Rule, returnable forthwith. Mr.Palekar, AGP waives service for respondent Nos.1 to 4. Mr.Godbole waives service for respondent Nos.5 to 14. By consent of parties petition is taken up for final hearing and disposal.
2. This petition is directed against the order dated 3rd August, 2006 passed by respondent No.2, the Collector, Solalpur, whereby he has directed inclusion of 4139 individuals in the final voters list as members of petitioner No.1-Society.
3. The factual matrix reveals that petitioner No.1 is registered as Co-operative Society governed by the Maharashtra Co-operative Societies Act, 1960 ("Act" for short) and the rules framed there under, known as Maharashtra Co-operatives Societies Rules, 1961 ("Rules of 1961" for short). The election to the committee members of Petitioner No.1- Society is governed by the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971 ("Committee Rules, 1971" for short).
4. It appears that the elections of the managing committee were due sometime in the month of May, 2006; the respondent No.3- the Deputy Registrar, Co-operative Societies, Solapur called upon the petitioner No.1- Society ("Society" for short) to submit the list of its members, included in Register No.1 maintained by it.
5. In response to the above, the Society submitted list of provisional voters to respondent No.2- the District Collector, Solapur through respondent No.3; sometime in the month of June, 2006.
6. The respondent No.2, on 26th June, 2006, published provisional voters list of the members of the Society whose names were finding place in Form No.1. After publication of the provisional voters list on 10th July, 2006, about 6,000 individual persons raised objections (which were almost identical in nature) to the aforesaid provisional voters list, inter alia; contending that they are/were members of the Society as they had paid membership fees and that their names ought to have been included in the provisional voters list.
7. The respondent No.2, after receipt of aforesaid objections called upon by the Society to submit its written objections, if any, on or before 17th July, 2006.
8. The petitioner-Society, on 17th July, 2006, filed detailed written objections before respondent No.2 strongly objecting to the inclusion of about 5,678 persons as members in the provisional voters list; and, consequently, voters for ensuing election of the managing committee of the Society.
9. The respondent No.2 called upon the parties to remain present for hearing on 26th July, 2006. On 24th July, 2006, the petitioner-Society was also called upon to make its submissions, so as to enable the respondent No.2 to decide the question of inclusion or non-inclusion of about 5,678 individuals in the final voters list of the petitioner-Society. On 26th July, 2006, as scheduled, hearing took place before respondent No.2. After hearing the parties, by a common reasoned order dated 3rd August, 2006, respondent No.2 held that 4,139 individuals were entitled to be included in the final voters list of petitioner-Society.
10. Being aggrieved by the aforesaid common order, the present writ petition is filed by petitioner-Society along with petitioner No.2-Shri Subhash J. Gulve, Vice-Chairman under Article 227 of the Constitution of India.
11. Learned counsel appearing for the parties took me through the pleadings incorporated in the petition. The tenor of the petition, unequivocally, suggests that the petitioners are objecting to the inclusion of 4,139 individuals as voters for the ensuing managing committee election of the petitioner- Society. In this behalf; it would be relevant to extract some of the contents of the petition; which are as under:
"7. Being aggrieved and dissatisfied by the aforesaid order dated 3rd August 2006, thereby directing the inclusion of names of 4139 individuals as member of Petitioner No.1 in the final voters list for upcoming election of Petitioner No.1, the Petitioner is preferring the above Writ Petition on the following amongst other grounds which are taken without prejudice to one another:
a. ..... ..... .....
b. ..... ..... .....
c. It ought to have been appreciated by the Respondent No.2 that the aforesaid 4139 individuals never applied for the membership to the Petitioner No.1. Therefore in the absence of any application for membership the Respondent No.2 have no right to include their names as member in the final voters list of the Petitioner No.1 .....
d. The order passed by the Respondent No.2 is without scrutiny any documents and without perusing the documentary evidence, which on the face of disclosed that I) Children of even ages of 5,9 were made as members II) Hundreds of complaints had no land at all etc.
..... ..... ..... ..... .....
The Petitioners, therefore, pray:
(a) ..... ..... .....
(b) By way of appropriate Writ, Order or Direction, the order dated 3rd August 2006, passed by the Respondent No.2 i.e. Collector Solapur, be quashed and set aside;
(c) ..... ..... .....
(d) By way of any appropriate Writ, Order or Direction, this Hon’ble Court be pleased to direct the Respondent No.2 to publish voters list submitted by the Karkhana."
12. This petition with the aforesaid pleadings; when came up for hearing before this Court, respondent Nos.5 to 14, by an order dated 24th August, 2006, were allowed to be impleaded as party-respondents as prayed by the petitioners.
13. With the aforesaid pleadings on record, Mr.C.J.Sawant, learned senior counsel along with Mr.R.V.Govilkar, Advocate for the petitioners; Mr.A.H.Palekar, A.G.P. for respondent Nos.1 to 4; and Mr.Y.S.Jahagirdar, learned senior counsel along with Mr.G.S.Godbole, Advocate for respondent Nos.5 to 14 were heard at length.
14. This Court during the course of hearing found that all other beneficiaries of the impugned order; persons numbering about 4,129; were not parties to the petition. Consequently, learned counsel for the petitioners was called upon to justify maintainability of the petition in absence of those persons whose names were included in the final voters list vide impugned order dated 3rd August, 2006 and whose deletion is being sought through this petition.
15. Mr.Govilkar, learned counsel for the petitioners submitted that it is not necessary to join the other persons as party-respondents to the petition. In his submission, finding of this Court with regard to the inclusion of respondent Nos.5 to 14 would automatically govern and decide the fate of remaining 4,129 voters. He, therefore, submits that it is not necessary to implead newly added left over voters as party-respondents to this petition.
16. Mr.Govilkar, while challenging impugned order on merits urged that the said order is expressly bad and erroneous in law and is liable to be quashed and set aside in the interest of justice as much as it has ignored that there were no applications from any of the newly included voters for membership of petitioner-Society. He further urged that respondent No.2 ought to have taken into consideration the Committee Rules, 1971 as well as the provisions of the Act and rules framed there under. In his submission, the impugned order suffers from complete non-application of mind and is liable to be set-aside in toto. He further submits that it is absolutely impossible for "Share Sub-Committee" to clear about 5,000 applications in one day. As such he urged that the alleged proceeding leading to their admission cannot be relied upon as a legal proceeding. He further submits that respondent No.2 ought to have appreciated mandatory requirement of law relating to enrollment of any individuals as member of the Society. In substance, his submission is that inclusion of almost 4,139 would result in introducing 4,139 bogus members in the voters list, which is bound to materially affect the election results, hence, impugned order is liable to be quashed and set aside.
17. Mr.Jahagirdar, learned senior counsel appearing for respondent Nos.5 to 14, while challenging maintainability of the petition in absence of all affected persons, urged that the contentions sought to be raised in the petition can also be raised in the election petition provided under the provisions of the Act and Rules framed there under. In his submission, preparation of electoral roll is an intermediate stage in the process of election. Once the election process is set in motion, the High Court under Article 226 of the Constitution is not expected to stay the continuation of the election process even-though there may be some alleged illegality or breach of rules while preparing the electoral roll. Any such breach can be called in question after declaration of the result of the election by means of an election petition. Reliance is placed on the Apex Court judgment in the case of S.S.S.J.S.S.D.U. Sanstha v. State of Maharashtra Maharashtra, 2002 (1) Mh.L.J. 659.
18. Mr.Jahagirdar further urged that in absence of other 4,129 persons as party-respondents to the petition, this Court will not be able to set aside a part of the impugned order which is in their favour. He, thus, submits that in view of non-joinder of necessary parties to the petition, the petition is liable to be dismissed. In his submission, if petition is allowed, it will give rise to two inconsistent orders in one proceeding. In his submission, no such course is permissible in law. According to him, the challenge to the inclusion of 4,139 individuals in the voters list is almost common since the objections were identical and the impugned order in respect of their inclusion is also common. He further pointed out that all 4,139 persons have individually applied for their inclusion in the voters list though a common order has been passed by respondent No.2. In that view of the matter, he submits that the petition is liable to be dismissed as not maintainable for non-joinder of other beneficiaries of the impugned order. In his submission, any order passed by this Court against them will be in breach of principles of natural justice. He, thus, prayed for dismissal of the petition.
19. The learned A.G.P. tried to support the impugned order and adopted the submissions advanced by Mr.Jahagirdar.
20. In rejoinder, Mr.Govilkar, learned counsel for the petitioners pressed into service two judgments of the Apex Court, viz.; (i) in the case of Ahmednagar Zilla S.D.V. & P. Sangh Ltd. Maharashtra v. State of Maharashtra, (2004) 1 SCC 133 and (ii) Maharashtra Pundlik v. State of Maharashtra, (2005) 7 SCC 181 to contend that bar of an alternate remedy is not absolute. In his submission, considering the glaring illegalities crept in the impugned order, this Court should not relegate the petitioners to an alternate remedy.
21. In surrejoinder, Mr.Jahagirdar, pressed into service a judgment of learned single Judge of this Court in the case of Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. v. Collector of Another Kolhapur & Another, 2005 (6) BCR 160; wherein both the judgments cited by Mr.Govilkar were considered by the learned single Judge and observed that ordinarily writ Court is not expected to interfere with the running election process.
22. Having heard rival parties, in my considered view, it is not necessary for me to examine the contentions raised by the parties on merits. This petition is liable to fail for want of necessary parties before the Court.
23. A specific question was put to Mr.Govilkar, during the course of hearing; whether the petitioners are prepared to make a statement that they are restricting their challenges only to the inclusion of respondent Nos.5 to 14 in the final voters list, so as to enable this Court to consider as to whether or not their inclusion was proper. In reply, Mr.Govilkar expressed his inability to make any such statement. It is, thus, clear that the petitioners are challenging inclusion of all 4,139 persons in the final voters list.
24. The petitioners, when sought liberty to implead respondent Nos.5 to 14, it was expected on the part of the petitioners to seek consequential amendment abandoning their challenges to the inclusion of 4,129 persons in the final voters list and restricting it only to respondent Nos.5 to 14. Failure to effect such consequential amendment leads me to draw inference against the petitioners that they desire to challenge inclusion of all the newly added persons in the voters list. This inference stands reinforced with the denial on the part of Mr.Govilkar to make any positive statement as indicated hereinabove.
25. On the above canvas, in my considered view, all persons, who are beneficiaries of the impugned order; and are likely to be affected must be party-respondents to the petition. In absence of those persons, it will not be fair on the part of this Court to set aside their inclusion in the final voters list. Such order, if passed, would clearly be in breach of principles of natural justice as held by the Apex Court in the case of Ramchand Bhagwan v. Ramchand, AIR 1965 SC 1767. In this behalf, it will also be relevant to refer to the recent judgment of the Apex Court in the case of K.H.Siraj v. High Court Kerala of Kerala, (2006) 6 SCC 395 (para-75); wherein the Apex Court ruled as under:
"The writ petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellant-petitioners contend that they are only challenging the list to a limited extent, acceptance of their contention will result in a total rearrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does not cure this defect. There are only a specified definite number of candidates who had to be impleaded, namely, 70. It is not as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules. That rule can be applied only when very large number of candidates are involved and it may not be able to pinpoint those candidates with details. In our view, the writ petitions have to fail for non-joinder of necessary parties also."
26. The aforesaid observations clearly lay down that if large unspecified numbers of people are likely to be affected, then, their presence before the Court can be dispensed with. This rule can be applied only when large number of persons are involved and if it is not possible to pin point their details. But where the specified individuals or persons with their details are known to the petitioners, then, their presence before the Court cannot be dispensed with. Following the aforesaid settled legal position of law laid down by the Apex Court, I have no option but to hold that his petition is liable to be dismissed for nonjoinder of necessary parties.
27. Considered from another angle, all applications before respondent No.2 for inclusion of their names in the final voters list were moved by almost more than 5,000 individuals, contents of which were more or less identical. The objections filed by the petitioner- Society were also similar and identical. The reasons given for the inclusion of 4,139 individuals in final voters list are also identical. The petitioners are aggrieved by the inclusion of these 4,139 persons in the voters list. The petitioners have suffered a common order based on identical reasons at the hands of respondent No.2. In the circumstances, petitioners cannot be heard of saying that they will make only 5-10 persons as party-respondents in the petition and get the entire order of inclusion of all persons set aside and thereby deprive almost 4,129 persons of the benefit of the impugned order without affording them minimum opportunity of hearing. This course is not left open to the petitioners.
28. Assuming that the petitioners are right in their contention that they can restrict their challenge to the inclusion of specified 10 persons as voters in the final voters list, since it is for the petitioners to decide whose inclusion they should challenge, the petitioners were, thus, expected to take bold stand before this Court in unequivocal terms stating that they are restricting their challenges in the petition to the extent of inclusion of only 10 persons who are before this Court. No such statement came from the petitioners in spite of specific query in this behalf. Had the challenge at the instance of the petitioners restricted to the inclusion of 10 persons, then the things would have been different. But no such course was adopted by the petitioners. On the present text of the petition, if the petition is allowed and inclusion of respondent Nos.5 to 14 is set aside, then such order will give rise to two sets of order inconsistent with each other, o
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ne in favour of 4,129 persons and another against 10 persons i.e. respondent Nos.5 to 14, though factual matrix involved in the matter is almost similar, common and identical. It is settled law that two inconsistent orders in the same proceeding cannot be allowed to hold the field, especially, when the petitioners were objecting to each application seeking inclusion in the final voters list. In this view of the matter, it would be well within the discretion of this Court not to exercise writ jurisdiction so as to avoid creation of inconsistent situation. 29. One more factor needs to be noticed in respect of the present petition. The petitioners had raised objections for inclusion of almost 4,139 individuals in the final voters list. Assuming that the petitioners decide not to impugn in this petition inclusion of 4,129 individuals in the final voters list, then, one has to draw an inference that the petitioners are not interested in challenging their inclusion in the voters list. To that extent the impugned order will became final and conclusive. If that be so, the petitioners are bound to be hit by res judicata so long as their inclusion is not successfully challenged in the appropriate proceedings. On this count also the petition is liable to fail. 30. In the totality of the circumstances and for the reasons discussed hereinabove, this petition is liable to be dismissed, basically, for nonjoinder of necessary parties, without examining the challenges set up in the petition on merits. 31. It is needless to mention that dismissal of this petition shall not come in the way of the petitioners if they decide to challenge the inclusion of the individual persons in any other legal proceedings as may be available in law. All rival contentions on merits are kept open. 32. In the result, petition is dismissed. Rule stands discharged in terms of this order with no order as to costs.