Bombay High Court
Gajanan Deorao Matthawar And Another vs Returning/ Election Officer Of ... on 30 November, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
29-wp3133.23.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3133 OF 2023
Gajanan Deorao Matthawar and anr.
-Vs.-
Returning/Election Officer of Opponent No.2-Society/
Asstt.Regr.of Cooperative Societies, Pandharkawda and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. R.L.Khapre, Sr.Advocate a/b Mr.R.G.Kavimandan, counsel for the
petitioners.
Mr.H.R.Dhumale, AGP for the respondent-State.
Mr.Vipul Bhise, counsel for the respondent No.2.
Mr.A.M.Ghare and Mr.O.A.Ghare, counsel for the respondent No.3.
CORAM : AVINASH G. GHAROTE, J.
DATE : 30TH NOVEMBER, 2023
The petition challenges the order dated
01/04/2023 passed by the Cooperative Court, Amravati under Exh.5 whereby the application has been rejected and the judgment in appeal there against dated 29/04/2023 passed by the Cooperative Appellate Court dismissing the appeal.
2. The petitioner No.1 has filed a dispute under section 91 of the Maharashtra Cooperative Society Act (hereinafter referred to as 'MCS Act') bearing Dispute No.37 of 2023 claiming a relief of quashing and setting aside the election of the respondent No.3 on the Managing Committee Member at the respondent No.2-Society on account of the fact that the petitioner stood disqualified under the provisions of Section 73CA read with section 78 KHUNTE 29-wp3133.23.odt 2/7
(a) of the MCS Act for not having complied with the provisions of bylaws No.42(g)(1) of the respondent No.2- Society, which order was passed by the Assistant Registrar, Cooperative Society, Pandharkawda on 23/07/2021 (page-
31). It is contended that the term of the society having expired the elections to the Managing Committee for the period 2023 to 2028 was held in which the petitioners filled in their nomination forms for the post of member of the Managing Committee. The nomination form was filed on 21/02/2023 (pg.33) along with which Schedule-A affidavit also came to be filed under the signature of the respondent No.3 in which it was stated that the respondent No.3 had not incurred any disqualification as contemplated by section 73CA (i) to (ix) of the MCS Act (pg.35). It is contended that this was clearly an act of intentional suppression on the part of the respondent No.3 as the respondent No.3 was aware of the order dated 23/07/2021 (pg.30) by which he stood disqualified. Consequent to the election of the respondent No.3 as the Member of the Managing Committee and election dispute under section 91 of the MCS Act came to be filed by the petitioner in which an application under section 95(4) of the MCS Act was filed seeking an interim relief for restraining the respondent No.3, from acting as a Managing Committee Member of the respondent No.2-Society (pg 78). This application came to be rejected by the learned Cooperative Court by order dated 01/04/2023 (pg.87) on account of the fact that the respondent No.3 was already declared elected and the petitioners were entitled to challenge the election.
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3. As the Cooperative Appellate Court at Nagpur was not functioning, Writ Petition No.2223 of 2023 came to be filed by the petitioner No.1 in which by order dated 03/04/2023, the following directions were passed.
"7. By way of an ad interim order, the following directions are issued.
1) The respondent no.3 is permitted to cast his vote in the meeting to be held at 5:00 p.m. today. However, his ballot shall be kept in a separate sealed envelop and shall be opened only upon the direction of the Cooperative Appellate Court. The Election Officer shall count the other ballots, and in case of a tie intimate the same to the Coop. Appellate Court.
2) The entire result of the election shall be subject to the result of the appeal, which may be presented to the Cooperative Appellate Court.
3) The petitioner shall present an appeal to the Cooperative Appellate Court day after tomorrow, which shall then be presented to the learned Incharge Appellate Court. The parties shall appear before the learned Incharge Appellate Court on 06.04.2023 at 11 a.m. The learned Cooperative Court shall decide an appeal thereafter within a period of 30 days from 06.04.2023.
4) No separate notices for appearance to the petitioner and the respondent no.3 shall be necessary to be given by the Cooperative Appellate Court.
5) The petitioner shall serve the respondent no.3 in the appeal before the Cooperative Appellate Court within one week from the date of issuance of notice by all modes permissible in law."
4. The petitioner No.1 thereafter filed an appeal KHUNTE 29-wp3133.23.odt 4/7 before the learned Cooperative Appellate Court, who by the impugned judgment dated 29/04/2023 (pg.118), has dismissed the appeal and directed the opening of the envelope in which the vote of the respondent No.3 was recorded
5. A challenge thereto is by way of the present writ petition, in which by order dated 19/05/2023 the opening of the envelope was stayed.
6. Mr.Khapre, learned senior counsel for the petitioners, submits that once the respondent No.3 had incurred a disqualification as was reflected from the order dated 23/07/2021 (pg.30) it was necessary for him to disclose the fact of his disqualification while filing the nomination for the reason that section 73CA (iii) debarred the respondent No.3 from contesting any election till the expiry of the period of next term of five years of the Managing Committee from the date on which he had so ceased to be the member of the Managing Committee. Instead of doing this, the respondent No.3 by the affidavit dated 20/02/2023 (pg.35) filed along with his nomination, gave a declaration on oath that he had not incurred any disqualification as provided by section 73CA(i) to (ix) of the MCS Act. The contention of the learned senior counsel is of an intentional suppression by the respondent No.3 regarding the state of affairs, for had he made such a disclosure regarding the order dated 23/07/2021, he would have been ineligible to contest the elections. It is further contended that since there are 13 members in the KHUNTE 29-wp3133.23.odt 5/7 Committee, the vote of the respondent No.3 would have a crucial difference in the matter as in the elections to the Chairman and Vice-Chairman held on 03/04/2023, the Chairman has been elected by a majority of 7:6 whereas there is a tie in respect of the Vice-Chairman of 6:6 and the vote of the respondent No.3 which has been directed to be kept in a sealed envelope would be the crucial factor in the matter. It is thus contended that both the Courts below have erred in law in refusing to grant an injunction as sought for, for the reason that the very election of the respondent No.3 was infirm on account of the order of disqualification dated 23/07/2021 (pg.30) which is still in force as the appeal filed there against is still pending.
7. Mr.Ghare, learned counsel for the respondent No.3, submits that the expression 'bylaws' in section 73CA (iv) of the MCS Act was inserted on 28/03/2022 and therefore, as on the date of the order dated 23/07/2021 that could not have been the ground for disqualification of the respondent No.3. He further contends that on this count the order dated 23/07/2021 was nullity and therefore, could not have been acted upon as it had no force in law and therefore, for this reason the affidavit filed by the respondent No.3 along with his nomination (pg.35) was correct and proper. It is also contended that had an objection being taken at the time of scrutiny by the petitioners, the position could have been decided then and there only, which having not been done, it is now not open to the petitioners to question the election of the respondent No.3 subsequent in point of time. It is further contended by KHUNTE 29-wp3133.23.odt 6/7 relying upon a decision in Santosh Kushankar v. State; Writ Petition No.2853 of 2018, decided on 16/01/2019 that the order of removal has penal consequences of disqualification and therefore, it was necessary for the respondent No.3 to have been noticed, before any disqualification could be claimed to have been incurred by him. It is further contended that the order dated 23/07/2021 does not direct that the respondent No.3 has been disqualified for a period of five years from the date of the said order and unless and until appropriate procedure has been followed by giving notice to the respondent No.3, it cannot be held that the respondent No.3 stood disqualified as the disqualification is not automatic. He further contends that since the respondent No.3 has been duly elected, the proper course of action would be to open the sealed envelope and the election of the respondent No.3 could always be made subject to the result of the dispute under section 91 of the MCS Act which could be directed to be decided within a stipulated period of time. It is also contended that by way of an interim order, a final relief is being sought and therefore, the rejection by the Courts below is also correct and proper.
8. Mr. Khapre, learned senior counsel for the petitioners, in rebuttal contends that the amendment to section 73CA(iv) of the MCS Act is dated 28/03/2022 as against which the date of nomination of the respondent No.3 was dated 21/02/2023, considering which on the date of filing of the nomination, the respondent No.3 had already incurred the disqualification. He further invites my KHUNTE 29-wp3133.23.odt 7/7 attention to the provisions of Rule 58 of the MCS Rules to contend that the disqualification on account of violation of the bylaws, was already in the Statute Book as Rule 58 of the MCS Rules included the word 'bylaws' and therefore mere insertion of the same in section 73CA(iv) of the MCS Act by virtue of the amendment with effect from 28/03/2022, would not have any adverse effect on the order of disqualification passed by the Assistant Registrar (pg.30).
9. Mr.Dhumale, learned AGP for the respondent No.1, supports the impugned order by contending that it was open for the petitioners to object to the nomination at the relevant time and having not so done, deprives them of the right to challenge the election of the respondent No.3.
10. Mr. Bhise, learned counsel for the respondent No.2- Society, contends that the respondent No.2 will abide by the decision of this Court on the issue.
11. List the matter on 05/12/2023 by which time learned counsel for the respective parties shall place on record reliances upon which they seek to rely.
JUDGE Signed by: Mr. G.S. Khunte Designation: PS To Honourable Judge Date: 01/12/2023 17:03:43 KHUNTE