http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (civil)  5290 of 2005

PETITIONER: PUNDLIK                                                  

RESPONDENT: STATE OF MAHARASHTRA & ORS.              

DATE OF JUDGMENT: 25/08/2005

BENCH: Y. K. Sabharwal & C.K. Thakker

JUDGMENT: J U D G M E N T (ARISING OUT OF S. L. P. (C) No. 14832 OF 2005)

Hon. C.K. Thakker, J.

       Leave granted.

       The present appeal arises out of an order dated July 13,  2005 passed by the High Court of Bombay in Writ Petition  No.4291 of 2005.  By the said order, the High Court was pleased  to dismiss the petition filed by the appellant herein.

       To appreciate the controversy raised in the present appeal,  relevant facts in brief may be stated.

       There is a specified Society, namely,  Aurangabad Zilla  Sahakari Doodh Utpadak Sangh Ltd., Aurangabad, respondent  No. 6 herein (’Sangh’ for short), registered under the  Maharashtra Co-operative Societies Act, 1960 (hereinafter  referred to as "the Act").  The Managing Committee of the Sangh  consists of several members and the appellant as also respondent  No. 7 are elected members of the Committee.  On April 5, 2005,  the process for election of respondent No.3 -Maharashtra Rajya  Sahakari Doodh Maha Sangh Marvadit, Mumbai ("Maha Sangh"  for short)  started.  The Maha Sangh  directed the  Sangh to send  the name of its delegate on or before April 16, 2005.  On April 7,  2005, the Sangh called a meeting of the Managing Committee by  issuing an agenda.  The meeting was scheduled to be held on  April 15, 2005.  The agenda contained only one subject regarding  discussion of letter dated April 5, 2005 received from the Maha  Sangh.  In the said meeting a unanimous decision was taken to  send the name of respondent No. 7 as the delegate of the Sangh.   On May 19, 2005, the Maha Sangh sent a telegram to the Sangh  directing it to send the name of its representative afresh in the  light of amended bye-laws.  The Sangh, therefore, convened a  meeting on May 24, 2005 to discuss the matter.  A decision was  again taken to send the name of respondent No. 7 subject to the  confirmation of the decision in the subsequent meeting.  On May  30, 2005, the Collector published the programme of various  stages upto finalization of the voters’ list in accordance with the  provisions of the Maharashtra Specified Co-operative Societies  Election to Committee Rules, 1971 (hereinafter referred to as  "the Rules").  As per that programme, any objection for inclusion  of names in the voters’ list must be taken before June 10, 2005.   It was mentioned that if the Sangh wanted to change the name of  its delegate, it could do so latest by June 10, 2005.  Pursuant to  the said communication  received from the  Collector, a meeting  of the Managing Committee of the Sangh  was convened on June

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

9, 2005 and it was decided  to send the name of the appellant  as  the delegate of the Sangh for the election of Maha Sangh.  A  resolution to that effect was passed being Resolution No. 7 which  inter alia stated that earlier the name of respondent No. 7 was  sent, but thereafter it was decided to send the name of the  appellant.  Respondent No. 7 raised a dispute before the Co- operative Court, Aurangabad against the said decision which is  pending.  It is  asserted by the appellant that the Divisional  Deputy Registrar, Co-operative Societies (Dairy), Aurangabad  vide his communication, dated June 18, 2005 to the Joint  Registrar, Co-operative Societies (Dairy), Mumbai informed that  Resolution No. 7 had been passed by the Sangh which was  ’correct’.  On June 20, 2005, the Collector finalized voters’ list  and on June 27, 2005 the list was published.  By an order dated  June 28, 2005, respondent No. 2 - Collector informed the  appellant that in the list of subjects of the meeting, there was no  subject for changing the name of  the representative of the Sangh  and, therefore, the change of the representative in the meeting  dated June 9, 2005 was not proper.  Being aggrieved by the  order, the appellant  filed a writ petition which, as stated above,  was dismissed by the High Court.  Against the decision of the  High Court, the appellant has approached this Court by filing  special leave to appeal on July 21, 2005.  Notice was issued by  this Court on July 25, 2005.  Affidavit-in-reply is filed by  respondent No. 7.

       We have heard the learned counsel for the parties.

       The learned counsel for the appellant contended that the  order passed by the High Court suffers from illegality and  infirmity.  According to him, a right has been conferred on the  Sangh to change its representative under the Rules and when the  right has been exercised within the stipulated period by passing a  resolution, it was incumbent on respondent No. 2 - Collector to  effect change as per the resolution passed by the Sangh. The  counsel submitted that the High Court had committed grave error  in holding that the petition was not maintainable as the election  process started.  The High Court was also wrong in relying upon  the decision of this Court in Shri Sant Sadguru Janardan Swami  (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha &  Another v. State of Maharashtra & Ors.,  (2001) 8 SCC 509.   The said decision was clearly distinguishable and the ratio laid  down therein did not apply.  Since, the Sangh was exercising its  statutory right, the action of respondent No. 2 -Collector was  contrary to law and ought to have been interfered with by the  High Court.  It was, therefore, submitted that the appeal deserves  to be allowed by directing respondent No. 2 \026 Collector to  substitute the name of the appellant for the name of respondent  No. 7 as the representative of the Sangh.  

       The learned counsel for the respondents, on the other hand,  supported the order passed by the High Court.  It was submitted  by them, particularly on behalf of respondent No. 7, that there  was suppression of material facts by the appellant and special  leave to appeal may not be granted by this Court in exercise of  discretionary power under Article 136 of the Constitution.  It was  stated that against an action taken by respondent No. 2 -  Collector in not effecting the change, a substantive petition has  been filed by seven Committee Members of the Sangh being  Writ Petition No. 4580 of 2005 in the High Court of Bombay,  Aurangabad Bench on July 6, 2005 and the said petition is  pending.  The appellant is aware of the said fact and yet that fact  has been concealed from this Court.  Even on merits, the  appellant has no case.  In several decisions, the High Court of  Bombay has consistently taken the view that preparation of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

election roll is an intermediate and integral process of election  and it cannot be interfered with at that stage.  It was stated that in  the first meeting of the Sangh, unanimous decision was taken on  April 15, 2005 to send the name of respondent No. 7 as the  representative of the Sangh.  The said decision was reiterated on  May 19, 2005.  It was only on June 9, 2005 that the so-called  decision was taken to change the name of the representative of  the Sangh and instead of respondent of 7, the name of appellant  was sought to be substituted.  The counsel contended that the  change of representative of respondent Sangh was not on agenda  and no resolution could have been passed.   Further, the  purported decision was contrary to the bye-laws of the Sangh and  since the appellant had not obtained majority votes, his name  could not have been sent as representative of the Sangh.  The  High Court was wholly right in relying upon Rule 81 of the  Rules and in holding that if the appellant is aggrieved by the  decision of respondent No. 2 \026 Collector, he could file election  petition for declaring election to be void.  He, therefore,  submitted that the appeal deserves to be dismissed.

       Having heard the learned counsel for the parties, in our  opinion, the appeal deserves to be allowed.  So far as the  preliminary objection to the maintainability of proceeding before  this Court is concerned, it is no doubt true, as submitted by the  learned counsel for respondent No. 7 that the  members of the  Managing Committee of the Sangh have approached the High  Court of Bombay, Aurangabad Bench by instituting a writ  petition which is pending.  But, it is equally true and is not  disputed by respondent No. 7 that the appellant had filed a  petition in the High Court of Bombay on June 30, 2005, i.e. prior  to the petition filed by seven Members of the managing  Committee before Aurangabad Bench.  Moreover, the appellant  is not a party to the said petition.  So even if it is assumed that the  appellant was aware of filing of the writ petition and pendency  thereof, it was open to him to approach this Court against a  decision of the High Court after his petition was dismissed .   When the appellant approached this Court by filing special leave  petition on July 21, 2005, the petition at Aurangabad Bench was  pending and is still pending.  It, however, cannot prevent the  appellant in approaching this Court.   In our considered opinion,  non-disclosure of fact of filing a writ petition by members of  Managing Committee of respondent Sangh in the Special Leave  Petition in this Court cannot be said to be material or vital so as   to deprive the appellant to the relief to which he is otherwise  entitled.  It cannot be said that the appellant has not come with  clean hands.  Since the name of representative of respondent \026  Sangh was not changed as per the resolution, dated June 9, 2005,  the Members  were aggrieved and accordingly, they had initiated  proceedings in the High Court of Bombay, Aurangabad Bench.   Similarly, the appellant was aggrieved since his name was not  substituted for the name of respondent No. 7 which is a distinct,  separate and independent cause of action.  It was, therefore, open  to him to take proceedings against such decision and accordingly,  he had approached the High Court in June, 2005 and on dismissal  of the petition, he is in this Court.  The preliminary objection,  therefore, is not well founded and the appeal cannot be dismissed  on that count.   

       On merits, it is true that the High Court of Bombay has in  several cases held that preparation of voters’ list is an integral  process of election and a court would not interfere at that stage.   In this connection, our attention has been invited by the learned  counsel to Dhondiba Parshuram Lakde & Others vs. Someshwar  Sahkari Sakhar Karkhana Ltd. & Others, (1979) Mah LJ 311,  Someshwar Sahkari Sakhar Karkhana Ltd.  vs. Srinivas Patil,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

Collector,  (1992) 1 Mah LJ 883 and Shivnaryan Amarchand  Paliwal vs. Vasantrao Vithalrao Gurjar,  (1992) 2 Mah LJ 1052.   Strong reliance was placed on Sant Sadguru Janardan Swami.   It  was contended by the respondents that preparation of electoral  roll is an interim stage in the process of election of the specified  society and the Court should not stay or interfere with the said  election process.            We are unable to uphold the contention.  In Sant Sadguru  Janardan Swami, this Court had an occasion to consider the  relevant provisions of the Act and the Rules.  Referring to  Section 144 X of the Act, the Court observed that preparation of  list of voters is one of the stages of election.   It is  true that  according to this Court, normally the High Court would not  interfere in exercise of powers under Article 226 of the  Constitution at the stage of preparation of list of voters but such   action must be in accordance with law.          We have been taken through the relevant provisions of the  Rules by the learned counsel for the parties.  Rule 4 of the Rules  provides for provisional list of voters.  Rule 5 relates to  particulars to be included in the provisional list of voters.   Sub- rule (2) of the said rule is relevant and material for our purpose  and it may be reproduced : 5.      Particulars to be included in provisional  list of voters \026  

(1)      \005    \005    \005     \005    \005     \005     \005   \005 (2)     Where a society is a member of a  specified society, the specified society shall call  for the name of the delegate duly authorized to  vote at an election on behalf of the affiliated  society, so as to reach it by the 2nd July.  While  communicating the name of its delegate to the  specified society, the affiliated society shall  enclose a copy of the resolution of the society  or its committee under which the delegate is so  authorized.  The specified society shall include  in the list of voters the names of all such  delegates as have been communicated to it  before the date fixed for publication of the  provisional list.  In addition to the names of all  such delegates, the list shall contain the names  of the affiliated societies, their registration  numbers and addresses and the names of  constituencies, if any, to which they belong.  A  society which has communicated the name of its  delegate shall by like resolution be permitted to  change the name of its delegate not later than  seven days before the date appointed by the  Collector under Rule 16 of the said Rules for  making nominations." (emphasis supplied)

       Rule 6 deals with claims and objections to provisional list  of voters.  Rule 7 requires a copy of final list of voters of every  society to be displayed on the notice board of office of the  Collector, the District Deputy Registrar and the Society.  Rule 16  provides for appointment of dates for various stages of election.

       The respondent No.2 - Collector passed an order on May  30, 2005, stating therein that in accordance with the provisions of  the Rules, various dates for publication of list of voters had been  settled as per Schedule I.  It was mentioned in the Schedule that  submission of any objection or claim could be raised by June 10,  2005 under Rule 6.  The last date for publication of final voters’  list was June 27, 2005.    In the light of the above order, a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

resolution was passed by the Sangh that instead of name of  respondent No. 7, the name of the appellant will be sent as  representative of the Sangh. The grievance of the appellant is that  the meeting was held on 9th June, 2005 wherein Resolution No. 7  was passed and respondent No.2 was informed about the said  decision and yet he had not changed the representative of the  respondent  Sangh.  The said action was clearly contrary to and  inconsistent with Rule 5 of the Rules.  The said rule enabled the  Sangh to change the name of its delegate not later than seven  days before the date appointed by the Collector under Rule 16 for  making nominations. As the action was in consonance with the  Rules, it was obligatory on the Collector to change the name on  the basis of the resolution passed by the Sangh.   Non- implementation of the resolution and the refusal to change the  name of the representative of the Sangh was unlawful and the  High Court ought to have set aside the said decision by directing  the Collector to effect the change and to treat the appellant as  representative of respondent Sangh at the place of respondent  No. 7.   

       We see considerable force in the contention of the learned  counsel for the appellant.  Bare reading of Rule 5(2) makes it  abundantly clear that the society which has communicated the  name of its delegate can change the name of such delegate within  the period stipulated therein.  It was, therefore, open to  respondent Sangh to exercise the said power in accordance with  Rule 5(2) which has been done.  It was the case of respondent  No.2 - Collector that in the list of subjects of the meeting  convened on June 9, 2005, there was no subject for sending the  name of representative for the election of the Maha Sangh and  yet the representative was changed which was not proper.  But  the learned counsel for the appellant has rightly referred to the  proceedings dated June 9, 2005, and in particular Resolution No.  7.    It is further clear from agenda notice dated June 2, 2005, in  which it was stated that the meeting of Board of Directors of  respondent Sangh would be held on June 9, 2005 for discussing  various subjects and subject No.7 related to the fax message  received from the Collector, Mumbai, respondent No.2 in  connection with the election of respondent No.3 Maha Sangh.   Pursuant to the above agenda notice, a meeting was held, subject  No. 7 was taken for consideration and Resolution No.7 was  passed.  By the said resolution, it was decided that instead of  name of respondent No. 7, name of appellant will be sent as  delegate and representative of respondent - Sangh and the said  resolution was forwarded to respondent No.2 - Collector.  He  was, therefore, under obligation to effect change under Rule 5(2)  of the Rules.   By not acting on the resolution, the respondent  No.2 \026 Collector  has acted contrary to law and the appellant was  wholly justified in making complaint before the High Court and  praying for exercise of writ jurisdiction under Article 226 of the  Constitution.  

       In our considered opinion, the ratio laid down in Sant  Sadguru Janardhan Swami does not apply to the facts of the  case.  In that case, objections against publication of provisional  electoral roll of the society were filed which were considered by  the Collector and disposed of.  Final electoral roll was published  on July 2, 1999.  Election programme was drawn by him on  October 21, 1999.  Thereafter, the petitioner filed a petition under  Article 226 of the Constitution in the High Court.  A prayer was  made in the petition that the order passed by the Collector on  October 21, 1999 was required to be set aside.  Obviously,  therefore, the election process was already in motion and prayer  of the petitioner was for quashing of Schedule for holding  election.  In the light of the factual position before the court, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

petition was dismissed and it was held that the only remedy  available to the aggrieved petitioner was to file election petition  after the election is over in accordance with Rule 81 of the Rules.  

        The Court stated : "In view of our finding that preparation of the  electoral roll being an intermediate stage in the  process of election of the Managing Committee  of a specified society and the election process  having been 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 appellants to  challenge the election of the returned candidate,  if aggrieved by means of an election petition  before the Election Tribunal."

       In the instant case, respondent Sangh had taken immediate  action on receiving the fax message from respondent No.2 -  Collector.  As per the said communication by the Collector, an  action could be taken for change of representative of respondent  Sangh latest by June 10, 2005.  A meeting was, therefore,  convened by issuing an agenda to that effect by respondent  Sangh on June 2, 2005.  The meeting was accordingly convened  on June 9, 2005 and a resolution was passed being Resolution  No. 7 wherein it was decided that instead of respondent No. 7,  the appellant would represent respondent Sangh in the election of  Maha Sangh.  Since the action was taken strictly in conformity  with the provisions of Rule 5 of the Rules as also the  communication of respondent No.2 - Collector dated May 30,  2005, respondent No.2 ought to have effected the change.  The  ground put forward for rejecting the resolution was not correct  inasmuch as in the agenda notice issued by respondent - Sangh  dated June 2, 2005,  subject No.7 had clearly been mentioned and  in pursuance of the said agenda notice, a meeting of the  Managing Committee of respondent - Sangh was convened and   a decision was taken. The grievance of the appellant, therefore,  was justified that by not effecting the change and by ignoring the  resolution passed by the Managing Committee of respondent \026  Sangh  the Collector has acted contrary to law.

       In our opinion, the learned counsel for the appellant is also  right in submitted that if the order passed by respondent No.2 is  upheld, the provisions of sub-rule (2) of Rule 5 will become  nugatory and otiose.  When the rule making authority conferred  power on the Sangh to change the name of its  representative/delegate by expressly permitting the change of  representative/delegate and intimating the said fact to the  Collector, such right cannot be taken away or interfered with.    Since the last date as per the communication of the respondent  No.2 - Collector was June 10, 2005, the action of respondent -  Sangh was within the four corners of Rule 5(2).  The High Court  was, therefore, in error in not allowing the petition and granting  the relief to the appellant.

       We are also supported in taking this view by a recent three- Judge Bench decision in Ahmednagar Zilla S.D.V. & P. Sangh  Ltd. & Another vs. State of Maharashtra & others, (2004) 1 SCC  133.   In that case, election roll was prepared on the basis of bye  laws which were held to be illegal.  When the action was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

challenged it was contended that the court could not interfere  with the list of voters prepared in accordance with the provisions  of the Rules and the only remedy available to the aggrieved party  was to file election petition after the election was over.  Reliance  was placed on Sant Sadguru Janardan Swami. The Court,  however, distinguished Sant Sadguru  Janardan Swami  and held  that where the voters’ list had been prepared on the basis of non- existent  Rules, it would be illegal and the court could interfere  under Article 226 of the Constitution.

       In the case on hand, the respondent - Sangh was within its  authority conferred under the Rules to take an appropriate  decision for change of its representative/delegate within the  stipulated period  and such action had been taken by respondent \026  Sangh.  The action of respondent No.2 - Collector in not  effecting change was clearly in violation of  Rule 5(2) and could  be challenged by filing a petition under Article 226 of the  Constitution.  In our opinion, the respondent No.2 - Collector  was duty bound to effect change of representative/delegate of  respondent  - Sangh.   

       It was then contended by the learned counsel for  respondent No.7 that the appellant had no "majority" as  contemplated by bye-law 18.13 of the bye laws.  Bye-law 18.13  reads thus :  18.13   The decision in the meeting of Board of  Directors will be taken by way of majority  considering the number of Directors who are present  in the meeting.  In case of equal votes Chairman will  have power to cast additional decision vote."

       According to the counsel, there were 17 members of the  Managing Committee of respondent Sangh.  Three had no voting  rights.  Hence, for the purpose of majority of votes, relevant  number would be 14.  In the submission of the counsel, a  member whose name could be sent as representative of Sangh  must get at least eight votes. Only then it can be said that he had  the requisite "majority".  We are unable to uphold the argument.   In our considered opinion, the word "majority" used in bye-law  18.13 does not mean 51 per cent or more votes.   It only means  that such a member must obtain majority votes.  If the argument  of respondent No. 7 is upheld, in given case a society may not be  able to send its representative for the election of the specified  society.  For instance, if a Managing Committee consists of 14  members who have right to vote as in the instant case and there  are three contestants who  get 6, 5 and 3 votes respectively, none  has got 51 per cent votes (majority) and hence the society will  not be qualified  to send its representative for the election of the  apex society.  That is not the intention of the Act, Rules or Bye- laws.  Obviously, in such a situation the member, having  maximum numbers of votes would be able to represent the  society in the election of the apex society.  

        In the present case, fourteen members were present at the  meeting convened on June 9, 2005, and twelve participated in the  voting.  Seven voted in favour of the appellant and five in favour  of Shivajirao Pathrikar.  Two, including respondent No. 7 did not  vote.  In these circumstances, it cannot be held that the appellant  did not get majority as he got only seven and not eight votes.  It  was, therefore, clearly open to respondent - Sangh to send the  name of the appellant for effecting change of its representative  by substituting his name for the name of respondent No.7.            Finally, it was stated that the Election Notification was  issued by respondent No.2 - Collector on July 28, 2005 and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

hence, now, this Court may not interfere as the election process  has already started.  We would have considered the effect of  issuance of Election Notification by respondent No.2 - Collector  but we are not inclined to enter into  larger question in the light  of the subsequent development which has been brought to our  notice.  It was stated by the learned counsel for the appellant and  not disputed by the learned counsel for the respondents that due  to "heavy rains", the Government Order dated July 28, 2005 was  modified by another notification dated July 29, 2005, and the  election process which was to start as per the notification dated  July 28, 2005 was adjourned for a period of one month and now  it will start from August 28, 2005.   The said date has so far not  come and hence, relief in favour of the appellant can be granted.

       For the foregoing reasons, in our opinion, the appeal  deserves to be allowed and is accordingly allowed.  The order  passed by respondent No.2 - Collector dated June 28, 2005 is  hereby quashed and set aside.   The respondent No.2 - Collector  is directed to effect the change as per Resolution No.7 dated June  9, 2005 passed by respondent - Sangh and by treating the  appellant as the representative/delegate of respondent - Sangh  instead of respondent No.7.   

       The appeal is, accordingly, allowed to the extent indicated  above.  There shall be no order as to costs.