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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.B. Mhase J.A. Patil, JJ.
Zambar Rajaram Patil another..... Petitioners.
Versus
The State of Maharashtra others..... Respondents.
Writ Petition No. 3358 of 1999, decided on 7-10-1999.
Advocates appeared :
V.D. Hon for K.S. Bhore, for the petitioners.
D.V. Tele A.G.P., for respondents No. 1 to 3.
R.N. Dhorde, for respondent No. 5.
V.T. Choudhari, for respondent No. 6.
M.Y. Deshmukh, for respondent No. 8.
A.E. Aher, for respondent No. 9.
Sections 91 and 144- T -Cooperative Court has no jurisdiction to entertain dispute under Section 91 in respect of election of Chairman, Vice-chairman and/or of Managing Committee of specified societies.-Where a dispute under Section 91 of the Cooperative Societies Act before the Cooperative judge, Jalgaon seeking declaration that the petitioners No. 1 and 2 be declared as disqualified as the member of the Managing Committee of the respondent No.6 jalgaon Zilla Sahakari Naukaranchi Sahakari Pat Pedhi and to restrain them from taking part in the business of the society as members of the Managing Committee and be restrained from taking part in the meeting dated 2.7.1999 to elect the Chairman, the co-operative judge passed order restraining petitioners from participating in the election of Chairman and Vice-Chairman Scheduled to be held on 2.7.1999 and the petitioners, therefore, assailed the validity and legality of the order passed by the Cooperative Court on 1.7.1999 in writ petition before High Court.
Held, 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 under Section 73-G of the Maharashtra Co-operative Societies Act. Apart from that so far as the question of disqualification of the members of the Board of Directors was concerned, it is Section 78 of the Cooperative Societies Act which bestows the power to the Registrar of the Cooperative 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 was not having jurisdiction to entertain the dispute as filed before the Co-operative Court. Apart from that if any member has incurred more expenditure in the elections and there by 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 an election petition under Section 144-T. 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 had usurped the jurisdiction which is vested with the other authorities and had passed the order on 1.7.1999 restraining the petitioners from taking part in the said elections. Total process of election set aside as it was a case of misuse of judicial process and usurping of the jurisdiction by the co-operative Court which had ultimately resulted into materially affecting the results of the elections as a result of non-participation of the petitioners in the said election.
Section 144-T and Constitution of India, Article 226--)Order passed by Co-operative Court restraining petitioners from participating in meeting to elect Chairman of respondent No.6 society assailed-Commissioner under Section 144- T is a statutory authority and election tribunal-It was not proper and justified to consider validity and legality of order passed by Co-operative Court by such authority-High Court exercising powers under Article 226 can entertain writ petition assailing order of Co-operative Court despite pendency of election petition under Section 144-T before such authority. 1997 (2) Mh LJ 588, Relied.
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 applicatio
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