In Shrikant Balasao Patil & Another v/s State Co-operative Election Authority Maharashtra State, Pune & Others, the Bombay High Court dismissed a petition challenging the appointment of Shri Subhash Deshmukh as the Returning Officer for a co-operative housing society election. The petition, filed by some members of the society, raised concerns over the legality of his appointment and the preparation of the voters' list. The Court’s decision provides clarity on the interpretation of election rules and the rights of petitioners in such cases.
Background of the Case:
The petitioners, members of Respondent No. 5 – a Co-operative Housing Society, contested the appointment of Respondent No. 4, Shri Subhash Deshmukh, as the Returning Officer for conducting the society's elections. The dispute arose following complaints about the management and voters’ list, leading to the appointment of an administrator (Respondent No. 3) by the Assistant Registrar of Co-operative Societies in 2017. Subsequent orders were passed to appoint new administrators in 2018 and 2019.
On December 1, 2023, Shri Deshmukh was appointed Returning Officer to conduct the election for the period 2023-2028. The petitioners objected to this appointment, claiming that he was listed on the panel of auditors and, as per Rule 76-B of the Maharashtra Co-operative Societies Election Rules, an auditor cannot be appointed as Returning Officer. Further, they raised concerns about errors in the voters' list, which included names marked as deceased.
Despite their objections, which were rejected by Respondent No. 4, the petitioners continued to challenge both the appointment of the Returning Officer and the election process.
Petitioners' Arguments:
The petitioners argued that according to the first proviso of Rule 76-B of the Maharashtra Co-operative Societies Election to Committee Rules, no auditor, employee, or member of the outgoing management committee can be appointed as the Returning Officer. Although Respondent No. 4 was listed on the panel of auditors, he had never been appointed as an auditor for the society, they contended. The petitioners further claimed that the voters' list was incorrectly prepared, as it included over 40 deceased members, rendering it invalid.
Respondents' Defense:
Respondent No. 1, the Election Authority, defended the appointment, explaining that while Respondent No. 4 was listed on the panel of auditors, he had never actually served as an auditor for the society in question. Therefore, they argued, he was not disqualified under Rule 76-B. Additionally, the respondents contended that the election process was well underway, and any objections to the voters' list could be raised only during the voting process, not before.
Court’s Analysis and Decision:
The Court’s first task was to interpret the first proviso to Rule 76-B, which restricts auditors, employees, and outgoing committee members from being appointed as Returning Officers. The Court concluded that the definition of "auditor" under Section 154B-1(4) of the Maharashtra Co-operative Societies Act did not apply in this context, as the proviso referred to auditors who had actually been appointed to audit the society's books. Since Respondent No. 4 had never been appointed as an auditor for the society, he did not fall under the disqualification.
The Court further emphasized that merely being listed on the panel of auditors did not automatically disqualify Respondent No. 4 from serving as Returning Officer. The law’s intent was to prevent conflicts of interest, particularly for those who had been involved in the society's financial affairs. Since Respondent No. 4 had no such involvement, the Court ruled that he was not disqualified.
The petitioners’ argument that the voters’ list was flawed due to the inclusion of deceased members was also rejected. The Court noted that the petitioners had not challenged the rejection of their objections to the voters' list, making it an issue that could only be addressed at the time of voting, should any irregularities arise.
Finally, the Court dismissed the petition on the grounds that the election process had already progressed to a critical stage, with nominations being filed. Interfering at this juncture would disrupt the ongoing process.
Conclusion:
The Court’s ruling reaffirmed the importance of adhering to the election rules while also respecting the progress of democratic processes in co-operative societies. The petition challenging the appointment of the Returning Officer was dismissed, with the Court emphasizing that the petitioners had, in effect, waived their objections by participating in the election process up to that point.
This case highlights the importance of clear legal definitions and the principle that a person cannot challenge a process they have already engaged with. Additionally, it underscores the Court’s reluctance to interfere in the election process once it has begun, especially when procedural issues can be addressed in due course.
MAHARASHTRA CO-OPERATIVE SOCIETIES ACT, 1960
