1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4266 OF 2009 (Moreshwar M. Pillewan vs. State of Maharashtra & Ors .) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DECEMBER 02, 2009. Heard Shri Parsodkar with Shri Ahirrao, learned counsel for the petitioner, Shri Fulzele, learned AGP for respondent Nos. 1 & 2 and Shri Madkholkar, learned counsel for respondent No.4. The present writ petition filed under Articles 226 and 227 of Constitution of India, challenges the order dated 18.08.2009 passed by Respondent No.1 in an appeal under Section 152 of Maharashtra Cooperative Societies Act, 1960. The appeal arises out of order dated 08.05.2009 passed by Respondent No.2. This order dated 08.05.2009 was challenged in Writ Petition before this Court and on 11.05.2009 i.e. during Summer Vacation that writ petition was dismissed after hearing the learned counsel for the petitioner, learned AGP for respondent No.1 and Shri Madkholkar, learned counsel for respondent No.2 – Bank therein. Because of observations made in that order, the appeal under Section 152 came to be filed and rejection of appeal has been assailed in this writ petition. 2 Shri Madkholkar, learned counsel for respondent No.4 herein has contended that the order dated 11.05.2009 finally decided the controversy insofar as this Court is concerned and he has placed reliance upon the judgment in the case of Virudhunagar Steel Rolling Mills Ltd. vs. The Government of Madras, reported at AIR 1968 SC 1196, in the matter. The learned AGP has supported the arguments of Shri Madkholkar, learned counsel. Shri Parsodkar with Shri Ahirrao, learned counsel for the petitioner has stated that this Court in order dated 11.05.2009 has noticed that remedy of filling appeal was available to the petitioner and has also found that the controversy can be set at rest there. In these circumstances, the order dated 11.05.2009 cannot bar filing of present writ petition. On merits, he has pointed out that in earlier round of litigation, the competent authority found that income of present petitioner was within prescribed limits and, therefore, he was a candidate belonging to Economically Weaker Section and his elections to Respondent No. 4 – Cooperative Bank from that Constituency was held valid. Objection to his entitlement in that category raised by Respondent No.3 was rejected. The said Respondent No.3 thereafter again raised similar objection and ultimately on 05.05.2009 by filing application and appearing personally, withdrew that fresh proceeding. In spite of that on 08.05.2009, 3 Respondent No.2 passed fresh order without any show cause to the petitioner and without any opportunity to him and disqualified him. He states that in these circumstances, order dated 08.05.2009 is contrary to provisions of Section 78(1) of the Act and appellate authority has refused to exercise jurisdiction available to it and therefore this Court must interfere in writ jurisdiction. He has relied upon judgment of the Hon’ble Apex Court in the case of Hoshank Singh vs. Union of India, reported at AIR 1979 SC 1328; Sarva Shramik Sanghatana (KV) vs. State of Maharashtra, reported at (2008) 1 SCC 494 and in State of Haryana vs. M.P. Mohla, reported at (2007) 1 SCC 457, to substantiate his contention of about tenability of writ petition. The perusal of para 7 of judgment of the Hon’ble Apex Court in Hoshank Singh vs. Union of India, AIR 1979 SC 1328, reveals that there the earlier petition was dismissed by non speaking one word order and the Hon’ble Apex Court found that High Court may have dismissed the petition on the ground of delay or laches or on the ground of alternate remedy. In Sarva Shramik Sanghatana (KV) vs. State of Maharashtra (supra), the application under Section 25-O(1) of Industrial Disputes Act, 1947, was withdrawn and thereafter the question arises whether bar against filing of Second application prescribed under Section 25-O(5) was attracted. In this background, the Hon’ble Apex Court has considered its judgment in the case of Sarguja Transport Service vs. 4 STAT, AIR 1987 SC 88 and found that Civil Procedure Code, was not applicable strictly to proceedings under Section 25-O(1) and in that background, the provisions of Order 23, Rule 1(4) of Civil Procedure Code, are also looked into. The Hon’ble Apex Court did not accept the argument that fresh application under Section 25-O(1) could not have been filed before expiry of one year because of withdrawal of earlier application. In State of Haryana vs. M.P. Mohla, (supra), the Hon’ble Apex Court has found that fresh writ petition was based on fresh cause of action and it has also been found that if such fresh cause of action arises in the matter of implementation of a judgment, a fresh writ petition is maintainable. In Prabhakar Rao vs. State of A.P., reported at 1985 (Supp) SCC 432, the question was in relation to retirement age and Apex Court has held that when earlier writ petition was dismissed in limine by Supreme Court, question of constructive res judicata was not attracted. The Hon’ble Apex Court has, however, expressed that such a dismissal in limine may inhibit its discretion but not jurisdiction. The perusal of judgment of the Hon’ble Apex Court in Virudhunagar Steel Rolling Mills Ltd. vs. Government of Madras, (supra) shows that when a writ petition under Article 226 is dismissed on merits by speaking order, it bars a petition even under Article 32 even if no notice was issued to other side before dismissal. In the background of this law, perusal of 5 orders passed by this Court on 11.05.2009 reveal that this Court then heard respective counsel for the parties though no formal notice was issued, various contentions raised on merits have been looked into and negatived. In the process, the observation that the petitioner had alternate efficacious remedy by way of appeal has also been made and it has been stated that the matter can be set at rest there. However, this observation is in addition to earlier reasons given by the learned Single Judge. This Court then has concluded that cumulative effect of its consideration was that no interference was warranted under Article 227 of Constitution of India. Writ Petition, therefore, came to be dismissed. In the light of various judgments cited by the parties, it is apparent that this dismissal cannot be viewed as dismissal in limine and it is also not a dismissal only because of availability of alternate remedy. The observations made therein are binding on this Court. The present writ petition is, therefore, misconceived. The same is accordingly dismissed. No order as to costs. JUDGE *GS.