Sangh to
exercise the said power in accordance with Rule 5(2) which has been done. It
was the case of respondent No.2 - Collector that in the list of subjects of the
meeting convened on June
9, 2005, there was no
subject for sending the name of representative for the election of the Maha Sangh
and yet the representative was changed which was not proper. But the learned
counsel for the appellant has rightly referred to the proceedings dated June 9, 2005, and in particular Resolution No.
7. It
is further clear from agenda notice dated June 2, 2005, in which it was stated
that the meeting of Board of Directors of respondent Sangh would be held on
June 9, 2005 for discussing various subjects and subject No.7 related to the
fax message received from the Collector, Mumbai, respondent No.2 in connection
with the election of respondent No.3 Maha Sangh.
Pursuant
to the above agenda notice, a meeting was held, subject No. 7 was taken for
consideration and Resolution No.7 was passed. By the said resolution, it was
decided that instead of name of respondent No. 7, name of appellant will be
sent as delegate and representative of respondent - Sangh and the said
resolution was forwarded to respondent No.2 - Collector. He was, therefore,
under obligation to effect change under Rule 5(2) of the Rules. By not acting
on the resolution, the respondent No.2 Collector has acted contrary to law and
the appellant was wholly justified in making complaint before the High Court
and praying for exercise of writ jurisdiction under Article 226 of the
Constitution.
In our
considered opinion, the ratio laid down in Sant Sadguru Janardhan Swami does
not apply to the facts of the case. In that case, objections against publication
of provisional electoral roll of the society were filed which were considered
by the Collector and disposed of. Final electoral roll was published on July 2, 1999. Election programme was drawn by
him on October 21, 1999. Thereafter, the petitioner filed a
petition under Article 226 of the Constitution in the High Court. A prayer was
made in the petition that the order passed by the Collector on October 21, 1999
was required to be set aside. Obviously, therefore, the election process was
already in motion and prayer of the petitioner was for quashing of Schedule for
holding election. In the light of the factual position before the court, the
petition was dismissed and it was held that the only remedy available to the
aggrieved petitioner was to file election petition after the election is over
in accordance with Rule 81 of the Rules.
The
Court stated :
"In
view of our finding that preparation of the electoral roll being an
intermediate stage in the process of election of the Managing Committee of a
specified society and the election process having been set in motion, it is
well settled that the High Court should not stay the continuation of the
election process even though there may be some alleged illegality or breach of
rules while preparing the electoral roll. It is not disputed that the election
in question has already been held and the result thereof has been stayed by an
order of this Court, and once the result of the election is declared, it would
be open to the appellants to challenge the election of the returned candidate,
if aggrieved by means of an election petition before the Election
Tribunal." In the instant case, respondent Sangh had taken immediate
action on receiving the fax message from respondent No.2 - Collector. As per
the said communication by the Collector, an action could be taken for change of
representative of respondent Sangh latest by June 10, 2005. A meeting was,
therefore, convened by issuing an agenda to that effect by respondent Sangh on
June 2, 2005. The meeting was accordingly convened on June 9, 2005 and a
resolution was passed being Resolution No. 7 wherein it was decided that
instead of respondent No. 7, the appellant would represent respondent Sangh in
the election of Maha Sangh. Since the action was taken strictly in conformity
with the provisions of Rule 5 of the Rules as also the communication of
respondent No.2 - Collector dated May 30, 2005, respondent No.2 ought to have
effected the change. The ground put forward for rejecting the resolution was
not correct inasmuch as in the agenda notice issued by respondent - Sangh dated
June 2, 2005, subject No.7 had clearly been mentioned and in pursuance of the
said agenda notice, a meeting of the Managing Committee of respondent - Sangh
was convened and a decision was taken. The grievance of the appellant,
therefore, was justified that by not effecting the change and by ignoring the
resolution passed by the Managing Committee of respondent Sangh the Collector
has acted contrary to law.
In our
opinion, the learned counsel for the appellant is also right in submitted that
if the order passed by respondent No.2 is upheld, the provisions of sub-rule
(2) of Rule 5 will become nugatory and otiose. When the rule making authority
conferred power on the Sangh to change the name of its representative/delegate
by expressly permitting the change of representative/delegate and intimating
the said fact to the Collector, such right cannot be taken away or interfered
with.
Since
the last date as per the communication of the respondent No.2 - Collector was
June 10, 2005, the action of respondent - Sangh was within the four corners of
Rule 5(2). The High Court was, therefore, in error in not allowing the petition
and granting the relief to the appellant.
We are
also supported in taking this view by a recent three- Judge Bench decision in Ahmednagar
Zilla S.D.V. & P. Sangh Ltd. & Another vs. State of Maharashtra &
others, (2004) 1 SCC 133. In that case, election roll was prepared on the basis
of bye laws which were held to be illegal. When the action was challenged it
was contended that the court could not interfere with the list of voters
prepared in accordance with the provisions of the Rules and the only remedy
available to the aggrieved party was to file election petition after the election
was over. Reliance was placed on Sant Sadguru Janardan Swami. The Court,
however, distinguished Sant Sadguru Janardan Swami and held that where the
voters' list had been prepared on the basis of non- existent Rules, it would be
illegal and the court could interfere under Article 226 of the Constitution.
In the
case on hand, the respondent - Sangh was within its authority conferred under
the Rules to take an appropriate decision for change of its
representative/delegate within the stipulated period and such action had been
taken by respondent Sangh. The action of respondent No.2 - Collector in not
effecting change was clearly in violation of Rule 5(2) and could be challenged
by filing a petition under Article 226 of the Constitution. In our opinion, the
respondent No.2 - Collector was duty bound to effect change of
representative/delegate of respondent - Sangh.
It was
then contended by the learned counsel for respondent No.7 that the appellant
had no "majority" as contemplated by bye-law 18.13 of the bye laws.
Bye-law 18.13 reads thus :
18.13
The decision in the meeting of Board of Directors will be taken by way of
majority considering the number of Directors who are present in the meeting. In
case of equal votes Chairman will have power to cast additional decision
vote." According to the counsel, there were 17 members of the Managing
Committee of respondent Sangh. Three had no voting rights. Hence, for the
purpose of majority of votes, relevant number would be 14. In the submission of
the counsel, a member whose name could be sent as representative of Sangh must
get at least eight votes. Only then it can be said that he had the requisite
"majority". We are unable to uphold the argument.
In our
considered opinion, the word "majority" used in bye-law 18.13 does
not mean 51 per cent or more votes. It only means that such a member must
obtain majority votes. If the argument of respondent No. 7 is upheld, in given
case a society may not be able to send its representative for the election of
the specified society. For instance, if a Managing Committee consists of 14
members who have right to vote as in the instant case and there are three
contestants who get 6, 5 and 3 votes respectively, none has got 51 per cent
votes (majority) and hence the society will not be qualified to send its
representative for the election of the apex society. That is not the intention
of the Act, Rules or Bye- laws. Obviously, in such a situation the member,
having maximum numbers of votes would be able to represent the society in the
election of the apex society.
In the
present case, fourteen members were present at the meeting convened on June 9,
2005, and twelve participated in the voting. Seven voted in favour of the
appellant and five in favour of Shivajirao Pathrikar. Two, including respondent
No. 7 did not vote. In these circumstances, it cannot be held that the
appellant did not get majority as he got only seven and not eight votes. It
was, therefore, clearly open to respondent - Sangh to send the name of the
appellant for effecting change of its representative by substituting his name
for the name of respondent No.7.
Finally,
it was stated that the Election Notification was issued by respondent No.2 -
Collector on July 28, 2005 and hence, now, this Court may not interfere as the
election process has already started. We would have considered the effect of
issuance of Election Notification by respondent No.2 - Collector but we are not
inclined to enter into larger question in the light of the subsequent
development which has been brought to our notice. It was stated by the learned
counsel for the appellant and not disputed by the learned counsel for the
respondents that due to "heavy rains", the Government Order dated
July 28, 2005 was modified by another notification dated July 29, 2005, and the
election process which was to start as per the notification dated July 28, 2005
was adjourned for a period of one month and now it will start from August 28,
2005. The said date has so far not come and hence, relief in favour of the appellant
can be granted.
For
the foregoing reasons, in our opinion, the appeal deserves to be allowed and is
accordingly allowed. The order passed by respondent No.2 - Collector dated June
28, 2005 is hereby quashed and set aside. The respondent No.2 - Collector is
directed to effect the change as per Resolution No.7 dated June 9, 2005 passed
by respondent - Sangh and by treating the appellant as the
representative/delegate of respondent - Sangh instead of respondent No.7.
The
appeal is, accordingly, allowed to the extent indicated above. There shall be
no order as to costs.
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