1999 Supreme(Bom) 361

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
V.K. Barde J.A. Patil, JJ.
Shivaji s/o Marotrao Suryawanshi..... Petitioner.
Versus
The State of Maharashtra others..... Respondents.
Writ Petition No. 552 of 1999, decided on 5-5-1999.
Advocates appeared :
V.D. Salunke, for petitioner.
S.K. Kadam, A.G.P., for respondent Nos. 1, 2 3.
A.B. Kale, for respondent Nos. 8, 10, 11, 17 and 18.
V.D. Sapkal, for respondents Nos. 9, 15, 20 and 22.

Headnote:Sections 25-A and 91Maharashtra Co-operative Societies Rules, 1961, Rule 19 and Constitution of India, Article 226-Election of the Managing Committee of Society Large scale mischief in preparing membership register of non-borrowers-The authorities failed to take proper action in spite of objection raised to delete the names of the non borrower voters who were illegally included in the voters list and who out numbered the borrower members by great margin-As the entire voters list of non-borrower voters was bogus it was definitely going to affect election results-Therefore, in such a case, simply because the election process had commenced the High Court cannot be expected to sit tight over the matter-Direction given to authorities to correct membership register, prepare voters list on that basis and then hold election.- The petitioner was the borrower member of the society registered under the Maharashtra Co-operative Societies Act. The society had approved byelaws. For electing the managing committee of the society, respondent No.3 was appointed Returning Officer. The petitioner contended that the Returning Officer published two separate lists of voters; one containing 168 borrower votes and another containing 363 non borrower voters. The petitioner had contended that at the time of last election, there were only 8 to 10 non-borrower member-voters hut subsequently they have also become borrower members voters and, therefore, there was not a single non-borrower member voter of the society. However, the Secretary of the Society inserted names of the non-borrower members in the membership register. It was contended that out of 363 non-borrower voters, 122 person were not even residents of village in question. All these persons though included in the voters list could not be the members of the society. It was further contended that they never applied to be members of the society and thee was no resolution passed by the society indicating that they were admitted as members of the society. Even then their names wee shown in the voters list. There was no compliance with Rule 19 of the Rules under the Act and Bye-law No.8 of the Byelaw of the society to make them members of the society and, therefore, they could not be included in the voters list. The petitioner contended that valid voters list was the basis of valid election. The authorities failed to take proper action in spite of objections raised by the petitioner to delete the names of the non-borrower voters who were iilegally included in the voters lit. If the election was held on the basis of this voters list, the real members of the society will suffer great injustice. The managing committee will be elected by those persons who were not the members of the society but who cannot be the members of the society. In the writ petition as filed it was prayed by the petitioner that directions be issued to the authorities to delete the names of the 363 non-borrower members who were included in voters list and then to hold the elections of the managing committee of the society. The documents produced on record by the petitioner as well as the report of the respondent No.2, the Assistant Registrar clearly indicated that the mischief in the non-borrower voters list was not minor.

       Held, that this was not a question of one or two voters, but the entire list of 352 voters appeared to be bogus. These non-borrower voters outnumbered the borrower members by great margin and definitely that will affect the election results to such an extent that the real members of the society would be deprived of electing the managing committee of their choice. There was challenge to the entire voters list of non-borrower voters. It was also pointed out that this voters list was not at all in conformity with provisions of law. Apparently, it was bogus list and if these voters were allowed to vote, then the election will be not from amongst the valid members of the society but by the outsiders. So these were very peculiar circumstances in the case. In this extraordinary situation, it cannot be said that merely because the election process has commenced, the High Court should not interfere. Some persons had played mischief. It was amply proved on record. In such circumstances, High Court cannot sit tight and say that as the election process has commenced, the High Court will not interfere. He powers of the High Court under Article 226 of the Constitution are extraordinary and those are to be exercised in extraordinary circumstances. Direction given that the respondent No.2, the Assistant Registrar shall take action as per Section 25-A of the Act. The society then should comply with the direction and the membership register be corrected according to the directions issued by the Assistant Registrar. If the society failed to comply with the direction, then the respondent No.2 to take action as per the proviso to Section 25A of the Act. On the basis of such corrected membership register, the voters list to be prepared and then the elections be held. AIR 1980 SC 1612; AIR 1992 Bom 457; AIR 1988 SC 66; AIR 1957SC 304; 1983 Mh LJ 1081; 1994 (2) Mh LJ 1527 : AIR 1994 Bom 304; AIR 1999 Bom 103; 1997 (1) Mh LJ 543 1997 (1) Mh LJ 803, Relied.