Writ Petition No.7199 of 2011

23rd September, 2011

Petitioner Counsel: Mr.V.D.HON
Respondent Counsel: Mr.S.B.PULKUNDWAR, Mr.K.S.BHORE

Cases Cited:
Sandip Vasantrao Lahare Vs. State of Maharashtra and others, 2005(2) ALL MR 489 (F.B.) [Para 5,10]
Balaji S/o Gopal Gire and others Vs. State of Maharashtra, dt.28.7.2011 [Para 11]
Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, and another Vs. State of Maharashtra and others, 2001(4) ALL MR 863 (S.C.) =AIR 2001 Supreme Court 3982 [Para 12,13]

JUDGMENT

JUDGMENT :- Heard.

2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing.

3. The Respondent No.3 is a Cooperative Society governed by the provisions of the Maharashtra Cooperative Societies Act. The petitioners were enrolled as members of the Respondent No.3 Cooperative Society on 29.3.2009. The Managing Committee earlier was elected on 12.2.2006 and the first meeting was held on 19.3.2006. The term of the Managing Committee is five (5) years. It was to expire on 18.3.2011. It seems that the Government did not appoint any Administrator nor had passed any specific order granting extension to the said Managing Committee. However, the said Managing Committee continued. Thereafter, the District Deputy Registrar took necessary steps for the elections of the Managing Committee of the Respondent No.3. The notification for preparation of the voters list was published on 4.8.2011. The provisional list was published on 5.8.2011. The petitioners name did not appear in the said list. The objection was raised by the petitioners on the ground that they have completed two years and as such they should be included in the voters list. Said objection is rejected. Aggrieved thereby, the present petition is filed.

4. Mr.V.D.Hon, learned counsel for the petitioners submits that on the date when the notification was issued for preparation of the voters list, the petitioners had completed two years. The only restriction for a right of a member to vote is that the member should complete two (2) years then only he is entitled to vote. The learned counsel relies on the provisions of Section 27 (3A) of the Maharashtra Cooperative Societies Act. According to the learned counsel, the Section is clear and unambiguous. Simply because the term of the Managing Committee was to come to an end on 18.3.2011, it can not be said that the cut off date would be 18.3.2011.

5. Mr.Bhore, learned counsel for the Respondent No.3 submits that a member is required to complete the period of two (2) years prior to the election becoming due. In the present case, the term of the Managing Committee came to an end on 18.3.2011 and as such the elections were due prior to or on completion of the term of the Managing Committee, so the two (2) years will have to be completed as on 18.3.2011. The learned counsel for the said purpose relies on the judgment delivered by the Full Bench of this Court in a case of "Sandip Vasantrao Lahare Vs. State of Maharashtra and others" reported in 2005 (2) ALL MR 489. According to the learned counsel, the Full Bench of this Court has specifically answered the questions referred to it. The learned counsel relies on the following para :

Questions	Answers
(i) What is the date upto which a person/ member is required complete two years to be eligible for inclusion of his name in the voter’s list prepared under Rule 56-B of the Rules.?	The Date by which the period of two years mentioned into Sec.27(3-A) of the Act, should be completed has to be the date on which the elections become due on completion of the term of the Managing Committee.
(ii) How the period of ‘two years’ mentioned in Section 27(3-A) as the period of eligibility is to be counted.	The period of two years mentioned in Sec.27(3-A) is to be counted from the date of enrollment to the date when elections to the Managing Committee of the notified society become due.
(iii) Whether the period of 120 days mentioned in Rule 56-B is liable to be calculated in addition to the period of two years as mentioned in Section 27(3-A) of the Act.?	The period of 120 days mentioned in Rule 56-B(1) is not liable to be calculated in addition to the period of two years mentioned in Sec. 27(3-A).”

According to learned counsel the Returning Officer has rightly considered the said aspect and the petitioners objection has been rightly negatived.

6. Mr.S.B.Pulkundwar, learned Asstt. Govt. Pleader adopts the arguments of Mr.Bhore, learned counsel for Respondent No.3 and submits that provisions of Section 27(3-A) of the Act have been rightly interpreted by the Returning Officer.

7. Before adverting to the arguments of the learned counsel for respective parties, it would be appropriate to refer to the relevant provisions :

"Section 27 : Voting powers of members:

Save as otherwise provided in sub-section (2) to (7), both inclusive, no member of any society shall have more than one vote in its affairs; and every right to vote shall be exercised personally and not by proxy.

(1) x x x x

(2) x x x x

(3) x x x x

(3A) An individual member of a society shall not be eligible for voting in the affairs of that society for a period of two years from the date of his enrollment as a member of such society."

8. The factual matrix is not disputed. The election of the Managing Committee is held on 12.2.2006 and the first meeting is held on 19.3.2006. The term of the Managing Committee as per the said first meeting of the Managing Committee would come to an end on 18.3.2011. The petitioners are enrolled as members of the Respondent No.3 on 24.3.2009. In view of the undisputed facts, the only question to be determined is whether the petitioners having been enrolled on 24.3.2009 would be eligible and entitled to vote in an election which is to be held for which the notification for preparation of the voters list is published on 4.8.2011. It is also not disputed that though the term of the Managing Committee came to an end on 18.3.2011, there is no specific order passed by the Government or any authority granting extension to the said Managing Committee nor any Administrator is appointed. For the first time, the notification is published on 4.8.2011 for preparation of the voters list for the election which are to be held subsequently.

9. The election in its wider sense would include all the steps in the process of election from the date of notification to hold the elections till declaration of result. The term election would not include in its realm any stage prior to the Notification. Admittedly, the notification for holding the election is yet to be published. Only notification for the publication of the voters list is published on 4.8.2011. Reading Section 27 (3-A) of the Act, as it is, it is clear that the only embargo put on the right of a member to vote is that before he exercises his right to vote in the affairs of the society, he should have completed two (2) years from the date of his enrollment as a member of such society. When the letters of the provision are unambiguous, the provision shall be construed in its plain literal and grammatical connotation. The words of the statute are first understood in their natural, ordinary or popular sense. Sub-section 3-A of Section 27 does not admit of any ambiguity and is unambiguous. Reading the said provision in any other manner would be doing violence to the language engrafted under the said provision. As such in view of the said provision when the voters list is to be published vide notification dt.4.8.2011 then the member who has completed two (2) years from the date of his enrollment will be entitled to vote in the election which is to take place subsequently. Any other interpretation would be impermissible.

10. The Full Bench of this Court in a case of "Sandip Vasantrao Lahare Vs. State of Maharashtra and others" referred supra was concerned with Rule 56-B of the Maharashtra Cooperative Societies Rule, 1961 and the manner in which the period of two (2) years mentioned in Section 27(3-A) as the period of eligibility is to be counted. With reference to the same the Full Bench in para 10 of the said judgment has observed thus :

"To put it explicitly, a member of a notified society will be eligible to vote in the affairs of that society after a period of two years from the date of his enrollment is completed by him. Such a member can be nominated or appointed by such notified society as its representative to vote on its behalf in the affairs of federal society, provided always that member society of a federal society has completed three years after its investing any part of its funds in the shares of such federal society."

11. The Full Bench has specifically observed that a member of a notified society will be eligible to vote in the affairs of that society after the period of two (2) years from the date of his enrollment is completed by him. Even in para 12 the Full Bench has observed thus :

"The period of two years is mentioned both in sub-section (3-A) and sub-rule (1) and on its completion the person becomes eligible to vote."

In the said case before the Full Bench, the Full Bench was not required to consider the contingency arisen in the present case that the elections are not held within the stipulated period nor any notification for preparation of the voters list is published prior to the lapse of the said term of the Managing Committee. In that context and on the basis of facts appearing therein, the Full Bench had observed that the period of two (2) years mentioned in section 27(3-A) is to be counted from the date of enrollment to the date when elections to the Managing Committee of the notified society become due. In the present case, now the notification has been published i.e. on 4.8.2011 for preparation of the voters list, it will have to be held that the elections have now become due. The another judgment relied by Mr.Bhore, learned counsel in a case of "Balaji S/o Gopal Gire and others Vs. State of Maharashtra dt.28.7.2011 which is delivered by me also would not be applicable for the reason that in the said case the only issue was as to whether the cut off date would be as on 30th June of previous year, as contemplated in Rule 4 of the Maharashtra Specified Cooperative Societies Rules. The same was altogether on different premise.

12. Lastly, Mr.Bhore, learned counsel submits that even preparation of voters list is part of the process of the election as has been observed by the Apex Court in a case of "Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, and another Vs. State of Maharashtra and others" reported in AIR 2001 Supreme Court 3982 : [2001 (4) ALL MR 863 (S.C.)]. So a Writ Petition to quash the election schedule on ground of illegality in preparation of electoral roll is not maintainable.

13. In the present case, the notification regarding the election programme is yet to be published. The schedule of the election is not required to be quashed. The only question was about right of members to be included in the voters list. The election schedule is not yet published, no question arises of the contingency as contemplated in the judgment of Apex Court in a case of "Shri Sant Sadguru Janardan Swami (Moingiri Maharaj Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others" [2001 (4) ALL MR 863 (S.C.)] referred supra.

14. In light of the above, The Writ Petition succeeds. The impugned order dated 8.9.2011 passed by the Respondent No.1 is quashed and set aside. The petitioners being enrolled as members on 24.3.2009, are entitled and eligible to vote in the ensuing elections to be declared and held. The name of the petitioners be included in the valid voters list, if otherwise they are eligible to be included.

15. Rule is accordingly made absolute in above terms. No costs.

16. Parties to act on authenticated copy.

Ordered accordingly.