Bombay High Court
Gajanan Deorao Matthawar And Another vs Returning/ Election Officer Of ... on 14 December, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:17170
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3133/2023
5
PETITIONERS 1. Gajanan Deorao Matthawar
Aged about 60 years,
Occ. Agriculturist, R/o Chanakha,
Tq. Kelapur, Dist. Yavatmal.
2. Jaywant Vasantrao Bandewar
Aged about 50 years, Occ. Agriculturist,
R/o Kinhi Nandpur, Po - Saikheda,
Tq. Kelapur, Dist. Yavatmal.
...VERSUS...
RESPONDENTS 1. Returning/Election Officer of
Opponent No.2 Society/Assistant
Registrar of Cooperative Societies,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
2. Pandharkawada Taluka Sahakari Kharedi
Vikri Samiti Ltd., Pandharkawada,
R.No.989, Tq. Pandharkawada,
Dist. Yavatmal, Through its Manager.
3. Hitendra alias Jitendra Uddhavrao
Mankar, Aged about 45 years, Occ.
Agriculturist, R/o Karanji, Tq. Kelapur,
Dist. Yavatmal.
Mr. R.L. Khapre, Sr. Advocate a/b Mr.R.G. Kavimandan, Advocate for petitioners
Mr. H.R. Dhumale, AGP for respondent no.1
Mr. V.B. Bhise, Advocate for respondent no.2
Mr. A.M. Ghare, Advocate for respondent no.3
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 06/12/2023
Date of pronouncing the judgment : 14/12/2023 10
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2
JUDGMENT
1. Heard Mr. R.L. Khapre, learned Senior Counsel for
the petitioners; Mr. H.R. Dhumale, learned Assistant Government
Pleader for the respondent no.1; Mr. V.B. Bhise, learned counsel 5
for the respondent no.2 and Mr. A.M. Ghare, learned counsel for
the respondent no.3. Rule. Rule made returnable forthwith.
Heard finally with the consent of the learned counsel for the rival
parties.
2. On 30/11/2023, this Court recorded the following 10
position :-
(A) 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 15
the Cooperative Appellate Court dismissing the appeal.
(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
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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
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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.
(C) As the Cooperative Appellate Court at Nagpur
was not functioning, Writ Petition No.2223 of 2023 came to be 10
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 15
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. 20
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 25
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
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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 5
week from the date of issuance of notice by all modes
permissible in law."
(D) The petitioner no.1 thereafter filed an appeal
before the learned Cooperative Appellate Court, who by the 10
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.
(E) A challenge thereto is by way of the present writ
petition, in which by order dated 19/05/2023 the opening of the 15
envelope was stayed.
(F) 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 20
of his disqualification while filing the nomination for the reason
that Section 73CA (3) of the MCS Act 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 25
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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 5
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 Committee, the vote of the respondent no.3 10
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 15
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 20
still in force as the appeal filed there against is still pending.
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(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
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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.
(H) 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 20
21/02/2023, considering which, on the date of filing of the
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nomination, the respondent no.3 had already incurred the
disqualification. He further invites my attention to the provisions
of Rule 58 of the Maharashtra Co-operative Societies Rules, 1961
("MCS Rules, 1961, for short hereinafter) to contend that the
disqualification on account of violation of the by-laws, was 5
already in the Statute Book as Rule 58 of the MCS Rules, 1961
included the word 'by-laws' 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 10
Assistant Registrar (pg.30).
(I) Mr. Dhumale, learned Assistant Government Pleader
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 15
them of the right to challenge the election of the respondent
no.3.
(J) Mr. Bhise, learned counsel for the respondent no.2-
Society, contends that the respondent no.2 will abide by the
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3. The passing of the order dated 23/07/2021 by the
Assistant Registrar Co-operative Societies, Pandharkawada
(pg.30) whereby the respondent no.3 was disqualified on
account of violation of the mandate of Bye-Law No.42 (G)(1) of
the respondent no.2-Society is not disputed. Though it is 5
contended by Mr. Ghare, learned counsel for the respondent no.3
that the said order dated 23/07/2021 is non est for the reason
that the expression "bye-laws" has been included in Section 73
CA (1) (iv) of the MCS Act by way of the amendment dated
28/03/2022 and therefore, the order would be without 10
jurisdiction, it is necessary to note that the word "bye-laws"
already stood included in Rule 58 of the Maharashtra
Co-operative Societies Rules, 1961 ("MCS Rules, 1961, for short
hereinafter), which provides for disqualification of Committee
and its members, which for the sake of ready reference, is quoted 15
as under :
"58. Disqualification of committee and its members
When on communication by the Chief Executive
Officer of society or otherwise, the Registrar comes to know
that any member of the committee incurs disqualification as 20
mentioned in section 73CA and the Bye-laws, the Registrar
shall, after giving an opportunity of being heard, issue an
order of cessation of membership of such member from the
committee of the society:
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Provided that, the Registrar shall decide the matter
within sixty days from the date of such communication or
otherwise."
4. All that has been done by the amendment dated 5
28/03/2022 by inserting the word "bye-laws" in Section 73 CA
(1) (iv) of the MCS Act is to bring it in consonance with Rule
No.58 of the MCS Rules, 1961. It would thus be apparent that
disqualification of a member of the Committee on account of the
violation of the bye-laws of a society, was already a ground, 10
which was available even prior to the amendment dated
28/03/2022. It therefore cannot be said that the order passed by
the learned Assistant Registrar Cooperative Societies was a nullity
on account of absence of jurisdiction, as the right to do so, can
clearly be traced to Rule 58 of the MCS Rules, 1961. 15
5. Even otherwise, once it is an accepted position on
record that the order dated 23/07/2021 by the Assistant
Registrar Cooperative Societies disqualifying the respondent no.3
is in existence, the consequent effect as provided in Section 73
CA (3) of the MCS Act, which holds that a Committee Member 20
who has ceased to be a member on account of having incurred
disqualification under Clause (i) (ix) of Sub Section 1 thereof
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shall not be eligible to be elected as a member of the Committee
till the expiry of the period of next term of five years of the
Committee, from the date on which he has so ceased to be a
member of the Committee, would come into operation as it is a
statutory mandate and the respondent no.3, on account of the 5
same was ineligible to fill in the nomination for the election held
on 19/03/2023 for the period of 2023-28.
6. It is not disputed, that the respondent no.3 was
aware of the order dated 23/07/2021 disqualifying him by the
Assistant Registrar for which an appeal already stands filed 10
against it at the behest of the respondent no.3, which is still
pending, considering which, there was a duty and obligation cast
upon the respondent no.3 while filling in the nomination to
disclose the existence of the order and its consequences. As
against this, the affidavit in Schedule-A filed by the respondent 15
no.3, while filling in his nomination for the election to be held on
19/03/2023 would indicate that he has made a categoric
statement that he has not incurred any disqualification, as
contemplated by Section 73 CA (1) (i) to (ix) of the MCS Act
which is apparent from the copy of the affidavit placed on record 20
at page 35. This clearly would amount to an intentional
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suppression on part of the respondent no.3 of a specific order of
disqualification dated 23/07/2021 (pg.30) which made him
ineligible to contest the election. It therefore does not lie with the
respondent no.3 to contend, that since no objection was raised to
his nomination at the time of scrutiny, before the Election Officer, 5
the election conducted consequent thereto would be legal and
proper, for the reason that rightly or wrongly, the respondent
no.3 by virtue of the order dated 23/07/2021 had incurred a
disqualification, which in light of the mandate of Section 73 CA
(3) of the MCS Act, made him ineligible to contest the election 10
for a further period of five years from the date of incurring the
disqualification, which period was yet to expire. Since the
disqualification was statutory in view of the language of Section
73 CA (3) of the MCS Act, as a result of the order dated
23/07/2021, the question of issuing any notice to the respondent 15
no.3 for imposing the same, though it was not so mentioned in
the order dated 23/07/2021 did not arise at all. Santosh
Kuchankar (supra) relied upon by Mr. Ghare, learned counsel for
the respondent no.3, in my considered opinion, does not lay
down a proposition, that in case the order of disqualification does 20
not mention the consequences of such disqualification, such
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consequences would not follow and therefore, is of no assistance
to him.
7. The order below Exh.5, an application for interim
relief under Section 95 (4) passed by the learned Cooperative
Court merely rejects the application on the ground that the result 5
of the election was declared and the petitioner was entitled to
challenge the election of the respondent no.3 by means of an
election petition, without considering the order of
disqualification dated 23/07/2021 and the consequences
contemplated by Section 73 CA (3) of the MCS Act and therefore 10
cannot be sustained (pg.86). The judgment in appeal by the
learned Cooperative Appellate Court goes on a proposition that
since an objection was not raised to the nomination paper
submitted by the respondent no.3 the Returning Officer had no
occasion to deal with the question and since the petitioner had 15
failed to do so which opportunity was available to him, there was
absence of due diligence and by way of an interim order the
election of the respondent no.3 cannot be injuncted. No raising of
an objection to the nomination filed by the respondent no.3, or
for that matter, even raising of such objection and its rejection, 20
would not have the effect of nullifying the effect of the order of
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disqualification dated 23/07/2021, and the subsequent mandate
of Section 73 CA (3) of the MCS Act, which once the order of
disqualification is passed, automatically steps in, as there is no
requirement for passing of a separate order for that purpose. It
also proceeds on an incorrect premise that it was an arguable 5
question whether the disqualification alleged incurred would
debar the candidate from filing nomination to the next election,
which is clearly in ignorance of and contrary to the mandate of
Section 73 CA (3) of the MCS Act.
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
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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).
9. It is, therefore, apparent that since the respondent 5
no.3 had incurred a statutory disqualification as contemplated by
Section 73 CA (3) of the MCS Act, in view of the order dated
23/07/2021 which is still in force, a prima facie case has been
made out. The election of the respondent no.3 therefore, in light
of the language of Section 73 CA (3) of the MCS Act, would 10
clearly be non est, considering which, the balance of convenience
is clearly in favour of the petitioners. Permitting the respondent
no.3 to exercise rights, claimed to have been accrued to him on
account of his election, in view of his ineligibility, would be an
injury, which cannot be permitted to be continued, as permitting 15
the respondent no.3 to do so, would mean that the order of
disqualification dated 23/07/2021 and the statutory mandate of
Section 73 CA (3) of the MCS Act would have no meaning
whatsoever, which cannot be countenanced in law.
10. In light of the above discussion, the impugned order 20
namely the one below Exh.5 passed by the learned Cooperative
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Court, Amravati, dated 01/04/2023 (pg.87) and the judgment
passed by the learned Cooperative Appellate Court in A.O.
No.4/2023 dated 29/04/2023 are therefore hereby quashed and
set aside and the application below Exh.5 is hereby allowed. The
writ petition is accordingly allowed in the above terms. 5
11. Rule is made absolute in the aforesaid terms. No
order as to costs.
(AVINASH G. GHAROTE, J.)
At this juncture, Mr. Ghare, learned counsel for the
respondent no.3 seeks suspension of this order for a period of six
weeks.
The request is declined for the reason that it has been 15
held that the respondent no.3 already stood disqualified and
therefore had no right to file his nomination in the election for the
subsequent term of the Managing Committee.
(AVINASH G. GHAROTE, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 14/12/2023 17:59:34
