N. V. DABHOLKAR, J.

( 1 ) HEARD learned advocate Shri V. D. Hon, for the petitioner, learned AGP Shri Ghute Patil, for respondent Nos. 1 to 3, and learned advocate Shri V. B. Patil, for respondent No. 4. Respondent No. 5 is served and absent. He is absent in spite of specific directions vide our order dated 10-3-2006 asking him to remain present in person along with documentary evidence regarding his membership of the Society which is going to polls on 26-3-2006. After order dated 10-3-2006, the matter was on board on 14-3-2006. Even on that day, respondent No. 5 had not appeared. Today, neither respondent is present, nor he is represented by lawyer of his choice. Hence, we are dealing with the matter in the absence of respondent No. 5.

( 2 ) ADMITTEDLY, Shrikrushna Takli (Bk) Vividh Karyakari Seva Sahakari society Limited, Takli, Taluka Jamner, District Jalgaon is an ordinary Society (it is neither Specified Society nor Notified Society ). The election programme for the election of Managing Committee of the said Society is published by respondent No. 4 who is appointed as Election Officer by the resolution of the said Society. Copy of the election programme is at Exhibit-B. According to election programme, 24-2-2006 was the last day for filing nomination, 25-2-2006 was the date fixed for scrutiny of nominations and list of eligible and valid contestants was to be published on 25-2-2006. We are informed by learned advocate Shri V. B. Patil representing the Election Officer - respondent No. 4 that the list is accordingly published which includes the name of respondent No. 5, respondent No. 4 having rejected the objection raised by the petitioner against nomination of respondent No. 5. Respondent No. 5 has not withdrawn his nomination within the time frame fixed for the same, last day for which was 12- 3-2006. Consequently, final list of contesting candidates is ready and published on 13-3-2006. The Society is to go for polls on 26-3-2006 and counting and result are to take place on the same day after 5 p. m. Since petitioner has challenged nomination of the respondent No. 5 by contending that respondent No. 5 is not in the voters list, thereby impliedly indicating that respondent No. 5 is not at all a member of the Society, and therefore, he cannot contest the election, we had passed specific order on the day we ordered notice. The relevant portion of the order is required to be reproduced for proper appreciation and decision over the controversy. The relevant portion reads as follows :"5. The only contention which is required to be taken a serious note is that respondent No. 5, although neither member of the Society nor a voter of the Society, which is going for the polls, had filled his nomination. . . . . . . ""6. We fix the date of notice returnable on 14th March, 2006. Notice to respondent No. 5 should specifically direct him to remain present in the court with requisite proof (documentary) of his being member/voter of the Society in question. "in spite of service with such specific directions, respondent No. 5 has preferred to remain absent instead of attending the Court and presenting the proof of his being a member/voter of the Society, (we have ascertained from the record that respondent No. 5 is served not only with ordinary Court notice, but the same was accompanied by a copy of our order dated 10-3-2006 ). Since respondent No. 5 has not remained present and has not controverted the contention of the petitioner that was prima facie accepted by this Court that he is not a member/voter of the society, the contention of the petitioner stands proved by the rule of non-traverse. Hereon, we proceed on the presumption that respondent No. 5 has practically no link with the Society in question, neither he is a member nor he is a voter of the society.

( 3 ) THE writ petition is contested by respondent No. 4 and Shri V. B. Patil, learned advocate for respondent No. 4 has tried to justify the decision of respondent No.