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2022 DIGILAW 1117 (BOM)

Ankushbhau v. State of Maharashtra

2022-04-13

ROHIT B.DEO

body2022
JUDGMENT 1. Heard Mr. R. L. Khapre, the learned Senior Counsel for the petitioners, Mr. N. R. Rode, the learned Assistant Government Pleader for respondent 1/State, Mr. S. S. Ghate, the learned Counsel for respondents 2 and 2 (a) and Mr. U. K. Bisen, the learned Counsel for respondents 3 and 3 (a). 2. The election to the Managing Committee of respondent 3 - Multipurpose Executive Cooperative Society (Society) is declared. Even as on the day of filing of the petition, the election process had commenced. During the pendency of the petition the election process has significantly progressed and the stage of acceptance of nomination form is over. 3. The challenge in the petition is to three decisions of the District Election Officer whereby the names of 50 persons, who were excluded in the provisional voters list, are included in the final voter list, the objection that the names of 71 persons, though shown and recorded in the register of members, are not included in the provisional voters list, is rejected, and as is rejected the objection that 33 persons who are included in the provisional voters list are not eligible to vote since they are inactive members, and are declared as such by the Society. 4. The preparation of voters list is held an integral albeit intermediate stage of the election process and it is indubitable that even as on the date of the presentation of the petition the election process had commenced. I am conscious of the plethora of decisions which articulate that the scope to interfere in the election process which has commenced is extremely limited. While there is no constitutional fetter or embargo akin to Articles 243-O or 243-ZG of the Constitution of India, the jurisprudential logic is that ordinarily the election process must be permitted to proceed notwithstanding a challenge here and there to the stages thereof or the decisions of the authority particularly since the grievance can be redressed in election petition, if the grievance survives. However, there is no inflexible rule or principle which precludes the High Court in exercise of writ jurisdiction to interfere with the election process, if what is at stake is the purity and sanctity of the election process. The territory may be ordinarily avoidable, is not certainly forbidden. 5. However, there is no inflexible rule or principle which precludes the High Court in exercise of writ jurisdiction to interfere with the election process, if what is at stake is the purity and sanctity of the election process. The territory may be ordinarily avoidable, is not certainly forbidden. 5. I need not burden this order by catena of decisions which deal with the scope of interference with the election process in writ jurisdiction. Reference may be fruitfully made to a relatively recent decision of the Division Bench in Dattatray Ganaba Lole and Ors. v. Divisional Joint Registrar, Cooperative Societies and Ors. 2021 SCC OnLine Bom 4578 which, while articulating that ordinarily interference in election process which has commenced must be shunned, a patently and demonstrably illegal order or action can be interdicted in writ jurisdiction. It would be apposite to note the following observations of the Division Bench in Dattatraya Ganaba Lole supra: "45. The legal principles that emerge from the various judgments noted and discussed in detail below is that as a matter of principle, Courts have been reluctant to interfere at an intermediate stage of an election process. It has been held that every allegation of illegality or irregularity and every assertion of rights by persons being excluded from the voters list are not entertained by Courts under Article 226 of the Constitution of India at the intermediate stage of the election process. There is a strong public policy reason behind Courts being circumspect in entertaining challenges at this stage under Article 226 of the Constitution of India. This is because there is a vital public interest in the elections being completed after which various matters can be gone into. A liberal approach to interference at the intermediate stage would frequently result in election processes being halted or becoming uncertain, which by itself undermines the sanctity of such elections and the democratic object that they seek to achieve. 46. The only circumstance in which the Courts would be inclined to interfere in a challenge to an election process at an intermediate stage would be when the order or action under challenge is patently and demonstrably illegal, such as, for example, by applying a non-existent rule or provision to the election process or failing to adhere to a mandatory provision. The only circumstance in which the Courts would be inclined to interfere in a challenge to an election process at an intermediate stage would be when the order or action under challenge is patently and demonstrably illegal, such as, for example, by applying a non-existent rule or provision to the election process or failing to adhere to a mandatory provision. The intervention in such cases has been explained as enabling or assisting the process of the election rather than thwarting or stalling it. Also, one of the important aspects to consider is the precise stage of the election process and the delay, if any, in the filing of the petition". 6. In the factual matrix, what is discernible from the decisions impugned, is patent illegality of such nature and extent as would reduce the democratic process of election to a farcical and orchestrated ritual. Illustratively, the record reveals that the Secretary of the Society, who is but a paid servant, approached the District Election Officer imploring that 50 persons be included in the final voters list on the premise that after the publication of the provisional voters list the unpaid share money is paid in March, 2022. The District Election Officer was presumably oblivious to the provisions of Rule 8 of the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014 which mandates that an objection to the provisional voters list can be raised by, and entertained at the behest of, any member of the Society. Having at the benefit of perusing the relevant record, and the candid responses by the learned counsel who appears on behalf of the District Election Officer, who is present in the Court, I have not come across any objection raised by any member of the Society on the basis of which the 50 persons could have been included in the final voters list. Similarly, the objection that 71 persons whose names are recorded in the register of members which has a presumptive value under Sec. 38 of the Maharashtra Co-operative Societies Act, 1960 (Act) is brushed under the carpet with a laconic observation that no documentary evidence is furnished in support of the objection. Similarly, the objection that 71 persons whose names are recorded in the register of members which has a presumptive value under Sec. 38 of the Maharashtra Co-operative Societies Act, 1960 (Act) is brushed under the carpet with a laconic observation that no documentary evidence is furnished in support of the objection. Concededly, the entire record was available with the District Election Officer, who is expected to be aware of the statutory provisions and the objection could not have been rejected on the premise that the members did not furnish documentary material or proof in support of the objections. The entry in the register of members has a presumptive value. It is always open for any member or person to show that the entry in the register of members is incorrect since the presumption is not a conclusive presumption of law. Be that as it may, the least which was expected from the District Election Officer is to ascertain the eligibility or entitlement of the 71 persons for inclusion in the final voters list on the basis of the material which the Secretary was otherwise eager to produce, as in the case of 50 persons referred to supra. On the basis of similar reasoning, the manner in which the District Election Officer has disposed of the objection to the inclusion of the 33 persons on the premise that the said persons were declared to be inactive members of the Society, leave a lot to be desired. The District Election Officer further did not address the question whether after the publication of the provisional voters list, a member of the Society was entitled to pay the unpaid share capital and in a way remove the ineligibility. 7. The illegality is not of minor or technical nature and the writ Court cannot turn a blind eye and be a mute spectator on the jurisprudential logic that the election process has commenced and the writ Court ought to be loathe to interfere. The 'Laxman Rekha' as I have observed supra, can be crossed, as long as the writ Court treads cautiously and with extreme circumspection. 8. For reasons articulated supra, I am inclined to interfere in the process of elections notwithstanding that the programme has progressed significantly. 9. The decisions impugned are quashed. 10. The final election programme published on 4/4/2022 is quashed. 11. 8. For reasons articulated supra, I am inclined to interfere in the process of elections notwithstanding that the programme has progressed significantly. 9. The decisions impugned are quashed. 10. The final election programme published on 4/4/2022 is quashed. 11. In so far as the election programme published on 21/3/2022 is concerned, the said programme shall continue from the stage of objections to the provisional voters list. 12. The petition is partly allowed in the aforestated terms. 13. The parties to act on steno copy of this operative part of the order.