1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5273 OF 2010 (Hiralal S. Mawaskar vs. The Collector, Amravati & 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. NOVEMBER 29, 2010. Heard Shri Kilor, learned counsel for the petitioner, Shri Shri Sonare, learned AGP for respondents No. 1 & 2 and Shri Gawande, learned counsel for respondent No. 5. This Court has issued notice for final disposal and after noticing that Respondent No. 4 – Society who was left with no representative for Election of Respondent No. 3, directed Respondent No. 1 – Returning Officer to accept his nomination paper subject to further orders of this Court in the matter. Accordingly, nomination paper of the petitioner has been accepted. The contention of Shri Kilor, learned counsel is, Cooperative Court while assigning reasons in interim order found it improper to restrain the petitioner from participating in the Election and contrary to it, in operative part inadvertently stayed the resolution which authorized the petitioner to function as representative of 2 Respondent No. 4 – society for election of Respondent No. 3 – Bank. The learned counsel states that as said order does not have the effect of substituting a representative, the provisions of Rule of 5 (2) of Maharashtra Specified Cooperative Societies Elections to Committee Rules, 1971, (hereinafter referred to as 1971 Rules) are not attracted and the order of the Collector directing deletion of the petitioner is without jurisdiction. He has further stated that said order of the Collector under Rule 5(2) of 1971 Rules, cannot be questioned either before the Cooperative Court or before the Cooperative Appellate Court and hence the present writ petition is required to be filed. Shri Gawande, learned counsel states that Respondent No. 5 was also ready and willing to function as representative of Respondent No. 4 – society and hence on the date on which Resolution No. 7(4) came to be passed, as alleged, there ought to have been an election to decide whether to forward present petitioner or than Respondent No. 5. As that has not been done, the Cooperative Court has correctly stayed the entire resolution. He further contends that said direction of the Cooperative Court is questioned by the petitioner in appeal before the Cooperative Appellate Court and that appeal is pending. Shri Sonare, learned AGP has supported the impugned order. According to him, as appeal is already pending before the competent forum, writ petition is not 3 maintainable. The perusal of order passed by Cooperative Court on 20.09.2010 clearly reveals that while applying its mind and giving justification for its conclusion, that Court found it improper to restrain present petitioner from participating in the election. Contrary to this application of mind, in operative part, it has stayed resolution No. 7(4) itself. Thus, in operative part, relief given runs contrary to conclusions reached which are supported by application of mind. Whether those reasons are correct and application of mind is proper or not, are the issues which need to be looked into by the Cooperative Appellate Court but it can be seen that reasons as recorded permitted the petitioner to participate in the election. At this stage, relief given cannot be read as running counter to those reasons and that application of mind. It is no doubt true that appeal filed by the petitioner is pending before the Cooperative Appellate Court but then even if his appeal is allowed, the Cooperative Appellate Court cannot direct inclusion of his name as representative and cannot permit him to contest the election. The orders passed by the Collector under Rule 5(2) of 1971 Rules need to be challenged before this Court only. Hence, pending appeal before the Cooperative Appellate Court cannot operate as bar and present writ petition is competent. The dispute is between the petitioner and 4 Respondent No. 5 and both of them are interested in representing Respondent No. 4 – society. There is alleged resolution in favour of the petitioner and admittedly there is no resolution in favour of Respondent No. 5. Even if resolution in favour of the petitioner is set aside, Respondent No. 5 cannot become representative for Respondent No. 4 – society for the purpose of Respondent No. 3's Election. In the circumstances, interest of justice can be met with by permitting the petitioner to further participate in the Election as per Election programme and subjecting his participation to orders of Cooperative Appellate Court in pending appeal. Accordingly, writ petition is partly allowed. The order of the Collector dated 19.10.2010 deleting his name as representative of Respondent No. 4 – society is set aside. The petitioner shall be permitted to participate in election. His election shall, however, be subject to further orders of Cooperative Appellate Court in appeal pending before it. If the appeal is allowed, his election shall stand valid and if his appeal is dismissed, consequences will follow. Rule is made absolute accordingly. However, there shall be no order as to costs. JUDGE *GS.