1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.4797 OF 2009 Sunil s/o Dattatraya Pawar and others .. Petitioners Versus The State of Maharashtra Through the Secretary, Co-operation Department, Mantralaya, Mumbai and others .. Respondents Shri V.D.Hon,Advocate for petitioners Shri V.H.Dighe, AGP for respondents 1 to 3 Shri V.Y.Patil, Advocate for respondent No.4 Shri V.D.Salunke, Advocate for respondents 5 and 6 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 29rd July 2009 PER COURT : 1. This is a petition under Article 226 of the Constitution of India by which the petitioners pray for issuance of a writ of certiorari for quashing and setting aside the election programme issued by respondent No.4 and also pray for issuance of a writ of mandamus directing respondent Nos.2 and to issue necessary orders/directions for setting aside and/or cancelling the election programme declared by respondent No.4 for electing the managing committee members of the Central Co- operative Bank Staff Union, Jalgaon. The petitioners also pray for issuance of a writ of prohibition, prohibiting respondent No.4 from taking any further steps and/or proceeding with the election programme. 2 2. Initially, this petition had been filed on behalf of the five petitioners. Thereafter, a civil application came to be moved before us on behalf of petitioners 2 and 4 seeking deletion of their names and for transposing them as respondents to the petition. Since the civil application was presented before us directly in Court, it was accepted and was heard with the consent of the learned Counsel for the parties before hearing of the writ petition. Accordingly, the civil application was allowed and the applicants came to be deleted from the array of petitioners and their names were transposed as respondents. Similarly, affidavit-in-reply is tendered in the Court on behalf of respondent No.4, a copy of which came to be served on the petitioners. 3. It appears that the petitioner is a union of the Central Co-operative Bank Staff Union, Jalgaon which is registered under the provisions of the Bombay Industrial Relations Act, 1946. The elections of the managing committee of the aforesaid union were declared and ultimately the elections were held with the result being declared on 19th January 2009. As per the constitution of the said union, the term of the office bearers i.e. managing committee is of three years. This petition came to be filed by the petitioners on the ground that though the term of the managing committee is not yet concluded, elections to the said committee have been announced. This Court had accordingly issued the notices and in response thereto the affidavit-in-reply has been filed by the respondents. The affidavit-in-reply on behalf of the respondents discloses that a 3 general body meeting of the union had been requisitioned/convened in which a resolution was passed by the general body expressing no confidence in the managing committee and accordingly, the resolution was passed for holding of the fresh elections. The said resolution also gives the details of the election programme which is now the subject matter of challenge in this petition. The resolution further discloses that the three petitioners who are now petitioners before us were present in the general body meeting and in their presence, the resolution came to be passed at least the subject on the agenda came to be discussed. It is further brought to our notice that one of the petitioners had himself issued a public notice in the newspaper “Daily Lokmat” dated 18.7.2009 in respect of convening of the special general body meeting on 19.7.2009. 4. Be that as it may, apparently it appears that in the entire petition the fact of the convening of the special general body meeting or the passing of the resolution is not disclosed. The respondents have made a serious grievance and justifiably so, regarding the suppression of this material aspect from this Court. 5. Shri Hon, learned Counsel for the petitioners has urged before us that the general body itself was incompetent in law to pass such resolution as according to the petitioners, the constitution of the union does not empower the general body to pass a resolution of no confidence and thereby dissolving the managing committee of the union. In other 4 words, what is urged before us that the term of the office bearers cannot be curtailed by the resolution passed by general body either in the general body or a special meeting convened for that purpose. According to Shri Hon, learned Counsel for the petitioner, assuming that such a power does exist in the general body, the aforesaid power would be bad in law as there is no provision in law by which the term of the managing committee could be curtailed. Generally, the term of a member of a committee is curtailed on account of either resignation/removal, death or in the event of dissolution of the entire body. Thus, it is urged before us that there is no power under the constitution empowering the general body to dissolve the managing committee and hold fresh elections thereby curtailing the term of the managing committee. Strong reliance is placed by Shri Hon, on the Judgment of the learned Single Judge of this Court in Vijay Ramji Pawar and others vs. Girna Sahakari Sakhar Karkahana Ltd. and others 1986 Mh.L.J.314. The aforesaid Judgment was rendered by the learned Single Judge of this Court which came to be confirmed by the Division Bench in a letters patent appeal in Shantilal Amolakchand Burad and others vs. Vijay Ramji Pawar and others, 1986 Mh.L.J.713. It was urged before us by relying on the Judgment of the Division Bench, particularly at paragraph 21 of the said Judgment wherein a submission on behalf of the parties was overruled by the Court that if a provision empowered the removal of one member it can be construed as a provision empowering the removal of the entire managing committee. 5 6. Unfortunately, in the present petition the resolution which was passed by the general body thereby either expressing no confidence in the entire body, or amounting the removal of the entire body has not been challenged at all. As pointed out by us above, there is not even an oblique reference int he petition to the holding of the general body or passing of the resolution. What is disclosed at paragraph 10 of the petition is that the original proceeding books are in the custody and possession of the original petitioner No.1 and it is further stated at paragraph 10 of the petition that no resolution has been passed in the meeting dated 19.7.2009 and no meeting has been held at all. It is also stated that respondent No.4, therefore, is acting without any authority of law. In short, therefore, the contention of the petitioner and the submissions which are advanced before us are that no resolution has been passed and the election programme has been declared curtailing the term of the elected members of the managing committee. 7. As pointed out by us above, the respondents in their affidavit-in- reply have produced copies of the proceedings book in which it transpires that a meeting was held and a resolution was passed. Whether the resolution was passed by the requisite majority, after giving of requisite notice, and whether the general body by virtue of the provisions of the constitution of the union were empowered to pass a resolution, dissolving the managing committee or removing the managing committee is not a 6 subject matter of challenge in the present petition. All that this petition challenges is the issuance of the election programme. The election programme as has been pointed out by us, has been issued as a consequence of the passing of the resolution. It has been rightly urged by Shri V.D.Salunke, learned Counsel for the respondents 5 and 6 who now stand transposed as respondents that in the absence of a challenge to the resolution, challenge to the declaration of the election programme by itself is not maintainable. It has been rightly urged before us that the election programme has been declared as a consequence of the passing of the resolution. Since there is no challenge to resolution, a petition simplicitor would not be maintainable for quashing of the election programme though on the ground that the term of the managing committee is not over or the period is curtailed. 8. According to us, in the absence of the requisite and necessary challenge to the resolution passed by the managing committee, a challenge simplicitor to the declaration of the election programme, no doubt, on the ground that the term of the managing committee is not over and elections have been declared prior to the conclusion of the term, is not maintainable. The ratio of the Judgments laid down in the case of Vijay Ramji Pawar and others vs. Girna Sahakari Sakhar Karkahana Ltd. and others and Shantilal Amolakchand Burad and others vs. Vijay Ramji Pawar and others (supra) are not applicable to the facts of the present case, particularly in the absence of challenge to the 7 resolution. We, therefore, find that no interference is warranted in respect of the reliefs sought for by the petitioners in this petition. 9. The petitioners may resort to such remedies as are available to the petitioners for challenging the resolution. To reiterate again, unless and until a challenge is successfully raised in respect of the passing of resolution, challenge simplicitor to the declaration of the election programme would not be sustainable. Since we have refrained from expressing any opinion on the passing of the resolution, it is needless to state that all the points are open for consideration. 10. In the light of that, therefore, we find that no interference is warranted in the present petition and the petition therefore, being sans merit is summarily dismissed with no order as to costs. 11. A copy of this order duly authenticated by the Court Sheristedar be provided to the learned Counsel for the petitioners to act upon. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) vvr/4797.09wp