Holding

Under Rule 5(2) the society may change its delegate within the stipulated period and the Collector is legally bound to give effect to such a change, rendering the High Court’s dismissal erroneous.

Summary

The appellant, a member of the managing committee of a Maharashtra co‑operative society, was denied the right to replace the society's previously nominated delegate with his own name for the election of the Maha Sangh, despite a resolution passed within the period allowed by Rule 5(2) of the Maharashtra Specified Co‑operative Societies Election to Committee Rules, 1971. The Collector refused to effect the change, stating that the meeting agenda did not include a subject for replacement, and the High Court dismissed the appellant's writ petition on the ground that the election process had already begun. The Supreme Court held that the society was statutorily entitled to change its delegate within the prescribed deadline and the Collector was bound to act on the duly passed resolution; the High Court’s dismissal was erroneous. The Court also rejected the preliminary objection that the appellant’s non‑disclosure of a pending writ petition by other committee members barred the appeal, and clarified that “majority” in the bye‑laws means the candidate with the highest number of votes, not a strict 51% threshold. Consequently, the appeal was allowed and the Collector’s order quashed.

Issues considered

The Collector’s duty to implement a change of delegate under Rule 5(2) of the 1971 Rules.
Whether the writ petition was maintainable despite the election process having started.
Whether the appellant’s failure to disclose a pending writ petition by other committee members defeats his Special Leave Petition.
The interpretation of ‘majority’ in the society’s bye‑laws for electing a delegate.
The extent to which courts may interfere with the preparation of the provisional voters’ list.

Legislation cited

Maharashtra Co-operative Societies Act, 1960s. 144

Subjects

Co-operative societiesElection lawRule 5(2)Delegate changeWrit petitionArticle 226Majority voteProvisional voters listSpecial Leave PetitionMaharashtra Co-operative Societies Act

Judgment

PUNDLIK A
v.
STATE OF MAHARASHTRA AND ORS.

AUGUST 25, 2005

[Y.K. SABHARWAL AND C.K. THAKKER, JJ.] B

Maharashtra Specified Co-operative Societies Election to Committee
Rules, 1971-Rule 5 (2)-Nomination of appellant by Managing Committee
of the Sangh by replacing another member as its representative for the
election to Maha Sangh-Collector rejecting the nomination of the appellant
as being improper-Writ Petition filed by appellant before High Court was
c
dismissed-Correctness of-Held, under the Rules, a Society can change the
name of a representative within the stipulated period-On facts, the Sangh
has nominated the name of the appellant, who got maximum number ofvotes,
within the stipulated period-Hence, the Collector is duty bound to effect
change of the representative of the Sangh. D
Appellant and respondent no. 7 were elected members of Managing
Committee of respondent no. 6 Sangh registered under the Maharashtra
Co-operative Societies Act, 1960. Respondent no. 3 Maha Sangh directed
Sangh to send a name of its representative before a specified date for the
election of Maha Sangh. The Sangh convened a meeting of the Managing E
Committee and unanimously decided the name of respondent no. 7 as the
representative of the Sangh. The Maha Sangh asked the Sangh to send
the name of its representative afresh in light of amended bye-laws. The
Sangh took the same decision to send the name of respondent no. 7 as its
representative. Respondent no. 2 - Collector published the programme F
of various stages upto finalisation of the voters' list in accordance with
the provisions of the Maharashtra specified Co-operative Societies Election
to Committee Rules, 1971 and sent a communication to the Sangh that it
can change the name of its representative, if it wanted to do so, within a
specified date. Pursuant to the communication, the Sangh convened a
meeting of the Managing Committee and decided to send the name of the G
appellant as its representative of the Sangh for the election of Maha Sangh
and passed a Resolution accordingly. The Collector finalised voters' list
and publisbed it. The Collector informed the appellant that in the list of
subjects of the meeting of its Sangh, there was no subject for changing the
name of the representative of the Sangh and therefore, the selection of the H
977
978 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A appellant by the Sangh in its meeting was improper.

The appellant filed a Writ Petition before High Court challenging the
action of the Collector. The High Court held the Writ Petition was not
maintainable on the ground that the election process had already started
B and hence dismissed the Writ Petition.

In appeal, the appellant contended that the Collector was bound to
effect change as per the Resolution passe<l by the Sangh in its meeting
since a statutory right has been conferred on the Sangh to change its
representative under the Maharashtra Specified Co-operative Societies
C Election to Committee Rules, 1971.

The respondents raised a preliminary objection as to the
maintainability of the Special Leave Petition by the appellant contending
that the appellant suppressed material facts in his Petition that seven
members of the Managing Committee of the Sangh has filed a substantive
D Writ Petition before High Court which is still pending. On merits, the
respondents contended that the preparation of election roll is an
intermediate and integral process of election and that the Courts cannot
interfere as the election process had already started; that the change of
representative of the Sangh' was not on agenda of the meeting of the Sangh
E and no proper Resolution could have been passed in the meeting; that the
decision of the Sangh in nominating the appellant as its representative was
contrary to the bye-laws of the Sangh since the appellant had not obtained
majority votes; that under Rule 81 of the Rules, the appellant can only
file an election petition challenging the action of the Collector.

F Allowing the appeal, the Court

HELD : 1. It is open to the appellant to approach this Court against
a decision of the High Court after his Writ Petition was dismissed. The
pendency of the Writ Petition filed by seven members of the Managing
Committee before the High Court cannot prevent the appellant from
G approaching this Court. Non-disclos,ure of fact of filing a writ petition by
members of the Managing Committee of respondent Sangh in the Special
Leave Petition cannot be said to be material or vital so as to deprive the
appellant of the relief to which he is otherwise entitled. It cannot be said
that the appellant has not come with clean hands. The preliminary objection, -
H therefore, is not well founded and the appeal cannot be dismissed on that
PlJNDLIK v. STATE 979

count. [984-A-B, DJ A
2.1. Rule 5(2) of the Maharashtra Specified Co-operative Societies
Election to Committee Rules, 1971 makes it abundantly clear that the
society, which has communicated the name of its delegate, can change the
name of such delegate within the period stipulated therein. It was, therefore,
open to the Sangh to exercise the said power in accordance with Rule 5(2), B
which has been done. The action of the Sangh was taken strictly in
conformity with the provisions ofRule5 of the Rules and the comr.mnication
was forwarded to the Collector. [986-E; 988-B]

2.2. The ground put forward for rejecting the Resolution was not C
correct since in the agenda notice issued by Sangh, the subject had clearly
been mentioned and in pursuance of the said agenda notice, a meeting of
the Managing Committee of the Sangh was convened and a decision was
taken. The grievance of the appellant, therefore, was justified that by not
effecting the change and by ignoring the resolution passed by the Managing
Committee of the Sangh, the Collector has acted contrary to law. The D
Collector was under obligation to effect change under Rule 5(2) of the
Rules. By not acting on the Resolution, the Collector had acted contrary
to law and the appellant was wholly justified in making complaint before
the High Court and praying for exercise of writ jurisdiction under Article
226 of the Constitution of India. [987-B] E
Shri Santh Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha & Anr. v. State of Maharashtra & Ors., [2001] 8
sec 509, distinguished.
Dhondiba Parshuram Lakde & Ors. v. Someshwar Sahkari Sakhar F
Karkhana Ltd & Ors., (1979) Mah LJ 311; Someshwar Sakhari Sakhar
Karkhana Ltd v. Srinivas Patil, Collector & Ors., (1992) 1 Mah LJ 883 and
Shivnarayan Amarchand Pa/iwal v. Vasantrao Vithalrao Gurjar, (1992) 2
·Mah LJ 1052, referred to.

2.3. If the order passed by Collector is upheld, Rule 5 (2) of the Rules G
will become nugatory and otiose. When the rule making authority conferred
power on the Sangh to change the name of its representative by expressly
permitting the change of representative and intimating the said fact to the
Collector, such right cannot by taken away or interfered with. Since the
last date as per the communication of the Collector was within the specified H
980 SL'PREME COURT REPORTS [2005) SUPP. 2 S.C.R.

A date, the action of the Sangh was within the four corners of Rule 5(2). The
High Court was, therefore, in error in not allowing the petition and
granting the relief to the appellant. The Sangh was within its authority
conferred under the Rules to take an appropriate decision for change of
its representative within the stipulated period and such action had been
B taken by it. The action of the Collector in not effecting change was clearly
in violation of Rule 5(2) and could be challenged by filing a petition under
Article 226 of the Constitution. The Collector was duty bound to effect
change of representative of the Sangh. [988-E, F; 989-B, C)

Ahmednagar Zilla SD. V. & P. Sangh Ltd & Anr. v. State ofMaharashtra
C & Ors., (20041 1 SCC 133, relied on.

3. The word "majority" used in the bye-laws of the Sangh does not
mean 51 per cent or more votes. If the argument of respondent No. 7 is
upheld, a situation may arise where a society may not be able. to send its
D representative for the election of the specified society. That is not the intention
of the Act, Rules or Bye-laws. Obviously, in such a situation, the member
having maximum numbers of votes would be able to represent the society
in the election of the apex society. The appellant got maximum number of
votes a·n'd hence it was clearly open to the Sangh to send the name of the
appellant far effecting change ofits representative by substituting his name
E for the name of respondent no. 7. (989-F, G, H; 990-B)

4. In the light of the subsequent development, since the election has
been adjourned for a period of one month, the relief in favour of the
appellant can be granted. (990-E]
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5290 of2005 .

.From the Judgment and Order dated 13.7.2005 of the Bombay High
Court in W.P No. 4291 of 2005.

G U.U, Lalit,-Ms. Aprajeeta Singh and T. Mahipal for the Appellant.

A.V. Savant, M.Y. Deshmukh, Rameshwar Prasad Goyal, A.P. Mayee
and V.N. Raghupathy for the Respondents.

H The Judgment of the Court was delivered by
PUNDUK v. STATE [C.K. THAKKER, J.] 981

C.K. THAKKER, J. : Leave granted. A
The present appeal arises out of an order dated July 13, 2005 passed by
the High Court of Bombay in Writ Petition No.4291 of 2005. By the said
order, the High Court was pleased to dismiss the petition filed b~ the appellant
herein.
B
To appreciate the controversy raised in the present appeal, relevant facts
in brief may be stated.

There is a specified Society, namely, Aurangabad Zilla Sahakari Doodh
Utpadak Sangh Ltd., Aurangabad, respondent No. 6 herein ('Sangh' for
short), registered under the Maharashtra Co-operative Societies Act, 1960
c
(hereinafter referred to as "the Act"). The Managing Committee of the Sangh
consists of several members and the appellant as also respondent No. 7 are
elected members of the Committee. On April 5, 2005, the process for election
of respondent No. 3 - Maharashtra Rajya Sahakari Doodh Maha Sangh
Marvadit, Mumbai ("Maha Sangh" for short) started. The Maha Sangh D
directed the Sangh to send the name of its delegate on or before April I 6,
2005. On April 7, 2005, the Sangh called a meeting of the Managing
Committee by issuing an agenda. The meeting was scheduled to be held on
April 15, 2005. The agenda contained only one subject regarding discussion
of letter dated April 5, 2005 received from the Maha Sangh. In the said
meeting a unanimous decision was taken to send the name of respondent No.
E
7 as the delegate of the Sangh. On May 19, 2005, the Maha Sangh sent a
telegram to the Sangh directing it to send the name of its representative afresh
in the light of amended bye-laws. The Sangh, therefore, convened a meeting
on May 24, 2005 to discuss the matter. A decision was again taken to send
the name of respondent No. 7 subject to the confirmation of the decision in F
the subsequent meeting. On May 30, 2005, the Collector published the
programme of various stages upto finalization of the voters' list in accordance
with the provisions of the Maharashtra Specified Co-operative Societies
Election to Committee Rules, 1971 (hereinafter referred to as "the Rules").
As per that programme, any objection for inclusion of names in the voters'
list must be taken before June 10, 2005. It was mentioned that if the Sangh
G
wanted to change the name of its delegate, it could do so latest by June I 0,
2005. Pursuant to the said communication received from the Collector, a
meeting of the Managing Committee of the Sangh was convened on June 9,
2005 and it was decided to send the name of the appellant as the delegate
of the Sangh for the election of Maha Sangh. A resolution to that effect was H
982 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A passed being Resolution No. 7 which inter alia stated that earlier the name
of respondent No. 7 was sent, but thereafter it was decided to send the name
of the appellant. Respondent No. 7 raised a dispute before the Co-operative
Court, Aurangabad against the said decision which is pending. It is asserted
by the appellant that the Divisional Deputy Registrar, Co-operative Societies
B (Dairy), Aurangabad vide his communication, dated June 18, 2005 to the Joint
Registrar, Co-operative Societies (Dairy), Mumbai informed that Resolution
No. 7 had been passed by the Sangh which was 'correct'. On June 20, 2005,
the Collector finalized voters' list and on June 27, 2005 the list was published.
By an order dated June 28, 2005, respondent No. 2 - Collector informed the
appellant that in the list of subjects of the meeting, there was no subject for
C changing the name of the representative of the Sangh and, therefore, the
change of the representative in the meeting dated June 9, 2005 was not proper.
Being aggrieved by the order, the appellant filed a writ petition which, as
stated above, was dismissed by the High Court. Against the decision of the
High Court, the appellant has approached this Court by filing special leave
D to appeal on July 21, 2005. Notice was issued by this Court on July 25, 2005.
Affidavit-in-reply is filed by respondent No. 7.

We have heard the learned counsel for the parties.

The learned counsel for the appellant contended that the order passed
E by the High Court suffers from illegality and infirmity. According to him, a
right has been conferred on the Sangh to change its representative under the
Rules and when the right has been exercised within the stipulated period by
passing a resolution, it was incumbent on respondent No. 2 - Collector to
effect change as per the resolution passed by the Sangh. The counsel
submitted that the High Court had committed grave error in holding that the
F petition was not maintainable as the election process started. The High Court
was also wrong in relying upon the decision of this Court in Shri Sant Sadguru
Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha &
Another v. State of Maharashtra & Ors., [2001] 8 SCC 509. The said decision
was clearly distinguishable and the ratio laid down therein did not apply.
G Since, the Sangh was· exercising its statutory right, the action of respondent
No. 2 -Collector was contrary to law and ought to have been interfered with
by the High Court. It was, therefore, submitted that the appeal deserves to
be allowed by directing respondent No. 2 - Collector to substitute the name
of the appellant for the name of respondent No. 7 as the representative of the
Sangh.
H
PUNDLIK v. STATE [C.K. THAKKER, J.] 983

The learned counsel for the respondents, on the other hand, supported A
the order passed by the High Court. It was submitted by them, particularly
on behalf of respondent No. 7, that there was suppression of material facts
by the appellant and special leave to appeal may not be granted by this Court
in exercise of discretionary power under Article 136 of the Constitution. It
was stated that against an action taken by respondent No. 2 - Collector in not
effecting the change, a substantive petition has been filed by seven Committee
B
Members of the Sangh being Writ Petition No. 4580 of2005 in the High Court
of Bombay, Aurangabad Bench on July 6, 2005 and the said petition is
pending. The appellant is aware of the said fact and yet that fact has been
concealed from this Court. Even on merits, the appellant has no case. In
several decisions, the High Court of Bombay has consistently taken the view c
that preparation of election roll is an intermediate and integral process of
election and it cannot be interfered with at that stage. It was stated that in the
first meeting of the Sangh, unanimous decision was taken on April 15, 2005
to send the name of respondent No. 7 as the representative of the Sangh. The
said decision was reiterated on May 19, 2005. It was only on June 9, 2005
D
that the so-called decision was taken to change the name of the representative
of the Sangh and instead of •espondent of 7, the name of appellant was sought
to be substituted. The counsel contended that the change ofrepresentative of
respondent Sangh was not on agenda and no resolution could have been
passed. Further, the purported decision was contrary to the bye-laws of the
Sangh and since the appellant had not obtained majority votes, his name could E
not have been sent as representative of the Sangh. The High Court was wholly
right in relying upon Rule 81 of the Rules and in holding that ifthe ap~ellant
is aggrieved by the decision of respondent No. 2 - Collector, he could file
election petition for declaring election to be void. He, therefore, submitted
that the appeal deserves to be dismissed.
F
Having heard the learned counsel for the parties, in our opinion, the
appeal deserves to be allowed. So far as the preliminary objection to the
maintainability of proceeding before this Court is concerned, it is no doubt
true, as submitted by the learned counsel for respondent No. 7 that the
members of the Managing Committee of the Sangh have approached the High G
Court of Bombay, Aurangabad Bench by instituting a writ petition which is
pending. But, it is equally true and is not disputed by respondent No. 7 that
the appellant had filed a petition in the High Court of Bombay on June 30,
2005, i.e. prior to the petition fi.led by seven Members of the managing
Committee before Aurangabad Bench. Moreover, the appellant is not a party H
984 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A to the said petition. So even if it is assumed that the appellant was aware of
filing of the writ petition and pendency thereof, it was open to him to approach
this Court against a decision of the High Court after his petition was
dismissed. When the appellant approached this Court by filing special leave
petition on July 21, 2005, the petition at Aurangabad Bench was pending and
B is still pending. It, however, cannot prevent the appellant in approaching this
Court. In our considered opinion, non-disclosure of fact of filing a writ
petition by members of Managing Committee of respondent Sangh in the
Special Leave Petition in this Court cannot be said to be material or vital so
as to deprive the appellant to the relief to which he is otherwise entitled. It
cannot be said that the appellant has not come with clean hands. Since the
c name of representative of respondent - Sangh ·was not changed as per the
resolution, dated June 9, 2005, the Members were aggrieved and accordingly,
they had initiated proceedings in the High Court of Bombay, Aurangabad
Bench. Similarly, the appellant was aggrieved since his name was not
substituted for the name of respondent No. 7 which is a distinct, separate and
D independent cause of action. It was, therefore, open to him to take proceedings
against ~uch decision and accordingly, he had approached the High Court in
June, 2005 and on dismissal of the petition, he is in this Court. The
preliminary objection, therefore, is not well founded and the appeal cannot
be dismissed on that count.

E On merits, it is true that the High Court of Bombay has in several cases
held that preparation of voters' list is an integral process of election and a
court would not interfere at that stage. In this connection, our attention has
been invited by the learned counsel to Dhondiba Parshuram Lakde & Others
v. Someshwar Sahkari Sakhar Karkhana Ltd & Others, (1979) Mah LJ 311,
F Someshwar Sahkari Sa1<har Karkhana Ltd. v. Sr/nivas Patil, Collector, (l 992)
I Mah LJ 883 and Shivnaryan Amarchand Paliwa/ v. Vasantrao Vithalrao
Gurjar, (1992) 2 Mah LJ I 052. Strong reliance was placed on Sant Sadguru
Janardan Swami. It was contended by the respondents that preparation of
electoral roll is an interim stage in the process of election of the specified
society and the Court should not stay or interfere with the said election
G process.

We are unable to uphold the contention. In Sant Sadguru Janardan
Swami, this Court had an occasion to consider the relevant provisions of
the Act and the Rules. Referring to Section 144 X of the Act, the Court
H observed that preparation of list of voters is one of the stages of election. It
PUNDLIK v. STATE [C.K. THAKKER, J.] 985

is true that according to this Court, normally the High Court would not A
interfere in exercise of powers under Article 226 of the Constitution at the
stage of preparation of list of voters but. such action must be in accordance
with law.

We have been taken through the relevant provisions of the Rules by the
learned counsel for the parties. Rule 4 of the Rules provides for provisional B
list of voters. Rule 5 relates to particulars to be included in the provisional
list of voters. Sub-rule (2) of the said rule is relevant and material for our
purpose and it may be reproduced :
•
5. Particulars to be included in provisional list of voters- C

(1) ............ _............ ·························· ··························

(2) Where a society is a member of a specified society, the specified
society shall call for the name of the delegate duly authorized to vote
at an election on behalf of the affiliated society, so as to reach it by D
the 2nd July. While communicating the name of its delegate to the
specified society, the affiliated society shall enclose a copy of the
resolution of the society or its committee under which the delegate
is so authorized. The specified society shall include in the list of
voters the names of all such delegates as have been communicated
to it before the date fixed for publication of the provisional list. In E
addition to the names of all such delegates, the list shall contain the
names of the affiliated societies, their registration numbers and
addresses and the names of constituencies, if any, to which they
belong. A society which has communicated the name of its delegate
shall by like resolution be permitted to change the name of its F
delegate not later than seven days before the date appointed by the
Collector under Rule 16 of the said Rules for making nominations."
(emphasis supplied)

Rule 6 deals with claims and objections to provisional list of voters. Rule

- 7 requires a copy of final list of voters of every society to be displayed on
the notice board of office of the Collector, the District Deputy Registrar and
the Society. Rule 16 provides for appointment of dates for various stages of
election.
G

The respondent No.2 - Collector passed an order on May 30, 2005, H
986 SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.

A stating therein that in accordance with the provisions of the Ru.Jes, various
dates for publication of list of voters had been settled as per Schedule I. It
was mentioned in the Schedule that submission of any objection or claim
could be raised by June I 0, 2005 under Rule 6. The last date for publication
of final voters' list was June 27, 2005. In the light of the above order, a
resolution was passed by the Sangh that instead of name of respondent No.
B 7, the name of the appellant will be sent as representative of the Sangh. The
grievance of the appellant is that the meeting was held on 9th June, 2005
wherein Resolution No. 7 was passed and respondent No.2 was informed
about the said decision and yet he had not changed the representative of the
respondent Sangh. The ~aid action was clearly contrary to and inconsistent
C with Rule 5 of the Rules. The said rule enabled the Sangh to change the name
of its delegate not later than seven days before the date appointed by the
Collector under Rule 16 for making nominations. As the action was in
consonance with the Rules, it was obligatory on the Collector to change
the name on the basis of the resolution passed by the Sangh. Non-
D implementation of the resolution and the refusal to change the name of the
representative of the Sangh was unlawful and the High Court ought to have
set aside the said decision by directing the Collector to effect the change and
to treat the appellant as representative of respondent Sangh at the place of
respondent No. 7.

E We see considerable force in the contention of the learned counsel for
the appellant. Bare reading of Rule 5(2) makes it abundantly clear that the
society which has communicated the name of its delegate can change the
name of such delegate within the period stipulated therein. It was, therefore,
open to respondent Sangh to exercise the said power in accordance with Rule
F 5(2) which has been done. It was the case of respondent No.2 - Collector that
in the list of subjects of the meeting convened on June 9, 2005, there was
no subject for sending the name of representative for the election of the Maha
Sangh and yet the representative was changed which was not proper. But the
learned counsel for the appellant has rightly referred to the proceedings dated
June 9, 2005, and in particular Resolution No. 7. H is further clear from
G agenda notice dated June 2, 2005, in which it was stated that the meeting of
Board of Directors of respondent Sangh would be held on June 9, 2005 for
discussing various subjects and subject No.7 related to the fax message
received from the Collector, Mumbai, respondent No.2 in connection with the
election of respondent No.3 Maha Sangh. Pursuant to the above agenda
H notice, a meeting was held, subject No. 7 was taken for consideration and
PUNDLIK v. STATE [C.K. THAKKER, J.] 987

Resolution No. 7 was passed. By the said resolution, it was decided that A
instead of name of respondent No. 7, name of appellant will be sent as
delegate and representative of respondent - Sangh and the said resolution was
forwarded to respondent No. 2 - Collector. He was, therefore, under obligation
to effect change under Rule 5(2) of the Rules. By not acting on the resolution,
the respondent No. 2 - Collector has acted contrary to law and the appellant B
was wholly justified in making complaint before the High Court and praying
for exercise of writ jurisdiction under Article 226 of the Constitution.

In our considered opinion, the ratio laid down in Sant Sadguru
Janardhan Swami does not apply to the facts of the case. Jn that case,
objections against publication of provisional electoral roll of the society were
c
filed which were considered by the Collector and disposed of. Final electoral
roll was published on July 2, 1999. Election programme was drawn by him
on October 21, 1999. Thereafter, the petitioner filed a petition under Article
226 of the Constitution in the High Court. A prayer was made in the petition
that the order passed by the Collector on October 21, 1999 was required to D
be set aside. Obviously, therefore, the election process was already in motion
and prayer of the petitioner was for quashing of Schedule for holding election.
In the light of the factual position before the court, the petition was dismissed
and it was held that the only remedy available to the aggrieved petitioner was
to file election petition after the election is over in accordance with Rule 81 E
of the Rules.

The Court stated :

"In view of our finding that preparation of the electoral roll being
an intermediate stage in the process of election of the Managing
F
Committee of a specified society and the election process having
been set in motion, it is well settled that the High Court should not
stay the continuation of the election process even though there may
be some alleged illegality or breach of rules while preparing the
electoral roll. It is not disputed that the election in question has G
already been held and the result thereof has been stayed by an order
of this Court, and once the result of the election is declared, it would
be open to the appellants to challenge the election of the returned
candidate, if aggrieved by means of an election petition before the
Election Tribunal." H
988 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A In the instant case, respondent Sangh had taken immediate action on
receiving the fax message from respondent No.2 - Collector. As per the said
communication by the Collector, an action could be taken for change of
representative of respondent Sangh latest by June 10, 2005. A meeting was,
therefore, convened by issuing an agenda to that effect by respondent Sangh
B on June 2, 2005. The meeting was accordingly convened on June 9, 2005 and
a resolution was passed being Resolution No. 7 wherein it was decided that
instead of respondent No. 7, the appellant would represent respondent Sangh
in the election of Maha Sangh. Since the action was taken strictly in
conformity with the provisions of Rule 5 of the Rules as also the communication
of respondent No.2 - Collector dated May 30, 2005, respondent No.2 ought
c to have effected the change. The ground put forward .for rejecting the
resolution was not correct inasmuch as in the agenda notice issued by
respondent - Sangh dated June 2, 2005, subject No.7 had clearly been
mentioned and in pursuance of the said agenda notice, a meeting of the
Managing Committee ofrespondent - Sangh was convened and a decision was
D taken. The grievance of the appellant, therefore, was justified that by not
effecting the change and by ignoring the resolution passed by the Managing
Committee of respondent - Sangh the Collector has acted contrary to law.

In our opinion, the learned counsel for the appellant is also right in
submitted that if the order passed by respondent No.2 is upheld, the provisions
E of sub-rule (2) of Rule 5 will become nugatory and otiose. When the rule·
making authority conferred power on the Sangh to change the name of its
representative/delegate by expressly permitting the change of representative/
delegate and intimating the said fact to the Collector, such right cannot be
taken away or interfered with. Since the last date as per the communication
F of the respondent No.2 - Collector was June I 0, 2005, the ac~ion ofrespondent
- Sangh was within the four comers of Rule 5(2). The High Court was,
therefore, in error in not allowing the petition and granting the relief to the
appellant.

We are also supported in taking this view by a recent three-Judge Bench
G decision in Ahmednagar Zilla S.D. V. & P. Sangh Ltd & Another v. State of
Maharashtra & Others, [2004] I SCC 133. In that case, election roll was
prepared on the basis of bye laws which were held to be ilJe·gal. When the
action was challenged it was contended that the court could not interfere with
the list of voters prepared in accordance with the provisions of the Rules and
H the only remedy available to the aggrieved party was to file election petition
PUNDLIK v. STATE [C.K. THAKKER, J.] 989

after the election was over. Reliance was placed on Sant Sadguru Janardan A
Swami. The Court, however, distinguished Sant Sadguru Janardan Swami
and held that where the voters' list had been prepared on the basis of non-
existent Rules, it would be illegal and the court could interfere under Article
226 of the Constitution.
B
In the case on hand, the respondent - Sangh was within its authority
conferred under the Rules to take an appropriate decision for change of its
representative/delegate within the stipulated period and such action had been
taken by respondent - Sangh. The action of respondent No.2 - Collector in
not effecting change was clearly in violation of Rule 5(2) and could be
challenged by filing a petition under Article 226 of the Constitution. In our C
opinion, the respondent No.2 - Collector was duty bound to effect change of
representative/delegate of respondent - Sangh.

It was then contended by the learned counsel for respondent No. 7 that
the appellant had no "majority" as contemplated by bye-law 18.13. of the bye D
laws. Bye-law 18.13 reads thus :

18.13 The decision in the meeting of Board of Directors will be
taken by way of majority considering the number of Directors who
are present in the meeting. In case of equal votes Chairman will have
power to cast additional decision vote." E
According to the counsel, there were 17 members of the Managing
Committee of respondent Sangh. Three had no voting rights. Hence, for the
purpose of majority of votes, relevant number would be 14. In the submission
of the counsel, a member whose name could be sent as representative of
Sangh must get at least eight votes. Only then it can be said that he had the F
requisite "majority". We are unable to uphold the argument. In our considered
opinion, the word "majority" used in bye-law 18.13 does not mean 51 per
cent or more votes. It only means that such a member must obtain majority
votes. If the argument of respondent No. 7 is upheld, in given case a society
may not be able to send its representative for the election of the specified G
society. For instance, if a Managing Committee consists of 14 members who
have right to vote as in the instant case and there are three contestants who
get 6, 5 and :i votes respectively, none has got 51 per cent votes (majority)
and hence the society will not be qualified to send its representative for the
election of the apex society. That is not the intention of the Act, Rules or Bye-
laws. Obviously, in such a situation the member, having maximum numbers H
990 SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.

A of votes would be able to represent the society in the election of the apex
society.

In the present case, fourteen members were present at the meeting
convened on June 9, 2005, and twelve participated in the voting. Seven voted
in favour of the appellant and five in favour of Shivajirao Pathrikar. Two,
B including respondent No. 7 did not vote. In these circumstances, it cannot be
held that the appellant did not get majority as he got only seven and not eight
votes. It was, therefore, clearly open to respondent - Sangh to send the name
of the appellant for effecting change of its representative by substituting his
name for the name of respondent No.7.
c Finally, it was stated that the Election Notification was issued by
respondent No.2 - Collector on July 28, 2005 and hence, now, this Court may /

not interfere as the election process has already started. We would have
considered the effect of issuance of Election Notification by respoQdent No.2
- Collector but we are not inclined to enter into larger question in the light
D of the subsequent development which has been brought to our notice. It was
stated by the learned counsel for the appellant and not disputed by the learned
counse'I for the respondents that due to "heavy rains", the Government Order
dated July 28, 2005 was modified by another notification dated July 29, 2005,
and the election process which was to start as per the notification dated July
E 28, 2005 was adjourned for a period of one month and now it will start from
August 28, 2005. The said date has so far not come and hence, relief in favour
of the appellant can be granted.

For the foregoing reasons, in our opinion, the appeal deserves to be
allowed and is accorc!ingly allowed. The order passed by respondent No.2 -
F Collector dated June 28, 2005 is hereby quashed and set aside. The respondent
No.2 - Collector is directed to effect the change as per Resolution No.7 dated
June 9, 2005 passed by respondent - Sangh and by treating the appellant as
the representative/delegate of respondent - Sangh instead of respondent No. 7.

G The appeal is, accordingly, allowed to the extent indicated above. There
shall be no order as to costs.

B.S. Appeal allowed.