Kuntinath Appanna Nilapgol and Another Vs. the Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. and Others - Court Judgment

Excerpt:
the maharashtra co-operative societies act, 1960 - section 73g (2) - election to managing committee - period of committee fixed for 5 years - period of 5 years to be counted from the date of its first meeeting - provision for extension of the period of the committee - not exceeding one year - election to the managing committee becomes due in the 5th year and if extension is granted in the 6th year.;under sub-section (2) of section 73g the term of the committee is fixed for a period of five years to be counted from the date on which the first meeting is held. there is further reference to the extension being given by the state government not exceeding a period of one year. ;the elections will, therefore, become due only in the year in which the term of the committee is to come to an end. if this is understood in the light of the aforesaid provision of sub-section (2) of section 73g of the said act, in our opinion, it could mean that if, no extension is granted, in the 5th year, elections will be due. if extension is granted, at the most, in the 6th year counted from the date on which the first meeting is held, the election would become due. - - 4-collector had issued the public notice, as per exhibit-h, page 58, where it is clearly indicated that the provisional list is prepared as on 31st december, 1997 and that it has been so published on 14th july, 1998. thereafter, various dates inviting objections and considerations thereof, etc. as well as different stages are mentioned, and we were told by the ld. 37. heavily coming upon them, their lordships, in paragraph 5, have clearly stated that the provisional list of voters of every society shall be prepared by the society for the year in which general elections were due to be held. 4 and the district deputy registrar or the registrar, as the case may be, can well be understood. 47. on behalf of the interveners as well as respondents, it is very seriously urged that, at the most, cut-off date it can be 31st december, 1997 in the background of the earlier events including the event of the first extention of six months and this will take care of the said circular page 73 also. the petitioners having become members in the month of november, 1998, they very well knew that as per the existing position then, they could not be the voters.ordern.j. pandya, j.1. rule. returnable forthwith.2. mr. nargolkar, the learned asstt. government pleader, waives service on behalf of the respondents and mr. thorat, learned counsel, waives service on behalf of the interveners. by consent, rule is taken up for final disposal. heard both the parties.3. the petitioners have filed this petition claiming to be the representatives of about 200 shareholders who were enrolled as members on or about 20th november, 1998. they were so enrolled to be members of respondent no. 1 society. respondent no. 1 is a sakhar karkhana and is registered as such under the maharashtra co-operative societies act, 1960 (for short the said act).4. certain facts are admitted and they are detailed hereunder. the managing committee of respondent no. 1 had assumed charge on 4th december,1993. respondent no. 1 is the specified society within the meaning of section 73g of the said act.5. the first dispute as to the enrollment of the members arose because respondent no. 1 had in fluxed as many as 2163 members on 9th december, 1997. on the same day, a dispute was filed in the co-operative court seeking ad-interim relief. ad-interim relief was not granted by the co-operative court and, therefore, an appeal was preferred in the appellate court of the co-operative court under the said act. the said appeal was admitted and interim relief came to be granted. challenging the said order of the appellate court, writ petition no. 6151 of 1997 came to be filed in this court.6. against the said order of the appellate court, however, no relief was granted by this court in the said petition.7. the appellate court, finally, heard the appeal and allowed the said 2163 added members to vote and their votes to be kept in a separate ballot box.8. this order of the appellate court was challenged by way of writ petition no. 4613 of 1998, whereunder, by a detailed order, this court had stayed the order passed by the co-operative appellate court. it was further restored to original ad-interim injunction granted by the co-operative court from 9th december, 1997. by the said order, the collector was directed not to take any steps in the matter of finalisation of voters list. this order is at exhibit-c, page 43.9. in the meanwhile, some of the directors from respondent no. 1 filed writ petition no. 6407 of 1998 challenging the vires of certain provisions of the said act, 1960 and relief was sought for continuation of the existing managing committee till new elections were held. on 1st december, 1998, this court had granted ad-interim relief in the said petition and thereby continued the existing board of directors notwithstanding the expiry of term of the said board on 3rd december, 1998. a copy of this order is at exhibit-d, page 50.10. on 2nd february, 1999, both the aforesaid petitions were placed before the division bench of this court. the writ petition no. 4613 of 1998 was sought to be withdrawn by the petitioners and, accordingly, the permission to withdraw the same was granted. at the same time, this court directed that the collector should consider the question of validity of membership as per the objections raised by the members. the court also directed the collector to publish a fresh election programme. copy of the said order is at exhibit-f, page 53. on the same day, writ petition no. 6407 of 1998 was also permitted to be withdrawn as no order appointing the administrator was passed. copy of the said order is at exhibit-g, page 56.11. on 9th february, 1999, respondent no. 4 the collector published a fresh election programme for preparation/finalisation of the voters list of respondent no. 1-society. it is at exhibit-h, page 58. exercising the powers under section 73-g(2) of the said act, as per exhibit-1, page 59, respondent no. 6 extended for a further period of six months the term of the managing committee with effect from 3rd december, 1998.12. one more writ petition being writ petition no. 2316 of 1999 came to be filed about non consideration of objection as to the membership on the ground that the petitioners of that petition could raise objection to the provisionalvoter list. the petition came to be disposed of on 23rd april, 1999 with a direction that instead of respondent no. 4-collector, respondent no. 3 will decide the application filed under section 79b of the said act. the said order is at exhibit-j page 62.13. in the civil application no. 3065 of 1999 filed in the aforesaid disposed of writ petition whereby the initial period of three weeks was extended by one more week so that respondent no. 3 can complete the task of considering objections. as a result, about 566 members were found to be ineligible. copy of the said order is at exhibit-k, page 66.14. respondent no. 4 the collector had intimated respondent no. 1 by its letter dated 21st may, 1999, (exhibit-l, page 69), as directed by the regional joint director (sugar), kolhapur, that respondent no. 1 should proceed further in preparing a provisional list of voters with necessary changes and should forward the same for hearing to respondent no. 4 for its final publication.15. respondent no. 1 had, by its letter dated 31st may, 1999 (exhibit-m, page 70), responded to the letter exhibit-l, page 69, seeking guidance from the aforesaid regional joint director (sugar), kolhapur, as to whether the provisional list should be prepared with reference to the date of 31st december, 1997 or to the date of 31st december, 1998 having been crossed and the guidance was sought on 21st may, 1999 with regard to the list of members to be prepared with reference to the date of 31st december, 1998.16. to this, the reply (exhibit-n, page 72) is given, where, inspite of giving, a specific direction or guidance as to the relevant date (hereinafter referred to as the cut off) date the said regional joint director had, under letter exhibit-n, page 72, forwarded a circular of the government dated 18th april, 1995. certain guidelines are issued therein with regard to the aforesaid cut-off date. the relevant part thereof is at page 74. it would be referred to in the course of discussions.17. the letter dated 2nd june, 1999 (exhibit-p, page 79) discloses that the existing board of directors had, on extended terms, got further extension order dated 30th september, 1999 and thereby the board is continued upto 3rd december, 1999.18. from the annexures of the petition, it is not clear that respondent no. 1 society, after receipt of the letter dated 2nd june, 1999, exhibit-n, page 72, has responded to the collector by forwarding provisional list of voters keeping in mind the aforesaid circular dated 18th april, 1995, page 73, onwards. it is in this background, the dispute as to the cut off date in the matter is to be appreciated and resolved. the petitioners, who were enrolled on or about 20th november, 1998, can be included in the final list of voters, subject, of course, to the objections, if any, as to the cut-off date the 31st december, 1998. in this regard, one does have an indication in the aforesaid letter exhibit-m, page 70, that it seems to be an understanding of respondent no. 1-society. it may or may not be so. that definitely is the stand of the petitioners in prayer clauses of the petition. first they say in prayer clause (a) page 28 to the petition that, necessary permission be granted under order 1, rule 8 of the code of civil procedure, 1908 to the petitioners to file the present petition for and on behalf of all members who were enrolled by the respondent no. 1 on 20th november, 1998. so far as the cut off date is concerned, prayer clause (b) is made where a specific date is mentioned as 30th june, 1999. it is asserted in this clause that this in fact is the date contemplated by rule 4(1) of the specified societies rules under the aforesaid act. thereafter, there is a direction sought from respondent no. 1 to furnish provisional list of voters as on 30th june, 1999 and consequential relief of process being concluded on the basis of the provisional voters list as on 30th june, 1999 for finalisation of the voters list.19. in short, the question involved in the petition is that the petitioners, who represent the members, were enrolled on 20th november, 1998 and are claiming to be included in the voters list with reference to the ensuing election. therefore, as indicated in the letter exhibit-m, according to the society, the membership list should be with reference to 31st december, 1998 while, according to the petitioners, it should be 30th june, 1999.20. the petition, as based, is placing reliance on rule 4 of the maharashtra specified co-operatives societies elections to committee rules, 1971 (hereinafter would be referred to as the said rules). in the course of argument, the prayer clause was amended by including prayer clause (aa) whereby modification in the direction issued by the court in writ petition no. 4613 of 1998 was sought on the ground that the petitioners were not party to the same. a copy of the said order is already referred to above, which is at exhibit-f, page 53.21. as the petitioners were enrolled on or about 20th november, 1998, obviously, they could not have been parties in that petition because they had not acquired membership in respondent no. 1 society on the date of its filing which is 28th august, 1998. in our opinion, the said amended prayer clause |aa) has, therefore, no meaning. otherwise also, when the elections were not held, the collector, as returning officer, as contemplated by the aforesaid rules, had left with no alternative but to get provisional list prepared and that he has to finalise the same after following the procedure.22. no doubt, pursuant to the said order dated 2nd february, 1999, passed in the writ petition no. 4613 of 1998. respondent no. 4-collector had issued the public notice, as per exhibit-h, page 58, where it is clearly indicated that the provisional list is prepared as on 31st december, 1997 and that it has been so published on 14th july, 1998. thereafter, various dates inviting objections and considerations thereof, etc. as well as different stages are mentioned, and we were told by the ld. asstt. government pleader, who having obtained instructions in this regard, that the process has reached the stage no. 4 and objections are yet to be considered.23. this would be one more reason as to why modification at the instance of the petitioners and through whom they are representing is not called for. the action was taken pursuant to the order passed in the writ petition, in which, the petitioners could not have been the parties for the reasons stated above. however, in our opinion, neither this order nor the action of the collector, as per page 58 or the earlier publication (exhibit-b, page 42) made on or about 14th may, 1998 again with reference to 31st december, 1997 has any bearing on the question involved.24. in our opinion at this point, we should now refer to the provision of rule 4 sub-rule (1) with its proviso as also rule 8. they are respectively quoted hereunder.'4. provisional list of voters.---(1) a provisional list of voters shall be prepared by every society for the year in the 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 constituency wise 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 clauses (i), (v), (vi) and (vii) of sub-section (1) of section 73g, and in consultation with the district deputy registrar in respect of the societies of the other categories mentioned in sub-section (1) of section 73g, by order, change the date of the 30th june and subsequent dates and fix revised dates for the purposes of these rules.'rule 8 reads as under :'8. power to 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 clauses (i), (v), (vi), and (vii) of sub-section (1) of section 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-section (1) of section 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.'25. an attempt was made on behalf of the petitioners to make out a case that rule 8, as quoted above, has its own field of operation and it is totally uncontrolled by rule 4 sub-rule (1) and, as such, the collector has power under rule 8 to fix any date, of course, in consultation with the district deputy registrar. if that be so, in our opinion, it will create a very anomalous position and, moreover, the important part of sub-rule (1) of rule 4, bearing reference to the order in which the general election is due, will be given a complete go-bye.26. it is nobody's case that under rule 8, the collector can announce elections even though they are not due. for this purpose, we may refer to section 73g of the said act. under sub-section (2), the term of the committee is fixed for a period of five years to be counted from the date on which the first meeting is held. there is further reference to the extension being given by the state government not exceeding a period of one year.27. the elections will, therefore, become due only in the year in which the term of the committee is to come to an end. if this is understood in the light of the aforesaid provisions of sub-section (2) of section 73g of the said act, in our opinion, it could mean that if, no extension is granted, in the 5th year, elections will be due. if extension is granted, at the most, in the 6th year counted from the date on which the first meeting is held, the election would become due.28. in the instant case, the election had become due in the year 1998, i.e. before 3rd december, 1998, when the term ordinarily has come to an end. with reference to that date, everyone agrees to it but for the proviso of sub-rule (1) of rule 4 of the said rules, for the purpose of provisional voters list,the date is 30th june, 1997. according to the proviso, if preparation itself falls due after the expiry of a period of six months from the 30th june, 1997, the collector may in consultation with the registrar or the district deputy registrar, as the case may be, change the date of the 30th june, 1997 to subsequent dates and fix revised dates for the purpose of these rules.29. it is an admitted position that in the instant case, the proviso is attracted.30. what has intervened thereafter also cannot be ignored. in our opinion, the orders of this court on different dates, referred to above, had prompted respondent no. 4 the collector to come out with latest publication of page 58 giving the date of december, 1997. as on that date, this would be the correct position. realising this, an attempt was made to attack the said action on the ground that respondent no. 4 having acted under the orders of the court passed in a petition to which the petitioners were not party is not binding on them. out of abundant precaution, it seems that even prayer clause, as added by amendment as (aa), was seeking modification of the said order dated 2nd february, 1999.31. fully knowing that the term of the committee is expiring on 3rd december, 1998 or if, not known, they were supposed to know that it is so expiring and, therefore, deemed knowledge or constructive knowledge can be attributed to the petitioners. having become members on 20th november, 1998, the petitioners knew that they could not be included in the provisional voters list as voters. as on that date, they could not have anticipated various events that followed after they became members.32. under the circumstances, in our opinion, it is quite clear that, so far as the petitioners are concerned, they cannot make any grievance about not getting a right of voting, save and except, because of change circumstances of various orders and, more particularly, the aforesaid orders of the state government extending the life of the board upto 31st december, 1998, if they can get the cut-off date extended to cover the period during which they became members.33. as per the extended period, the elections became due by 3rd december, 1998, going by sub-rule (1) of rule 4, the cut off date would, therefore, be the 30th june, 1998. there is no question of holding any consultation because the preparation of the provisional list of voters cannot be said to have fallen due after expiry of the period of six months from 30th june, 1998.34. it has been due long back and preparations were being made. the action of extension having taken place in the meantime, in our opinion, that also cannot be ignored as that is the thrust of section 73g sub-section (2) of the said act.35. for the aforesaid reasons, it is not possible to accept the plea of the petitioners that the cut off date should be 30th june, 1999. with reference to the elections due in a given year, sub-rule (1) of rule 4 of the said rules is very clear. the date has to be as on the 30th june of the preceding year. as rightly submitted by mr. naphade, the ld. advocate appearing on behalf of the respondents that this is not a magical date. at the relevant time when the rule was framed, it has nexus with the end of accounting year of the co-operative society which was 30th june of a given year. it is, therefore, understandable that when the general elections are contemplated in the subsequent year of the 30th june of a given year, the time gap of almost one year and little more will be there to take care of possible objectionable action of cramming the constituency.36. with regard to the rule 4, we have got the decision of the supreme court in the case of r.g. shinde v. state of maharashtra, reported in : air1994sc1673 . no doubt, in that case, factually there was a vast difference between the matter before the hon'ble supreme court and the one at hand. by fraudulent action of the chairman of the society of that case, the extensions were sought with regard to the submission of the provisional list of voters on more than one occasion under different petitioners and, accordingly, they were changed to the dates that were suitable to the chairman and his cronies.37. heavily coming upon them, their lordships, in paragraph 5, have clearly stated that the provisional list of voters of every society shall be prepared by the society for the year in which general elections were due to be held. persons who are members as on 30th june of the year immediately preceding the year in which such election is due, shall alone be included in the provisional list. this finding is to be found in paragraph 5 of that report on page 1677. the proviso gets attracted as per that paragraph only if the preparation of the provisional list falls due after the expiry of the period of six months from 30th june.38. in the instant case, election being due in the year 1999, i.e. before 3rd december, 1999, obviously, there is no question of expiry of six months from 30th june.39. in the case before apex court, the term of the managing committee was expiring on 3rd december, 1991. the provisional list was already approved and published by the collector as per the law on 17th december, 1991.40. as can be seen from page 58 of the petition, the work of preparing list has already been commenced on 9th february, 1999, of course, with reference to the 31st december, 1997. in view of the extension, now it will have to be with reference to the 30th june, 1998. the work thus having commenced has to be continued further with reference to this date alone. as noted earlier, the work has reached upto stage no. 4 with reference to page 58. the suggestions are to be taken by the director as per the said order of this court (exhibit-j, page-62) which they must have taken and if not they will do so forthwith.41. so far as the remaining six months are concerned, similar notices were issued and the matter be concluded by reaching stage no. 5 publishing the list and holding the elections.42. in view of the admitted position of applicability of the proviso, the consultation between the collector-respondent no. 4 and the district deputy registrar or the registrar, as the case may be, can well be understood. for this reason, on behalf of the petitioners, there was a submission made to the effect that the earlier public notice at page 42 does not disclose whether there was any consultation otherwise there could have promptly been reaction from the otherside that this being not a ground in the petition, neitherhe is expected to meet with the same nor the petitioners. however, as can be seen from the letter dated 29th july 1999/ 2nd august, 1999, referred to earlier, the collector did have consultation with the district deputy registrar on or about 4th april, 1998.43. the last mentioned date is taken from the reference letter incorporated in the said letter of the collector dated 29th july, 1999/ 2nd august, 1999. further, there is a reference to the date to be taken for provisional list of voters having been fixed as 31st december, 1997, because, the term of the committee was expiring on 3rd december, 1998.44. in this connection, no doubt, on 11th august, 1999, making reference to the circular dated 18th april, 1995, referred to earlier and produced at page 73, a reply to the letter dated 29th july, 1999/2nd august, 1999 given by the district deputy registrar was to the effect that for the purpose of publication of the provisional list of voters, the date 30th june, 1999 be fixed. seizing on this communication, it was very earnestly submitted on behalf of the petitioners that this being the result of the consultation, the date cannot be other than the 30th june, 1999.45. further commenting on subsequent correspondence dated 1st november, 1999 and 4th november, 1999, it was very strongly asserted that this change of opinion expressed in the last mentioned letter fixing the date to be 31st december, 1997 again is the result of a gentleman, who is occupying the seat in the present ministry and he is interested in the election of respondent no. 1-society, various assertions are made in the petition in this regard.46. however, what we have concluded earlier is on the basis of the statutory material and accepted position of the term of the committee having been extended upto 3rd december, 1999. the elections are, therefore, to be held in the year with reference to that date and, once that is done, the date, as per rule 4 of the said rules, has to be fixed and, in view of the extention, once the date turns out to the 30th june, 1998 whether there is subsequent correspondence or not, actuated or otherwise, in our opinion, nothing will turn out on it.47. on behalf of the interveners as well as respondents, it is very seriously urged that, at the most, cut-off date it can be 31st december, 1997 in the background of the earlier events including the event of the first extention of six months and this will take care of the said circular page 73 also.48. our conclusion is on the basis of the statutory material and publication of respondent no. 1 society with reference to the term of its managing committee. the petition is, no doubt, filed with a view to get the date extended so that the petitioners and other members, whom they represent, can exercise the ventures. the petitioners having become members in the month of november, 1998, they very well knew that as per the existing position then, they could not be the voters. subsequent events could not be anticipated by them. the process has already been commenced under different orders of the court. as noted above, when it is required now to be completed with reference to the extended date, in our opinion, it can be no other conclusion but to hold that the claim made in the petition cannot be sustained.49. we are aware of the fact that this would be the end of petition. however, as the matter, time and again, has come to the court the action withregard to the publication of the provisional list of voters has been taken under its order, and it having reached to the stage no. 4, as per the publication exhibit-h, page 58 issued on or about 9th february, 1999. we feel it proper to issue aforesaid direction.50. having held in this manner, we do not see any reason to elaborate on this point. the petition is, therefore, rejected. rule is discharged accordingly. ad-interim relief granted earlier is hereby vacated.51. the petition having been rejected and after the judgment was pronounced, the ld. advocate for the petitioners has requested for continuation of the ad-interim order. however, when we have directed the collector to take 30th june, 1998 to be the cut-off date, he has to first call for the provisional list with reference to that date and, thereafter, invite objections and consider the same, if any objections are received. this will take its own time and therefore, there is no necessity of continuing the said ad-interim order.52. so far as the availability of the certified copy is concerned, the same is expedited on the request of the petitioner. the aforesaid prayer of continuation of ad-interim relief is, therefore, rejected.53. petition dismissed.

Judgment:
ORDER

N.J. Pandya, J.

1. Rule. Returnable forthwith.

2. Mr. Nargolkar, the learned Asstt. Government Pleader, waives service on behalf of the respondents and Mr. Thorat, learned Counsel, waives service on behalf of the Interveners. By consent, Rule is taken up for final disposal. Heard both the parties.

3. The petitioners have filed this petition claiming to be the representatives of about 200 shareholders who were enrolled as members on or about 20th November, 1998. They were so enrolled to be members of respondent No. 1 Society. Respondent No. 1 is a Sakhar Karkhana and is registered as such under the Maharashtra Co-operative Societies Act, 1960 (for short the said Act).

4. Certain facts are admitted and they are detailed hereunder. The Managing Committee of respondent No. 1 had assumed charge on 4th December,1993. Respondent No. 1 is the specified society within the meaning of section 73G of the said Act.

5. The first dispute as to the enrollment of the members arose because respondent No. 1 had in fluxed as many as 2163 members on 9th December, 1997. On the same day, a dispute was filed in the Co-operative Court seeking ad-interim relief. Ad-interim relief was not granted by the Co-operative Court and, therefore, an Appeal was preferred in the Appellate Court of the Co-operative Court under the said Act. The said Appeal was admitted and interim relief came to be granted. Challenging the said order of the Appellate Court, Writ Petition No. 6151 of 1997 came to be filed in this Court.

6. Against the said order of the Appellate Court, however, no relief was granted by this Court in the said petition.

7. The Appellate Court, finally, heard the Appeal and allowed the said 2163 added members to vote and their votes to be kept in a separate ballot box.

8. This order of the Appellate Court was challenged by way of Writ Petition No. 4613 of 1998, whereunder, by a detailed order, this Court had stayed the order passed by the Co-operative Appellate Court. It was further restored to original ad-interim injunction granted by the Co-operative Court from 9th December, 1997. By the said order, the Collector was directed not to take any steps in the matter of finalisation of voters list. This order is at Exhibit-C, page 43.

9. In the meanwhile, some of the Directors from respondent No. 1 filed Writ Petition No. 6407 of 1998 challenging the vires of certain provisions of the said Act, 1960 and relief was sought for continuation of the existing Managing Committee till new elections were held. On 1st December, 1998, this Court had granted ad-interim relief in the said petition and thereby continued the existing Board of Directors notwithstanding the expiry of term of the said Board on 3rd December, 1998. A copy of this order is at Exhibit-D, page 50.

10. On 2nd February, 1999, both the aforesaid petitions were placed before the Division Bench of this Court. The Writ Petition No. 4613 of 1998 was sought to be withdrawn by the petitioners and, accordingly, the permission to withdraw the same was granted. At the same time, this Court directed that the Collector should consider the question of validity of membership as per the objections raised by the members. The Court also directed the Collector to publish a fresh election programme. Copy of the said order is at Exhibit-F, page 53. On the same day, Writ Petition No. 6407 of 1998 was also permitted to be withdrawn as no order appointing the Administrator was passed. Copy of the said order is at Exhibit-G, page 56.

11. On 9th February, 1999, respondent No. 4 the Collector published a fresh election programme for preparation/finalisation of the voters list of respondent No. 1-society. It is at Exhibit-H, page 58. Exercising the powers under section 73-G(2) of the said Act, as per Exhibit-1, page 59, respondent No. 6 extended for a further period of six months the term of the Managing Committee with effect from 3rd December, 1998.

12. One more writ petition being Writ Petition No. 2316 of 1999 came to be filed about non consideration of objection as to the membership on the ground that the petitioners of that petition could raise objection to the provisionalvoter list. The petition came to be disposed of on 23rd April, 1999 with a direction that instead of respondent No. 4-Collector, respondent No. 3 will decide the application filed under section 79B of the said Act. The said order is at Exhibit-J page 62.

13. In the Civil Application No. 3065 of 1999 filed in the aforesaid disposed of writ petition whereby the initial period of three weeks was extended by one more week so that respondent No. 3 can complete the task of considering objections. As a result, about 566 members were found to be ineligible. Copy of the said order is at Exhibit-K, page 66.

14. Respondent No. 4 the Collector had intimated respondent No. 1 by its letter dated 21st May, 1999, (Exhibit-L, page 69), as directed by the Regional Joint Director (Sugar), Kolhapur, that respondent No. 1 should proceed further in preparing a provisional list of voters with necessary changes and should forward the same for hearing to respondent No. 4 for its final publication.

15. Respondent No. 1 had, by its letter dated 31st May, 1999 (Exhibit-M, page 70), responded to the letter Exhibit-L, page 69, seeking guidance from the aforesaid Regional Joint Director (Sugar), Kolhapur, as to whether the provisional list should be prepared with reference to the date of 31st December, 1997 or to the date of 31st December, 1998 having been crossed and the guidance was sought on 21st May, 1999 with regard to the list of members to be prepared with reference to the date of 31st December, 1998.

16. To this, the reply (Exhibit-N, page 72) is given, where, inspite of giving, a specific direction or guidance as to the relevant date (hereinafter referred to as the cut off) date the said Regional Joint Director had, under letter Exhibit-N, Page 72, forwarded a circular of the Government dated 18th April, 1995. Certain guidelines are issued therein with regard to the aforesaid cut-off date. The relevant part thereof is at page 74. It would be referred to in the course of discussions.

17. The letter dated 2nd June, 1999 (Exhibit-P, page 79) discloses that the existing Board of Directors had, on extended terms, got further extension order dated 30th September, 1999 and thereby the Board is continued upto 3rd December, 1999.

18. From the annexures of the petition, it is not clear that respondent No. 1 Society, after receipt of the letter dated 2nd June, 1999, Exhibit-N, page 72, has responded to the Collector by forwarding provisional list of voters keeping in mind the aforesaid circular dated 18th April, 1995, page 73, onwards. It is in this background, the dispute as to the cut off date in the matter is to be appreciated and resolved. The petitioners, who were enrolled on or about 20th November, 1998, can be included in the final list of voters, subject, of course, to the objections, if any, as to the cut-off date the 31st December, 1998. In this regard, one does have an indication in the aforesaid letter Exhibit-M, page 70, that it seems to be an understanding of respondent No. 1-Society. It may or may not be so. That definitely is the stand of the petitioners in prayer clauses of the petition. First they say in prayer Clause (a) page 28 to the petition that, necessary permission be granted under Order 1, Rule 8 of the Code of Civil Procedure, 1908 to the petitioners to file the present petition for and on behalf of all members who were enrolled by the respondent No. 1 on 20th November, 1998. So far as the cut off date is concerned, prayer Clause (b) is made where a specific date is mentioned as 30th June, 1999. It is asserted in this clause that this in fact is the date contemplated by Rule 4(1) of the Specified Societies Rules under the aforesaid Act. Thereafter, there is a direction sought from respondent No. 1 to furnish provisional list of voters as on 30th June, 1999 and consequential relief of process being concluded on the basis of the provisional voters list as on 30th June, 1999 for finalisation of the voters list.

19. In short, the question involved in the petition is that the petitioners, who represent the members, were enrolled on 20th November, 1998 and are claiming to be included in the voters list with reference to the ensuing election. Therefore, as indicated in the letter Exhibit-M, according to the Society, the membership list should be with reference to 31st December, 1998 while, according to the petitioners, it should be 30th June, 1999.

20. The petition, as based, is placing reliance on Rule 4 of the Maharashtra Specified Co-operatives Societies Elections to Committee Rules, 1971 (hereinafter would be referred to as the said Rules). In the course of argument, the prayer clause was amended by including prayer Clause (aa) whereby modification in the direction issued by the Court in Writ Petition No. 4613 of 1998 was sought on the ground that the petitioners were not party to the same. A copy of the said order is already referred to above, which is at Exhibit-F, page 53.

21. As the petitioners were enrolled on or about 20th November, 1998, obviously, they could not have been parties in that petition because they had not acquired membership in respondent No. 1 Society on the date of its filing which is 28th August, 1998. In our opinion, the said amended prayer Clause |aa) has, therefore, no meaning. Otherwise also, when the elections were not held, the Collector, as Returning Officer, as contemplated by the aforesaid Rules, had left with no alternative but to get provisional list prepared and that he has to finalise the same after following the procedure.

22. No doubt, pursuant to the said order dated 2nd February, 1999, passed in the Writ Petition No. 4613 of 1998. Respondent No. 4-Collector had issued the Public Notice, as per Exhibit-H, page 58, where it is clearly indicated that the provisional list is prepared as on 31st December, 1997 and that it has been so published on 14th July, 1998. Thereafter, various dates inviting objections and considerations thereof, etc. as well as different stages are mentioned, and we were told by the Ld. Asstt. Government Pleader, who having obtained instructions in this regard, that the process has reached the Stage No. 4 and objections are yet to be considered.

23. This would be one more reason as to why modification at the instance of the petitioners and through whom they are representing is not called for. The action was taken pursuant to the order passed in the writ petition, in which, the petitioners could not have been the parties for the reasons stated above. However, in our opinion, neither this order nor the action of the Collector, as per page 58 or the earlier publication (Exhibit-B, page 42) made on or about 14th May, 1998 again with reference to 31st December, 1997 has any bearing on the question involved.

24. In our opinion at this point, we should now refer to the provision of Rule 4 sub-rule (1) with its proviso as also Rule 8. They are respectively quoted hereunder.

'4. Provisional List of Voters.---(1) A provisional list of voters shall be prepared by every society for the year in the 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 constituency wise 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 Clauses (i), (v), (vi) and (vii) of sub-section (1) of section 73G, and in consultation with the District Deputy Registrar in respect of the societies of the other categories mentioned in sub-section (1) of section 73G, by order, change the date of the 30th June and subsequent dates and fix revised dates for the purposes of these rules.'

Rule 8 reads as under :

'8. Power to 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 Clauses (i), (v), (vi), and (vii) of sub-section (1) of section 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-section (1) of section 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.'

25. An attempt was made on behalf of the petitioners to make out a case that Rule 8, as quoted above, has its own field of operation and it is totally uncontrolled by Rule 4 sub-rule (1) and, as such, the Collector has power under Rule 8 to fix any date, of course, in consultation with the District Deputy Registrar. If that be so, in our opinion, it will create a very anomalous position and, moreover, the important part of sub-rule (1) of Rule 4, bearing reference to the order in which the general election is due, will be given a complete go-bye.

26. It is nobody's case that under Rule 8, the Collector can announce elections even though they are not due. For this purpose, we may refer to section 73G of the said Act. Under sub-section (2), the term of the Committee is fixed for a period of five years to be counted from the date on which the first meeting is held. There is further reference to the extension being given by the State Government not exceeding a period of one year.

27. The elections will, therefore, become due only in the year in which the term of the Committee is to come to an end. If this is understood in the light of the aforesaid provisions of sub-section (2) of section 73G of the said Act, in our opinion, it could mean that if, no extension is granted, in the 5th year, elections will be due. If extension is granted, at the most, in the 6th year counted from the date on which the first meeting is held, the election would become due.

28. In the instant case, the election had become due in the year 1998, i.e. before 3rd December, 1998, when the term ordinarily has come to an end. With reference to that date, everyone agrees to it but for the proviso of sub-rule (1) of Rule 4 of the said Rules, for the purpose of provisional voters list,the date is 30th June, 1997. According to the proviso, if preparation itself falls due after the expiry of a period of six months from the 30th June, 1997, the Collector may in consultation with the Registrar or the District Deputy Registrar, as the case may be, change the date of the 30th June, 1997 to subsequent dates and fix revised dates for the purpose of these rules.

29. It is an admitted position that in the instant case, the proviso is attracted.

30. What has intervened thereafter also cannot be ignored. In our opinion, the orders of this Court on different dates, referred to above, had prompted respondent No. 4 the Collector to come out with latest publication of page 58 giving the date of December, 1997. As on that date, this would be the correct position. Realising this, an attempt was made to attack the said action on the ground that respondent No. 4 having acted under the orders of the Court passed in a petition to which the petitioners were not party is not binding on them. Out of abundant precaution, it seems that even prayer clause, as added by amendment as (aa), was seeking modification of the said order dated 2nd February, 1999.

31. Fully knowing that the term of the Committee is expiring on 3rd December, 1998 or if, not known, they were supposed to know that it is so expiring and, therefore, deemed knowledge or constructive knowledge can be attributed to the petitioners. Having become members on 20th November, 1998, the petitioners knew that they could not be included in the provisional voters list as voters. As on that date, they could not have anticipated various events that followed after they became members.

32. Under the circumstances, in our opinion, it is quite clear that, so far as the petitioners are concerned, they cannot make any grievance about not getting a right of voting, save and except, because of change circumstances of various orders and, more particularly, the aforesaid orders of the State Government extending the life of the Board upto 31st December, 1998, if they can get the cut-off date extended to cover the period during which they became members.

33. As per the extended period, the elections became due by 3rd December, 1998, going by sub-rule (1) of Rule 4, the cut off date would, therefore, be the 30th June, 1998. There is no question of holding any consultation because the preparation of the provisional list of voters cannot be said to have fallen due after expiry of the period of six months from 30th June, 1998.

34. It has been due long back and preparations were being made. The action of extension having taken place in the meantime, in our opinion, that also cannot be ignored as that is the thrust of section 73G sub-section (2) of the said Act.

35. For the aforesaid reasons, it is not possible to accept the plea of the petitioners that the cut off date should be 30th June, 1999. With reference to the elections due in a given year, sub-rule (1) of Rule 4 of the said Rules is very clear. The date has to be as on the 30th June of the preceding year. As rightly submitted by Mr. Naphade, the Ld. Advocate appearing on behalf of the respondents that this is not a magical date. At the relevant time when the rule was framed, it has nexus with the end of accounting year of the Co-operative Society which was 30th June of a given year. It is, therefore, understandable that when the general elections are contemplated in the subsequent year of the 30th June of a given year, the time gap of almost one year and little more will be there to take care of possible objectionable action of cramming the constituency.

36. With regard to the Rule 4, we have got the decision of the Supreme Court in the case of R.G. Shinde v. State of Maharashtra, reported in : AIR1994SC1673 . No doubt, in that case, factually there was a vast difference between the matter before the Hon'ble Supreme Court and the one at hand. By fraudulent action of the Chairman of the Society of that case, the extensions were sought with regard to the submission of the provisional list of voters on more than one occasion under different petitioners and, accordingly, they were changed to the dates that were suitable to the Chairman and his cronies.

37. Heavily coming upon them, Their Lordships, in paragraph 5, have clearly stated that the provisional list of voters of every Society shall be prepared by the Society for the year in which general elections were due to be held. Persons who are members as on 30th June of the year immediately preceding the year in which such election is due, shall alone be included in the provisional list. This finding is to be found in paragraph 5 of that report on page 1677. The proviso gets attracted as per that paragraph only if the preparation of the provisional list falls due after the expiry of the period of six months from 30th June.

38. In the instant case, election being due in the year 1999, i.e. before 3rd December, 1999, obviously, there is no question of expiry of six months from 30th June.

39. In the case before Apex Court, the term of the Managing Committee was expiring on 3rd December, 1991. The provisional list was already approved and published by the Collector as per the law on 17th December, 1991.

40. As can be seen from page 58 of the petition, the work of preparing list has already been commenced on 9th February, 1999, of course, with reference to the 31st December, 1997. In view of the extension, now it will have to be with reference to the 30th June, 1998. The work thus having commenced has to be continued further with reference to this date alone. As noted earlier, the work has reached upto Stage No. 4 with reference to page 58. The suggestions are to be taken by the Director as per the said order of this Court (Exhibit-J, page-62) which they must have taken and if not they will do so forthwith.

41. So far as the remaining six months are concerned, similar notices were issued and the matter be concluded by reaching Stage No. 5 publishing the list and holding the elections.

42. In view of the admitted position of applicability of the proviso, the consultation between the Collector-respondent No. 4 and the District Deputy Registrar or the Registrar, as the case may be, can well be understood. For this reason, on behalf of the petitioners, there was a submission made to the effect that the earlier Public Notice at page 42 does not disclose whether there was any consultation otherwise there could have promptly been reaction from the otherside that this being not a ground in the petition, neitherhe is expected to meet with the same nor the petitioners. However, as can be seen from the letter dated 29th July 1999/ 2nd August, 1999, referred to earlier, the Collector did have consultation with the District Deputy Registrar on or about 4th April, 1998.

43. The last mentioned date is taken from the reference letter incorporated in the said letter of the Collector dated 29th July, 1999/ 2nd August, 1999. Further, there is a reference to the date to be taken for provisional list of voters having been fixed as 31st December, 1997, because, the term of the Committee was expiring on 3rd December, 1998.

44. In this connection, no doubt, on 11th August, 1999, making reference to the Circular dated 18th April, 1995, referred to earlier and produced at page 73, a reply to the letter dated 29th July, 1999/2nd August, 1999 given by the District Deputy Registrar was to the effect that for the purpose of publication of the provisional list of voters, the date 30th June, 1999 be fixed. Seizing on this communication, it was very earnestly submitted on behalf of the petitioners that this being the result of the consultation, the date cannot be other than the 30th June, 1999.

45. Further commenting on subsequent correspondence dated 1st November, 1999 and 4th November, 1999, it was very strongly asserted that this change of opinion expressed in the last mentioned letter fixing the date to be 31st December, 1997 again is the result of a gentleman, who is occupying the seat in the present Ministry and he is interested in the election of respondent No. 1-society, various assertions are made in the petition in this regard.

46. However, what we have concluded earlier is on the basis of the statutory material and accepted position of the term of the Committee having been extended upto 3rd December, 1999. The elections are, therefore, to be held in the year with reference to that date and, once that is done, the date, as per Rule 4 of the said Rules, has to be fixed and, in view of the extention, once the date turns out to the 30th June, 1998 whether there is subsequent correspondence or not, actuated or otherwise, in our opinion, nothing will turn out on it.

47. On behalf of the Interveners as well as respondents, it is very seriously urged that, at the most, cut-off date it can be 31st December, 1997 in the background of the earlier events including the event of the first extention of six months and this will take care of the said Circular page 73 also.

48. Our conclusion is on the basis of the statutory material and publication of respondent No. 1 Society with reference to the term of its Managing Committee. The petition is, no doubt, filed with a view to get the date extended so that the petitioners and other members, whom they represent, can exercise the ventures. The petitioners having become members in the month of November, 1998, they very well knew that as per the existing position then, they could not be the voters. Subsequent events could not be anticipated by them. The process has already been commenced under different orders of the Court. As noted above, when it is required now to be completed with reference to the extended date, in our opinion, it can be no other conclusion but to hold that the claim made in the petition cannot be sustained.

49. We are aware of the fact that this would be the end of petition. However, as the matter, time and again, has come to the Court the action withregard to the publication of the provisional list of voters has been taken under its order, and it having reached to the Stage No. 4, as per the publication Exhibit-H, page 58 issued on or about 9th February, 1999. we feel it proper to issue aforesaid direction.

50. Having held in this manner, we do not see any reason to elaborate on this point. The petition is, therefore, rejected. Rule is discharged accordingly. Ad-interim relief granted earlier is hereby vacated.

51. The petition having been rejected and after the judgment was pronounced, the Ld. Advocate for the petitioners has requested for continuation of the ad-interim order. However, when we have directed the Collector to take 30th June, 1998 to be the cut-off date, he has to first call for the provisional list with reference to that date and, thereafter, invite objections and consider the same, if any objections are received. This will take its own time and therefore, there is no necessity of continuing the said ad-interim order.

52. So far as the availability of the certified copy is concerned, the same is expedited on the request of the petitioner. The aforesaid prayer of continuation of ad-interim relief is, therefore, rejected.

53. Petition dismissed.