Judgment : Looking to the nature of controversy, this Court issued notice for final disposal on 11.01.2010. Thus, matter is heard finally by making Rule returnable forthwith. 2. In this writ petition filed under Article 226 of Constitution of India, the petitioner challenges the action of respondents in deleting his name as representative of Respondent No.4 – Urban Cooperative Bank Limited for the purposes of election of one Director from constituency meant for such societies in Nagpur Division Commissionerate. The petitioner has sought writ of mandamus or any other appropriate writ to challenge said deletion effected vide Annexure “C” on 06.01.2010. 3. By said communication, the name of the petitioner has been deleted and name of Respondent No.3 has been added/ substituted in his place. This Court after noticing the controversy briefly, by interim order directed that the nomination paper submitted by the petitioner shall not be rejected only on the ground that he has ceased to be representative of Respondent No.4 – society. 4. I have heard Shri Madkholkar and Shri Patil, learned counsel for the petitioner, Shri Thakare, learned AGP for respondents No. 1 & 2 and Shri Samarth, learned counsel for respondents No. 3 & 4. 5. Shri Madkholkar, learned counsel contends that the petitioner was not heard before deleting his name by taking recourse to Rule 6 of Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971 (hereinafter referred to as the Rules). He further states that said power can be exercised before 1st date fixed for making nomination and not thereafter. In present case, 04.01.2010 was the first date for making nomination as per Election programme published by Respondent No. 2 – Collector. He argues that a list of deletions in voters list was published by the office of said Collector on 23.12.2009 and in it the deletion of name of the petitioner was not reflected. In final voters list as published on 25.08.2009, name of the petitioner appeared as nominee of Respondent No. 2 – Bank at Sr. No. 436 and hence said name continued till 06.01.2010. 6. In view of the reply filed by Respondent No.3 – learned counsel contends that the effort of Respondents No. 3 & 4 to show that action has been taken under Rule 5(2) of the Rules is misconceived because the Collector has expressly mentioned Rule 6 as the source of power. No. 436 and hence said name continued till 06.01.2010. 6. In view of the reply filed by Respondent No.3 – learned counsel contends that the effort of Respondents No. 3 & 4 to show that action has been taken under Rule 5(2) of the Rules is misconceived because the Collector has expressly mentioned Rule 6 as the source of power. He contends that in view of this position, the changed provision or reason in support of impugned order cannot be looked into by this Court. In the alternative and without prejudice to his connections, he argues that even before this Court, Respondent No. 2 – Collector has filed reply affidavit mentioning that it has exercised powers under Rule 6 and hence at the instance of Respondents No. 3 & 4, the provisions of Rule 5 cannot be looked into. He has invited attention to judgment of this Court in the case of Wamanrao Satpute vs. Collector, Nagpur, reported at AIR 1999 Bom. 103 , to show that even in these circumstances, the opportunity of hearing ought to have been provided to the petitioner and as that opportunity has not been provided, the change is unsustainable. 7. Shri Samarth, learned counsel for respondents No. 3 & 4 has pointed out that the provisions of Rule 5(2) permit Respondent No.4 to change the name of its delegate not later than seven days before the last date of making nominations. He points out that here, the said last date was 11.1.2010 and change has been made on 04.01.2010 i.e. well within time. He further points out that on 26.04.2009, Respondent No. 4 has passed a resolution nominating Respondent No. 3 only as its representative to participate in elections to be held in 2009 to 2014. On 26.06.2009, Respondent No. 4 nominated present petitioner. But again on 23.12.2009, the society unanimously approved the name of Respondent No.3, who happens to be its Chairman and its representative. This resolution of change of representative was submitted on 29.12.2009 and the Election Officer thereafter called for necessary report from the office of District Deputy Registrar, Cooperative Societies, Nagpur. The said officer at Nagpur verified the proceeding book of Respondent No. 4 and submitted his report to Election Officer at Mumbai by letter dated 30.12.2009. This resolution of change of representative was submitted on 29.12.2009 and the Election Officer thereafter called for necessary report from the office of District Deputy Registrar, Cooperative Societies, Nagpur. The said officer at Nagpur verified the proceeding book of Respondent No. 4 and submitted his report to Election Officer at Mumbai by letter dated 30.12.2009. After verification and in terms of Rule 5(2) of the Rules, name of Respondent No.3 was substituted in place of the petitioner on 04.01.2010 itself. He states that election programme was also published on 04.01.2010. He further argues that the resolution of change of name of delegates/ representative was submitted seven days prior to last date of nomination and hence it was obligatory upon Respondent No. 2 – Collector to accept it. The non passing of order by the Collector cannot prejudice the right of Respondent No.4. He points out that the order has in fact been passed on 04.01.2010 and it was communicated to Respondent No.3. He denies that any order of substitution has been passed on 06.01.2010. In support of his contention, he has placed reliance upon the judgment in the case of Shivnarayan vs. Vasantrao, reported at 1992 Mh.L.J.1052 and in Pundlik vs. State of Maharashtra, reported at (2005) 7 SCC 181 . He argues that the provisions of Rule 6 deal with members who are not societies and hence are not relevant. He takes support from the judgment of Division Bench of this Court in the case of Prakash vs. Resident Dy. Collector, Amravati, reported at 2007 (6) Mh.L.R. 352. 8. Shri Thakare, learned AGP argues on the strength of affidavit as filed on 21.01.2010 on behalf of Respondent No.2. He points out that Rule 6 permits society to change the name of its delegate seven days prior to last date of nomination and hence the order dated 06.01.2010 passed by Respondent No.2 is correct. He further states that as per Rule 6, Respondent No.2 – Collector had called for report from District Deputy Registrar, Nagpur vide letter dated 29.12.2009 and in view of this action, grant of opportunity of hearing to the petitioner was not necessary. 9. As the petitioner and Respondents No. 1 & 2 came up with order dated 06.01.2010, the learned AGP had sought time on 29.01.2010 to find out the correct position. 9. As the petitioner and Respondents No. 1 & 2 came up with order dated 06.01.2010, the learned AGP had sought time on 29.01.2010 to find out the correct position. On 03.02.2010, the affidavit sworn on behalf of Respondent No.2 by Tahsildar in his office came to be filed mentioning that decision to delete name of the petitioner and to add name of Respondent No. 3 has been taken on 04.01.2010 and it was informed accordingly to Respondent No.3. The supplementary voters list was, however, published on 06.01.2010. On 04.02.2010, the petitioner filed affidavit informing that on 02.02.2010 i.e. the date of withdrawal, all nominations from his constituency i.e. Urban Bank Constituency (Nagpur Revenue Division) except his nomination have been withdrawn and he was the only candidate left to contest that election. Respondent No. 3 – Mahendra Bhagwatkar has also withdrawn his nomination. On 10.02.2010, the petitioner has placed on record along with affidavit, declaration issued by Returning Officer dated 03.02.2010. By said document, he has been declared duly elected being the only contesting candidate. 10. The facts above clearly show that on 11.01.2010, in order to save situation from becoming irreversible, nomination of the petitioner was directed to be provisionally accepted. After 02.02.2010, the petitioner is the only candidate left to contest from that constituency as everybody else has withdrawn. 11. Division Bench of this Court in Prakash vs. Resident Dy. Collector, Amravati (supra) considers the provisions of Rule 5(2) and 16(1) of the Rules as also other two judgments relied upon by Shri Samarath. In para 13, the Division Bench has stated that where other societies are members of a specified cooperative society, the representative nominated by such Member Societies would be a voter. The class of such member societies is governed by sub-rule (2) of Rule 5 of the Rules. Such of the members of specified societies, who are not members of cooperative societies are governed by Rule 6. Rule 6 deals with claims and objections to provisional list of voters and Rule 7 deals with final list of voters. Under Rule 6(4), list finalized by office of the Collector after deciding all claims and objections is treated as final list of voters. Rule 6 deals with claims and objections to provisional list of voters and Rule 7 deals with final list of voters. Under Rule 6(4), list finalized by office of the Collector after deciding all claims and objections is treated as final list of voters. Sub-rule (5) of Rule 6 permits a person who is member of the society as on 30th June of the year immediately preceding and whose name is not included in final list of voters and who is desirous of being registered as a voter, to apply in writing to the Collector for that purpose in prescribed form within a period of 15 days from the date of display of final list of voters under Rule 7. Sub-rule (6) then requires Collector to call for report from the District Deputy Registrar within seven days from the date of receipt of application by him from the Collector and under sub-rule (7) the Collector has to give decision to the person concerned. Such decision is to be given before 1st date fixed for nomination. If the Collector decides that name of applicant should be registered as a voter, he has to accordingly modify the list finalized by him under sub-rule (4) and that modified list can thereafter be treated as final list of voters. Rule 7 stipulates that final voters list is to be displayed on notice board of office of the Collector, District Deputy Registrar and of the society. Thus, Rule 6 enables the person whose name is not appearing in voters list to have it entered in the manner stipulated therein. Here, name of Respondent No. 4 – society was already appearing in voters list at Sr. No. 436 and case is of change of its nominee/ delegate. Rule 6, therefore, cannot have any application. 12. The provisions of Rule 5 of the Rules deal with particulars to be included in provisional list of voters. In sub-rule (2) where society is a member specified society has to call for name of its delegate and included it in the list of voters. This sub-rule (2) permits a society which has communicated the name of its delegate to change that name not later than seven days from the date appointed by the Collector under Rule 16 of the Rules for making nomination. 13. This sub-rule (2) permits a society which has communicated the name of its delegate to change that name not later than seven days from the date appointed by the Collector under Rule 16 of the Rules for making nomination. 13. The judgment of this Court in the case of Shivnarayan vs. Vasantrao, (supra) shows that the said date is last date for filing of nomination and in present matter it was 11.01.2010. The judgment of the Hon’ble Apex Court in the case of Pundlik vs. State of Maharashtra, (supra) shows that when such society has been expressly conferred with power to change name of its representative/ delegate, that right cannot be taken away or interfered with. The Hon’ble Apex Court has in para 16 held that as action to change the name of delegate was taken strictly in conformity with the provisions of Rule 5, the Collector was duty bound to effect the change. The reason given by the Collector for not effecting the change was found to be in sustainable. The said reason was that there was no subject of changing the name of representative of Sangh in the meeting dated 09.06.2005. This refusal by the Collector vide order dated 28.06.2005 was assailed in writ petition which was dismissed by this High Court and thereafter the appellant approached the Hon’ble Apex Court. The Apex Court has held that if order passed by the Collector was maintained, the provisions of sub-rule (2) of Rule 5 would become nugatory and otiose. When rule making authority conferred power on society to change name of its nominee, the High Court was in error in not allowing the petition. 14. However, in present facts, Respondent No. 2 – Collector has not stated that he has taken action under Rule 5, on the contrary it is expressly mentioned by Respondent No. 2 that action has been taken under Rule 6. Respondents No. 3 & 4 have stated on affidavit that they have effected change of nominee/ delegate under Rule 5(2). As the name of Respondent No.4 was already in final voters list, it is apparent that it is a case of change of name and substitution of delegate only covered by Rule 5(2) of the Rules. The change is reported to have been effected on 04.01.2010. As the name of Respondent No.4 was already in final voters list, it is apparent that it is a case of change of name and substitution of delegate only covered by Rule 5(2) of the Rules. The change is reported to have been effected on 04.01.2010. If the change has taken place on 04.01.2010, it is also clear that its not later than seven days before the date appointed by the Collector as last date for making nominations. In fact, by Rule 5(2), the Society can seek change not later than seven days before such last date and there is no stipulation that the Collector has to pass order within such period of seven days. Hence, date of change in present matter cannot be held to be very material. 15. By affidavit filed on record on 03.02.2010, the office of the Collector has stated that decision was taken on 04.01.2010 and name of the petitioner was decided to be deleted. The corrected/ supplementary voters list was published on 06.01.2010. In affidavit earlier filed, only order dated 06.01.2010 was pointed out. There was no reference to any action taken on 04.01.2010. The petitioner in his petition has stated that the order has been passed on 06.01.2010. Annexure “C” produced by him is not in dispute and its corrigendum to the voters list. Date of said corrigendum is 06.01.2010. The said corrigendum at the bottom also below heading “Order” carries the following orders: “ORDER Claims received to the final Voters list of the Maharashtra State Coop. Bank Ltd., Mumbai as listed above order of the inclusion of the same claims vide rules No. 7 of the Maharashtra specified Coop. Societies Election to Committee Rules, 1971. Place : Mumbai. Date : 06.01.2010. (Idzes Kundan) Collector of Mumbai City” 16. Thus, his order of inclusion of name of Respondent No. 3 dated 06.01.2010 does not mention that any order was already passed on 04.01.2010 by Respondent No.2 – Collector. In respect of controversy on the point, Respondent No. 2 – Collector has not filed any affidavit stating that he passed orders on 04.01.2010 but then as already noticed above, as the action appears to have been taken under Rule 5(2), date of order of Collector is not very relevant since the society has changed the name of its delegate within time. But then it needs to be remembered that the petitioner was not given any opportunity of hearing in the matter. The case before the Hon’ble Apex Court was by a person who wanted his name to be included in voters list. In the case before me, the person whose name has been deleted is making the grievance. The learned counsel for the petitioner has argued that the petitioner is not aware of any resolution by Respondent No. 4 – society deleting his name or then sending Respondent No. 3 as its representative. He has relied upon the judgment of learned Single Judge of this Court in the case of Wamanrao Satpute vs. Collector, Nagpur (supra). The said judgment in para 20 has observed that any threat to status as a voter as reflected in final voters list is definitely detrimental to the own rights and interests of the voters as also of the society to which he represents and, therefore, taking any step as regards deletion of his name from final list of voters, cannot be permitted without giving him an opportunity of being heard. It has been observed that Rule 5(2) of the Rules must be construed as enjoining upon the Collector obligation to extend an opportunity to such delegate of being heard before permitting the society to change his name and resultantly modifying the final list of voters. No judgment taking view to the contrary has been pointed to me and it has not been shown that view as taken is not correct. In present facts, it is an admitted position that the petitioner was not given any opportunity of hearing by Respondent No. 2 – Collector in the matter. Thus, the impugned action shows non application of mind inasmuch as it refers to a wrong rule and has processed request of Respondents No. 3 & 4 thereunder. The said action, therefore, cannot be sustained. With the result, the deletion of name of the petitioner as representative of Respondent No. 4 – Society is liable to be quashed and set aside. 17. In the result, the order/ action of Respondent No. 2 – Collector of deleting name of the petitioner as representative of Respondent No. 4 – Society and of adding name of Respondent No. 3 in his place is hereby quashed and set aside. Writ Petition is allowed. Rule is made absolute in above terms. 17. In the result, the order/ action of Respondent No. 2 – Collector of deleting name of the petitioner as representative of Respondent No. 4 – Society and of adding name of Respondent No. 3 in his place is hereby quashed and set aside. Writ Petition is allowed. Rule is made absolute in above terms. However, in the facts and circumstances of the case, there shall be no order as to costs.