ORDER
1. This petition raises two questions of law in view of the preliminary objection raised on behalf of the respondents as to the maintainability of this petition and it has, therefore, become necessary to deal with the said two questions at the admission stage itself. The said two questions of law are :--
(i) whether the preparation of the list of voters for elections to the Managing Committee of a specified Society in accordance with the provisions of the Maharashtra Co-operative Societies Act 1960 and the Maharashtra Specified Co-operative Societies Elections to Committees Rules 1971 is an intermediate stage in the process of election; and
(ii) if the answer to the first question is in the affirmative, whether this Court should interfere in a petition under Art. 226 of the Constitution of India and hold up the election process or whether it should leave the parties to raise the necessary dispute by way of a substantive election petition as provided for under S. 144T of the Maharashtra Co-operative Societies Act, 1960.
In my view, the first question is no longer res integra and is concluded by the two Division Bench decisions directly on the point taking the view that the preparation of the voters list in accordance with the provisions of the said 1960 Act and 1971 Rules is just an intermediate stage in the process of election. As far as the second question is concerned, the same is also concluded by some decisions of the Supreme Court holding that though the High Court is not powerless under An. 226 of the Constitution, when there is a remedy by way of a substantive election petition provided under the special statute, it would not be proper for the High Court to interfere at the intermediate stage after the process of election has commenced. Since, however, the matter has been argued at some length, a few facts may be stated as under:--
2. The petitioner society viz. Shri Someshwar Sahakari Sakhar Karkhana Ltd., is a specified Society within the meaning of the provisions of S. 73-G of the Maharashtra ' Co-operative Societies Act 1960 (for short, the 'said Act'). It was registered in 1960. It has around 6500 producer-members and about 45 society members. The Managing Committee of the petitioner Society consists of 21 members elected in accordance with its Bye-laws. The last election to the Managing Committee of the petitioner Society was held in December 1986 and the tenure of office being 5 years, the terms has expired in December 1991. There is no controversy that the election had to be held around December 1991 so that the new Committee could take over as early as possible. There is also no controversy before me that for holding such an election the persons who as enrolled as members as on 30th June 1991 would be eligible to participate in the said election. It appears that on the 18th May 1991 the present Managing Committee enrolled as many as 394 members. On the 6th June 1991 a dispute has been filed under S. 91 of the said Act challenging the said Resolution dated 18th May 1991. The relief prayed for in the said dispute was that certain persons were illegally enrolled as members of the petitioner society in the meeting held on 18th May 1991. On the 29th June 1991 the Managing Committee further enrolled 678 members. In the dispute pending under S. 91; on the 25th July 1991, the Co-operative Court directed the petitioner Society to produce certain documents relating to the enrolment of new members. In a Revision Application filed by the petitioner Society, the Co-operative Appellate Court modified the said order on 30th July 1991 regarding production of some of the documents.
3. In the meanwhile, some of the members of the petitioner Society filed Writ Petn. No. 3692 of 1991. This Court passed an order directing the Collector to start the election process forthwith. The exact order passed by the Division Bench of Kurdukar & Sindhakar, JJ. on 26th August 1991 is as under:--
'Minutes of Order
1. The Respondent No. 3 is directed to start the Election process forthwith to the Board of Directors of the Respondent No. 4 in accordance with S. 73-G and Chapter XIA of the Maharashtra Co-operative Societies Act, 1960, and to hold election as expeditiously as possible.
2. In view of the above, the Petition isallowed to be withdrawn with no order as tocost's.'
In the meanwhile, the Petitioner Society filed Writ Petition No. 3329 of 1991 against the order dated 30th July 1991 passed by the Cooperative Appellate Court under which certain documents were ordered to be produced. On 29th October 1991, that is to say more than 2 months after the order in the earlier Writ Petition No. 3692 of 1991 was passed on 26th August 1991, this Court rejected the Writ Petition with the following observations in Para 9 of its order:--
'9. In my view, the discretion exercised by the Court below is right and requires no interference. Even from the point of view of substantial justice, 1 feel that no interference is called for in this petition. According to me, the petitioners are trying to postpone elections by adopting the delaying tactics and to retain power. Further, the refusal by petitioner i.e. the present body gives impression that it is trying to conceal or cover its illegalities by refusing to submit the concerned applications for scrutiny of the Court. Hence, this petition is summarily dismissed.'
Though the above order was passed on 29th October 1991, the ad interim stay granted by this Court on 2nd August 1991 was to remain in operation for a period of 4 weeks from 29th October 1991. The petitioner Society, therefore, on 29th November 1991 prayed for extension of the stay, which prayer was rejected by this Court with the following observations :--
'Prayer for extension of stay made by filing note dated 26th November 1991 is rejected. It is rejected for two reasons viz. (i) already stay for sufficiently long time was given to the Petitioner when the order was passed by me on 29th October 1991; (ii) the matter arises out of interlocutory proceedings. The order under challenge directed the Petitioner to produce certain documents. I have taken the view that the petitioners are trying to postpone elections by adopting the delaying tactics and want to retain power. Further by refusing to produce the documents, they are trying to conceal or cover its various illegal-ties by declining to submit these documents for scrutiny of the Court. Therefore. I feel that in the interests of justice it is not necessary to extend the stay'.
4. After the above orders were passed by this Court in Writ Petition No. 1692 of 1991 and in Writ Petition No. 329 of 1991, the Collector fixed the following Schedule under R. 4 of the 1971 Rules on the 30th November, 1991. In so far as the preparation of the Voters' List was concerned, the relevant dates are as under:
2nd December 1991 : Preparation of the
Provisional List of
Votes.
16th December 1991 : Last date for filing
objections.
27th December 1991 : Publication of the
final list of voters
after considering the objections.
Accordingly, the provisional list of voters, as supplied by the petitioner Society, including the names of the disputed 505 persons, was published on the 2nd December, 1991. Objections were filed by respondents Nos. 2, 3 and 4 to the inclusion of the said 505 names in the voters' list and these 505 persons arc out of the persons who were enrolled as members under the two resolutions dated 18th May, 1991 and 29th June, 1991. On a report being made by the District Deputy Registrar, Pune, the first respondent Collector held an inquiry, considered the objections raised by the respondents Xos. 2 to 4, and the say of the petitioner Society, heard the concerned parties and passed the impugned order on 24/26th December, 1991. Relying upon the decision of a Division Bench of this Court viz. the decision of Mookerjee C.J., and Dani, J. in Writ Petn. No. 1403 of 1990 decided on 11th October, 1990, the Collector came to the conclusion that out of the persons who were enrolled as members on 18th May, 1991 and 29th June, 1991, those who were not growing sugarcane, were not eligible to vote as per the Rye-laws. Accordingly, on facts, the Collector took the view that the said 505 persons were not growing sugarcane and hence, their names were liable to be deleted from the voters' list. It is this order dated 26th December, 1991 which has been challenged in this writ petition filed by the petitioner society.
5. I have heard Shri K. K. Singhvi for the petitioner society and Shri C. J. Sawant for first respondent Collector, as also for respondent No. 5 State of Maharashtra and respondent No. 6 District Deputy Registrar. I have also heard Dr. B. R, Naik on behalf of the respondents Nos. 2 to 4 who are the original objection petitioners, whose objection to the inclusion of the said 505 names has been upheld under the impugned order. Apart from this Writ Petition No. 56/1992. there is also another writ petition, being Writ Petition No. 57 of 1992. which has been filed by 19 petitioners from out of the 505 persons whose names are ordered to be deleted from the provisional voters' list kinder the impugned order. Since the issues involved in Writ Petition No. 56 of 1992 filed by the petitioner society and Writ Petition No. 57 of 1992 filed by the affected 19 persons are identical, I have also heard Shri B. N. Naik on behaf of the petitioners in Writ Petition No. 57 of 1992 and Shri C.J..Sawant and Dr. B. R. Naik on behalf of the respondents in Writ Petition No. 57 of 1992. The society which is the petitioner in Writ Petition No. 56 of 1992 is one of the respondents in Writ Petition No. 57 of 1992 and is supporting the case of the petitioners in Writ Petition No. 57 of 1992. In short, Shri Singhvi and Shri B. N. Naik contended that the order of the Collector was illegal and was outside the scope of his powers under sub-rule (4) of the R.6 of the 1971 Rules and, therefore, prayed for the petition being entertained and for the consequent stay of the elections. As against this, Shri Sawant and Dr. B. R. Naik on behalf of the contesting respondents in both the petitions supported the order of the Collector. However, before addressing me on the merits of the matters, the respondents have raised a serious preliminary objection which has led to the formation of the two questions which I have set out at the beginning of this judgment. In short, the preliminary objection raised by Shri Sawant and Dr. Naik on behalf of the respondents is that the election process has been set in motion and has commenced with the publication of the provisional list of voters on the 2nd December, 1991 and hence, it would not be proper for the High Court to now hold up the election process by entertaining this writ petition. It is contended that passing the impugned order on 26th December. 1991, the Collector has published the final list of voters on the 27th December, 1991 as per the Schedule mentioned above in para 4 of this judgment. It is further contended that when the statute has provided a substantive remedy by way of an election petition under S. 144T of the Act, this Court should not interfere in the exercise of its extraordinary powers under Art. 226 of the Constitution of India.
6. I must mention at the outset that since I am called upon to first consider the preliminary object ion it is not necessary for meat this stage to consider the merits of the order impugned in this petition. On the first question formulated above. Shri Sawant and Dr. Naik placed strong reliance on the two Division Bench decisions of this Court under these very 1971 Rules relating to the election to the Managing Committee of a specified society. Shri Sawant and Dr. Naik contend that the preparation of the voters list under the said 1971 Rules is just an intermediate stage in the election process and even assuming that there is some irregularity or illegality committed in the said process of preparation of the said voters' list, this Court should not entertain a petition under Art. 226 of the Constitution. It is contended that in one of the Division Bench decisions, to which I will make a reference in detail, even though the grievance of the petitioner was held to be justified on merits, since the preliminary objection was upheld the petition had to be rejected. While conceding that the High Court is not powerless under Art, 226 of the Constitution of India as far as election to the Managing Committee of a specified society under the said 1971 Rules is concerned, it is contended that in view of some of the Supreme Court decisions, it would be in-appropriate for this Court to entertain the petition in the midst of an election process and to hold up the election process. Finally it is contended by the respondents that there is an efficacious remedy by way of an election petition under S. 144T of the Act and having regard to some of the decisions of the Supreme Court and of this Court it is clear that when there is an effective alternate remedy of an Election Petition under a special statute, a writ petition under Art. 226 of the Constitution of India should not be entertained.
7. As against these contentions of the respondents, both Shri Singhvi and Shri B. N. Naik urged that preparation of the list of voters is not a part of the election process under the said 1971 Rules. According to them, having regard to the scheme of the said 1971 Rules, the election process cannot be deemed to have commenced prior to the stage of R.9 of the said 1971 Rules when the Collector appoints a Returning Officer. By placing reliance on some of the observations in an order passed by another Division Bench at the admission stage, it is contended that the election process would really commence with the publishing of the programme under R. 16 of the 1971 Rules and hence, the present stage being a pre-election process, the petition should be entertained under Art. 226 of the Constitution. Both Shri Singhvi and Shri B, N. Naik contended on merits that the order of the Collector is ex facie illegal and is contrary to the law laid down by this Court in 1979 MLJ 311.
8. Before dealing with the rival submissions and the judgments cited in support, it would be necessary to briefly refer to the scheme of the provision of the said 1960 Act and the 1971 Rules. The elections to the Committee and Officers of specified societies are governed by Chapter XI-A of the said I960 Act. S. 144T provides for a forum for entertaining disputes relating to an election which has to be referred to the Commissioner of a division and such reference can be made by an aggrieved party by presenting Election Petition within a period of 2 months from the date of the declaration of the results of the election. S. 144T reads as under:--
'144T. (1) Notwithstanding anything contained in S. 91 or any other provisions of this Act, any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held or to an officer not below the rank of Additional Commissioner of a Division authorised by the State Government in this behalf (hereinafter in this section either of them as the context may require is referred to as 'the specified officer'.
(2) Such reference may be made by an aggrieved party by presenting an election petition to the specified officer, within a period of two months from the date of declaration of the result of the election :
Provided that, the specified officer may admit any petition after the expiry of that period, if the petitioner satisfies the specified officer that he had sufficient cause for not preferring the petition within the said period.
(3) In exercising the functions conferred on him by or under this Chapter, the specified officer shall have the same powers as are vested in a Court in respect of:--
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any person and examining him on oath;
(c) compelling discovery or the production of documents; and
(d) issuing commissions for the examination of witnesses.
In the case of any such affidavit, an officer appointed by the specified officer in this behalf may administer the oath to the deponent.
(4) Subject to any rules made by the State Government in this behalf, any such petition shall be heard and disposed of by the specified officer as expeditiously as possible. An order made by the specified officer on such petition shall be final and conclusive and shall not be called in question in any Court.'
Section 144X which also forms a part of Chapter XI-A reads as under:--
'144X. Without prejudice to any other power to make rules contained elsewhere in this Act, the State Government may make rules consistent with this Act generally to provide for and to regulate all or any of the other matters relating to the various stages of the elections including preparation of list of voters'.
9. Turning to the Maharashtra Specified Co-operative Societies Elections to Committees Rules 1971, the Preamble to these Rules reads as under: --
'In exercise of the power conferred by sub-sec, (2) of S. 144F, sub-sec. (4) of S. 144T, S. 144X, and Cls. (xl) and (Ixxx) of sub-sec, (2) and sub-sec. (1) of S. 165 of the Maharashtra Co-operative Societies Act, I960 (Mah. XXIV of 196!) and of all other powers enabling it in this behalf, the Government of Maharashtra hereby makes the following Rules, the same having been previously published, namely:--.....'
The relevant portions of Rr. 4 to 9 of the said 1971 Rules read as under: -
'4. Provisional list of voters-- (1) A provisional list of voters shall be prepared by every society for the year in which general election is due to be held. Persons who are members as on the 30th June of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of voters shall be arranged constituencywise as laid down in the bye-laws.
Provided that, if in any case, the preparation of the provisional list of voters falls due after the expiry of a period of six months from the 30th June, the Collector may, in consultation with the Registrar in respect of the societies of the categories mentioned in Cls. (i), (v), (vi) and (vii) of sub-sec. (1) of S. 73G, and in consultation with the District Deputy Registrar in respect of the societies of the other categories mentioned in sub-sec. (1) of S. 73G, by order, change the date of the 30th June and subsequent dates and fix revised dates for the purposes of these rules.
(2) to (4).....'
'5. Particulars to be included in provisional list of voters--
(1) The provisional list of voters, in the case of individual shareholders, shall contain the name, father's or husband's name, surname (if any) of every person entitled to be registered as a voter, with such other particulars as may be necessary to identify him.
(2) .....'
'6. Claims and objections to provisional list of voters--
(1) When any provisional list of voters is published for inviting claims and' objections, any omission or error in respect of the name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society.
(2) Every person making a claim or raising an objection shall do so by a separate petition, which shall be presented to the Collector on or before the 31st July, during office-hours.
(3) Every claim or objection shall be preferred in writing and state the grounds on which the claim is based or the objection is raised, as the case may be.
(4) The Collector shall, after considering each claim or objection, give his decision thereon in writing to the person concerned before the 10th August and take steps to correct the provisional list wherever necessary. The list as finalised by the Collector after deciding all claims and objections shall be the final list of voters.
(5) Notwithstanding anything contained in sub-rule (4) any person who is a member of the society as on the 30th day of June of the year immediately preceding the year in which such election is due or on such subsequent date as may be fixed by the Collector under sub-rule(1) of R. 4 and whose name is not included in the final list of voters prepared by the Collector under sub-rule (4) and who is desirous of being registered as a voter may apply in writing to the Collector in Form 1A within a period of fifteen days from the date of display of final list of voters under R. 7.
(6) Every such application received by the Collector shall be forwarded by him within three days of the date of receipt by him to the Dist. Deputy Registrar for enquiry. The District Deputy Registrar shall cause an enquiry to be made into the application and submit his report to the Collector along with his recommendations within 7 days from the date of receipt of the application by him from the Collector.
(7) The Collector shall after considering the application and the report of the District Deputy Registrar give his decision in writing to the persons concerned, before the first date fixed for making nominations. If the Collector decides that the name of the applicant should be registered as a voter, he shall accordingly modify the list finalised by him earlier under sub-rule (4) and the list so modified shall then be treated as the final list of voters.'
'7. Final list of voters--
Copies of the final list of voters of every society shall be displayed on the notice-board of officers of the Collector, the District Deputy Registrar and the society.'
8. Power of Collector to alter dates for list of voters--
Notwithstanding anything contained in the foregoing rules, the Collector may, in the case of all or any of the societies of the categories mentioned in Cls. (i), (v), (vi) and (vii) of sub-sec. (1) of S, 73G in consultation with the Registrar, and in the case of all or any of the societies of the categories mentioned in other clauses of sub-sec. (1) of S. 73G in consultation with the District Deputy Registrar, by general or special order, alter all or any of the dates prescribed therein and appoint such revised dates as he deems fit.'
9. Appointment of Returning Officer-
The Collector shall whenever necessary appoint a Returning Officer for one or more constituencies of a society as specified in its bye-laws:
Provided that, in case where no other person is appointed as a Returning Officer, the Collector himself shall be deemed to be the Returning Officer and shall perform all the functions of a Returning Officer under Rules.'
In the light of the above Scheme of Chapter XI-A of the 1960 Act and the 1971 Rules, it is necessary now to consider the two Division Bench judgments which have a direct bearing on the two questions framed above.
10. The first decision, in point of time, is the decision of Vimadalal and Sapre, JJ., in Special C.A. No. 2550 of 1972 decided on September 23, 1975 arising out of a dispute relating to the election to the Managing Committee of the Ganesh Sahakari Sakhar Karkhana (for short, 'the Ganesh Karkhana Election case'). In this Ganesh Karkhana Election case, the petitioners in the High Court had challenged the order dated 1st October, 1973 passed by the Collector rejecting their application for deletion of names of respondents Nos. 3 to 47 in ihe voters list and the consequent orderdated 3rd October, 1973 passed by the Collector fixing the programme of election. The provisional list of voters was published on 10th September, 1973 and the petitioners' contention was that respondents Nos. 3 to 47 being defaulters were not entitled to participate in the election. The election was to be held on November 15, 1973. and the petition was filed on 16-10-1973. Dr. Naik who appeared for the respondents in the Ganesh Karkhana Election case had raised the following preliminary objection to the maintainability of the petition as summed up by Vimadalal and Sapre. JJ.:
'The question whether certain persons were wrongly included in the list of voters is a question which arises in the process of election (or is just a stage in the whole process of election), and, in view of the Division Bench decision of this Court in Madhukar Ganpatrao v. Sheshrao : AIR1972Bom129 which in turn had relied upon two decisions of the Supreme Court, such a question cannot be raised until the election is held and, thereafter, only by means of an election petition and no writ petition lies to High Court under Art. 226 of the Constitution to challenge an intermediate stage of the election. The present writ petition, which merely seeks to challenge the orders passed by respondent No. 2 at an intermediate stage of the election is, therefore, liable to be dismissed in limine.'
The Division Bench discussed the scheme of the provisions of Chapter XI-A with particular reference to S. 144X referred to above, as also Rr. 4 and 6 of the 1971 Rules and observed, thus:--
'It will be seen from the Rules that the preparation of the provisional list of voters, the raising of claims and objections to the provisional list of voters and the consideration of those claims and objections by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of election.'
The Division Bench further observed as follows:
'The rules thus make provisions for the entire process of election and this process, by virtue of the Rules, includes the stage of preparation of provisional list of voters, raising of claims and objections to the provisional list of voters and decision of those claims and objections and thereafter making the final list of voters. This important feature must be borne in mind.'
The learned Judges thereafter referred to another Division Bench decision in the case of Madhukar Ganpatrao Somvanshi v. Sheshrao Narayanrao Biredar reported in : AIR1972Bom129 as also to the Supreme Court decision in the case of Dr N. B. Khare v. Election Commission of India, reported in : [1958]1SCR648 and summed up the observations made therein to the effect that all disputes relating to any stage of the entire election process can be canvassed by an Election Petition presented after the election is concluded. The Division Bench of Vimadalal and Sapre, JJ., thereafter referred to the Supreme Court decision in the case of N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency Namakkal Salem Dist. reported in : [1952]1SCR218 and bearing in mind the distinction between the scheme of the provisions of the Representation of the People Act of 1950 and Act of 1951 on the one hand' and the Maharashtra Co-operative Societies Act, 1960 and the 1971 Rules on the other, the learned Judges came to the following conclusion :--
'But in the present case, under the Rules, as we have pointed out, the various stages of the election process have been provided by the Rules and Rr. 4, 5 and 6, which deal with the list of voters and provide machinery for deciding claims and objections and for finalising the list of voters, form part of the election process. In this view of the- matter, the principle laid down by the Supreme Court will apply and it must be held that the question raised by this petition that respondents 3 to 47 were wrongly included in the voters' list arose in the process of election (or was just a stage in the whole process of election) and that question could not be raised until the election was held and thereafter only by means of an election petition and no writ petition lies to the High Court under Art. 226 of the Constitution to challenge that intermediate stage of election. The present writ petition, which merely seeks to challenge the order passed by respondent No. 2 at an intermediate stage of election, is, therefore, liable to be dismissed in limine.'
After, thus, having upheld the preliminary objection, the Division Bench did consider the petitioners' grievance on merits and came to the conclusion that the petitioners' grievance on merits was justified and the petitioners' objection to the inclusion of the names of respondent Nos. 3 to 47 were liable to be considered by the Collector even in the course of the summary inquiry. The Division Bench held that the objection to the inclusion of the names of respondents Nos. 3 to 47 could be inquired into by the Collector even in the summary inquiry under R. 6 of the 1971 Rules. Vimadalal and Sapre, JJ., explained the earlier decision reported in 1979 MLJ 311 and came to the conclusion that in the facts of the case before them the Collector had jurisdiction to entertain the objections raised before him. Since, however, the petition was held to be not maintainable, in view of the preliminary objection, the petition was dismissed by Vimadalal and Sapre, JJ. This decision, therefore, undoubtedly supports the contentions raised by the respondents before me.
11. The second decision on which reliance has been placed by the respondents is also a Division Bench decision of this Court in the case of the election to the Managing Committee of the Osmanabad District Central Co-op. Bank Ltd., viz, the decision of Pendse and Sugla, JJ. in Writ Petition Nos 1823, 1825 and 1907 of 1988 (for short, the 'Osmanabad Bank Election' case) decided on 28th April, 1988. This was a case where the names of the petitioners were deleted from the final list of voters published in respect of the election to the Managing Committee of the Osmanabad District Central Co-op. Bank Ltd. After the petition was filed at the Aurangabad Bench of this Court, certain directions were issued to the Collector to submit the election programme and the programme was announced. The petitioners approached this Court complaining that the Collector was in error in deleting their names from the final list of voters by the order dated 25th March, 1988. An objection was raised by the respondents that the petition would not be maintainable on the ground that the 1960, Act and the 1971 Rules provide for filing of an election petition after the elections are concluded and, therefore, this Court need not exercise its powers and hold up the election process which was set in motion. The relevant portion of the judgment dealing with this preliminary objection raised by the respondents can be reproduced below:--
'The submission is that the Act and the Rules provide for filing of an Election Petition after the elections are concluded and the results are declared and this Court should not exercise powers to disturb the election programme declared by the Collector. It was submitted that once the election programme is put in motion, then it is well settled that the Court should not restrain continuation of the exercise, even assuming that there are some irregularities and illegalities. In our judgment the submission urged on behalf of the respondents deserve acceptance. It is not in dispute that the election process commences by preparation of provisional list of voters and inviting claims and objections by the Collector to such list. It is undoubtedly true that the final list of voters is to be declared under Rule 7 after consideration of claims and objections. It is also not in dispute that the remedy is available to an aggrieved party to file an election petition to challenge the election of the returned candidate on the ground of illegality committed in conducting the election. It has been repeatedly stressed by the Supreme Court that it is not appropriate for the High Court to interfere with the election process at an intermediate stage i.e. after the commencement of the election process and before the declaration of the results.'
The Division Bench in Osmanabad Bank Election case 1989 CTJ 45 Bom thereafter, referred to two Supreme Court decisions viz.--
(i) Lakshmi Charan Sen v. A.K.M. Nassan Uzzaman, reported in AIR 1985 SC 1233; and
(ii)S. T. Muthusami v. K. Natarajan, reported in : [1988]2SCR759 .
Relying upon the said decisions the learned Judges in Osmanabad Bank Election case upheld the preliminary objection and concluded as under: --
'In view of these decisions, it is obvious that even assuming that the grievance of Dr. Naik is right, it is not permissible for this Court to disturb the election programme by entertaining this petition. In our judgment, the petitioner may seek relief in Election Petition, if so advised.'
The Division Bench of Pendse and Sugla, JJ., was, therefore, of the view that even assuming that the grievances of the petitioners were right, the preliminary objection had to be upheld.
12. Both Shri Sawant and Dr. B. R. Naik have placed strong reliance on the above two Division Bench decisions which are undoubtedly binding on me. However, Shri Singhvi and Shri B. N. Naik for the petitioners have contended that what has been observed in these two decisions, as reproduced above, it is not realty the ratio of these two decisions. Shri Singhvi has invited my attention to the decision in Quinn v. Leathem reported in (1901) AC 495 and has contended that a case is only an authority for what it actually decides. According to Shri Singhvi and Shri B. N. Naik in the facts of the case before the Division Bench, viz. in the Ganesh Karkhana Election case, decided by Vimadalal and Sapre, JJ., the question whether the election process commenced with the preparation of the list of voters was not realty the issue. Both Shri Singhvi and Shri B. N. Naik contended that what that Division Bench was called upon to consider in the Ganesh Karkhana Election case was not the question as to when does the election process commence in the scheme of the provisions of the 1960 Act and the 1971 Rules. More particularly they contended that the precise question which has fallen for consideration before me, viz. as to whether the election process commenced with the publication of the provisional list of voters was not really the question which led fallen for consideration before that Division Bench and hence the judgment of Vimadalal and Sapre, JJ. in Ganesh -Karkhana Election case is no authority for holding that the election process commenced with the publication of the provisional list of voters. It is, however, not possible for me to accept this contention of the learned Counsel. I have already reproduced above the precise preliminary objection raised by Dr. Naik in the Ganesh Karkhana Election case by re-producing in Para. 10 above the exact words in which the objection was raised before the Division Bench which objection has been accepted. In view of the clear verdict of the Division Bench, it is not possible for me to accept the contention raised by Shri Singhvi and Shri B. N. Naik.
13. As far as the other Division Bench decision of Pendse and Sugla, JJ., in the Osmanabad Bank Election case 1989 CTJ 45 is concerned, the criticism of the learned Counsel on behalf of the petitioners is that the dispute in that case had arisen at the stage of declaration of the election programme which had commenced under Rule 16 of the 1971 Rules on 28-03-1988 on which day itself the petitioners had complained that the Collector was in error in deleting their names from the final list of voters by the order passed on 25-3-1988. It was, therefore, contended before me that, inasmuch as, in the present case, the stage of declaration of the election programme under Rule 16 of the 1971 Rules is not yet reached, it cannot be said that the process of election has been set in motion. In my view, it is not possible to read the decision of the learned Judges in the Osmanabad Bank Election case in the manner in which Shri Singhvi and Shri B. N, Naik want me to read. The observations of Pendse and Sugla, JJ., which I have reproduced above in Para 11 are very clear to the effect that the election process commenced with the preparation of the provisional list of voters and inviting the claims and objections by the Collector to such a list.
14. Shri Sawant and Dr. Naik have also invited my attention to the provisions of Section 144X of the Act and have led emphasis on the fact that by Maharashtra Act III of 1974 which came into force with effect from 01-03-1975 the concluding words, viz. 'including preparation of list of voters' were added. The contention is that it was implicit in the scheme of the provisions of the said 1960 Act and 1971 Rules that the preparation of the list of voters was one of the stages in the process of election and what was implicit has been made explicitly clear by adding these words with effect from 01-03-1975. If that be so, the contention of Shri Sawant and Dr. Naik is that it is clear beyond doubt that the present controversy raised in the petition arose during the process of election which has already been set in motion as far back as on 2nd December, 1991 when the provisional list of voters was published. In the light of the above discussion, this contention has to be accepted. The answer to the first question framed at the beginning of this judgment has, therefore, to be in the affirmative.
15. On the second question regarding interference by this Court, Shri Sawant and Dr. Naik invited my attention to some of the decisions of the Supreme Court on the proposition that any matter pertaining to the election, if sought to be raised at the inter-mediate stage of the election process should not be entertained by way of a writ petition under Article 226 of the Constitution of India, Reliance has been placed in this behalf on some of the Supreme Court decisions, to which a brief reference is necessary. In the case of Gujarat University v. Shri N. U. Rajguru, reported in : [1988]1SCR899 , the dispute was relating to the holding of the election of certain members to the 'Court' of the Gujarat University as constituted under Section 16 of the Gujarat University Act of 1949. Under Section 58 of the said Act, any person aggrieved by the election of any person, has a right to challenge the same before the State Government by raising a dispute in accordance with the provisions of Section 58. Considering this scheme, the Supreme Court observed in para 5 of the judgment at page 69 of the report as under:--
'Any person aggrieved by the election of any member to the Court has right to challenge the same before the State Government by raising a dispute in accordance with Sec. 58. In the instant case the respondents could have availed the alternative remedy available to them before the State Govt. u/S. 58 of the Act. Instead they challenged the validity of the election before the High Court under Art. 226 of the Constitution. The respondents had challenged the validity of Statute 10(3) in their writ petition but they did not press that question before the High Court as stated in the judgment under appeal.'
After observing as above, the Supreme Court observed in Para 6 of the judgment at page 69 of the report as under:--
'It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art. 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute.'
Shri Sawant and Dr. Naik placed reliance on the above observations of the Supreme Court in Gujarat University's case : [1988]1SCR899 in support of their contention. I find great force in the contention raised by them which is fully supported by the above quoted observations of the Supreme Court.
16. The second decision of the Supreme Court on which reliance has been placed by Shri Sawant and Dr. Naik is the case of S. T. Muthusami v. K. Natarajan, reported in : [1988]2SCR759 , dealing with the grievance of an' error in the matter of allotment of symbols to the candidates contesting the Panchayat Selection, under the Tamilnadu Panchayat Act, 1958. The Supreme Court reiterated its earlier view declared in the case of Sangram Singh v. Election Tribunal, Kotah, reported iri : [1955]2SCR1 as under : [1988]2SCR759 :--
'..... though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases'.
Finally, the Supreme Court observed in Para 16 of the Judgment, at page 624 of the report, as under :--
'We are of the view that the Division Bench of the High Court committed a serious error in issuing writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol 'hand' to the appellant by its judgment under appeal. We, therefore, set aside the judgment of the Division Bench of the High Court. The Returning Officer shall proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court. The appeal is accordingly allowed. No costs, Appeal allowed'.
17. The next decision of the Supreme Court on which reliance has been placed by Shri Sawant and Dr. Naik is in the case of The Election Commission of India v. Shivaji reported in : [1988]1SCR878 . However, a perusal of the said decision would show that it rested, inter alia, on the provisions of Article 329(b) of the Constitution which are applicable to the election to the legislative council of the State of Maharashtra from the local authorities constituency. I do not wish to go into the details of this decision reported in : [1988]1SCR878 , for the simple reason that the bar of Article 329(b) would stand on a totally different footing. What I have referred to above, on the first question are two Division Bench decisions of this Court directly arising under the Maharashtra Co-operative Societies Act 1960 and the said 1971 Rules. On the second question framed at the beginning of this Judgment, I have already referred to the two decisions of the Supreme Court viz. the one reported in : [1988]1SCR899 , relating to Gujarat University Court Election matter and the other in : [1988]2SCR759 viz. Muthusami's case arising under the Tamilnadu Panchayat Act. In my view, in the present case, it would be more appropriate to consider those cases where the bar of Article 329(b) does not come into play.
18. The learned counsel on either side contended that as far as the preparation of electoral roll under the Representation of People Act, 1950 is concerned, it is well settled that it is not apart of the process of election. This is so in view of the decision of the Supreme Court Indrajit Barua v. Election Commission of India reported in : AIR1986SC103 where it is clearly laid down that the preparation and revision of electoral roll is a continuous process not connected with any particular election but when an election is to be held, the electoral roll which existed at the time when the election is notified would form the foundation for holding of such election. While so holding in Indrajit Barua's case (supra), the Supreme Court relied upon its earlier observations in Laxmi Charan Sen's case reported in AIR 1985 SC. 1233. However, in my view, the position under the Maharashtra Co-operative Societies Act, 1960 and particularly under the 1971 Rules is entirely different and, therefore, I would rather prefer to rest my conclusion on the decisions in the cases arising under the law of election to which the bar of Article 329(b) would not apply.
19. Relying upon the two Division Bench decisions, viz. the decision of Vimadalal and Sapre, JJ., in Ganesh Karkhana election case and the decision of Pendse & Sugla, JJ., in Osmanabad Bank election case 1989 CTJ 45, Shri Sawant and Dr. Naik invited my attention to the observations of the Supreme Court in the case of Sunderjas K. Bhatija v. Collector of Thane, reported in : [1990]183ITR130(SC) , and particularly, to the caution sounded in Para 17 of the Judgment at pages 266, 267 which read as under:
'It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-judge, Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of subordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure'.
Since, however, I am in agreement with the view expressed by the two Division Benches referred to above, there is no question of my referring the matter to a larger Bench. ..
20. However, Shri Singhvi and Shri B.N. Naik preferred to rely upon the observations made by the Division Bench of Jahagirdar & Puranik, JJ., while admitting writ petn. No. 2478 of 1989 relating to the election to the Managing Committee of Balasaheb Desai Sahakari Sakhar Karkhana. The petition has been admitted on 21st June 1989 and is still pending In this Court for final hearing. It is true, as contended by Shri Singhvi and Shri B. N. Naik, that at the time of admission of the said petition a preliminary objection was raised on the ground that the High Court should not entertain the writ petition inasmuch as it would be tantamount to holding up the election process which was set in motion. The observations in the opening part of Para 13 of the said Judgment, do apparently support the argument of Shri Singhvi and Shri B. N. Naik. However, the concluding portion of para 13 of the said Judgment of Jahagirdar & Puranik, JJ. reads as under:--
'We are not ignoring the argument of Mr. Thorat, Asstt. Govt. Pleader appearing for respondent Nos. 1 to 4 that rule 16 prescribes only the stages of election as distinguished from the election process which, according to him, must be deemed to have started with the publication of the final list of voters. That question has, however, to be decided, whether considering the language of the Act and rules made thereunder, the election process starts when the step is taken by the Collector under rule 16 or the date on which the final list of voters is published'.
With respect to the learned Judges, therefore, it appears to me that though the writ petition has been entertained despite the preliminary objection raised, at the stage of admission, the question which arose before me has not been decided by the learned Judges but has been kept open and admittedly the writ petition is pending. As stated earlier, in view of the ratio of the decisions of two Division Benches directly deciding the question, viz.
(i) the decision of Vimadalal & Sapre, JJ, in the Ganesh Karkhana Election case; and
(ii) the decision of Pendse & Sugla, JJ, in the Osmanabad Bank election case 1989 CTJ 45 (Bom),--
it is not possible for me to come to any other conclusion by relying upon some of the observations in the order passed by the Division Bench of Jahagirdar & Puranik, JJ. while admitting the petition but nevertheless keeping the question open as is evident from the above quoted portion appearing at the end of para 13 of the Judgment of Jahagirdar and Puranik, JJ. In saying this, I am not unmindful of the caution sounded by the Supreme Court in para 17 of its Judgment in the case of Sunderjas Kanyalal Bhathija v. The Collector, Thane, Maharashtra, reported in : [1990]183ITR130(SC) , which has been reproduced by me in Paragraph 19 above.
21. Shri B. N. Naik also invited my attention to the Judgment of the Supreme Court reported in AIR 1987 SC 1345 on the point that if two petitions involve an identical point and if one was admitted, the other ought to be admitted. However, in view of the two Division Bench decisions of Vimadalal and Sapre, JJ. and Pendse & Sugla, JJ., as referred to above, and the observations of the Supreme Court in para 17 of : [1990]183ITR130(SC) (supra), it is not open for me to reject the preliminary objection by merely relying upon the observations in the order of admission passed by Jahagirdar & Puranik, JJ. in Balasaheb Desai Sahakari Sakhar Karkhana's case (supra). The contention of Shri B. N. Naik, therefore, cannot be accepted.
22. As stated earlier, after the Collector passed the impugned order on 26th December 1991, he has passed a further order on 27th December 1991 publishing the final list of voters in accordance with the provisions of sub-rule (4) of Rule 6 of the 197J Rules. Both sides wanted to urge certain contentions on the merits of the impugned order and the scope of the enquiry before the Collector at different stages of Rule 6. In the pleadings both sides have made allegations against each other. However, since the preliminary objection raised by Shri Sawant and Dr. Naik has to be upheld I am not expressing any opinion on the merits of the order.
23. In the view that I have taken, my answers to the two questions framed at the beginning of this Judgment are as under:--
(i) In view of the two Division Bench decisions, viz.
(a) the decision of Vimadalal & Sapre JJ., in Special C. A No. 2550 of 1972 (Ganesh Karkhana Election case); and
(b) the decision of Pendse & Sugla, JJ., in Osmanabad Bank Election case 1989 CTJ 45 (Bom) -
in the scheme of the provisions of the Maharashtra Co-operative Societies Act, 1960 and the Maharashtra Specified Co-operative Societies Elections to Committees Rules 1971, the preparation of the list of voters for election to the Managing Committee of a specified society is an intermediate stage in the process of election, and
(ii) in view of the two decisions, of the Supreme Court, viz.-
(a) the Gujarat University Court Election case reported in : [1988]1SCR899 , &
(b) Muthusami's case, reported in : [1988]2SCR759 :--
it would not be proper for this Court to interfere in a petition under Article 226 of the Constitution of India when the dispute relates to the intermediate stage in the process of election and it would, indeed, be better to leave the parties to raise the necessary dispute by way of a substantive election petition as provided for under section 144T of the Maharashtra Co-operative Societies Act, 1960.
24. In view of the above answers, the preliminary objection raised by Shri Sawant and Dr. Naik has to be upheld and the petition has to be summarily rejected.
25. At this stage, Shri Singhvi applies for stay of the operation of this order. Shri Sawant and Dr. Naik oppose the application. I have based rny conclusions on the two Division Bench decisions of the Court and on the two Supreme Court decisions referred to above. However, if the petitioner wants to challenge this order further, in my opinion, interests of 'justice would require that the respondent State and its officers should not take any further steps in the matter for a period of 3 weeks from today. Shri Sawant and Dr. Naik request for 72 hours' notice to the respondents in the event of the petitioner society carrying the matter higher. Shri Singhvi agrees to do so. Accordingly, Shri Sawant appearing for the State and its officers makes a statement that no further steps would be taken in the matter of the election to the Managing Committee for the petitioner Society for a period of 3 weeks from today. The petitioner Society is, however, directed to give 72 hours' notice to the respondents of any further Appeal in the matter.
26. Ordered accordingly.