IMPORTANT POINT
When the amendment of the bye-laws of a specified cooperative society are not in conformity with the law, the electoral roll prepared on that basis would fall down.

ORDER

The appellant herein is a specified society. On August 31, 1997, the general body meeting was held wherein it was proposed to amend the bye-laws. It was resolved in the said general body meeting that the milk supply societies to the extent of 200 litres per day in 300 days for last three years will be categorized as class A societies. It was also resolved that the milk supplying societies more than 50 litres of milk daily in 300 days will be categorized as Class B societies for last three years and the societies supplying less than 50 litres of milk daily for 300 days for last three years will be categorized as Class C grade societies and which would be called as nominal members. On October 24, 1997, the Divisional Deputy Registrar Cooperative Societies, Nashik Division, Nashik accorded his approval to the amendment of the aforesaid bye-laws. It is not disputed that consequent upon the amendment in the bye-laws the voters list was prepared for holding election for constituting the Managing Committee of the society. In the meanwhile the respondents herein filed an appeal against the amendment of bye-laws to the Joint Registrar Cooperative Societies (Dairy), Worli, Mumbai who allowed the appeal, holding the amendment of bye-laws to be illegal and inasmuch as the same was issued without giving notice to the members. A revision petition was filed against the appellate order which was also dismissed. Subsequently, the appellant took the matter to the Aurangabad Bench of the Bombay High Court by way of a writ petition under Article 226 of the Constitution of India. The Writ Petition has also been dismissed.

2. It is relevant to mention here that respondents also filed a petition under Article 226 for direction to the Returning Officer for inclusion of their names in the electoral roll in view of the fact that the amendment in the bye-laws was struck down by the appellate authority. Both the writ petitions filed by the appellant and respondents were heard together. The appeal filed by the appellant was dismissed whereas the appeal preferred by the respondents herein was allowed and a direction was issued to the authority for inclusion of their names in the electoral roll. It is against the said judgment of the High Court the appellant is before us.

3. Learned counsel urged that the High Court ought not to have issued a direction for inclusion of the name of the respondents in electoral roll in view of the fact that the preparation of the electoral roll is an intermediary stage of the process of the election and as such the High Court committed an error of jurisdiction. Learned counsel relied upon in support of the decision of this Court in Shri Sant Sadguru Janardan Swami vs. State of Maharashtra & Ors. [2001 (8) SCC 509]. In the said case it was held that the preparation of the voter list is intermediary stage in the process of election of the Managing Committee and if there was breach of the Rule in the preparation of the voter list, it can be called in question in an election petition after the election is over and the High Court Court is not required to interfere in the matter at this stage.

4. In Sant Sadguru Janardan Swami (supra) this Court made the aforementioned observations keeping in view the fact therein the voters list was prepared in terms of the extant rules but certain irregularities were committed therein, but where voters list has been prepared, on the basis of non-existent rules the same would be illegal.

5. In the present case, what we find is that illegal amendment of the bye-laws was challenged on the basis of which the electoral roll prepared. Under Section 165 of the Act, the State Government has framed Rules under the provisions of Maharashtra Cooperative Societies Act and the Maharashtra Specified Cooperative Societies Elections to Committee Rules, 1971. Rule 81 provides for ground for declaring the elections to be void. A perusal of Rule 81 shows that the validity of the bye-law cannot be gone int