Madhya Pradesh High Court
Sindhu Sahkari Sakh Sanstha Maryadit ... vs Ashok Khubani on 4 July, 2017
Author: Virender Singh
Bench: Virender Singh
WP-749-2017
(SINDHU SAHKARI SAKH SANSTHA MARYADIT DISTT. INDORE THRU.PRAKASH Vs ASHOK
KHUBANI)
04-07-2017
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
Division Bench: Hon'ble Shri Justice P.K. Jaiswal
& Hon'ble Shri Justice Virender Singh
Writ Petition No.749/2017
SINDHU SAHKARI SAKH SANSTHA MARYADIT
DISTT.INDORE THRU.PRAKASH
PRESIDENT OFFICE
Vs.
ASHOK KHUBANI AND OTHERS
&
Writ Petition No.750/2017
SINDHU SAHKARI SAKH SANSTHA MARYADIT
DISTT.INDORE THRU.PRAKASH
PRESIDENT OFFICE
Vs.
KISHORE WADHWANI AND ANR.
Mr. A.S. Kutumbale, learned Senior Counsel with Mr.
S.P. Joshi, learned counsel for the petitioner in both
the petitions.
Mr. Ashutosh Nimgaonkar, learned counsel for the
respondents in both the petitions.
-------------------------------------------------------------------------
ORDER
(Passed on 04.07.2017) Per: Virender Singh, J.
Regard being had to the similitude of the controversy involved in these petitions, they were heard analogously and both are being decided by this common order.
2. The petitioner has challenged the order dated 31.01.2017 passed in Revision Petition No. 11/2017 & 13/2017 by Madhya Pradesh State Co-operative Tribunal, Bhopal (For short Co-operative Tribunal) whereby the learned Tribunal upheld the order of dismissal of appeals of Respondent no.1 and 4 of the Appellate Authority/ Dy. Commissioner, Co-operative Societies, District - Indore and set aside the order of the Appellate Authority to the extent it related to Respondent nos. 2 and 3 (WP 749/2017) and Respondent No. 1 (WP 750/2017) and directed the Dy. Registrar, Co-operative Societies to amend the final electoral roll to the extent to permit them to participate in the election process by displaying their name as eligible members.
3. The facts in detail need not be stated, for the controversy really lies in a narrow compass. As the factual matrix would unfurl, the petitioner is a registered Resource Co-operative Society. On completion of term, election of Board of Directors of the society fell due on 26.03.2017. Therefore, the Madhya Pradesh State Co-operative Election Authority appointed a Registration officer Mr. Anand Katri, Co- operative Inspector to finalize the members list vide order dated 15.12.2016 (Anx.P-2). Registration officer published members list showing the name of Respondent No. 1 to 4 as ineligible to vote being âNon Borrowing Memberâ and published this list on 20.12.2016 as per the schedule laid down by the State Election Authority (Anx.P-2A) and invited objections up to 27.12.2016. In the mean time; Respondent No. 2 & 3 borrowed Rs.1000/- each from the Society. Respondent No. 1 (WP 750/2017) and Respondent No.2 to 4 (WP 749/2017) filed objections between 23 to 27.12.2016 regarding their ineligibility shown in the members list before the Registering Officer, which were dismissed by him vide order dated 28.12.2016. The objection of Rahul Sukhani and Manohar Lal Vadhwani (Respondent No.2 & 3 WP 749/2017) and of Kishore Vadhwani (Respondent No. 1 WP 750/2017) on the ground that they have taken loan after publication of the members list (Anx.P-5 WP750/17 & Anx. P-6 WP 749/17). They preferred appeal against this order of Registration Officer before the Appellate Authority, Co-operative Societies, which met with the same fate on the same ground (order dated 06.01.2017). Respondent No. 1 (WP 749/2017) did not file objections but he directly filed appeal, which was also dismissed vide order dated 06.01.2017. All these Respondents (Respondent Nos.1 to 4 WP 749/17 & Respondent No. 1 WP 750/17) then preferred revision petitions against the order of the Appellate Authority on 10.01.207, which were disposed of as stated in para no.1 above.
4. After dismissal of the appeals filed by the respondents, the State Election Authority appointed Mr. Khatri as Returning Officer for conducting the election vide order dated 13.01.2017 (Anx.P-7) and also laid down a schedule (Annexure P-7A) for the election fixing various dates for intermediate proceedings and the date of election 13.02.2017. This programme later amended vide letter dated 20.01.2017 (Annexure P-13). Various dates for intermediate proceedings were rescheduled. The election was rescheduled for 25.02.2017 (Anx.P-8 & 8A). Before issuing notice of General Meeting and also the election programme by the concerned officers, the Co-operative Tribunal passed the impugned order.
5. The petitioner has challenged the order on the ground that the Tribunal has passed the impugned order without any authority and against the mandatory provisions of Section 48 (7), 50A and 64(2)(5) of The Madhya Pradesh State Co-operative Societies Act, 1960 (hereinafter referred to as the Act, 1960) and Rule 49C of The Madhya Pradesh State Co- operative Societies Rules, 1962 (hereinafter referred to as the Rules, 1962) as admittedly the respondents have take loan between 23 to 27.12.2016 and till the date of publication of members list i.e. 20.12.2016, they were ânon-borrowing membersâ. The impugned orders are passed after publishing the final list on 10.01.2017, appointment of Mr. Anand Khatri as Returning Officer on 13.01.2017 and also after publishing amended election programme on 20.01.2017, according to which; the election process was to start from 28.01.2017. The order is passed by the Tribunal ignoring all these facts; therefore, it is beyond jurisdiction and illegal.
6. The quintessence of the pleadings of the petitioner is that the respondents had borrowed money from the petitioner society after publication of the members list by the Registration Officer; therefore, they were not eligible to vote in the election of the Society and the learned Tribunal committed error in granting them voting right taking into consideration that they have borrowed money before finalization of the members list.
7. Considering these pleadings, the only question arises for our consideration is that weather a ânon borrowing memberâ cannot get eligibility to participate or to vote in the election of the society even after borrowing money from the society after publication of members list for the purpose of holding election? The answer is, no such bar is created by the concerned law.
8. Section 48 (7) of the Co-operative Societies Act is related to ânon borrowing memberâ and reads thus:
â48. Final authority in Society ---
-
1 to 6 .....
(7) In a resource society, no person who is a non-borrowing member shall be qualified for election as member of Committee, delegate or representative nor shall be entitled to vote in any election of the committee, delegate or representative of the society:
â¦â¦â¦.
Explanation- A non-borrowing member shall be one who has never borrowed from such a bank or a society in which he is a member.
9. Section 50A of the Co-operative Societies Act is related to the âdefaulterâ and it provides:
50-A. Disqualification for being candidate or voter for election to Board of Director or representative or delegate of society.-
(1) No person shall be qualified to be a candidate for election as member of the Board of Directors, representative or delegate of the society if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him.
(2) A person elected to an office of a society shall cease to hold such office, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him, and the Registrar shall declare his seat vacant:
Provided that a person elected to an office of a co-operative bank from a society other than co-operative credit structure, shall cease to hold such office, if such society commits default for any loan or advance for a period exceeding three months, and the Registrar shall declare his seat vacant. (3) No person shall be entitled to vote at any election of the Board of Directors, representative or delegate of the society, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him.
10. Thus, it is clear from the simple and plain reading of these provisions that no rider is created for ânon borrowing memberâ as in the case of âdefaulterâ. Similarly, nothing is stated in this or any other provision of the Act which shows that ânon borrowing memberâ cannot get eligibility to participate or to vote in the election if he borrows money from the society after publication of the provisional voter list or members list for the purpose of inviting objection to finalize the same. On the contrary there are so many provisions which show that object of the Act is to promote co-operation within the society and not to deprive or deny any legal right to the members of the society. The Act is made with intent to âorganize, develop and to promote voluntary formation, autonomous functioning and professional management of Co-operatives as democratic instruments and people's institution based on self help and mutual aid and for curbing exploitation and ensuring socio-economic development of people with particular emphasis on weaker sections of society.â The provisions of Section 47 (11) of the Act, 1960 says âEvery Co- operative society shall ensure participation of members in the management of the co-operative society. The minimum requirement of attending the meetings and the minimum level of services which shall be utilized by the members shall be such as may be prescribed in the bye-laws of the society.â
11. Chapter 5-A of the Co-operative Societies Rule, 1960 enumerates procedure for conducting elections in co-operative societies. Rule 49C (1) provides for preparation of members list for election and says that the list shall indicate the defaulter within the meaning of section 50-A by assigning sign âXâ and word âDefaulterâ. Sub Sections 4 speaks about presentation of objections. Proviso to Sub Section (5)(d) provides that any person whose name is shown in the list with sign âX- Defaulterâ, may at any time before the date on polling is to be held, after making necessary payment of his dues on account of which he had been shown as defaulter in the list of the society concerned and on production of a proof in token thereof in form G-7, get the list corrected by the returning officer. Sub Sections 5 speaks about disposal of objections. It provides that the Registration Officer shall, after holding such summary enquiry into the claim or objection as he thinks fit, record his decision in writing. Clause (e) of subsection (5) provides that any person aggrieved by the decision of Registration Officer may prefer an appeal before authority or any officer so authorized/specified by him. It further provide that after disposal of objections, the list shall be modified accordingly and that list shall be final and no amendment, modification, addition or deletion in any entry of voter list after such finalization thereof shall be allowed until the election process is completed. Thus, it is clear that up to the stage of filing, hearing and disposal of the objections by the Registration Officer and by the appellate authority as the case may be, the voter list can be amended or modified as per the decision on the objection. This is what exactly happened in the present case. The respondents filed objections. They disposed off by the Registration Officer and by the Appellate Authority as well. Aggrieved by the order of the Appellate Authority the respondents submitted revision petition before the Tribune as provided by section 77 sub-Section 14 of the Act, 1962 and the Tribunal decided the same vide impugned order. All this happened prior to finalization of the member/voter list.
12. Simple and plain reading of these provisions show that voter list has to be finalized by the Returning Officer after deciding the objections submitted before him and there is no bar prescribed under the Act or the Rules framed thereunder that after publishing of provisional member list for the purpose of inviting objections and before the date of filing of objection if any member get remove the disability shown against his name by complying the necessary provisions even than his name cannot be added as eligible member. Thus, the conclusions of the learned Tribunal cannot be said to be incorrect, invalid of illegal. Therefore, the contention of the petitioner is not tenable.
13. Proviso to Section 49C(5) (e) made it clear that it is the stage of publication of final list when any further amendment, modification, addition, alteration or deletion in any entry of voter list is not permitted, which means prior to it the same is permitted.
14. All these provision shows that the purpose of the Act is to promote the participation and to encourage the members of the society to participate in the activities of the societies for achieving the ultimate goal of the Act, therefore, the Act, 1960 and also the Rules, 1962 provides that any default can be removed up to the certain stages. The learned Tribunal observing these provisions, allowed the revision petition of Respondent Nos.2 & 3 of WP 749/2017 and Respondent No. 1 of WP 750/2017 as they have removed their ineligibility by borrowing loan from the society before the date fixed for filing the objections and before finalization of the members list.
15. Therefore, in our considered view, the learned Tribunal has committed no mistake in holding that after removing the ineligibility, Respondent Nos.2 & 3 of WP 749/2017 and Respondent No. 1 of WP 750/2017were eligible to participate and to vote in the ensuing election and directing the concerned authority to permit them to participate and to vote in the election. Consequently, both the petitions filed by the petitioners are bereft of merits, liable to be and is dismissed accordingly.
16. Resultantly, I.A. No.785/2017, an application for stay on the operation of the order of learned Tribunal also stands closed.
17. A copy of this order be placed in W.P. No.750/2017.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
amit