2002 Supreme(Bom) 1213

IN THE HIGH COURT OF BOMBAY
Gokhale H.L. Smt. Mhatre Nishita, JJ.
Shri Mahalaxmi Sahakari Doodh
Vyavasayik Maryadit others .... Petitioners.
Versus
Kolhapur Zilla Doodh Utpadak Sangh Ltd. others.... Respondents.
Writ Petition No. 1773 of 2002 with Civil Application No. 446 of 2002 in W.P. No. 5575 of 2001, decided on 24-10/18-11-2002.
Advocates appeared :
V.A. Thorat, Sr.A. with Amit B. Borkar, in W.P.No. 1773/2002, for petitioners.
S.G. Aney, Sr.A. with Nitin Jamdar with Navnath Patil, in W.P.No. 1773/2002, for respondent No. 3 in Civil Application No. 446/2002 in W.P.No. 5575/2001, for respondents No. 7.
M.L. Patil, in W.P.No. 1773/2002, for respondents Nos. 4 5.
Y.D. Mulani, A.G.P., in W.P.No. 1773/2002, for respondent No. 6 in Civil Application No. 446/2002 in W.P.No. 5575/2001, for respondents Nos. 3, 4 5.
Tejpal Ingale, in W.P.No. 1773/2002, for intervener.
Y.S. Jahagirdar, Sr.A. with A.A. Kumbhakoni R.S. Datar, in Civil Application No. 446/2002 in W.P.No. 5575/2001, for applicant.
M.L. Patil, in Civil Application No. 446/2002 in W.P.No. 5575/2001, for respondents Nos. 1 2.

Headnote:Maharashtra Co-operative Societies Act, 1960 - Sections 144-A(2)(c), 102, 73-G and 89-A - Disqualification to fight election - Member societies failing to supply minimum quantity of milk - Action challenged on ground of mala fide - So that they could not vote - After declaration of results scene changed - Petitioners won with good margin - As per facts available action to identify and disqualify societies not coming upto satisfactory level initiated much earlier in year 2001 when results were declared - Status quo to be maintained till decision on pending cases is declared. - As far as the petitioners are concerned, their names were undoubtedly there on the electoral roll, but the right to vote is subject to any disqualification which the voter may incur. Consequence of winding up of a co-operative society would be that nobody will be entitled to vote on its behalf so much so that Section 105(2) of the Act declares that even the liquidator shall not have the right to vote on behalf of such society. Therefore, two questions arise for consideration (1) Whether the orders of liquidation passed against the petitioner societies by the Assistant Registrar are valid and justified? and (2) What should be the consequence thereof on the election to the 1st respondent Federal Society? Now as far as the winding up of the petitioner societies is concerned, those orders are passed by Assistant Registrar on the footing that these societies were not complying with the requirement of supplying at least 50 litres of milk which is a condition precedent of registration under the Government Resolution of 4th January, 2000. It has come on record that much earlier in September, 2001, the Government officers had decided to move against such societies and therefore after following the due process of law, the Assistant Registrar has passed the orders of winding up. The petitioners have tried to contend that these actions were taken at the instance of the Minister of State. It is difficult to accept this submission, particularly when the orders of the Assistant Registrar are in pursuance of the resolution passed in September, 2001 by the high officers of the co-operative department much before the declaration of election to the 1st respondent Federal Society. Again if Court sees the orders of the Assistant Registrar, what is found is that he has collected data from the respondent No. 1 Federal Society itself. As against that, the Joint Registrar seems to have collected the subsequent material from the 1st respondent. There has also been a controversy as to what should be the correct interpretation of the concerned Government resolution and as to whether 50 litres should be assessed at the time of collection by the primary societies or at the time of supply to the Federal Societies. That apart, in either of the two cases whether the concerned society was collecting and/or supplying actually 50 litres and that too on each day is a matter of factual determination. The substantive appeal against the order of the Assistant Registrar is pending in the forum of the Joint Registrar. That being the first appeal, it would be proper that such authority ought to assess the material on record and then decide in accordance with law as to whether the order passed by the Assistant Registrar was right or wrong.

       Maharashtra Specified Co-operative Societies (Election to Committee) Rules, 1971 - Rule 2(c) - Disqualification to fight election - Member societies falling to supply even minimum amount of milk - Action challenged as being mala fide - To stop them from voting - After declaration of results whole scene was reversed - Petitioner group won with good difference - As per available facts, action to identify and disqualify lethargic societies not coming upto satisfactory results initiated much earlier in year, 2001, when results were declared - Status quo required to be maintained till results of pending cases were also declared. - Now as far as the winding up of the petitioner societies is concerned, those orders are passed by Assistant Registrar on the footing that these societies were not complying with the requirement of supplying at least 50 litres of milk which is a condition precedent of registration under the Government Resolution of 4th January, 2000. It has come on record that much earlier in September, 2001, the Government officers had decided to move against such societies and therefore after following the due process of law, the Assistant Registrar has passed the orders of winding up. The petitioners have tried to contend that these actions were taken at the instance of the Minister of State. It is difficult to accept this submission, particularly when the orders of the Assistant Registrar are in pursuance of the resolution passed in September, 2001 by the high officers of the Co-operative Department much before the declaration of election to the 1st respondent Federal Society. Again the orders of the Assistant Registrar, is that he has collected data from the respondent No. 1 Federal Society itself. As against that, the Joint Registrar seems to have collected the subsequent material from the 1st respondent. There has also been a controversy as to what should be the correct interpretation of the concerned Government resolution and as to whether 50 litres should be assessed at the time of collection by the primary societies or at the time of supply to the Federal Societies. That apart, in either of the two cases whether the concerned society was collecting and/or supplying actually 50 litres and that too on each day is a matter of factual determination. The substantive appeal against the order of the Assistant Registrar is pending in the forum of the Joint Registrar. That being the first appeal, it would be proper that such authority ought to assess the material on record and then decide in accordance with law as to whether the order passed by the Assistant Registrar was right or wrong.