Skip to content


Dhondiba Parshuram Kakade Vs. Shri Someshwar Sahakari Sakhar Karkhana Ltd. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 1101 and 2271 of 1974
Judge
Reported in(1979)81BOMLR31
AppellantDhondiba Parshuram Kakade
RespondentShri Someshwar Sahakari Sakhar Karkhana Ltd.
DispositionPetition allowed
Excerpt:
maharashtra co-operative societies act (mah, xxiv of 1961), section 38(2) - maharashtra specified co-operative societies elections to committees rules, 1971, rules 4, 5 and 6-claims and objections to the provisional list of voters.;rule 5 of the maharashtra specified co-operative societies elections to committees rules, 1971 provides a safeguard and a reasonable guarantee that the person whose name appears in the provisional voter's list can be identified as the one and the same person whose name appears in the register of members, and hence is entitled to vote.;rules 5 and 6 are complementary of each other and as such they must be read in their plain and natural meaning. under rule 6(1) all that the collector is entitled to, and permitted to, do is to ensure the identity of the voter.....lentin, j.1. both these petitions are filed to set aside the order, dated february 16, 1974 passed by the collector of 'poona, viz. the respondent no. 2, directing the deletion of the names of the petitioners from the voters' list of the respondent no. 1-karkhana, both these petitions have common facts and involve for decision common points of law and hence are being disposed of by a common judgment.2. the petitioners and respondents nos. 3 to 5 in special civil application no. 1101 of 1974 and the petitioners and respondents nos. 3 to 8 in special civil application no. 2271 of 1974 are shown as producer-members in the register of members of the respondent no. 1-karkhana, which is a society registered under the maharashtra co-operative societies act, 1960 (referred to hereafter as 'the.....
Judgment:

Lentin, J.

1. Both these petitions are filed to set aside the order, dated February 16, 1974 passed by the Collector of 'Poona, viz. the respondent No. 2, directing the deletion of the names of the petitioners from the voters' list of the respondent No. 1-Karkhana, Both these petitions have common facts and involve for decision common points of law and hence are being disposed of by a common judgment.

2. The petitioners and respondents Nos. 3 to 5 in Special Civil Application No. 1101 of 1974 and the petitioners and respondents Nos. 3 to 8 in Special Civil Application No. 2271 of 1974 are shown as producer-members in the Register of Members of the respondent No. 1-Karkhana, which is a society registered under the Maharashtra Co-operative Societies Act, 1960 (referred to hereafter as 'the Societies Act'). The respondent No. 2 is the Collector of Poona.

3. The elections to the Board of Directors of the respondent No. 1-Karkhana are held tri-annually. On August 18, 1973, an election programme was published by the Collector of Poona. Under this programme, September 21, 1973 was the date fixed for presenting claims and raising objections to the provisional voters' list. The date for the Collector's decision of claims and objections was fixed at October 1, 1973. The date for final publication of voters' list was fixed at October 3, 1973.

4. The names of the petitioners were included in the provisional voters' list. One hundred and fifteen .persons raised claims before the Collector for the inclusion of their names in the provisional voters* list. However, no objection had been raised by anybody to the inclusion of the petitioners' names in the provisional voters' list.

5. On September 29, 1973, an order was passed by the' Additional Collector, Poona, who decided those claims. He directed that thirty-six names out of the 115 claimants be included in the provisional voters' list,

6. Aggrieved by this Order, the respondent No. 1-Karkhana filed Special Civil Application No. 2594 of 1973 in this Court and obtained a stay of the election scheduled to be held on November 23, 1973. At the final hearing of that Special Civil Application No. 2594 of 1973, certain statements, which we shall advert to later in detail in this judgment, were made on behalf of the Collector by the learned counsel appearing for him. For the moment, it may be stated that the gist of those statements was that the order dated September 29, 1973 should have been passed by the Collector and not by the Additional Collector. On the strength of those statements, the impugned order dated September 29, 1973 passed by the Additional Collector was set aside on December 10, 1973.

7. Thereafter, the respondent No. 2, namely the Collector, called upon the respondent No. 1-Karkhana to send a fresh provisional list of voters to enable him to publish a fresh election programme and to prepare the final voters' list. To this, the respondent No. 1-Karkhana objected on the ground that publication of a fresh provisional voters' list was unnecessary as that had already been done. This objection was however negatived by the Collector who proceeded to publish a fresh election programme on December 21, 1973 for the purpose of preparing the final voters' list.

8. In response to the fresh programme published by the Collector on December 21, 1973, respondents Nos. 3 to 5 in Special Civil Application No. 1101 of 1974 and respondents Nos. 3 to 8 in Special civil Application No. 2271 of 1974, (all these respondents hereafter being referred to for convenience as ' the objector-respondents'), objected to the inclusion of the names of the petitioners in the provisional voters' list on the following grounds, namely (1) that certain petitioners were under the age of eighteen years, (2) that certain petitioners did not grow sugar cane in at least half acre of land and supply the same to the respondent No. 1-Karkhana, (3) that though the petitioners owned land, they did not grow sugarcane, and (4) that the petitioners did not have land either as owners or tenants in the area of operation of the respondent No. 1-Karkhana.

9. The objections of the objector-respondents were opposed by the respondent No. 1-Karkhana, which contended that the petitioners were producer-members and had rightly been admitted as members of the respondent No. 1-Karkhana, that the question whether or not a person is rightly admitted as a member of the respondent No. 1-Karkhana is a dispute pertaining to the management of the respondent No. 1-Karkhana and must be decided under the provisions of Section 91 of the Societies Act, that the Register of Members being prima facie evidence of the admission of the petitioners as members of the respondent No. 1-Karkhana, the Collector could not go behind the same and come to his own conclusion whether the petitioners were correctly registered as members or not. These contentions of the respondent No. 1-Karkhana were adopted by the petitioners,

10. On February 16, 1974 after holding a detailed inquiry, the Collector passed an order allowing the objections raised by the objector-respondents and directed the deletion of the names of the petitioners from the provisional voters' list of the respondent No. 1-Karkhana on the ground that their names did not deserve to be included in the Membership Register on the due date.

11. Being aggrieved by this order passed by the Collector, the petitioners have filed the present petitions.

12. Mr. J.G. Kanga, the then Collector, has filed an affidavit-in-reply justifying his impugned Order. On merits, he contends that some amongst the petitioners are minors and hence were not qualified to be members of the respondent No. 1-Karkhana as no Government sanction had been obtained as per the bye -laws of the respondent No. 1-Karkhana. He denies that the provisional list of voters became final merely because at that stage no objection was received to the inclusion of the names of the petitioners. He contends that the provisional list of voters remains a provisional list, until the same is finalised !by him under Rule 6(4) of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 (referred to hereafter as 'the Election Rules'). According to him, pursuant to the Order passed by the High Court on December 10, 1973 in Special Civil Application No. 2594 of 1973, he proceeded to take action for preparing a fresh provisional list of voters, and the revised programme was issued by him under Rule 8 read with Rule 4 of the Election Rules. It is his further contention that under Rule 6 of the Election Rules, he had the jurisdiction and power to decide whether any voter had rightly been included in the voters' list and for that purpose he was entitled to decide whether such voter was qualified to be a member of the respondent No. l-Karkhana according to its bye-laws. He further contends that in exercise of the powers vested in him under Rule 6 of the Election Rules, he had jurisdiction to decide whether the petitioners are members of the respondent No. 1-Karkhana and That he rightly decided that the petitioners were not qualified to be members of the respondent No. 1-Karkhana. He contends that the conduct of elections of a specified society is governed by chap. XI-A of the Societies Act, under which he, i.e. the Collector, is the sole authority to decide questions arising during the elections. Further, in the lengthy proceedings before him, all the parties were given a full opportunity to produce evidence but the petitioners did not avail themselves of that opportunity.

13. The objector-respondents have also filed an affidavit, which in substance sup-ports the affidavit of the Collector.

14. Mr. Singhvi, the learned counsel appearing on behalf of the petitioners, challenged the impugned order dated February 16, 1974 passed by the Collector on two grounds. Firstly, Mr. Singhvi contended that the Collector was not entitled to publish a fresh election programme 'but was bound merely to continue the process subsequent to the filing of the claims of the 115 persons who had objected to the non-inclusion of their names in the provisional voters' list. Secondly, Mr. Singhvi contended that the Collector had no jurisdiction to decide the question of the validity of membership in exercise of the powers conferred on him by Rule 6 and thereby virtually to alter or amend the Register of Members, of the respondent No. 1-Karkhana. Mr. Singhvi elaborated that the power given to the Collector under Rule 6 is a restricted and limited power, in the summary exercise whereof, unlike the power of a civil Court, he could not virtually change the Register of Members, as he purported to do in this matter.

15. Learned counsel appearing on behalf of the Collector and the objector-respondents respectively attempted to negative these contentions by urging to the contrary.

16. In order to better appreciate the rival contentions urged before us, a short recital of the relevant provisions of the Societies Act and the Election Rules, would be pertinent.

17. Section 11 of the Societies Act provides that any question pertaining to a person being an agriculturist or not, or a person residing in the area of operation of the society or not, shall be decided by the Registrar. Section 22 enumerates who may become members of a society, inter alia, to wit, an individual competent to contract. Under Section 23, no, society shall, without sufficient cause, refuse admission to membership to any person duly qualified for becoming a member and a person aggrieved by the decision of a society refusing him admission as member, may appeal to the Registrar whose decision shall be final. Section 25 pertains to cessation of membership by resignation, transfer of shares, death, removal or expulsion. Section 35 provides for expulsion of members by a society under certain circumstances after following a certain procedure.

18. Section 38 deals with the Register of Members. Sub-clause (1) makes it incumbent upon every society to keep a Register of its Members containing certain particulars. Sub-clause (3) reads as under:

The register shall be prima facie evidence of the date on which any person was admitted to membership, and of the date on which he ceased to be a member.

19. Section 40(1) provides, inter alia, that a copy of any register of list, regularly kept in the course of business and in the possession of a society, shall, if duly certified in such manner as may be prescribed, be admissible in evidence of the existence of such entry.

20. Chapter XI-A pertains to elections of committees and officers of certain societies. Section 144-C(1) in that chapter states that except as otherwise provided, every election shall be held on such date or dates as the Collector may fix. Section 144-T pertains to disputes relating to elections to be submitted to the Commissioner. Sections 152 and 154 pertain to appeals and revisions respectively.

21. Section 91, which is under chap. IX, namely Disputes and Co-operative Courts, provides for reference to the Registrar, of disputes touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society.

22. To complete the background, a reference may be made to the relevant rules of the Election Rules, The relevant and pertinent rules on which the present controversy revolves are Rules 4,5 and 6. We shall be reproducing these Rules 4, 5 and 6 later while dealing with the second submission of Mr. Singhvi. However, in brief it may be stated that Rule 4 pertains to the provisional list of voters, Rule 5 pertains to particulars to be included in the provisional list of voters, and Rule 6 pertains to claim and objections to the provisional list of voters,

23. With this background, we shall now analyse the rival contentions urged before us.

24. Coming to the first contention urged by Mr. Singhvi on behalf of the petitioners, a reference may be made to the relief claimed, and the Minutes of the Order, in Special Civil Application No. 2594 of 1973. In that special civil application, the prayer was to set aside the Order passed by the Additional Collector on September 29, 1973. That was the only main and substantial prayer in that petitioner. What transpired at the hearing of that special 'civil application and the circumstances in which it was disposed of, is to be found in the Minutes of the Order.

25. At the hearing of that petition, Mr. T.R. Andhyarujina, the learned counsel appearing for the Collector in that petition, made a statement to the Court that the impugned Order dated September 29, 1973 passed by the Additional Collector ought in fact to have been passed by the Collector and not by the Additional Collector and hence that Order dated September 29, 1973 had to be set aside. He further made a statement as under:

The Collector of Poona will take action according to Maharashtra Co-operative Societies Act, 1960 and the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971, to prepare voters list and hold elections to the managing committee of the petitioner society.

On the above statements being made, the following Order was passed in that petition:

P.C. The impugned order set aside in view of the foregoing statements. No other order on the petition. No order as to costs.

The Minutes of the Order in Special Civil Application No. 2594 of 1973 make it abundantly clear that all that was set aside was the impugned Order dated September 29, 1973 of the Additional Collector. In other words, what was set aside was all the acts which the Additional Collector had done and which should have in fact been done by the Collector as was conceded on behalf of the Collector by Mr. Andhyarujina. Reading the Minutes of that Order, it is abundantly clear that the previous stages of the election programme published on August 18, 1973 were not touched or interfered with. There is nothing even remotely to suggest, nor is there room for inference to be drawn from the Minutes of that Order, that the entire election programme originally published on August 18, 1973 had been vitiated or set aside or was otherwise in any way interfered with prior to the Order dated September 29, 1973 impugned in that petition. In the election programme published on August 18, 1973, the following were the stages notified:

(1) The date for sending provisional list of voters to the District Deputy Registrar under Rule 4(2) was notified as August 27, 1973.

(2) The date for sending provisional list of voters to the Collector under Rule 4(2) was notified as September 3, 1973.

(3) The date for displaying of the-voters' list on the notice board was fixed at September 10, 1973.

(4) The date for exhibition of the voters' list of a society failing to send copies of provisional list by the above fixed date was notified as September 12, 1973.

(5) The date for calling the names of delegates of the affiliated societies was notified as September 23, 1973.

(6) The date for presenting claims, raising objections or suggestions to the Collector was fixed at September 21, 1973.

(7) The date for Collector's decision on claims and objections was fixed at October 1, 1973.

(8) The date for the final publication of the voters' list was fixed at October 3, 1973.

26. It is not in dispute that when Special Civil Application No. 2594 of 1973 was filed, the first five stages of that programme had been over and completed. In the Order passed in that petition, what having been set aside was what the Collector should have done instead of the Additional Collector, namely stage 6 set out in the election programme, the election programme from stage 6 onwards was referred to the Collector. In other words, it was from that stage onwards that the election programme had to be continued by the Collector, This is all that the Order passed in Special Civil Application No. 2594- of 1973 means. That Order did not authorise or give a mandate to the Collector to start afresh from scrap and to declare a fresh election programme. The clock was not put back. All that the Collector was required to do was to proceed ahead from the stage the link was broken and not to forge a new chain altogether by declaring a fresh election programme.

27. On behalf of the Collector, it was contended that in the Order passed by the High Court in Special Civil Application No. 2594 of 1973, there was no specific order as such as to how the Collector was to proceed and that the Order did not prohibit him from starting the election machinery afresh. Reliance was sought to be placed upon the Order in invitum:

P.C. The impugned order is set aside in view of the foregoing statements ...

For the reasons stated above, we are not in agreement with this contention. Though the operative part of the Order is in invitum, it is clear that the impugned Order of September 29, 1973 of the Additional Collector was set aside virtually by consent on the basis of the statements made by Mr. Andhyarujina appearing for the Collector in that petition. The Order and the statements preceding it, must be read as a whole, without fragmenting the one from the other.

28. On behalf of the objector-respondents, it was contended, though feebly, that at the time of the passing of the Order in Special Civil Application No. 2594 of 1973, parties had agreed to start the election process de novo. This contention, we regret, must be advanced to be rejected. This was urged for the first time across the Bar and significantly enough was not even supported by the learned -counsel appearing on behalf of the Collector.

29. We, therefore, are of the view that the Collector was not entitled to have published a fresh election programme but should have, under the original programme, continued the process from where it had been interrupted by the filing of Special Civil Application No. 2594 of 1973.

30. This brings us to the second contention of Mr. Singhvi, namely that the Collector had no jurisdiction to decide the question of the validity of membership in exercise of the powers conferred on him by Rule 6 and thereby virtually to alter or amend the Register of Members of the respondent No. 1-Karkhana. On the other hand, it was urged on behalf of the Collector that adjudication of claims to be enrolled in the voters' list and objection to the enrolment of others, was within the ambit and scope of Rule 6 and hence was within the powers and jurisdiction of the Collector.

31. In order to evaluate these rival contentions, we propose to reproduce hereunder the relevant excerpts from Rules 4, 5 and 6 of the Election Rules, which are the material rules on which this controversy between the parties revolves.

32. The relevant excerpts of Rule 4 are 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...

(2) Four copies of the authenticated provisional lists of voters shall be sent by every society to the Collector, through the District Deputy Registrar so as to reach the Collector by the 15th July of the year in which the general election is due. Copies of the said list shall be displayed on the notice board of the society, the District Deputy Registrar and the Collector by the 20th July of that year for inviting claims and objections.

We are not concerned with Sub-clauses 3 and 4 of that rule.

33. The relevant excerpts of Rule 5 are as under:

5. Particulars to be included in provisional list of voters.-(1) The provisional list of voters, in the case of individual share-holders, 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.

34. Sub-rule (2) refers to particulars where a society is a member of the specified society.

35. Rule 6 is as under:

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.

36. It is one of the elementary canons of construction of statutes, enactments and rules that as far as possible a harmonious construction should be given, so that the statutes, enactments or rules under consideration can be read and interpreted as being complementary of each other and not destructive or antagonistic of one or the other.

37. Now, what emerges in the forefront from Rule 4(1) is, that persons who are members as on June 30, shall be included in the provisional list. We emphasise the words in praesenti, viz. 'are members as on the 30th June', read in conjunction with the mandatory words, 'shall be included in the provisional list', as appearing in Rule 4(1). Thus on the plain reading of Rule 4(1), each and every person -who is a member as on June 30 is entitled to, as of right, to have his name included in the provisional voters' list. There is no option or choice in the matter. Who can be said to be a member as on June 30? Obviously every person whose name appears in the Register of Members, Thus this rule makes it abundantly clear that it is mandatory that every person whose name is included in the Register of Members as on June 30, shall be entitled to have his name included in the provisional voters' list. This is our considered interpretation of Rule 4(1).

38. From Rule 5(1) emerges that it is incumbent that the provisional list must contain certain particularse, viz. the name, father's or husband's name, and surname of every person entitled to be registered as a voter and such other particulars necessary to identify him. By this rule, the identity of the voter must be established. That is the paramount function of this rule. Else, there was no reason why in the provisional voters' list the particulars set out in this rule, should be necessary. The words at the end of Rule 5(1), viz. 'with such other particulars as may be necessary to identify him', are not without their own significance. This rule provides a safeguard and a reasonable guarantee that the person whose name appears in the provisional voters' list can be identified as the one and the same person whose name appears in the Register of Members, and hence is entitled to vote.

39. From Rule 6(1) emerges the extent of the powers or jurisdiction of the Collector. Under this rule, certain things can be brought to the notice of the Collector. What can be brought to the Collector's notice? And by whom? The answers are to be found in Rule 6(1) itself: An omission or error regarding the name or address or other particulars in the list can be brought to his notice, not by anyone, but only by the Member of the society who himself is a voter. This is the plain reading of Rule 6(1). There is no reason to give to this rule a different interpretation or to induct a concept other than what the plain reading thereof reveals. Thus it would be open under this rule to the voter to bring to the notice of the Collector, that the particulars required in the voters' list are erroneous inasmuch as they do not tally with the particulars in the Register of Members. Thereupon, under this rule, the Collector would be competent to correct the provisional voters' list so as to bring it on a par with the particulars in the Register of Members. Hence the identity of the voter is assured. Furthermore, the phraseology in Rule 6(1), 'or other particulars in the list', is significant. The nature of the particulars in the voters' list is to be found in Rule 5 which is headed, 'Particulars to be included in provisional list of voters.' What those particulars are, have already been stated above. Thus the words in Rule 6(1), 'other particulars in the list', necessarily have reference to Rule 5. Rules 5 and 6 are complementary of each other and as such they must be read in their plain and natural meaning.

40.Thus, under Rule 6(1), all that the Collector is entitled to, and permitted to, do is to ensure the identity of the voter concerned, and if per chance, the identity is not sufficiently established in the provisional voters' list to take steps within the ambit of Rule 6(1) to see that it is. There is nothing in Rule 6(1) which empowers the Collector 'to hold a detailed inquiry, as was done in the instant case, whether a person is qualified to be on the Register of Members, and if not to delete his name from the provisional list of voters. Under Section 38(2) of the Societies Act, the Register of Members is prima facie evidence of membership. It is not open to the Collector to upset that Register by holding an inquiry under Rule 6(1), which contemplates a very summary inquiry, confined only to the aspects set out in that rule and nothing else.

41. The combined effect of Rules 4, 5 and 6 is that the powers of the Collector under Rule 6, though not without responsibility, are more in their nature, mechanical. He has to act as a guard or watch-dog and ensure that the identity of every person whose name appears in the provisional voters' list tallies with the person in the Register of Members. The intention behind, and the scope of these three rules is to ensure that every person whose name appears in the Register of Members, should also appear in the voters' list, so that no person in the Register of Members is left out from the provisional voters' list by reason of some omission or error in respect of the particulars enumerated in Rules 5 and 6.

42. Furthermore, what cannot be lost sight of is that under Rule 4(2), it is an authenticated list that has to be sent by the society to the Collector. In the Act or the Rules, there is no definition of the word 'authenticated'. However, the dictionary meaning of the word 'authenticate' to be found in Random House Dictionary is:

To make authoritative or valid. To establish as genuine. To establish the authorship or origin of conclusively or unquestionably.

Thus it must be assumed that the authenticated list required to be sent to the Collector under Rule 4(2) is the correct list and correctly sets out the names of the person appearing in the Register of Members. Under Rule 6, there is no presumption or any scope for inference that the Collector is expected to go out of his way and to do detection work, in the face of the authenticated list furnished to him. In this case, we are informed that the authenticated list has in fact been authenticated by the Chartered Accountant of the society. There is nothing even remotely to suggest that this list is any other than what it purports to be, namely a correct reproduction of the names of the persons appearing in the Register of Members.

43. It must also be remembered that the scope of the inquiry by the Collector under Rule 6 is not only limited in nature, but is also of an extremely summary nature. Under Rule 4(2), the voters' list must reach the Collector by July 15 and copies of the voters' list must be displayed by July 20.. Under Rule 6(2), the claimant or objector who makes a petition before the Collector must do so by July 31 and under Rule 6(4) the Collector must give his decision on such claim or objection within ten days, namely by August 10. These four dates, namely July 15, July 20, July 31 and August 10 emphasise the summary nature of the inquiry contemplated by Rule 6. There is nothing in this rule from which it can even remotely be inferred that the Collector is authorised or empowered to hold a detailed inquiry as done in the instant case, call for documents to establish eligibility to membership, examine or cross-examine witnesses or otherwise dwell on the question whether a member deserves to be included in the Membership Register or not. The fact that the inquiry under Rule 6, is of a summary nature is also reflected from the fact that against his decision, no appeal has been provided. This emphasises that the enquiry, such as it is, under Rule 6 is not only a very summary inquiry, but also mechanical (though not without responsibility), limited only to the aspects set out in the rule itself and no more.

44. It was urged on behalf of the Collector that in Rule 6(1) the word, 'omission', must not be read in conjunction with the words immediately following, but must be read only with the words 'may be brought to the notice of the Collector'. This contention is not borne out by the plain reading of this rule and merits rejection.

45. On behalf of the Collector, it was urged that the deletion of a name from the voters' list would be tantamount to deletion of the name from the Register of Members and that to such a person the principle of res judicata would not be applicable as he could still claim to be a member. We are not impressed by these contentions, the fallacy whereof is that the scope of Rules 4 and 5 discloses that it is incumbent that every person whose name is shown in the Register of Members must necessarily be shown in the voters' list. Hence the latter list must be in conformity with the former list,

46. On behalf of the Collector it was also contended that whether a person is entitled to be included in the voters' list, is left to the Collector and for that purpose the Collector must ascertain whether the voter is a member or not. We are unable to agree with these contentions for the reasons stated above, Under Rule 6, the Collector has no authority, power or jurisdiction to virtually remember a person whose name appears in the Register of Members and which Register is prima facie evidence of membership under Section 38(2) of the Societies Act.

47. Our attention was invited to Rules 19 and 32 of the Maharashtra Co-operative Societies Rules, 1961. Rule 19 states that no person shall be admitted as a member of a society unless he has applied in writing in the form laid down by the society or in the form specified by the Registrar, if any, for membership. Rule 32 provides that the Register of Members to be kept by every society shall be in Form 'I', That Form provides, inter alia, for full name, address, occupation, age on the date of admission and other particulars. It is unnecessary to dilate at any length on these rules which have no bearing upon the present controversy between the parties before us. It was urged before us that if two views were possible, the Collector may relegate the parties to Section 91 of the Societies Act, but that if the answer, namely that a member is not entitled to be shown in the Register of Members, was obvious, the Collector himself could delete the name of such member from the voters' list. This contention is untenable in the state of the present phraseology of Rule 6. For the reasons stated above, the power of the Collector under Rule 6(1) is strictly limited and circumscribed by the rule itself and which it is not within his competence to go beyond.

48. On behalf of the Collector, our attention was drawn to Sections 15 to 19 and 21 to 24 of the Representation of the People Act, 1950 as also to the Rules thereunder, namely Rules 10 and 12. It is unnecessary to advert at length to these sections or these Rules. The distinguishing feature between the sections and the rules of the Representation of the People Act, 1950 and the matter before us, is that under the former, the inquiry is the prime inquiry done by one single machinery, unlike the Collector under the Societies Act and the Election Rules.

49. It was contended on behalf of the Collector that the order of the Collector is just and hence should not be interfered with. This contention must be repelled. Whether the order of the Collector is just or not, need not concern us and is entirely irrelevant for the purpose of these petitions. The correctness of an order is no substitute for the very initial lack of jurisdiction to pass the order, howsoever just it may be.

50. Reliance was placed on an observation of the Supreme Court in the case of Sayeedur Rehman v. State of Bihar : [1973]2SCR1043 , as under (p. 243):. The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order dated April 22, 1960 is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.

51. Reliance was also placed on a commentary In the case of Bidi Leaves Etc. Assoc. v. The State (1961) 64 Bom. L.R. 375 S.C. as under (p. 384):

'One of the first principles of law with regard to the effect of an enabling act...', observes Craies, '... is that if a Legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purposes in view...' (Craies on Statute Law, p. 239).

The principle on which this doctrine is based is contained in the legal maxim 'Quando lex a liquid conceit conceder vide wet illus sine buo res ipsa. ease non potest.' This maxim has been translated by Broom thus:

'whoever grants a thing is deemed also to grant that without which the grant itself would, be of no effect'.

52. While one can have no quarrel with these observations, they are irrelevant in the facts and circumstances of the petitions before us.

53. On behalf of the objector-respondents, it was contended that the decision of the Collector should be accepted as the petitioners did not file their reply before the Collector to the objections raised by the objector-respondents. There is no merit in this contention. Apart from the fact that objections were raised by the respondent No. 1-Karkhana and these objections were adopted by the petitioners before the Collector, what cannot be lost sight of is that the entire inquiry and finding of the Collector are vitiated, as under Rule 6, the Collector had no authority or jurisdiction to embark upon the inquiry of the nature that he did, much less come to the findings that he has.

54. It was next contended on behalf of the objector-respondents that under chap. XI-A, the Collector is entrusted with the work which was previously done by the managing committee of the Karkhana in respect of the entire election. Hence the Collector was entitled to and was justified in considering the qualifications and disqualifications of a person entitled to be registered as a voter. There is no merit in this contention and we have no hesitation in rejecting it. There is nothing in chap. XI-A to warrant the very first premise of this contention. There is nothing in Rule 6 to substantiate it.

55. It was next contended that assuming, in the provisional list sent to the Collector, the society inserted names not found in the Register of Members, the Collector could delete the names from the provisional list under Rule 6(1). This contention is in the nature of hypothetical conjecture not warranted in the facts and circumstances of the matters before us.

56. On behalf of the objector-respondents, our attention was invited to bye-law 8 (A) which provides that a member may be suspended for certain reasons including wilful deceit of the society by false statements. Bye-law 8(B) provides that the member concerned shall be expelled from membership if the decision of the Board of Directors is ratified by a vote of 3/4th of the members present at the general meeting. It was urged that under bye-law 8 what the Karkhana could do, so could the Collector under Rule 6. This contention is without substance. What the society can in a given case do, is quite distinct from what the Collector can do under Rule 6. The phraseology of Rule 6 does not justify the contention urged before us.

57. It was further urged on behalf of the objector-respondents that the petitioners are dis-entitled to any relief from this Court, inasmuch as the objector-respondents produced documentary evidence before the Collector to show that the petitioners did not hold any land in any village within the area of operation of the Karkhana and further that the Collector himself called for the relevant land records and further that the petitioners produced no material before the Collector or pointed out to the Collector that they held any land in any of the villages within the area of operation of the Karkhana. It was urged that the petitioners having failed to do so at that time before the Collector no relief should be granted to them in these petitions.

58. We are not in agreement with this contention urged before us. If the Collector himself had neither the power, nor the authority nor even the jurisdiction to hold the inquiry of the nature that he did, it was immaterial whether the petitioners appeared or did not appear before the Collector. The very basis and foundation of that inquiry being without jurisdiction under the provisions of Rule 6, it was not incumbent upon the petitioners to appear before the Collector if they chose not to. Want of appearance could not confer jurisdiction where there was none, or validate an order passed without jurisdiction.

59. On behalf of the objector-respondents, certain authorities were cited before us, namely, D.N. Banerji v. P.R. Mukherjee : [1953]4SCR302 Labh Singh v. Chief Settlement Commr. A.I.R [1959] Punj. 575, A.I.R [1960] Pat. 303 Sic, Ram Pratap v. Revenue Minister , In the matter of Jagannath Hanumanbux : AIR1957Cal1 and Sagar Municipality v. Board of Revenue : AIR1958MP308 . It is unnecessary to advert to those authorities as they are irrelevant to the controversy before us.

60. We may state that the views expressed by us and the observations made by us in this judgment are not in any way meant to be a reflection on, or a disparagement of, the Collector. He had no axe to grind. He did his duty as he saw it and as best as he could. We have no doubt that the Collector genuinely construed the Court's earlier Order as entitling him to issue a fresh election programme. No observation made by us is intended or meant to convey that the Collector deliberately flouted the Order of the Court. The zealousness with which he acted is admirable. The only drawback is that the long and detailed 'inquiry held by him and the conclusion arrived at by him did not fall within the ambit of his powers or jurisdiction under Rule 6. However, now that he is occupying the post of Commissioner of Co-operation and Registrar of Co-operative Societies, he might well consider whether in that capacity he would care to apply his mind afresh to the state of societies within his purview and jurisdiction and clean augean stables, should any exist and should cleaning be called for.

61. In the result, both the petitions must succeed. The rule is made absolute as prayed. The fresh election programme issued by the Collector on December 21, 1973 is quashed and set aside.

62. The result is that we are relegated to the original programme of elections declared on August 18, 1973 under which the 6th stage of examination of the claims and objections was undergone by the Additional Collector. As a result of his examination of those claims, thirty-six members were directed to be included by the Additional Collector. Even that order directing thirty-six persons to be included as voters is set aside by this Court in Special Civil Application No. 2594 of 1973. Since the Collector was himself required to examine the claims and objections under the new programme dated December 21, 1973, which we have now set aside, the Collector had called for objections afresh. Six hundred and forty-six people had applied. Out of them, 517 had applied for inclusion of their names and 129 objections were raised for deleting the names of those persons. The result of the Collector's examination was that out of the original 115 claims, seventy-two were granted and their names were included. This was set aside in Special Civil Application No. 602 of 1974. However, as a result of our present order, that examination by the Collector is of no avail as the entire programme dated December 21, 1973 is set aside. In the view we have taken of the Rules, the original provisional list without the inclusion of any further names, which was published under the August 1973 programme, now becomes final. The Collector is, therefore, directed to resume the thread of the elections under the August 1973 programme and declare the provisional list under that programme as a final list under item No. 7 of the election programme and thereafter proceed to take further steps under the election programme as contained in the Rules. At the request of the petitioners, we make it further clear that the result of this judgment is that the petitioners in both the petitions continue to remain voters as they were already included in the original provisional list under the August 1973 programme. It is that list which is to be declared as final and further elections to be carried out according to law. In the circumstances of the case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //