Society election voters' list dispute — writ or election petition? Bombay High Court decides

A few days before the society election, a member is told it is off the list of those entitled to vote. The instinct is to run to the High Court under Article 226 and have the election stopped. A 2021 Bombay High Court judgment shows why that usually fails.

The case in brief

The case is Dattatray Genaba Lole and Ors v. The Divisional Joint Registrar, Co-operative Societies, Pune Division and Ors. (Writ Petition No. 5878 of 2021). A Bench of the Bombay High Court (S.J. Kathawalla and Milind N. Jadhav, JJ.) reserved judgment on 12 October 2021 and pronounced it on 26 November 2021.

The third petitioner was a primary co-operative society and a member of the Pune District Central Co-operative Bank, a federal society. Elections to the bank's managing committee were notified on 17 December 2019; the cut-off date was 4 May 2020. On 25 August 2021 the bank sent the provisional voters' list to the District Co-operative Election Officer under Rule 9(1) of the Maharashtra Co-operative Societies (Election to Committee) Rules 2014 and published under Rule 9(3).

The society objected that it was not a defaulter on the date the list was published. The bank said it was a defaulter on the cut-off date and cleared its arrears only by 13 September 2021. The Election Officer rejected the objection. On 22 September 2021 it filed a writ petition under Article 226. The nomination programme was held in abeyance because of the writ.

What the court decided

The court did not decide whether the society was rightly or wrongly treated as a defaulter. It did not decide whether the cut-off date or the publication date governs defaulter status. It expressly left those questions open.

It held only this: the Election Officer's order rejecting an objection to the provisional voters' list is a decision at an intermediate stage of the election process, made on its face in exercise of power conferred by the Act and the Rules. The High Court would not entertain a writ against it, because an alternative and efficacious remedy exists: an election petition to the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act 1960, read with Rule 78 of the 2014 Election Rules, after the result is declared. Rule 78 reads: "No election shall be called in question, except by an election petition presented to the Co-operative Court as laid down in section 91."

The court said: "We accordingly uphold the preliminary objection as raised by the Respondents and conclude that we are not inclined to entertain the present Writ Petitions challenging the Impugned Order, being a part of the intermediate stage of the election process."

It followed Shri Sant Sadguru Janardan Swami (Monigiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, (2001) 8 SCC 509. The petitioners were left free to file an election petition after the result, to be decided on its own merits, uninfluenced by this order.

Why it matters for your society

Courts have as a matter of principle been reluctant to interfere at an intermediate stage; the election should be completed first. Interference is reserved for orders that are patently and demonstrably illegal, for example where a non-existent rule or provision is applied, or a mandatory provision is ignored so that its existence is rendered nugatory; that list is not exhaustive, and not every alleged illegality, irregularity or minor deviation qualifies. The alternative-remedy bar is self-limitation, not absolute: the recognised exceptions are breach of fundamental rights, an order entirely without jurisdiction, a demonstrably inefficacious remedy and a clear violation of natural justice. None applied here.

For a co-operative housing society, Section 91 applies: section 154B(1) applies sections 91 to 100 to housing societies, and Section 91 is not in the list of excluded provisions in section 154B(2). Model Bye-law 174 lists the elections of the Managing Committee among Section 91 disputes, except the rejection of nominations, which it routes to section 152-A.

On defaulters, section 154B-1(11) defines a defaulter as a member who fails to pay the society's dues within three months from the date of service of bill or notice or due date of payment, whichever is later. Section 154B-10(4) bars a defaulter from being appointed, nominated, elected or co-opted, or being a member of a Committee. That is a bar on standing and sitting. Any effect on a member's vote comes indirectly, through Active or Non-Active classification under Bye-laws 22 and 106.

What your committee should do

1. 1Keep each member's dues position documented and dated.
2. 2Serve demand notices properly and keep proof of service. The three-month period in section 154B-1(11) and Bye-law 117(b) runs from service.
3. 3If the dispute is about Active or Non-Active classification, use the appeal to the Registrar within 60 days under Bye-law 22(e)(ii) rather than waiting for the election to arrive.
4. 4Record every objection to the voters' list or to a member's eligibility in writing, within the time allowed, with reasons and documents, and keep the written decision. That record is what an election petition will rest on.
5. 5Do not try to stop the election. Take advice on an election petition under Section 91 after the result is declared.

Limits of this ruling

• •It decides maintainability only, not the merits of the defaulter question.
• •It arose in a federal society, a district central co-operative bank, under the 2014 Election Rules. A housing society of up to 250 members runs its own committee election under the proviso to section 73CB(11), and the Model Bye-laws contain no provisional or final voters' list procedure. The procedural detail therefore differs.
• •The court said expressly that it was not holding that Rule 78 ousts Article 226 jurisdiction, and the recognised exceptions remain open.
• •The 2026 Housing Rules contain no rule on voters' lists, defaulter voting, election petitions or election disputes, so they do not change this position.