-: 1 :- SPB IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION APPELLATE SIDE CIVIL JURISDICTION APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 5270 OF 2008 WRIT PETITION NO. 5270 OF 2008 WRIT PETITION NO. 5270 OF 2008 1. Pradip Haibati Sawashe & Ors. .. Petitioners. vs. 1. Ramkrishna Paramhansa Sahakari Griha Nirman Society Ltd., & Others. .. Respondents. --- --- --- Mr. Umesh R. Mankapure for the Petitioners. Mr. Sandesh B. Patil for the Respondent No.1. Mr. S.S.Shah for the Respondent Nos. 2 to 4. Mr. A.I.Patel, AGP for the Respondent No.5. --- CORAM : V. C. DAGA, J. CORAM : V. C. DAGA, J. CORAM : V. C. DAGA, J. DATED : 19th SEPTEMBER,2008. DATED : 19th SEPTEMBER,2008. DATED : 19th SEPTEMBER,2008. P.C.: P.C.: P.C.: 1. Rule returnable forthwith. Heard finally by consent of the parties. 2. This petition is directed against the order dated 11.06.2008 passed by the Member, Maharashtra State Co-operative Appellate Court (Mumbai) Bench, Pune at Pune in A.O. No. 74 of 2008, allowing the application Exh. 5, which was filed by the respondents, pending before the -: 2 :- trial court in dispute No.217 of 2008. 3. The factual matrix is that the respondent no.1 is a Co-operative Society, registered under the Co-operative Societies Act, 1960, in the year 1986 with an object of providing plots to its members for construction of houses. The management of the society as per the provisions of the Act, vests in the Managing Body. The term of the earlier Managing Body came to an end in the year 2007-08. The outgoing managing committee, keeping an eye on the forthcoming election, appears to have admitted 53 members though no plot is available for allotment to them. This act of managing committee led to a complaint to the Deputy Registrar, Co-operative Societies, Miraj, exposing the illegality committed by the managing body of the respondent no.1 society in inducting or admitting 53 members. 4. The Dy. Registrar, after receiving the complaint, by his letter dated 27.02.2008, directed the society to delete the names of 53 members from the list of membership and directed the society to prepare provisional voters list and submit it to him so that the election programme can be published without any delay. The said directions issued by the Dy. Registrar were not challenged by the society or anybody out of 58 affected -: 3 :- members. Consequently, the said directions became final and conclusive. 5. It appears that the respondent no.1 society, in its managing committee meeting dated 13.03.2008, adopted a resolution, expelling 38 members of the society. It further appears that out of 38 members, three affected members, namely; Bhaskar Ananda Pawar, Ganesh Gulab Jadhav and Sudhir Sidrayya Sonar filed the dispute before the Co-operative Court under section 91 of the Maharashtra State Co-operative Societies Act, seeking declaration that their expulsion vide resolution No. 4 dated 13.03.2008 is bad and illegal and that the society be restrained from acting upon the said resolution permanently. The said dispute came to be registered as Dispute No. 217 of 2008. In the said dispute, the application for interim relief was moved by the disputants.(Exh.5). The Co-operative Court after hearing the appellants, issued show cause notice dated 15.04.2008 to the respondents society, as to why the injunction as prayed for should not be granted. 6. Being aggrieved by the aforesaid order, of issuing show cause notice and not granting exparte interim injunction, the disputants chose to prefer appeal before the Co-operative Appellate Tribunal on 21.04.2008. -: 4 :- 7. It is curious to note that the appeal was filed on behalf of the three disputants by one Shri S.B. Olekar, Advocate, who had earlier appeared for the respondent no.1 society in the Co-operative Court. 8. It appears that on the very same day on which the appeal was filed i.e. on 21.04.2008, without there being any notice to the respondents, the society appeared through its Advocate and on the same date i.e. on 21.04.2008, the interim application was allowed with the following order : ORDER 1. Interim application is allowed. 2. The operation and implementation of impugned resolution No.4 passed in the managing committee dated 13.03.2008 of Respondent No.1 is stayed till hearing and final disposal of the original dispute pending before the trial court. 3. Since no Election Officer or Returning Officer has been appointed to conduct the election programme, therefore, the Respondent -: 5 :- society through its Chairman and Secretary should take into consideration the observations made in this order and should add names of all 38 aggrieved members in the voters list and proceed further as per said programme to hold the election. Nothing is survived in this appeal to be decided any more. Hence disposed of finally by consent of the parties. 4. In the peculiar circumstances of the case, no order as to costs. Pune (J.V.Vyavahare) Date :21.4.2008 Member, Maharashtra State Co-op.Appellate Court,(Mumbai) Bench, Pune. 9. In view of the above order, the resolution no.4 of the Managing Committee of the society dated 13.3.2008 was stayed till hearing and final disposal of the original dispute pending before the co-operative court. The Election Officer/ Returning Officer was directed to include the name of the 38 expelled members in the voters list. It is further added by hand that nothing survives in this appeal to be decided as such appeal stands disposed of finally by consent of the parties. -: 6 :- 10. Being aggrieved by the aforesaid order, the revision application was filed being Revision Application No. 326 of 2008 under section 115 of the Civil Procedure Code. The said revision application was heard by the learned single Judge of this court finally on 6th of May, 2008 and came to be disposed off by the order passed on the same date by remanding back the matter to the Co-operative Appellate Court for hearing afresh. Parties were directed to appear before the Co-operative Appellate Court for hearing afresh. 11. In view of the said order of remand, the matter came for hearing before the very same Judge Shri J.V.Vyavahare, Member of the Maharashtra State Co-operative Appellate Court (Mumbai) Bench, Pune at Pune. He passed more or less similar/ identical order which was set aside by this court. The appeal was allowed in terms of the following order : OPERATIVE PART OF THE ORDER 1. The Appeal is allowed. 2. The Application Exh. 5 pending before trial Court in dispute No. 217/2008 is allowed and -: 7 :- accordingly the society is restrained from executing and implementing the Resolution No.4 passed in the managing committee meeting dated 13.3.2008 till hearing and final disposal of the main dispute. 3. The Returning Officer is ordered and directed to count votes of those 38 members which have been kept in separate sealed cover as per order and directions of Hon’ble High Court in C.R.A. No. 326/2008 dated 6.5.2008, alongwith votes cast by other members and declare the results of the election of managing committee after publishing notice on the notice board of the office of the society by fixing the date for pronouncement of result. 4. In the peculiar circumstances of the case, no order as to costs. Pune (J.V.Vyavahare) Date :11.6.2008 Member, Maharashtra State Co-op.Appellate Court,(Mumbai) Bench, Pune. 12. Being aggrieved by the aforesaid order, the petitioners have invoked writ jurisdiction of this court -: 8 :- under Article 227 of the Constitution of India. RIVAL SUBMISSIONS : 13. Mr. Mankapure, the learned counsel appearing for the petitioners urged that the impugned order runs beyond the scope of the appeal. He further submitted that the learned Judge of the Co-operative Court has exeeded his jurisdiction and crossed all the limits of appellate jurisdiction and granted interim relief not only till the decision of Exh. 5 on merits but till disposal of the disputes finally. 14. Mr. Mankapure further submits that the appeal was directed against the order issuing show cause notice and refusing to grant exparte ad-interim relief. In his submission, if at all the appeal was to be allowed, no interim relief could have been granted till disposal of the dispute. At the most, it could have been upto disposal of Exh.5. He submits that it was open for the petitioners or any aggrieved party to file appeal against the final order of allowing or rejecting the Exh.5. That right is taken away by the order of the appellate court by granting interim relief during the pendency of the entire dispute. -: 9 :- 15. Mr. Mankapure further submits that the election officer was not party to the dispute or to the appeal, still directions were issued to the election officer, directing him to include the names of 38 members in the voters list and keep their votes in sealed cover as directed by the High Court. 16. Mr. Mankapure further submits that the learned Judge of the Appellate Court was very well aware of the fact of commencement of the election process since the election of the managing committee were due. In view of that matter, it was obligatory on his part not to pass any order having effect of the interfering with the election process. Reliance is placed on the judgment of the learned single Judge of this Court in the case of Someshwar Sahakari Sakhar Karkhana Ltd., vs. Shrinivas Someshwar Sahakari Sakhar Karkhana Ltd., vs. Shrinivas Someshwar Sahakari Sakhar Karkhana Ltd., vs. Shrinivas Patil & Ors. , 1992(1) Bom. C.R.590, Patil & Ors. , 1992(1) Bom. C.R.590, Patil & Ors. , 1992(1) Bom. C.R.590, wherein such practice is deprecated by this court. He also placed reliance on the judgement of the Apex Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra 2002 (1) Mh.L.J. 659, 2002 (1) Mh.L.J. 659, 2002 (1) Mh.L.J. 659, wherein the Apex Court held that if there is breach of rules while preparing the electroral roll, the same can be called in question after declaration of the result of the election by means of an election petition before the election Tribunal. -: 10 :- 17. The learned counsel for the petitioners also urged that the learned Judge of the Appellate Court ought to have noticed collusion between the parties, which was specifically brought to his notice based on the appearance of the common Advocate. He further submits that it was expected on the part of the learned Judge to realise collusion between appellant and the Society considering appearance of the respondent society on the same day and consenting to the order for interim relief. This ought to have made the learned Judge alert, so as to smell the collusion between the parties. 18. Mr. Mankapure went ahead while criticising impugned order and alleged that the impugned order is not only in breach of the law laid down by this court but it travels beyond the scope of the appeal and has crossed the limits of judicial norms, warranting interference of this court in the writ jurisdiction. 19. Per contra Mr. S.S.Shah, Mr.Sandesh Patil and learned AGP appearing for the State tried to support the impugned order. During the course of hearing, both of them agreed that the learned Appellate Court could not have granted interim relief operative during the pendency of the entire dispute. Mr. Shah urged that this court -: 11 :- can modify the impugned order and can convert it into ad-interim order, directing the Co-operative Court to deal with the injunciton application (Exh.5) on its own merits. 20. Mr. Patil urged that based on the impugned order, 38 persons were allowed to vote and if this petition is allowed then entire election will get affected and would be placed in jeopardy. He further submits that the election dispute is pending and let the election Tribunal go into the validity of inclusion of the names of the 38 members in the voters list. He further sought to place reliance on the order dated 06.08.2008 passed by the learned single Judge of this court in support of his submission. 21. The learned AGP did not argue and submitted that State would abide by the judgment of this court. CONSIDERATIONS : CONSIDERATIONS : CONSIDERATIONS : 22. Having heard the rival parties, the impugned order cannot stand to the scrutiny of law. The petitioners are justified in criticising the appellate court’s order, contending that it has crossed limits of Judicial norms as also travelled beyond the scope of -: 12 :- appeal. This petition is liable to be allowed and the impugned order is liable to be quashed and set aside. 23. The learned Judge of the Appellate Court ought to have realised that the appeal was against the order dated 15.05.2008, directing show cause notice and refusing to grant ad-interim ex-parte relief. Therefore, at the most, if the Appellate Court wanted to allow the appeal, it could have granted ad-interim relief, leaving the Co-operative Court to decide Exh. 5 on its own merits. 24. The decision on Exh. 5 on merit would have given right of appeal to the losing party. That right is taken away by the impugned order. The impugned order, therefore, is bad, illegal and cannot stand to the scrutiny of law. 25. The learned counsel for the petitioners is also right in contending that no interim order could have been granted in favour of other 35 persons, who were neither disputants nor appellants before the appellate court. He is also right in contending that there was no representative dispute or appeal. Consequently, he is justified in contending that the appellate court has travelled beyond the scope of appeal and committed a serious error of law, directing inclusion of other 35 -: 13 :- members in the voters list. 26. In my considered view, those persons, who were parties to the dispute or lis can only get a right to claim relief from the court. The fruits of the litigation can not be made available to a person, who is not a party to the lis. 27. The learned Judge has committed serious error in issuing direction to the Returning Officer, who was not a party to the disputes or appeal. The learned Judge ought to have realised that he is not exercising jurisdiction over persons, who are not before him. He can only deal with the parties who are before him and not those parties who are not before him. As such he has committed serious error of law in issuing direction to the election Officer, who was not party to the appeal. 28. The learned Judge of the Appellate court ought to have realised that he is not entitled to play with the election process which had already commenced. He ought to be aware of the law on the subject while dealing with such matters. 29. Mr. Mankapure is also right in contending that on the face of the order of the Dy. Registrar, directing -: 14 :- the deletion of the names of 58 persons, it was not open for the Judge of the Co-operative Appellate Court to adjudicate upon the legality or validity of the said order. Apart from the fact that the said authority was not party to the dispute or appeal. The impugned order, therefore, is clearly in breach of the principles of natural justice. 30. The submission made by Mr. Shah and Mr. Patil that in the event the petition is allowed, it would affect the validity of the election. This submission is misplaced. Consequences of the illegal order cannot prevent this court from exercising writ jurisdiction. As a matter of fact, election Tribunal shall be duty bound to consider effect of this order on election dispute, pending before it. The impugned order is perverse, beyond jurisdiction and suffers from serious illegality. It cannot stand to the scrutiny of law. Hence, liable to be quashed and set aside. 31. In the result, the impugned order is hereby quashed and set aside. Exh. 5 is restored to the file of the Co-operative Court with direction to hear and decide the same on its own merit in accordance with law. -: 15 :- 32. Petition is thus allowed with costs, quantified in the sum of Rs.30,000/- to be shared by the petitioners in equal ratio. 33. The Registrar General is directed to forward the copy of this order to both the Judges of the courts below so as to enable them to know correct legal position, which would go a long way to put them on notice not to commit such error in future. 34. At this stage, learned counsel for the disputants prayed for stay of this order. The same is strongly opposed by the learned counsel for the petitioner. No case is made not for grant of stay as prayed. Prayer made is rejected. (V. C. DAGA, J.) .....