Mrs. Aruna S. Joshi And Anr vs Apana Ghar Unit -9 Co-Operative ...
2022 Latest Caselaw 8843 Bom

                   Tikam                         1/4
                                                                 20- WP 8282 of 2022

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION
VAISHALI                       WRIT PETITION No. 8282 OF 2022
ANIL
TIKAM
                   Mrs. Aruna S. Joshi and Anr.                 ...Petitioners
Digitally signed
                        Vs.
by VAISHALI
ANIL TIKAM         Apana Ghar Unit -9
Date:
2022.09.08
12:29:05
                   Cooperative Housing Society Ltd.,
+0530
                   And Ors.                                     ...Respondents

                                               ****

                   Mr. R.s. Apte i/b. Mandar imaye for Petitioners
                   Mr. Mukesh Vashi, Senior Counsel a/w. Bhavin Gada
                   a/w. Chirag Desai i/b. Solicis Lex for Respondent Nos.1,3
                   to 13,
                   Ms. Sneha Vani i/b. Jay Vakil for Respondent No.2

                                         Coram : Sandeep K. Shinde, J.

Dated: 6th SEPTEMBER, 2022.

P.C. :

1. The election programme to elect committee members

of Respondent Society was published on 9th January, 2022 by

Mr. Vinay Vagle, Retruning Officer, appointed by the

Respondent Society vide Resolution dated 5th December, 2021,

in terms of Rule 76-B of the Maharashtra Cooperative Societies

(Election to Committee) Rule, 2014 ('said Rule' for short). Rule

76-B contemplates, Returning Officer shall be appointed by the

Managing Committee, either from Panel of Returning Officers Tikam 2/4 20- WP 8282 of 2022

maintained by the State- Cooperative Election Authority or

from among the members of the Society, who are not desirous to

contest the election. Such an appointment is to be made before

sixty days of the expiry of tenure of the Committee and

communicate the appointment to the Registrar. Second proviso

the Rule 76-B, provides for training, the Returning Officer shall

undergo related to election of committee. In the case at hand,

the election was held on 27th February, 2022 and 13 members

were elected as committee members of the respondent society.

The election was questioned by presenting Election Petition to

the Cooperative Court under Section 91 of the Maharashtra

Cooperative Societies Act. In principal, the election was

challenged on the ground that appointment of Returning Officer

was invalid, being contrary to provisions of Rule 76-B. Pending

election petition, Returning Officer filed an affidavit to state that

he completed his training on 14th February, 2022 related to the

elections and he was on panel of Returning Officer, maintained by

the Divisional Joint Registrar. On this premise, the Cooperative

Court, Mumbai passed a Judgment and Award under Order XII

Rule 6 of the Civil Procedure Code and in consequence, the

election of the Respondent Society held on 27th February, 2022 Tikam 3/4 20- WP 8282 of 2022

has been set aside. Feeling aggrieved by the said Judgment and

Award, Respondent Society filed Appeal before the Cooperative

Appellate Court at Mumbai. Pending appeal, vide order dated

19th May, 2022, the Member, State Cooperative Appellate Court

stayed the operation of the Judgment and Award and directed

to list the appeal for hearing on 7th June, 2022. Feeling

aggrieved and dissatisfied with the said order, two out of five

original disputants have preferred this petition.

2. Heard Mr. R.S. Apte, learned Senior Counsel for the

Petitioners, Mr. Mukesh Vashi, Learned Senior Counsel for

Respondent Nos.1, 3 to 13. Ms. Sneha Vani for Respondent No.2

3. Without addressing the issues raised in the Appeal

on merits, prima facie in my view impugned order, granting stay

to the operation of Judgment and Award, passed by the

Cooperative Court, under Order XII Rule 6 of the Civil Procedure

Code, cannot be faulted with. Reason being, in absence of order

staying the Award , Society would have been rendered without

management. In any case, question as to whether alleged

irregularity in appointing the Respondent No.2 as Returning

Officer under Rule 76-B of the Rules, vitiates the election process

or not, is required to be addressed and answered in Appeal. In Tikam 4/4 20- WP 8282 of 2022

that view of the matter, the Cooperative Appellate Court shall

endeavor to decide the Appeal No. 57/2022 in Dispute No.

185/2022 in accordance with law, preferably within two months

from communication of this order. All contentions of the parties

to the Appeal are expressly kept open. Needless to state,

Appellate Court shall decide the appeal on merits, without being

influenced by order of this Court.

Writ Petition is disposed of.

(Sandeep K. Shinde, J.)