2005 Supreme(SC) 1087

2005(6) Supreme 115
Supreme Court of India
(From Bombay High Court)
Y.K. Sabharwal & C.K. Thakker, JJ.
Pundlik —Appellant
versus
State of Maharashtra & Ors. —Respondents
Civil Appeal No. 5290 of 2005
(Arising out of SLP (C) No. 14832 of 2005)
Decided on 25-8-2005
Counsel for the Parties :
For the Appellant : U.U. Lalit, Sr. Advocate, Ms. Aprajeeta Singh and T. Mahipal, Advocates.
For the Respondents : A.V. Savant, Sr. Advocate, M.Y. Deshmukh, Rameshwar Prasad Goyal, A.P. Mayee and V.N. Raghupathy, Advocates.

Important point
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.

Headnote:Maharashtra Cooperative Societies Act, 1960—Section 144X—Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971—Rules 4, 5, 6, 7 and 16—Process of election of respondent 3, Maharashtra Rajya Sahakari Doodh Maha Sangh Marvadit (Maha Sangh)—Authority of Aurangabad Zilla Sahkari Doodh Utpadak Sangh Ltd. (Sangh) to take an appropriate decision for change of its representative/delegate within the specified period—Maha Sangh directed the Sangh to send name of its delegate—Sangh called a meeting—A unanimous decision was taken to send name of respondent 7 as the delegate of the Sangh—However, in a subsequent meeting, it was decided to send name of appellant as the delegate of the Sangh for the election of Maha Sangh—Respondent 7 raised a dispute before the Cooperative Court against the said decision which is pending—Collector finalized voters’ list—Collector informed appellant that in the list of subjects of the meeting, there was no subject for changing name of representative of the Sangh—Appellant filed writ petition which was dismissed by the High Court—Whether High Court had committed a grave error in holding that petition was not maintainable as the election process started—(Yes)—Whether Collector was justified in not substituting appellant’s name—(No).

       Held : 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. (Para 6)

       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. (Para 8)

       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 as 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. (Para 11)

       Bare reading to 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 tax message received from the Collector, Mumbai, respondent No. 2 in connection with the election of respondent No. 3 Maha Sangh. Pursuant to the above 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. (Para 12)

       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. (Para 14)