B.P. Dharmadhikari, J.
1. The Petitioners are challenging order dated 6/6/2006 passed by respondent No. 1 Hon'ble Minister permitting amendment to the bye law of respondent No. 4 Society and subsequent order dated 7/6/2006 passed by respondent No. 5 Election Officer staying the election programme until further orders or till declaration of fresh election programme according to amended bye-laws. This Court on 20/6/2006 while issuing notice indicated to parties that petition would be disposed off at admission stage. On that day this Court also granted ad-interim relief and directed maintenance of status quo as on that day. It appears that respondent No 5, practicing advocate misinterpreted this interim order as permitting him to proceed further and hence, grievance was made in that respect before this Court. On 27/6/2006 this Court passed order on CA 3708/2006 and only because the learned AGP communicated about resignation tendered by Election Officer, though this Court found course adopted by respondent No. 5 to be objectionable, it did not take any further steps against him in the matter. On 13/7/2006, this Court clarified that its order of status quo would not come in way of respondent No. 3 in accepting resignation of Election Officer. Petitioner thereafter has moved CA 5203/2006 pointing out events which transpired after filing of writ petition. He states that as per election programme published by respondent No. 5 voting was scheduled on Page 3644 10/6/2006 but before that, after the stage of scrutiny of nomination papers and its withdrawal, two candidates namely Shri Zade and Shri Patil were found to have been elected unopposed from constituencies meant for other backward class candidates and for Ex members of Zilla Parishad. In this background, on 19/6/2006, respondent No. 5 published fresh or new election programme as per amended provisions of bye laws and hence Petitioners wanted to include prayer for quashing of said election programme. In this background, parties have been heard finally on merits presuming that amendment has been allowed. Rule is made returnable forthwith.
2. Admittedly all Petitioners are members of respondent No. 4 Cooperative Society registered under Maharashtra Cooperative Societies Act (MCS Act) and are retired/ex-employees of Zilla Parishad Akola. The term of its executive committee is five years and its executive committee consist of total 15 members. 7 members are to be elected from various reserved categories while remaining 8 are elected --1 from amongst ex-employees of Zilla Parishad, 1 from amongst ex councillors of Zilla Parishad while 3 each from amongst existing employees and existing councillors of Zilla Parishad. In present petition, we are not concerned with 7 members but with election of 8 and their constituency. 6600 is the number of ex-employees and present employees of the Zilla Parishad who are members of respondent No. 4 Society. Only 4 persons are members from category of ex members/councillors of Zilla Parishad and there are no continuing councillors or present councillors as members. By amendment to bye-laws, otherwise four different constituencies from which the 8 persons are to be elected are now clubbed together into 2 constituencies. Thus as per amendment 4 committee members are to be elected from constituency of ex and existing employees of Zilla Parishad. Similarly 4 committee members are to be elected from constituency of ex and existing councillors of the Zilla Parishad.
3. Elections to executive committee ought to have been held on 22/2/2002 and the same were not held. Hence, on 3/7/2002 respondent No. 3 sought explanation from respondent No. 4 as to why action under Section 73H(2) of MCS Act should not be taken. Decision to hold elections was then taken by executive committee on 20/5/2002 proposing to hold elections but it was only to avoid Administrator. Cooperative department appointed one person as election Officer and influential group in respondent No. 4 requested for his change and suggested name of present respondent No. 5. Cooperative department accordingly appointed respondent No. 5 as election Officer on 18/1/2003. Thereafter said influential group moved State Government on 27/1/2003 to get extension of three years and Petitioners allege that such extension was directed by Hon'ble Chief Minister. Respondent No. 1 is stated to have exercised powers under Section 73IB and postponed the elections till 1/4/2004 or till election of executive committee of Society whichever happened earlier. Respondent No. 4 did not conduct elections though respondent No. 3 issued communications in October 2003 and Marsh 2004 for that purpose. Even after 1/4/2004 elections have not been held because of orders under Section 73IB passed by respondent No. 1 from time to time. Respondent No. 3 narrated this state of affairs to respondent No. 2 by report dated 15/2/2005.
4. Respondent No. 2 ultimately on 26/5/2005 passed orders under Section 73H read with Section 77A(1)(b) of MCS Act superseding the executive committee of respondent No. 4 Society and appointed Administrator. The executive committee challenged it before respondent No. 1 and said order came to be stayed. As executive committee elected in 1997 was continuing and elections were not been taken, on 16/12/2005 members of respondent No. 4 Society made representation to respondent No. 1 for holding urgent elections. Realising the problem, executive committee of respondent No. 4 again forwarded name of respondent No. 5 for appointment as Election Officer and respondent No. 3 by his order dated 12/12/2005 appointed him. Respondent No. 5 however took no steps for holding elections deliberately because, according to Petitioners, executive committee was certain of its defeat in elections and hence it decided to amended bye-laws to see that majority of them continue as executive committee members. The proposal for amendment was approved by resolution by Respondent No. 4 and thereafter was forwarded to respondent No. 2 but said authority rejected it on 17/3/2006. The grievance of Petitioners is that only 4 persons are members of respondent No 4 society from category of ex-councillors of Zilla Parishad and sitting councillors are not members of respondent No. 4 at all. As per amended bye laws, out of these 4 persons only one could have become member of executive committee of respondent No. 4 and hence in order to get over this difficulty and to see that all four get elected unopposed, the amendment clubbing together constituencies of ex-councillors and current councillors was proposed. After it was turned down, respondent No. 5 published election programme on 5/4/2006 and according to said programme polling was to take place on 10/6/2006. Respondent No. 5 deliberately rejected certain nominations and those nomination papers were directed to be accepted by Appellate authority. In the meanwhile, respondent No. 1 on 6/6/2006 allowed appeal of respondent No. 4 and directed respondent No. 2 to grant approval to the proposed amendment of bye-laws. Immediately on next day respondent No. 5 suspended election programme and passed impugned order as mentioned above. It is in this background, that Petitioners approached this Court.
5. I have heard Advocate Ghare for Petitioners, Advocate P.C. Madkholkar for respondent No. 4 and learned AGP Advocate Kothari for respondent Nos. 1 to 3. Though there is appearance on behalf of respondent No. 5, nobody has appeared for him on various dates when matter was heard finally.
6. After pointing out the facts as mentioned above, learned Counsel for Petitioners has contended that respondent No. 1 could not have directed respondent No. 2 to grant approval to the amendment as proposed and ought to have left said consideration to the discretion of respondent No. 2. Section 152 of MCS Act does not permit respondent No. 1 to substitute its own view for that of Registrar in the matter. It is further argued that respondent No. 1 has thus encroached upon the jurisdiction of respondent No. 2. It is also argued that unless and until the proposed amendment is registered by respondent No 2, it does not come into force and in any case, it cannot be retrospective. He invites attention to provisions of Section 13 of MCS Act for said purpose. He further states that monopolization is not accepted by MCS Page 3646 Act and relies upon provisions of Section 4. Adv. Ghare points out judgments reported at A.I.R. 1967 Bombay 7--Omprakash v. G.V. Koimatlur and 1999 Mh.L.J.619 -Prabhu Shriram v. State of Maharashtra for this purpose. Subsequent stay of election programme on 7/6/2006 or publication of fresh election programme by respondent No. 5 on 19/6/2006 are all alleged to be steps taken to help influential group in respondent No. 4 and without jurisdiction. It is argued that respondent No. 1 and respondent No. 5 have actively permitted executive committee of respondent No. 4 to usurp power for last about nine years without holding any elections and Cooperative department has also encouraged it. According to him everything done and being done is contrary to Constitution of India and defeats purpose of MCS Act. He therefore seeks reliefs in terms of prayer clauses.
7. Advocate Madkholkar states that the prayers made in petition are all not cognizable by Single Judge of this Court. If any direction to revive election programme or to hold elections is to be issued, he states that it must be done by Division Bench. It is his argument that as respondent No. 4 Society is neither specified nor notified society, no writ can be issued against it or against Election Officer conducting its elections. He further states that orders suspending election programme or framing new election programme of respondent No. 5 are not under MCS Act and in any case, respondent No. 5 is now not an election Officer. According to him, only challenge that can be looked into in present writ petition is about amendment to bye-laws. He has invited attention to prayer clauses as contained in the writ petition and also to prayer clauses in CA 5203/2006 for this purpose. Interim prayer for appointment of Administrator on respondent No. 4 Society cannot be allowed because according to him, there is no final prayer to support it. Even amended prayer "B-1" cannot be considered by this Court. In relation to amendment of byelaws, he states that complete proposals forwarded for amendment and resolutions passed by respondent No. 4 Society putting forth its justification are not filed on record by Petitioners and only impugned order has been produced which is not sufficient to examine the issue in writ jurisdiction. He further urges that no writ can be issued to revive an order which itself is illegal. Section 13(3) of MCS Act requires recording of reasons for rejecting any amendment an order of Registrar does not contain any such reasons. He further states that Appellate Authority has not been joined as party in present writ petition and respondent No 1 Hon Minister is not representing Appellate Authority. There are no allegations of personal malice or bias against respondent No. 1 and object of amendment is neither illegal nor against the interest of Society. According to him interest of Society itself warrants new election programme as per amended bye-laws.
8. AGP Kothari states that the position of respondent No. 3 is clarified on affidavit and points out steps taken by respondent No. 3 from time to time. He further points out that on 26/7/2006 respondent No. 5 submitted his resignation and the same is accepted by respondent No. 3. He further states that Hon'ble Minister has only considered the controversy brought before him in Appeal and orders dated 6/6/2006 are within four corners Page 3647 of law. According to him the amendment to bye-laws was essential and hence the same has been allowed. Learned AGP states that the Petitioners themselves have not approached this Court within time and grievance being made is belated. According to him, as next elections are to be held for period of 5 years and bye-laws are amended, looking to the facts, elections must be held as per amended provision. He argues that allegations of malafides or influence are not at all substantiated by Petitioners.
9. Adv. Ghare for Petitioners in reply points out that in appropriate cases High Court can issue writ even against Election Officer and relies upon judgment of Hon'ble Apex Court Gayatri De v. Mousumi Co-operative Housing Society Ltd reported at . He
further points out that here Election Officer has expressly hindered the election programme but also totally stopped it and latter on published fresh election programme itself. He draws support from ruling of Hon'ble Apex Court in Manda Jaganath v. K.S. Rathnam reported at . According to him in such situation, Petitioners have no option but to approach this Court.
10. Learned Counsel for respondent No. 4 lastly reiterated his objections and requested for grant of period of 15 days to approach higher Court in case this Court grants any relief to Petitioners.
11. From arguments advanced above, the basic facts do not appear to be in dispute. The present Executive Committee of respondent No. 4 is therefore in office since 1997 and normally the election sought to have been held before 22/2/2002 when its term expired. No grievance about this continuation has been made by Petitioners for last more than 4 years. Not only this, they have not taken any steps to see that order granting extension to executive committee of respondent No. 4 dated 11/3/2003 passed by respondent No. 1 is challenged or to see that elections, which were overdue, are held. No steps were taken to see that order appointing Administrator dated 26/5/2005 is implemented or stay granted to it by respondent No. 1 is vacated. Only one representation dated 16/12/2005 is forwarded to Hon'ble Minister but no further action in that direction was taken. They have also not taken any steps to see that respondent No. 5 was forced to take steps to hold elections after 16/12/2005. In entire petition, they have not made any grievance against any particular individual and has not pleaded any such specific malice or influence. In paragraph 14 they have only mentioned names of four persons as constituting category of ex-councillors and one name mentioned therein is of Shri K.N. Patil. Even in amendment application they have not pointed out any such individual malice or influence. On the contrary name of K.N. Patil has been pointed out as a person who got elected unopposed as per election programme published by respondent No. 5 on 5/4/2006. In paragraph 9 of petition, Petitioners have stated that respondent No. 5 is having very close relations and associations with this person i.e. K.N. Patil and it is also alleged that K.N. Patil is influential Executive Committee member. However how K.N. Patil or Page 3648 any other person used said influence to keep executive alive for all these years is not at all pleaded. Petitioners appear to be knowing and accepting all this for all these years. They have not made any allegation of any mismanagement or maladministration against respondent No. 4. No executive committee member of respondent No. 4 has been joined as party respondent in present writ petition. Only after respondent No. 5 published election programme and it was suspended on 7/6/2006 that Petitioners moved this Court. I find all these facts must be kept in mind while considering the amendment to bye laws.
12. Question is whether Petitioners demonstrate any relation between order of respondent No. 1 dated 6/6/2006 allowing amendment and the election programme published by respondent No. 5 on 5/4/2006. Petitioners themselves state that amendment to bye-laws was approved by respondent No. 4 Society in its general body on 11/2/2006 & it was forwarded to respondent No. 2 for approval. Respondent No. 2 refused to grant said approval on 17/3/2006. Perusal of Section 13 of MCS Act read with rule 12 (3) of MCS Rules, 1961 shows that such resolution of General Body is required to be passed by not less than two-thirds of the members present and voting. The Registrar has thereafter to find out whether amendment is not contrary to MCS Act or Rules and whether it is in the interest of society and cooperative movement. Here Petitioners contend that by amendment in byelaws group of four ex councillors stand to benefit and amendment is malafide and only for them. It is admitted position that out of 8 posts in executive committee required to be filled in by open election, 4 go to the employees and ex-employees while remaining four are for councillors and ex councillors. From these 4 posts, 3 are occupied by employees currently in service or, as the case maybe by Councillors presently in office. Only 1 post from each category is for past employees or past councillors. There is no dispute about 4 posts assigned to employees category. Again there is no dispute that no person presently holding the office as councillors of Zilla Parishad, Akola happens to be member of respondent No. 4 Society. It is therefore apparent that 3 seats/posts to be filled in by electing existing councillors cannot be filled in as there are no members to contest from that category. In this background, the amendment aims at clubbing of subcategories of councillors to form only one category. The subcategory of "existing councillors" is clubbed with subcategory of "ex councillors". Such clubbing is also done between "existing employees" and "ex-employees". The Petitioners have not placed on record relevant resolution passed by general body with two-thirds majority supporting such clubbing. Petitioners have also not stated that in said general body meeting they opposed such clubbing or amendment to byelaws. It is also apparent that in the absence of such clubbing, 3 posts required to be filled in by sitting councillors of Zilla Parishad would have remained un-occupied. The need for amendment is therefore demonstrated. It is also clear that such amendment has to be before elections so that all exemployees as also employees and ex councillors as also sitting councillors can derive benefit thereof either as voter or as candidate.
13. Petitioners, however state that there are only 4 ex councillors and hence, if amendment is accepted, all of them will be elected unopposed as members of executive committee. The situation cannot be helped here in writ petition. General body was the right stage for ventilating this grievance. Judgment of this Court reported at
Omprakash v. G.V. Koimatlur, does not in any way support the Petitioners in this respect. They have not challenged validity of bye-laws and further bylaw is not shown to be repugnant to or inconsistent with any provision of MCS Act. It can only be accepted that the bylaw does not come into force unless and until it is registered under Section 13. Case of Prabhu Shriram v. State of Maharashtra reported at 1999 Maharashtra Law Journal 619 considers provisions of Section 4 of MCS Act and holds that its purpose is to promote the growth of Cooperative movement in public interest and registration can be refused if it would be economically unsound or would adversely affect cooperative movement and public interest. Economical interest and general welfare of members of Society is to be safeguarded while enhancing cooperative principles and monopolistic system is not to be encouraged. Even if this principles are applied in the facts at hand, I do not find that there is any violation thereof. General Body of respondent No. 4 society has taken a particular decision in its wisdom and this Court cannot sit in appeal over it. The decision is not anti-democratic or in violation of any law or public policy. It cannot be said that general body was not aware of existence of only 4 ex councillors and has not considered the effect of bylaw amendment. It cannot be said with certainty that amendment was proposed only with a view to postpone the elections.
14. Petitioners have contended that respondent No. 1 could not have while allowing appeal issued direction to respondent No. 2 to accord sanction to amended bye-law & he should have remanded the matter back to respondent No. 2. However, tenability of appeal under Section 152 before Hon'ble Ministers has not been questioned. It has not been shown that appellate jurisdiction is different in its scope than original jurisdiction. When appeal is permitted in law, appellate authority is competent to do all that which original authority can undertake unless there is indication to the contrary in the statute. No arguments on these lines are even advanced. The appellate authority can reverse the findings of respondent No. 2 and remand back to respondent No. 2 after that will be only an empty formality. therefore do not find any substance in the argument. The Petitioners also could not demonstrate any prejudice to them in the matter.
15. Now the role played by respondent No. 5. Was there any valid reason to suspend election process on 7/6/2006 and whether he was authorised to do so as also whether he could have taken decision to frame and publish new election programme, whether impugned order dated 7/6/2006 is based upon legal grounds are relevant aspects in this respect. But before all this question arises whether this Court can interfere in the matter at this stage. Counsel for respondent No. 4 has argued that respondent No. 5 Election Officer has already resigned and in any case, no writ would have been issued Page 3650 to him.
In --Manda Jaganath v. K.S. Rathnam, where the
returning officer while scrutinizing the nomination paper of the petitioner found that Form-B which is required to be filled by the candidate for claiming party symbol was incompletely filled and vital clauses in the Form -B were left blank and therefore rejected Form B of the petitioner and refused to allot him party symbol, Hon'ble Apex Court held that the order could not be interfered with by High Court in exercise of writ jurisdiction. It observes in para 16 with reference to Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. as under:
16. In the very same paragraph this Court, however, demarcated an area which is available for interference by the High Court and the same is explained as follows : "But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrarywise. For example, after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30, if the later orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the Court's review of that order will facilitate the flow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality, monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all.
Of course, what is stated by this Court herein above is not exhaustive of a Returning Officer's possible erroneous actions which are amenable to correction in the writ jurisdiction of the courts. But the fact remains such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officers remedy for which lies in an election petition only."
Hon'ble Apex Court in --"Gujarat University v. N.U.
Rajguru" holds that:
6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the Page 3651 statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the,jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies. In the instant case, there existed no circumstance justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court.
This Court has also held that in exceptional cases it can in writ jurisdiction interfere even in election programmes. The point raised is no more res integra so far as this Court is concerned in view of the reported judgment of 1997 (2) Mh.L.J. 588, Hasan Ali v. Collector, Nagpur & Zambar Rajaram Patil and Anr. v. State of Maharashtra and Ors. at 2000 (5) LJSOFT 65 : 2000 (2) Mh.L.J. 213. In Balasaheb Narayan Ingale and Ors. v. Aran Bruhat Vividh Karyakari Sahakari Sanstha Mydt. and Anr. 2002 (3) LJSOFT 8, this Court has adopted same principle. Moreover, in present matter effort of Petitioners is also to challenge deliberate inaction or omission of respondents No 1 and 2 to force respondent No. 4 to hold elections and they are trying to point out the accommodation extended to respondent No. 4 from time to time and how elections have been avoided and same executive has continued for practically two terms. Coupled with this they also challenge the amendment to bye-laws on the ground that it is malafide. Suspension of earlier election programme by respondent No. 5 and subsequent publishing of new election programme by him though said amendment has not come into force are also challenged. It therefore cannot be said that writ petition is not maintainable. Resignation by respondent No. 5 is not solution to the issues raised by Petitioners and some other person will definitely be appointed by respondent No. 3 to substitute him and to conduct the elections.
16. Next question is whether any writ can be issued to respondent No. 5 or election Officer in the matter. Respondent No. 5 has been admittedly appointed as Election Officer by cooperative department and it is his duty to conduct and complete elections as per law. He has suspended or canceled the election programme framed by him in that capacity. He is not acting only as agent of cooperative department but owes duty to see that elections held a free and fair. He is therefore responsible to all members of Society for that purpose. between Gayatri De v. Mousumi Co-operative Housing Society Ltd. has been relied upon to show that writ can be issued to respondent No. 5. There the Special Officer, exercising his statutory function, under Act issued a letter to the father of the appellant that since no claim for transfer Page 3652 of the interest of allottee member of Society has been made in time by the legal heirs, the flat in question has already been re-allotted and since no claim for payment of the value of the share or interest has been made by any person entitled in law to receive the payment lying in the deceased- member's account after deduction of the amount, if any, payable to the Society, the Society will make payment in accordance with law. The appellant one of L.Rs. of deceased allottee member filed a writ petition for mandamus commanding the Co-operative Society therein not to give effect to the letter issued by the Special Officer of the Society and to forbear from acting on the basis thereof and pursuant thereto. Hon'ble Apex Court notes that the subject-matter of the writ petition is the order passed by the Special Officer in discharge of his statutory functions, the writ petition is maintainable in law. The Special Officer was appointed under the provisions of the Act and as such a statutory officer and, therefore, he was regarded as a public authority. Hon'ble Apex Court also observed that Article 226 of the Constitution is not confined to issue of writ only to a public authority, it extends also to issue directions to any person. In a case where the Cooperative Society is under the control of a Special Officer, a writ would lie. The Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, has been regarded as a public authority and hence, the writ petition was held to be maintainable. In view of this ruling, it is apparent that respondent No. 5 is also to be regarded as public authority and in appropriate cases writ can be issued against him. One more important aspect which needs to be noticed is the action of respondent No. 5 of suspending or canceling earlier election programme and of preparing and publishing new election programme is in the light of amendment to bylaws approved by respondent No. 1. The order of respondent No. 1 is challenged in present petition only and said action of respondent No. 5 is therefore dependent largely on outcome of result of this petition in that respect.
17. Issue of jurisdiction also has been raised by learned Counsel appearing for respondent No. 4. Respondent No. 5 is admittedly appointed to function as election Officer under MCS Act. All his orders which affect the members or voters or candidates are passed by him under this MCS Act. Contention of respondent No. 4 that his orders are not under MCS Act cannot be accepted. He is born under said Act and he cannot do anything which is not provided for or prescribed under it. All his orders and actions which have any bearing or effect on election programme will have to be treated as orders under MCS Act. The argument of respondent No. 4 itself is unacceptable. Hence all his orders can be challenged only before Single Judge of this Court in view of Chapter XVII Rule 18 (12) of Bombay High Court Appellate Side Rules.
18. Whether in the facts of present case Petitioners have made out any case to assail policy decision taken by respondent No. 5 in view of amended bye-laws now needs to be scrutinized. Petitioners have not pointed out the provision of law under which respondent No. 5 came to be appointed as Election officer by Respondent No. 3. He has framed election programme under which law or rules is also not made clear. What are his powers under law, whether in emergency he can postpone any stage in election programme or reschedule it are all questions which need answer. Respondent No. 4 has Page 3653 only to seek appointment of election Officer and thereafter its job is over. It cannot dictate election Officer in the matter of framing or conduct of election. Whether there are any Election Rules which regulate conduct of election by election Officer is therefore an important factor. If such Rules are in existence, whether such election Officer functions as subordinate of respondent No. 3 or he is independent Officer who has to conduct fair and impartial elections in his own authority; is again relevant inquiry. Unfortunately Petitioners on whom burden in this respect lies primarily have failed to discharge it. Pleadings in writ petition are again silent in respect of this legal provision.
19. When the order impugned dated 7/6/2006 is seen, respondent No. 5 has stayed voting which was then scheduled on 10/6/2006 as per his election programme published on 5/4/2006. He has mentioned that the stay is to operate until further orders or till the declaration of fresh election programme according to amended bylaws. In the reasons he has mentioned that the order passed by Appellate Authority allowing said amendment on 6/6/2006 has been communicated to him on 7/6/2006 and he has thereafter briefly discussed the effect of said amendment and expressed that it would be proper to have new election programme in consonance with amended provisions. He has treated this position as an un-avoidable circumstance and stated that he has passed order in the interest of voters as well as Society. His subsequent election programme mentioned that respondent No. 2 has granted approval to amended bylaws on 12/6/2006 and therefore he has published fresh election programme on 19/6/2006. In affidavit reply filed on 7/8/2006 by respondent No. 3, no such order dated 12/6/2006 passed by respondent No. 2 has been mentioned. Affidavit reply filed by respondent No. 1 on 18/8/2006 also does not speak of any order of respondent No. 2 dated 12/6/2006. In any case, on 7/6/2006 when respondent No. 5 passed order suspending or canceling the election programme dated 5/4/2006 amended provision of bylaw had not come into force. As per opening part of Section 13(1) of MCS Act, the amendment of bylaws is not valid until registered. It is therefore clear that till date of actual polling i.e. 10/6/2006 and declaration of result scheduled on 11/6/2006, as per election programme dated 5/4/2006 the amended bylaw had not come into force at all. It cannot be forgotten that respondent No. 5 is an advocate and he is aware of this legal position. He came to be selected as Election officer at the instance of respondent No. 4 alone and substituted earlier election Officer appointed by co-operative department. Though, in absence of necessary parties and appropriate pleadings any collusion between him and influential group in executive of respondent No. 4 cannot be presumed, still his conduct has not been above board and becoming of his status as advocate enrolled with State Bar Council. He did not choose to act from 17/12/2005 till 5/4/2005 and slept over interest of general member or welfare of Society. Application of mind in order dated 7/6/2006 leaves no manner of doubt that he went out of way to accommodate his favoured group by misinterpreting the order dated 20/6/2006 of this Court. It also appears that when he found himself in rough weather, he chose to excuse himself. Though his resignation as Election officer was accepted by respondent No. 3, he was not excused from appearing before this Court and from filing his Page 3654 reply affidavit explaining his position. It is apparent that he thought it proper to avoid it.
20. The order dated 7/6/2006 is thus passed for non-existent reasons and irrelevant considerations. Obviously, it is unsustainable & without jurisdiction. The steps to fill in vacant posts could have been taken by executive committee duly constituted as per election programme dated 5/4/2006. There is provision in bylaws of respondent No. 4 Society for such co-option. In the circumstances, this Court has no option but to quash fresh election programme dated 19/6/2006 and also impugned order dated 7/6/2006. Respondent No. 2 and 3 shall forthwith appoint suitable and competent person as Election officer to complete the remaining stages of election programme dated 5/4/2006. Respondent No. 2 and 3 to pass necessary orders in this respect within period of 15 days from to-day. If respondent No. 2 and 3 experience any difficulty in proceeding further with elections, they are free to forthwith appoint Administrator in terms of earlier order dated 26/5/2005 or to pass fresh orders for that purpose in accordance with law. Restraining orders passed by respondent No. 1, if any in this respect stand vacated for that purpose. As respondent No. 5 has deliberately omitted to discharge his duties, he shall pay cost of present petition quantified at Rs 5000/only to present Petitioners.
21. Accordingly, writ petition is partly allowed. Fresh election programme dated 19/6/2006 and also impugned order dated 7/6/2006 of respondent No. 5 are hereby quashed and set aside. Respondent No. 2 and 3 shall forthwith appoint suitable and competent person as Election officer to complete the remaining stages of election programme dated 5/4/2006. Said respondents are also left free to forthwith appoint Administrator upon respondent No. 4 society if some time is required to appoint such election Officer and to undertake further completion of said election programme. Restraining orders passed by respondent No. 1, if any in this respect stand vacated for that purpose. Costs of petition are quantified at Rs 5000/ only and respondent No. 5 is ordered to pay the same to Petitioners within one month from today. In default, Petitioners can recover it from him as per law. Rule is made absolute accordingly.
22. Request of learned advocate for respondent No. 4 to suspend operation and effect of this judgment for period of 15 days is hereby granted.