Indian Kanoon - Search engine for Indian Law

(B) The petitioner no.1 has filed a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 ("MCS Act", for short hereinafter) bearing Dispute No.37 of 2023 claiming a relief of quashing and setting aside the election of the 20 respondent no.3 as the Managing Committee Member of the respondent no.2-Society on account of the fact that the WP 3133 of 2023.odt respondent no.3 stood disqualified under the provisions of Section 73 CA read with Section 78 A of the MCS Act for not having complied with the provisions of By-Law No.42 (G) (1) of the respondent No.2- Society, which order was passed by the Assistant Registrar, Cooperative Society, Pandharkawda on 5 23/07/2021 (pg.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 respondent no.3 had also filled in his nomination form for the post of member of the Managing Committee. The nomination form was filed on 10 20/02/2023 (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 15 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 an election dispute under Section 91 of the MCS Act 20 came to be filed by the petitioners in which an application under WP 3133 of 2023.odt 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) was also filed. This application came to be rejected by the learned Cooperative Court by order dated 01/04/2023 (pg.87) on 5 account of the fact that the respondent No.3 was already declared elected and the petitioners were entitled to challenge the election.

WP 3133 of 2023.odt (G) Mr. Ghare, learned counsel for the respondent no.3, submits that the expression 'by-laws' 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 5 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 10 been taken at the time of scrutiny by the petitioners, the position could have been decided then and there only, which having not been so 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 relying upon a decision in Shri Santosh 15 Harishchandra Kuchankar and others Vs. The State of Maharashtra, through its Secretary, Department of Co-operation, Marketing and Textiles, Mantralaya, Mumbai and others (Writ Petition No.2853/2018, decided on 16/01/2019) that the order of removal has penal consequences of disqualification and 20 therefore, it was necessary for the respondent no.3 to have been WP 3133 of 2023.odt 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 5 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 10 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 15 also correct and proper.

8. It is a settled position of law that when a statute 10 contemplates a particular state of affairs, the same has to follow, when the requirement for it to apply has been satisfied. As indicated above, in the instant case, even before the filing of the nomination by the respondent no.3 on 20/02/2023 he had already incurred a disqualification by virtue of the order dated 15 23/07/2021 (pg.30) and by virtue of mandate of Section 73 CA (3) of the MCS Act was not eligible to contest the election. Thus, the bar to contest the election, on disqualification, being a statutory one, the mandate of the statute, will have to be enforced and cannot be given a go-bye merely on the assumption 20 that the election could be challenged. In fact, in the instant WP 3133 of 2023.odt matter, the dispute under Section 91 of the MCS Act challenges the very election of the respondent no.3 itself and in fact is an election petition in that sense of the term as is reflected from the prayers made in the dispute (pg.72).