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2011 DIGILAW 736 (BOM)

Pratap Nagarik Sahakari Patsanstha v. Collector

2011-06-29

R.M.SAVANT

body2011
JUDGMENT:- Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petitions involve a common question and therefore are heard together and disposed of. 3. The facts in each of the above petitions are identical however, for convenience sake the facts in Writ Petition No.268I of 2011 would be narrated. 4. The petitioner in the said petition is aggrieved by the order dated 26/5/2011 passed by the Collector, Gondia by which order the application filed by the petitioner for inclusion of its name in the provisional voters' list for elections to the respondent no.3-Society came to be rejected. The said rejection is on the ground that in terms of Rule 4 of the Maharashtra Specified Cooperative Societies Election to Committee Rules, 1971, the petitioner does not qualify for its name being included in the provisional voters' list as it has not completed three years qualifying period prior to the cut off date. The rejection in case of the other petitioners is also on the same ground. The petitioner is a Credit Society which applied on 2/5/2006 for the membership to the respondent no.3 and deposited an amount of Rs.I000/- for 10 shares and Re.1/for entry fee for which respondent no.3 has accordingly issued a receipt. In so far as the membership is concerned, the respondent no.3 did not take any decision within the stipulated period which constrained the petitioner to take recourse to Section 154 of the Maharashtra Cooperative Societies Act, 1960 by filing an application before the Divisional Joint Registrar. The Divisional Joint Registrar by his order dated 20th April, 2006 directed the respondent no.3 - Bank to admit the petitioner as a member. The respondent no.3 - Bank challenged the said order before this court vide Writ Petition No.2179/2007, which writ petition came to be admitted, however, no interim relief was granted. It appears that thereafter the respondent no.3 - Bank by passing a Resolution on 6th November, 2010 has conferred membership on the petitioner- Society. 5. In view of the impending elections to the respondent no.3 - Bank, the process of preparing a provisional voters' list was commenced. The petitioners applied for its inclusion on the basis that the petitioner has invested its funds in the shares of the respondent no.3 - Bank on 2/5/2006. 5. In view of the impending elections to the respondent no.3 - Bank, the process of preparing a provisional voters' list was commenced. The petitioners applied for its inclusion on the basis that the petitioner has invested its funds in the shares of the respondent no.3 - Bank on 2/5/2006. The said application came to be rejected, as indicated above, by the Collector, Gondia on the ground that the petitioner did not have the requisite period of membership prior to the cut off date. It is this order, which is impugned in all the above petitions. 6. The principal submission of the learned counsel for the petitioner Shri Jaiswal is based on the fact that the petitioner has invested its funds in the shares of the respondent no.3 - Bank on 2/5/2006 and if that date is taken into consideration, the petitioner qualifies for being included in the provisional list of voters in terms of Section 27(3) of the Maharashtra Cooperative Societies Act, 1960. Reliance was placed by the learned counsel for the petitioner on the judgment of the Apex Court reported in 2006 (5) Mh.L.J.325 in the matter of Dudhganga Vikas Seva Sanstha Maryadit VS. Distt. Collector, Kolhapur and ors. wherein it has been held that any new member of a federal society shall be eligible to vote in the affairs of the federal society only after the completion of the period of three years from the date of its investing any part of its fund in the share of such federal society. The Apex Court was seized with the issues whether there was any inconsistency between Section 27 and Rule 4 of the Maharashtra Specified Cooperative Societies Election to Committees Rules, 1971. On an interpretation of the said provisions, the Apex Court was of the view that there is no inconsistency as Section 27(3) operates in the field of laying down the eligibility condition of a new member of a federal society to vote in the affairs of a federal society and Rule 4 only relates to preparation of a provisional voters list. It would be apposite to reproduce paragraphs 7 and 8 of the judgment in Dudhganga Vikas Seva Sanstha Maryadit (supra), which are relevant. 7. It would be apposite to reproduce paragraphs 7 and 8 of the judgment in Dudhganga Vikas Seva Sanstha Maryadit (supra), which are relevant. 7. A mere reading of section 27 makes it explicit that a society, which has invested any part of its fund in the shares of a federal society, may appoint one of its members to vote on its behalf in the affairs of the federal society. Proviso to subsection (3) of section 27 of the Act lays down the condition of eligibility which is to the effect that any new member of a federal society shall be eligible to vote in the affairs of the federal society only after the completion of the period of three years from the date of its investment any part of its fund in the shares of such federal society. We may also note subsection (3A) of section 27 of the Act which relates to an individual member of a society. In his case it is provided that he shall not be eligible for voting in the affairs of that society for a period of two years from the date of his enrolment as member of such society. The legislature has consciously employed in subsections (3) and (3A) words which are of significance. In the proviso to subsection (3) the period of 3 years is reckoned from the date of the society investing any part of its fund in the shares of a federal society, whereas subsection (3A) provides that the period of 2 years shall be computed from the date of enrolment of an individual as a member of such federal society . 8. Having regard to the plain words used in section 27(3) of the Act, the appellant Society having invested its fund in the shares of Kolhapur District Central Cooperative Bank Ltd., respondent no.2 herein on 30/12/2002, it became eligible to vote in the affairs of the federal society after 30/12/2005. We are informed that the date of investment by the appellant Society and its enrolment as a member of the federal society is the same, namely, 30/12/2002. We are informed that the date of investment by the appellant Society and its enrolment as a member of the federal society is the same, namely, 30/12/2002. Ex facie, therefore, in terms of section 27(3) of the Act, in April, 2006 when the election was due to be held, the appellant Society was entitled to appoint one of its members to vote on its behalf in the affairs of the federal society respondent no.2, having completed the period of 3 yeas from the date of its investment in share of respondent 2 Society on 30/12/2005. The learned counsel for the petitioner Shri laiswal submitted that in view of the judgment in Dudhganga Vikas Seva Sanstha (supra) the issue is no more res integra, In so far as the right of a member to vote on the basis of investment of its fund in the shares of the Society is concerned. 7. Per contra, it is submitted by Mrs. Bharti Dangre, the learned Additional Government Pleader and Shri Ghare, the learned counsel appearing for respondent no.3 Society that the receipt on which much emphasis is being laid is not a share certificate and it is merely a receipt that the petitioner has deposited the said amount of Rs.l000/- towards share and Re.1/- by way of entry fee. The learned counsel further submitted that the facts in the case before the Apex Court were different, in as much as, the date of investment and date of membership was one and the same i.e. 30/12/2002. Whereas in the instant case the date of investment is 2/5/2006 and the membership was granted on 20/7/2009 and therefore, the said judgment would have to be read in the context of the facts of the present case. In my view, the said submission of the learned counsel for the respondents cannot be countenanced. The Apex Court in Dudhganga Vikas Seva (supra) has in terms held that the date of investment is the material aspect and if period of three years is completed from the said date then the Society which is desirous of being included in the provisional list of voters would have to be so included. The Apex Court in Dudhganga Vikas Seva (supra) has in terms held that the date of investment is the material aspect and if period of three years is completed from the said date then the Society which is desirous of being included in the provisional list of voters would have to be so included. In view of the fact that the Apex Court has held that Section 27 lays down the eligibility condition of a new member of a federal Society to vote in the affairs of a federal Society whereas Rule 4 only relates to preparation of a voters list therefore the difference in dates, in my view would make no material difference, as Section 27(3) of the Act lays down the eligibility condition for a new member of a federal society to vote in the affairs of the said Society. The fact that the respondent no.3 - Society has chosen to pass a Resolution conferring membership of petitioner/Society only on 27th July, 2009, therefore, would be of no consequence. 8. As the impugned order discloses the Collector, Gondia oblivious of Section 27(3) of the Act, has rejected the application of each of the petitioners in the above petitions solely on the ground that they do not have the requisite period of membership prior to the cut off date for being qualified for inclusion in the provisional list of voters. In that view of the matter, the impugned order dated 26/5/2011 in each of the above petitions is required to be set aside and is accordingly set aside. The respondent no.1 - Collector is Directed to include the names of the petitioners in the final list of voters, as by an interim order dated 16/6/2011 the Collector was already directed to include their names in the provisional list. Rule is accordingly made absolute. Parties to bear their own costs. Petition allowed.