Bombay High Court
Zambar Rajaram Patil & Another vs The State Of Maharashtra & Others on 7 October, 1999
Equivalent citations: 2000(2)BOMCR128, 2000(2)MHLJ213
Author: S.B. Mhase
Bench: S.B. Mhase, J.A. Patil
ORDER S.B. Mhase, J.
1. Heard Counsel for the respective parties.
2. Rule returnable forthwith with the consent of the parties
3. The petitioners have approached this Court under Article 226 of the Constitution of India challenging the proceedings of the special meeting of the Board of Directors of respondent No. 6 co-operative society dated 2-7-1999, wherein the respondents No. 5 and 9 were elected as Chairman and Vice Chairman respectively of the respondent No. 6 Co-operative society.
4. The respondent No. 6 is a specified Co-operative Society under section 73-G of the Maharashtra Co-operative Societies Act of 1960 and the elections of the managing committee of the said society, of the Chairman and Vice-Chairman are regulated under Chapter XI-A of the Maharashtra Co-operative Societies Act and the Rules thereunder. The elections of the respondent No. 6 society were held in 1998 for the period of five years and the managing committee consisting of 23 members was elected. The Election petition challenging the elections of 23 members of the managing committee is already pending before the Revenue Commissioner in view of the provisions of section 144-T of the Maharashtra Co-operative Societies Act. In the said Election Petition No. 8 of 1998, the petitioners in this petition are respondents along with other members of the managing committee of the respondent No. 6. After the election of the managing committee in the year 1998 in the first meeting of the managing committee of the respondent No. 6 the Chairman and Vice-Chairman were elected for the year 1998-99. Thereafter the election of the Chairman and Vice-Chairman was scheduled on 2-7-1999 for the year 1999-2000 and accordingly agenda was issued. As the respondent No. 6 is a specified Co-operative society under section 73-G of the said Act, the elections of its Chairman and Vice-Chairman are required to be conducted and completed in accordance with section 144-Y of the said Act, Rules and Bye-laws and, therefore, the said elections are required to be held in a meeting which is presided by the Collector or a nominee of the Collector, namely the respondents No. 2 and 3. In view of the provisions of section 144-Y read with the Bye-laws of the society, the Collector-respondent No. 2 has nominated the respondent No. 3 to hold said election and preside over the said meeting. Accordingly the respondent No. 3 has declared the election programme and the meeting was scheduled on 2-7-1999.
5. It requires to be stated at this stage that in election petition bearing No. 8 of 1998 challenging the election of the members of the managing committee of the respondent No. 6 which is pending, an application was moved against the present petitioners No. 1 and 2 who are respondents in the said election petition seeking temporary relief pending the said election petition that the present petitioners be restrained from taking part in the meeting of the respondent No. 6 society. The said application was rejected by the Commissioner as it is settled principle that the elected members cannot be prohibited from taking part in the business of the society unless and until their election is set aside. The said order was passed by the Commissioner, Nashik on 1-7-1999. Having found that the petitioners cannot be restrained from taking part in the meeting which was scheduled on 2-7-1999, the respondent No. 7 filed a dispute under section 91 of the Co-operative Societies Act before the Co-operative Judge, Jalgaon bearing No. ABL/JCA/35/99 seeking declaration that the petitioners No. 1 and 2 be declared as disqualified as the members of the managing committee of the respondent No. 6 and they be further restrained by perpetual injunction from taking part in the business of the respondent No. 6 society as members of the managing committee. It is further prayed that the petitioners be restrained from taking part in the meeting dated 2-7-1999 to elect the Chairman. Along with the said dispute, the interim application (Exh. 5) was submitted claiming the interim relief to the extent that the petitioners be restrained from taking part in the meeting dated 2-7-1999 to elect the Chairman of the respondent No. 6 society. It is pertinent to note that this dispute is filed on 1-7-1999 i.e. the day on which the Commissioner refused to grant interim relief in an election petition restraining the petitioners from taking part in the said meeting and the Cooperative Judge passed order below Exh- 5 that the petitioners are hereby restrained and prohibited from participating in the election which is to be held on 2-7-1999 for the election of the Chairman of the respondent No. 6 society till further orders. This interim order of the Co-operative Court, Jalgaon was produced before the respondent No. 3 Presiding Officer of the meeting on 2-7-1999 and in view of this order, the petitioners were not allowed to take part in the said meeting to elect the Chairman and Vice-Chairman of the respondent No. 6 society. In the result the respondent No. 5 got elected as a Chairman of the respondent No. 6 society as the respondent No. 5 obtained 11 votes and his opponent Nikam Ramesh Prataprao obtained 10 votes. So far as the election of the Vice-Chairman is concerned, the respondent No. 9 got elected. However, Kolhe Dattu Chintaman obtained 10 votes. Thus, it will be evident that both the Chairman and Vice-Chairman got elected by a margin of one vote excluding the petitioners and had the petitioners participated in the said meeting, the result of the Chairman and the Vice-Chairman would have been different. The petitioners, therefore have approached to this Court by filing this writ petition wherein the petitioners initially challenged the validity and legality of the order dated 1-7-1999 passed by the Co-operative Court, Jalgaon in Case No. CC/J/ABN/351/99 below Exh. 5. According to the petitioners, the said order is not only bad in law but it is absolutely without jurisdiction.
6. It is pertinent to be noted that section 144-T of the Co-operative Societies Act provides a remedy of an election petition, not only in respect of the elections of the managing committee of the specified co-operative societies but also in respect of the election of the Chairman and Vice-Chairman of such co-operative societies which are conducted under section 144-Y of Chapter XI-A of the said Act. The respondent No. 8 Mr. Kolhe who has lost the election of the Vice-Chairman has filed a dispute challenging the election of the respondents No. 5 and 9, namely the Chairman and Vice-Chairman held on 2-7-1999. The same is pending. The respondent No. 8, therefore, came to be added to this petition as a respondent. So also the respondent No. 9 who was not initially a party to this proceeding but has been elected as a Vice-Chairman is also added as a party to this petition and the petitioners are claiming to set aside the said elections of the Chairman and Vice-Chairman held on 2-7-1999.
7. The learned Counsel Mr. Hon appearing for the petitioners submitted that the Co-operative Judge who passed the order on 1-7-1999 should have refrained from passing such order in view of the provisions of section 144-T which provides for a remedy of election petition to challenge the election of the Chairman and Vice-Chairman. It is further submitted that the dispute is in respect of the disqualification and for that purpose setting aside the election of the petitioners was very much pending before the Commissioner in view of the Election Petition No. 8 of 1998 and, therefore it was not open for the Co-operative Judge to consider the question of disqualification of the petitioners and thereby to restrain the petitioner from taking part in the meeting to elect the Chairman and Vice-Chairman of the respondent No. 6 society. Mr. Dhorde, learned Counsel who appeared for the respondent No. 5 Chairman submitted that as the election petition is remedy provided under section 144-T to challenge the election of the Chairman and Vice-Chairman, the present petition is not tenable in law and it be rejected. It is further submitted that the petitioners have incurred expenditure in the elections of the respondent No. 6 society to elect respondent No. 5 beyond a permissible limit and it is evident from the accounts which the petitioners have lodged with the respondent No. 2 Collector and, therefore, on the basis of the admitted accounts the petitioners stand disqualified and, therefore, the order passed by the Co-operative Court is justified.
8. No doubt, the matter before the Co-operative Judge was in respect of a specified co-operative society and its managing committee members and elections of the Chairman. The dispute which is filed before the Co-operative Judge points out a fact that the respondent No. 6 society is covered under section 144-G and the disputant before the Co-operative Court is a member of the managing committee of the respondent No. 6 elected in the year 1998 along with the present petitioners. The said petitioner is also a respondent in Election Petition No. 8 of 1998, wherein the present petitioners are also the respondents and, therefore, the respondent No. 7 the disputant before the Co-operative Court was aware of the fact that the Election Petition No. 8 of 1998 is pending before the Commissioner and that in the said election petition the Commissioner has refused to grant interim relief. However, all these facts were suppressed by the respondent No. 7 disputant from the Co-operative Court. Apart from that the bare reading of section 144-T of the Co-operative Societies Act would have pointed out that the Co-operative Court has no jurisdiction to entertain any dispute in respect of the elections of the Chairman, Vice-Chairman and/or of the managing committee of the specified societies specified under section 73-G of the Co-operative Societies Act. Apart from that so far as the question of disqualification of the members of the Board of Directors is concerned, it is section 78 of the Co-operative Societies Act which bestows the power with the Registrar of the Co-operative Societies to consider and to declare that any member of the managing committee of the co-operative society is disqualified to hold the elections of Chairman of the managing committee and in this respect the powers vest with the Registrar. Therefore, the Co-operative Judge in any eventuality is not having jurisdiction to entertain the dispute as filed before the Co-operatives Court. Apart from that if any member has incurred more expenditure in the election and thereby he is to be disqualified, it is a question to be decided by the Collector and the Registrar under the Co-operative Societies Act and if any voter or the member of the elected managing committee desires to raise this question it is required to be raised by filing a election petition and this is not appropriate remedy provided under the law and the said remedy by way of Election Petition No. 8 of 1998 was followed. Therefore, viewed from any angle, it is not possible to hold that the Co-operative Judge was having any power and jurisdiction to entertain the dispute filed by the respondent No. 7. The Co-operative Judge, without scrutinizing the provisions of law has usurped the jurisdiction which is not vested with the other authorities as stated earlier and has passed the order on 1-7-1999 restraining the petitioners from taking part in he said elections.
9. The argument advanced by Mr. R.N. Dhorde, learned Counsel for respondent No. 5 that in view of the election petition filed by the respondent No. 8 challenging the election of the respondents No. 5 and 9 under section 144-T it is not open for this Court to consider the present petition is misconceived and this Court is not inclined to appreciate and accept the said argument. In an election petition which has been filed by the respondent No. 8 it has been averred by the respondent No. 8 that the order passed by the Co-operative Court restraining the petitioners was bad, illegal and without jurisdiction and, therefore, the election of the respondents No. 5 and 9 be set aside. Therefore, on the basis of averments it will be necessary for the Commissioner before whom the petition under section 144-T lies, as to whether the order passed by the Co-operative Court is legal and with the jurisdiction or not. It is pertinent to note that the Commissioner under section 144-T is a statutory authority and Election Tribunal; and in that capacity it will not be proper and justified that the said authority to consider the validity and legality of the order passed by the Co-operative Court. Not only that but it will be very difficult for such authority to arrive at the findings holding that the Co-operative Judge has acted without jurisdiction. Under these circumstances, the pendency of the election petition filed by the respondent No. 8 cannot restrain this Court from exercising the powers under Article 226 of the Constitution of India. The point raised is no more res integra so far as this Court is concerned in view of the reported judgment of Hasan Ali v. Collector, Nagpur, . In a suit for declaration that an elected Councillor of a Municipal Council had no right to take part in the proceedings of the meeting for electing President of the Municipal Council and for declaration that the defendant had no right to file nomination paper for the post of the President, the Joint Civil Judge, Junior Division issued an interim order restraining the defendant from filing his nomination form and from participating in the said meeting. Another Councillor was elected unopposed to the post of the President in the said meeting. The election of the President was challenged in writ petition under Article 226 of the Constitution of India. On behalf of the President it was contended that the writ petition ought not to be entertained as alternate remedy under section 51(3-A) and under section 51(5) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act was available. This Court in paragraph No. 11 of the said judgment has observed that both the aforesaid remedies are not efficacious and would not be really alternative remedies, inasmuch as those statutory authorities may not be able to go into the correctness or otherwise as well as the jurisdictional aspect of the Civil Court in the said suit and also there is no provision to grant interim reliefs. Therefore, till the wrong is finally set aside, the wrong doer will be allowed to continue to derive benefit out of the said wrong. In this behalf, we strongly agree with the observations made in the aforesaid judgment reported in Ramchandra Ganpat Shinde v. State of Maharashtra, , and follow the same to the effect that this Court alone ought to set right the jurisdictional errors and not leave it to said alternative forums. Even assuming that there are alternative remedies available the original ad interim relief obtained on 6th February, 1997 was itself in violation of the principles of natural justice "Audi Alteram Partem." In these circumstances we are inclined to exercise our discretion in the matter and entertain this petition instead of directing the parties to take recourse to the said alternative remedies especially when this is a case of clear abuse of judicial process.
10. We agree with these observations and we find that in the present matter the Co-operative Court has not only usurped the jurisdiction of the other statutory authorities but became victim of mis-use of the judicial process by the respondent No. 7 and his group which was interested in electing the respondent No. 5 as a Chairman of the said institution, because the prayer made in the dispute is only to restrain the petitioners from taking part in the election of the Chairman and there is no prayer to restrain the petitioners from taking part in the election of the Vice-Chairmen. It is the Presiding Officer, who on the basis of this order of the Co-operative Court further prohibited the petitioners from taking part in the election of the Vice-Chairman. However, as observed in the reported judgment and as the facts as stated earlier demonstrate that it is a case of mis-use of judicial process and usurping of the jurisdiction by the Co-operative Court which has ultimately resulted into materially affecting the result of the elections as a result of non-participation of the petitioners in the said election, we are inclined to set aside the total process of the election. Therefore, the following order.
11. We hereby quash and set aside the interim order passed on 1-7-1999 below Exh. 5. We further quash the proceedings of the dispute No. CC/J/ ABN-351/99 filed by the respondent No. 7 before the Co-operative Judge Jalgaon. We also quash and set aside the proceedings of the meeting dated 2 7-1999 wherein the respondents No. 5 and 9 were elected respectively as a Chairman and Vice-Chairman and we hereby declare that the respondents No. 5 and 9 were illegally elected as Chairman and Vice-Chairman of the respondent No. 6 society. We, therefore, set aside their election.
12. Under these circumstances, we direct the respondents No. 2 and 3 to call the meeting of the managing committee of the respondent No. 6 society to elect the Chairman and Vice-Chairman and complete the said process within a period of one month from the date of the order.
13. In view of this judgment, the Election Petition No. 37 of 1999 stands disposed of.
Rule made absolute accordingly.
14. Petition allowed.