1998 Supreme(Bom) 777

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
G.D. Patil, J.
Wamanrao s/o Zolbaji Satpute ..... Petitioner.
Versus
Collector, Nagpur others..... Respondents.
Writ Petition No. 3516, 3517, 3518 and 3519 of 1998, decided on 8-12-1998.
Advocates appeared :
S.P. Dharmadhikari, S.A. Bodke, U. Dastane and S.C. Khatri, for the petitioners in all the petitioner.
R.K. Deshpande, A.G.P., for the respondent No. 1 2 in all the petitioner.
B.T. Patil, Rohit Deo, Anand Parchure B.P. Dharmadhikari, A.B. Choudhari, C.A. Lokhande, J.S. Mokadam Y.D. Raut, for the respondents in all the petitioner.

Headnote:Articles 226 and 227Maharashtra Co-operative Societies Act, 1960, Section 91-Election of Board of Directors-Maintainability of writ petition-Election process commenced-Even then Court has jurisdiction under Article 226 in facts and circumstances of this case-Grievance against decision of Collector deleting old names and substituting new names as delegates in voters list.-It is no doubt true that he is a representative I delegate of his member society and by participating in the election of the Board of Directors of the respondent Bank, he represents the society as such. But merely because of this if his name is dropped from the delegates of the member society, it cannot be accepted that the person aggrieved in such a case would be only the member society and not the delegate himself, as sought to be urged by the learned counsel for the respondents. Once having been proposed or elected as a delegate by the member society, some rights are accrued and vested in such a delegate, much more so when his name stands included in that final list of voters. It is the final list of voters as per the scheme of the Act and the Rules, which ultimately governs the process of election insofar as the entitlement to participate in the election of the Board of Directors is concerned either by way of proposing or seconding the candidate or by becoming himself a candidate for the post of Director or by voting merely and further by contesting the election of the Chairman or Vice Chairman. Once a delegate is elected, the member societies cannot have any control over the functioning of such a delegate either in the election of the Board of Directors or in the affairs of the affiliated society like the respondent Bank, and he discharges his function on his own discretion. Undisputedly, there is also no power of recalling the Director in the societies beyond a certain time limit viz. 7 days before the date appointed for making nominations. Having regard to these rights accrued and vested, once elected as a delegate and once his name stands included in the final list of voters, if someone brings in controversy, his status as a delegate of his member society and in such a process if his status as a delegate is ultimately to be affected, it is difficult to understand as to how he cannot be said to be having has locus standi for challenging the decision affecting his status as a delegate. In the instant petition the petitioners are making a grievance as against the impugned decision of the Collector and his consequent action of issuing the supplementary voters list deleting their names from the final voters list and substituting the names of the respondents. Such petition at their instance has to be held as maintainable and the contrary submissions in that regard are, therefore, not accepted.

       In so far as the maintainability of these petitions on the ground of the petitioners having an alternate remedy of filing a dispute under Section 91 of the Act and by presenting an election petition is concerned, the submissions made in that regard by the learned counsel for the petitioners cannot be accepted having regard to the facts and circumstances of the instant petition. Similarly the contention raised by the learned counsel for the respondents that this Court should not entertain the instant petitions on the ground that the election process has already begun, also cannot be accepted having regard to the facts and circumstances obtaining in the instant matter.

       A remedy under Article 226 by its nature is extraordinary and is invoked only in deserving cases. But it would be too much to say that once the process of election has been set in motion, in no case the High Court can invoke its jurisdiction under Article 226 of the Constitution of India. It is further observed that ordinarily High Court should not interfere in the matters relating to the preparation of the voters lists and process of election once it has been set in motion, but there is no rule prohibiting the exercise of jurisdiction by the High Court under Article 226 of the Constitution of India in an exceptional case.

       Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971

       Rule 5(2)-Change in voters list by Collector-Opportunity of hearing-Delegates whose names sought to be deleted from final list of voters under provisions of Rule 5(2) of the rules must be heard-Rules of natural justice not excluded from provision of Rule 5(2).-Even assuming that the Collector has no jurisdiction to investigate the validity of the resolution sent by the Society, definitely it is obligatory on the part of the Collector to atleast verify the veracity of the claim put forth before him regarding the change inasmuch as under Rule 5(2) he cannot be supposed to act merely as a post office or rubber stamp without any application of mind and without verifying whether a prima facie case is made out for permitting the change of the delegate and resultantly change in the voters list which has attained finality. In such a situation giving of a hearing to the delegate whose name is already included in the final list of voters and which is sought to be deleted serve a dual purpose. In that, firstly, such a hearing would assist the Collector in discharging his obligation properly and at the same time it would furnish an opportunity to the delegate whose name is being sought to be deleted to put forth his say in the matter.