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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

(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.

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 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.