This order dismissed a writ petition challenging the deletion of 57 petitioners from a Co-operative Society voters' list. The court held that disputed questions of membership and fact-finding are beyond the High Court's supervisory jurisdiction in election matters and must be resolved via an election petition post-results.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.695 OF 2017 (Atul Bapu Japkar and others Vs. The State of Maharashtra and others) WITH CIVIL APPLICATION NO.5178 OF 2018 WITH CIVIL APPLICATION NO.9470 OF 2018
Mr.N.V.Gaware, Advocate for the petitioners. Mr.B.A.Shinde, AGP for respondent No.1. Mr.S.K.Kadam, Advocate for respondent Nos. 2 and 3. Mr.A.S.More, Advocate for respondent No.4. Mr.H.D.Deshmukh h/f Mr.S.R.Zambre, Advocate for respondent No.5.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 26/07/2018
PER COURT :
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publish the election programme. Consequentially, the programme that was declared on 25/11/2016 with regard to the finalization of the voters' list, remained inconsequential and as such, there were no elections held.
Advocates for the petitioners and the respondents.
[a] These petitioners claim to have submitted their applications for being inducted as members of the Co-operative Society on 31/03/2011.
[b] They were issued with receipts indicating payment of the admission fees and shares fees.
[c] The meeting allegedly convened on 31/03/2011 was to consider the induction of these petitioners as members.
[d] The proceeding book, in which the minutes of the meeting are recorded, is blank so far as the meeting on 31/03/2011 is concerned,
[e] The concerned Secretary Mr.Holkar has deliberately kept the proceeding book blank as these petitioners did not belong to the Ruling Party.
[f] The rules of the society mandate that a member of the society cannot vote in the elections for a period of 2 years from
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the date of being inducted as a Member.
[g] Section 23(1A) of the MCS Act provides for deemed membership if no decision is taken by the Society for a period of 60 days from the date of receipt of such application. [h] The respondent No.3 has acted highhandedly and has exercised jurisdiction beyond the scope of Rule 8 of the M.C.S. (Election to Committee) Rules, 2014.
[i] The objection raised by respondent No.4 is vague and ambiguous and does not indicate as to what are the objections.
[j] The objection application must contain details about the objections raised under Rule 8(2).
[k] Respondent No.3 has resorted to a roving inquiry and that cannot be permitted in the light of the following judgments :-
i] Ahmednagar Zilla S.D.V. and P.Sangh Ltd., and another Vs. State of Maharashtra and others [2004(1) SCC 133], ii] Pundlik Vs. State of Maharashtra [2005(7) SCC 181 = 2005 AIR (SCW) 4371,
iii] Election Commission of India Vs. Ashok Kumar [2000(8) SCC 216 = 2000 AIR (SCW) 3274],
iv] Kawadu Undruji Kundawar Vs. Additional Collector and others [2007(3) Bom.C.R. 157],
v] Dhondiba Parshuram Lakade and others Vs. Someshwar Sahakari Sakhar Karkhana Ltd., and others [1979 Mh.L.J. 311],
vi] Suresh s/o Ambadasrao Varpudkar Vs. District Coop.Election Officer and others, WP No.3454/2015 dated
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27/03/2015.
vii] Dattatraya Kachru Chine and others Vs. State of Maharashtra and others [2005(4) Mh.L.J.243 = 2005(4) All M.R. 597],
viii] Chandrakant Mahadev Patole and others Vs. State of Maharashtra and others [2010 (Supp) All.M.R. 457].
[a] It is a matter of great suspicion that though the meeting agenda for 31/03/2011 indicates the subject of membership of these petitioners, there is no record to indicate that the said subject was taken up and these petitioners were granted the membership.
[b] In so far as the deeming provision is concerned, the audit reports of the society for the financial year 2010-2011 or 20112012 do not account for the membership fees of these petitioners, disproving that any membership fee was deposited.
[c] It is under the rules that each of such Co-operative Societies is supplied with receipt books by the statutory authority under the Co-operative Societies Act and no other receipt book is to be used for issuing receipts indicating payment of memberhsip and shares fees.
[d] The receipt book said to be used for issuing receipts to these 57 petitioners, is not the book, which has been issued by statutory authorities.
[e] The share certificates are also not placed on record and there is no accounting for the receipt of the payments towards
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purchasing of such shares.
[f] He relies upon the judgment of the Hon'ble Apex Court in the matter of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others [AIR 2001 SC 3982], wherein the law has been settled that finalization of the list of voters under the earlier rules, is an intermediary stage of an election. [h] Respondent No.3 has not overstepped his jurisdiction and his authority since it was the learned Division Bench of this Court which directed the said authority by order dated 22/12/2016 in WP No.12662/2016 to hear all these petitioners and after making necessary inquiries, decide the objections raised by respondent No.4.
[i] All these petitioners exhaustively canvassed their contentions before respondent No.3 pursuant to the above directions of this Court and since he was directed to consider all contentions, he has passed a reasoned order concluding that these 57 petitioners did not appear to have been inducted as members of the Society. [j] Whether they are entitled to deemed membership u/s 23(1A), is a mixed question of facts and law as these petitioners will have to prove that they had applied for such membership and after conclusively proving that they had so applied and the applications were pending a decision of the society, that Section 23(1A) could be invoked.
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acted malafide only to prevent these petitioners from becoming the members of the society. As a newly inducted member does not get the right to vote for 2 years from the date of his membership, these petitioners were not included in the final voters' list in connection with the 2011 Elections. In fact, the competent authority under the M.C.S.Act should initiate strict action against the earlier Secretary Mr.Holkar for his mis-deeds which are on account of his oblique motives.
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valid members of the Society, the said ballot box could be opened and the results can then be reconsidered by the Court.
“8. It was then urged that the tribunal constituted under the Act has no power to go behind the preparation of the electoral roll and, therefore, the writ petition is maintainable. Learned counsel also strongly relied upon the decisions in the case of Bar Council of India and Ors. vs. Surjeet Singh and Ors. - and Ramchandra Ganpat Shinde and Anr. vs. State of Maharashtra and Ors. - . Learned counsel also referred to Section 100 of Representation of Peoples Act and a decision in the case of Shri Shreewant Kumar Choudhary vs. Shri Baidyanath Panjiar - . In sum and substance, the argument is that since the breach of rule in preparation of the electoral roll cannot be questioned in an election petition before the election tribunal, therefore, the writ petition challenging the preparation of the electoral roll could not have been dismissed on the ground that the appellant had an alternative remedy of filing an election petition. In this regard, it is relevant to notice Rule 81 of the Rules which provides for grounds for declaring election to be void. The relevant portion of the Rule runs as under:
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"81. Grounds for declaring election to be
void.-
(d)(iv) - by any non-compliance with the provisions of the Act or any rules made thereunder, the Commissioner shall declare the election of the returned candidate to be void."
"There is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of Delhi Council election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of Rule 34 covers challenging of the election
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on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the election Rule ultra vires and invalid."
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distinguishable. In Shri Shreewant Kumar Choudhary vs. Shri Baidyanath Panjiar (supra), it was held that it was not open to the tribunal to go behind the entry in an electoral roll. This was in the context of the provisions of Representation of People Act, 1950 and 1951. It may be borne in mind that there is a distinction between the scheme of the provisions of the Representation of People Act, 1950 and the Representation of People Act, 1951. The Representation of People Act, 1950 provides for the delimitation of constituencies and allocation of seats for purposes of election to, the House of the People and the Legislatures of States and preparation of the electoral roll, whereas, Representation of People Act, 1951 provides for conduct of election. Under Section 100 of the Representation of People Act, 1951 one of the grounds amongst other is an election can be challenged where there is non-compliance of the provisions of the Constitution or of the said Act and the rules or orders made thereunder - meaning thereby that breach of the Representation of People Act, 1950 cannot be called in question in an election petition filed under 1951 Act. In that view of the matter, the decision replied upon by the appellant is distinguishable.
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set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal.”
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nominations. Rule 6(1) of the 1971 Rules is quite similar to Rule 8 of the 2014 Rules.
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powers in this particular case and in the peculiar facts of this case. He could not have disobeyed the directions of the learned Division Bench and hence it cannot be said that he has acted in excess of his powers.
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unauthorized receipt book to these petitioners.
“12. It is settled law that the entire process of an election is purely a creation of a statute and governed by the statute and rules framed thereunder. If a person is denied the right to vote because his name is not on the voters' list, it must be taken to be the intention of the statute. It would indeed bring about uncertainty, in the certainty, of an election process if this Court interfered at the instance of persons who have been held to have no right to vote and have deleted from the voters' list. Merely, on the ground that they have thereby been denied the right to contest the election. This contention on behalf of the petitioner certainly merits consideration but is not sufficient in my view to depart from the settled position in law that an election can only be challenged in accordance with the statute under which it is held and that this Court will not ordinarily interfere with the election process. Undoubtedly, if the challenge succeeds voters whose names have been wrongly deleted would be entitled to contest in the election held again.”
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take recourse to such a proceeding, as may be permissible in law so as to cause a proper adjudication on the aspect of their membership and whether they have been illegally excluded from the final voters' list depriving them of a right to participate in the elections.
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election, that may now be held, would be subject to the result of such proceedings that the petitioners may choose to initiate.
( Ravindra V.Ghuge, J.)
Digitally signed by Kranti Kranti Hansraj Shekatkar Hansraj Date: Shekatkar 2018.07.31 10:13:33 +0530
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3 issues framed by the court
Whether the High Court can adjudicate disputed questions of fact regarding a respondent's membership in a Co-operative Society and the validity of receipts used.
Whether the Election Officer acted ultra vires in deleting petitioners from the voters' list given the lack of authentic membership records.
Whether the writ petition is maintainable or if the remedy lies in an election petition after the election results are declared.
Colour shows how this judgement treated each authority
Ahmednagar Zilla S.D.V. and P.Sangh Ltd., and another Vs. State of Maharashtra and others [2004(1) SCC 133]Referred¶29
Pundlik Vs. State of Maharashtra [2005(7) SCC 181 = 2005 AIR (SCW) 4371]Referred¶29
Election Commission of India Vs. Ashok Kumar [2000(8) SCC 216 = 2000 AIR (SCW) 3274]Referred¶29
Kawadu Undruji Kundawar Vs. Additional Collector and others [2007(3) Bom.C.R. 157]Referred¶29
Dhondiba Parshuram Lakade and others Vs. Someshwar Sahakari Sakhar Karkhana Ltd., and others [1979 Mh.L.J. 311]Referred¶29
Dattatraya Kachru Chine and others Vs. State of Maharashtra and others [2005(4) Mh.L.J.243 = 2005(4) All M.R. 597]Referred¶37
Chandrakant Mahadev Patole and others Vs. State of Maharashtra and others [2010 (Supp) All.M.R. 457]Referred¶38
Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others [AIR 2001 SC 3982]Followed¶48
Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd., Vs. Collector of Kolhapur and another [2005(4) All MR 626]Relied on¶93
2 provisions across 2 enactments
Atul Bapu Japkar and others
The State of Maharashtra
Ravindra V.Ghuge
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
