Document Fragment View

Matching Fragments

16. Learned senior counsel for the petitioners invited our attention to some of the contentions raised by the respondent no.2 in the affidavits- in-reply filed by the Election Authority and would submit that the writ petition filed by the petitioners has been opposed mainly on the ground that if the cut-off date is extended as sought by the petitioners there would be administrative as well as financial burden on the Election Authority. It is wrongly contended by the Election Authority that the election process has already commenced. He submits that the alleged bdp wpst-8218.21.doc alternate remedy suggested by the respondent no.2 of filing an Election Petition under Section 91 of the MCS Act is not an alternate or efficacious remedy available to the petitioners to impugn the order passed by the said Election Authority refusing to extend the cut-off date. He submits that the said order passed by the Election Authority cannot be challenged in an Election Petition under Section 91 of the MCS Act. The Appellate Authority cannot consider the objections raised by the petitioners under Rules 9 and 10 of the said Election Rules nor such objections can be considered by the Co-operative Court under Section 91 of the MCS Act.

22. Mr. Deelip Patil Bankar, learned counsel for the respondent no.2 i.e. Election Authority invited our attention to various annexures to the affidavits filed by the Election Authority, various provision of the MCS Act, the said Election Rules, Article 243ZJ (2) of the Constitution of India and various judgments in support of his submission. It is submitted by the learned counsel that this writ petition filed under Article 226 of the Constitution of India is not maintainable. An alternate remedy as prescribed under Rule 78 of the said Election Rules read with Section 91 of the MCS Act to file election dispute is available to the petitioners. He submits that the election process has already commenced on 21st June, 2020 when the said public notice bdp wpst-8218.21.doc annexed at page 53 of the writ petition issued by the Election Authority. No election thus can be called in question in this writ petition. The only remedy to the petitioners would be to file an Election Petition before the Co-operative Court has laid down in Section 91. He submits that under Section 91(1) of the MCS Act in dispute relating to election of the committee or its officers has to be filed before the Co-operative Court.

38. Insofar as the judgment delivered by the Aurangabad Bench of this Court in case of Bhausaheb Kachru Natkar (supra) is concerned, it is submitted by the learned senior counsel that the provisional voters list in that matter was already published. He submits that in the said judgment, the Division Bench of this Court has directed that the Election Authority in cases where the elections are postponed beyond the term of the committee shall exercise its discretion and direct preparation of the provisional voters list fixing the appropriate date enabling participating of the large numbers of legitimate and valid members. He made an attempt to distinguish the order passed by this Court in case of Kharade Seva Sahakari Society Ltd. (supra) on the ground that in that matter, the Division Bench of this Court had directed the Election Authority to complete the process from the stage it was left. The said order will not apply to the facts of this case. He submits that an existence of valid electoral roll is the basic ingredient for holding valid election. Under section 91 of the MCS Act, the issue as to whether the Election Authority has fixed the cut-off date in accordance with law or not would not fall within the jurisdiction of the Co-operative societies of section 91 of the MCS Act but is within the power of the Election Authority. The petitioners will have no such locus to raise any objection under Rule 11(2) since the petitioners' claims are not forwarded by the respondent no.4 federal society in the list of voters.

41. On the other hand, it is strenuously urged by Mr. Sakhare, learned senior counsel for the petitioners that in this case the election process has been suspended since January 2020 till 31st August 2021. The respondent no.2 has already taken decision on the representation made by the petitioners requesting for shifting the cut-off date. Such decision referred by the respondent no.2 cannot be the subject matter of an election dispute under Section 91 of the MCS Act. It is urged that under Section 91 of the MCS Act whether an Election Authority has fixed the cut-off date in accordance with law or not would not fall bdp wpst-8218.21.doc within the jurisdiction of the Co-operative Court under Section 91 of the MCS Act. It is also urged by the petitioners that the petitioners will have no locus to raise any objection under Rule 11(2) of the said Election Rules since the claims of the petitioners are not forwarded by the respondent no.4 federal society to be included in the list of voters to the respondent no.2.