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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Arun R. Pedneker, J.
Namdev & Ors. – Appellants
Versus
State of Maharashtra & Ors. – Respondents
Writ Petition No. 13018 of 2022
Decided On : 16-01-2023
Election - Cooperative Society - Maharashtra Cooperative Societies Act, 1960, Section 38, Rule 32, Rule 33 - The court discussed the provisions of Section 38 of the Maharashtra Cooperative Societies Act, 1960, and Rules 32 and 33 of the Maharashtra Cooperative Societies Rules 1961. The court emphasized the requirement of maintaining a register of members and the validity of voters being reflected in the I and J register. The court also highlighted the significance of secondary evidence in proving membership and the limitations of the Election Officer's authority in excluding voters based solely on the absence from the I and J register.
Fact of the Case:
The petitioners challenged the order of the District Cooperative Election Officer, which excluded their names from the final voters list of a cooperative society. The petitioners sought inclusion in the voters list to enable them to cast their votes.
Finding of the Court:
The court found that the Election Officer's decision to exclude the petitioners based on the absence from the I and J register was illegal and would materially affect the election outcome. The court set aside the Election Officer's order and directed the inclusion of eligible petitioners in the final voters list.
Issues: The issues revolved around the validity of excluding voters from the final voters list based on the absence from the I and J register, the significance of secondary evidence in proving membership, and the authority of the Election Officer in making such exclusions.
Ratio Decidendi: The court held that the absence from the I and J register alone cannot justify the exclusion of voters from the final voters list. It emphasized the importance of considering secondary evidence of membership and highlighted the potential impact of excluding a large number of voters on the election outcome.
Final Decision: The writ petition was allowed, and the Election Officer's order was set aside. The court directed the inclusion of eligible petitioners in the final voters list, ensuring that the elections proceed as per the schedule.
JUDGMENT
Arun R. Pedneker, J. - Rule. Rule made returnable forthwith. By consent, heard finally.
2. By the present writ petition, the petitioners are challenging the order passed by respondent No. 3 - District Cooperative Election Officer i.e. District Deputy Registrar, Cooperative Societies, Osmanabad dated 6.12.2022 by which the names of 76 persons / members / petitioners are excluded from the final voters list published on 9.12.2022. The petitioners are restricting their challenge to the 70 petitioners only. The petitioners also submit that they do not wish to contest the elections of respondent No. 5 Society, but would only pray to include their names in the final voters list so as to enable them to caste their vote.
3. Brief facts giving rise to the present writ petition can be summarised as under :-
Respondent No. 5 - Vivid Karyakari Seva Sahakari Socieity, Jaywantnagar, Tq. Bhoom, District Osmanabad was established on 27.7.1954. The petitioners are members of respondent No. 5 Society and some of them were also previous office bearers. As there was no election conducted for the years 2020-2022 due to Covid-19 pandemic, the Sub Auditor Cooperative Societies Bhoom came to be appointed as administrator of respondent No. 5 Society. Respondent No. 3 - District Cooperative Election Officer / District Deputy Registrar vide order dated 14.11.2022 had published programme for preparation of provisional voters list and finalization of final voters list. As per the programme the provisional voters list was published on 16.11.2022 and the period for calling objections was given as 16.11.2022 to 25.11.2022. The date for deciding the objections was fixed on 5.12.2022 and publication of final voters list was fixed on 9.12.2012. In the provisional voters list, there were 317 names. Common objections were raised to the 76 names by respondent Nos. 6 and 7, on the ground that their names are not found in I and J register maintained by the Society and as such, they are not valid voters of the society.
4. In view of the objections raised, respondent No. 3 Election Officer directed respondent No. 4 - Assistant Registrar Cooperative Societies, Bhoom, calling upon him to submit the report on the objections raised. Respondent No. 4 Assistant Registrar submitted the report on 2.12.2022, translation of which reads as under :-
'Office of Asst. Registrar,
Bhoom, Tq. Bhoom,
Dt. 02.12.2022.
To,
The Hon'ble Election Officer
& Dist. Dy. Registrar Co-op., Societies, Osmanabad.
Sub.:- Objection as to the Provisional List of Voters.
Ref.:- Order of the Office dated 28.11.2022
1. Please refer to the above subject and Reference :-
3. Accordingly, in view of the same I submit that, I have not received the Register I & J, the Register of share held by members, the office copy of the share certificate. Moreover, the objectors have not submitted any documentary evidence along with the objection. Hence by Scrutinizing the available / Alternate record of the society, I am submitting the report in following manner :-
A. The names of voters at Sr. No. 1 to 4, 6 to 35, 38, 39, 44, 47, 48, 52, 60, 61, 63 are the borrower members of the society.
B. The names of members at Sr. No. 36, 37, 42, 43, 45, 46, 49, 50, 54, 55, 56, 57 were included and kept in list of voters as per the order dated 24.12.2012 passed in accordance with the decision of the Hon'ble High Court in W.P. No. 4857/2012.
C. The persons mentioned at Sr.no. 53 and 58 were included as per the resolution of meeting of director dated 03.01.2009 and they have paid share capital and entry fees on 31.03.2009.
D. The persons mentioned at Sr.no. 65, 66, 68, 71, 72, 73, 74, 75 and 76 were included as per the resolution of m
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