A person empanelled as an auditor and Returning Officer, but not appointed as an auditor of the society, is not disqualified under Rule 76-B of the Maharashtra Co-operative Societies (Election to Committee) Rules.

JUDGMENT:

Jitendra Jain, J.

1. By this Petition under Article 226 of the Constitution of India, the Petitioners have primarily challenged the appointment of Respondent No.4 – Shri. Subhash Deshmukh as Returning Officer for conducting election of Respondent No.5 – Society. The Petitioners although have prayed for other reliefs, but the same were not contested and therefore, we are only adjudicating the legality of appointment of Respondent No.4 as Returning Officer.

2. Briefly the facts are as under :-

(i) The Petitioners are members of Respondent No.5 – Co-operative Housing Society. On account of complaints made by some of the members of Respondent No.5 with regard to management and voters’ list for election of the society, an Administrator-Respondent No.3 came to be appointed on 28th December 2017 by Respondent No.2 – Assistant Registrar, Co-operative Societies under Section 78-A of the Maharashtra Co-operative Societies Act, 1960. On 15th May 2018 and 21st December 2019, Respondent No.2 passed further orders for appointment of new Administrator since earlier administrator retired.

(ii) On 1st December 2023, Respondent No.4 came to be appointed as Returning Officer to conduct election of Respondent No.5 – Society for the period of 2023–2028 .

(iii) On 6th December 2023, Respondent No.4 – Returning Officer under Rule 76 of the Maharashtra Co-operative Societies (Election to Committee) Rules notified programme for finalizing the voters’ list. Pursuant thereto, the provisional voters’ list was published.

(iv) On 15th December 2023, the Petitioners raised objections with Respondent No.4 with regard to the provisional voters’ list. After hearing the Petitioners, Respondent No.4 rejected the objections vide order dated 26th December 2023. There is no further challenge to the said rejection order by the Petitioners under the Maharashtra Co-operative Societies Act.

(v) On 1st January 2024, Respondent No.4 published the election schedule by specifying various time period within which various stages of the election programme were to be completed. The election as per the said election programme is scheduled for 4th February 2024 and on the same day, the results will be announced.

3. It is on the above backdrop that the present Petition is filed challenging the appointment of Respondent No.4 as Returning Officer.

4. Submissions of the Petitioners :-

The Petitioners submitted that Respondent No.4 is on the panel of “Auditor” as well as on the panel of “Returning Officer” of Respondent Nos.1 and 2. The Petitioners submitted that as per the first proviso to Rule 76-B of the Maharashtra Co-operative Societies (Election to Committee) Rules, an auditor cannot be appointed as Returning Officer to conduct election. The Petitioners relied upon the definition of the auditor under Section 154B-1(4) for the said purpose. The Petitioners, however, admitted that although Respondent No.4 is on the panel of the auditors, he was never appointed as auditor of Respondent No.5 – Society. The Petitioners, therefore, submitted that on a conjoint reading of Section 154B-1 read with proviso to Rule 76-B Maharashtra Co-operative Societies (Election to Committee) Rules, 2014, Respondent No.4 is disqualified to be appointed as Returning Officer. The Petitioners further submitted that in the voters’ lists prepared by Respondent No.4 there are more than 40 members against whom a noting is made that they are dead. It is the submission of the Petitioners that Respondent No.4 has not prepared voters’ lists in accordance with the law and therefore, the challenge to the conduct of Respondent No.4 in preparing the voters’ lists in the present Petition. The Petitioners have also raised various objections with respect to the mismanagement of Respondent No.5 – Society. The Petitioners, therefore, prayed for quashing of order appointing Respondent No.4 as Returning Officer and to quash the election process initiated by him. The Petitioners have relied upon following the decisions in su