1 wp-2915-09 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2915 OF 2009 Shri Sitaram Aakaram Patil and ors. .. Petitioners Vs. The Assistant Registrar Co-operative Societies District Kolhapur and ors. .. Respondents Mr. S. P. Kadam for petitioners. Mrs. M. P. Thakur, AGP for respondent nos.1, 2 and 16. Mr. S.S. Patwardhan for respondent no.3. CORAM: B. H. MARLAPALLE & A. A. SAYED, JJ. SEPTEMBER 21, 2010. P.C. 1. We have heard Mr. Kadam, the learned counsel for the petitioners and Mr. Patwardhan, the learned counsel for respondent no.3 – Shri Shankar Dhondi Patil Vikas Seva Sanstha Maryadeet, Patilwadi, Taluka – Gaganbavada, Dist. Kolhapur (for short V.K.S.). Mrs. Thakur, the 2 wp-2915-09 learned AGP appears for respondent nos.1, 2 and 16. 2. This petition filed under Articles 226 and 227 of the Constitution of India prays for the declaration that the election process notified by respondent no.3 on 20/9/2008 was illegal and, therefore, be quashed and set aside the elections so held purportedly on 18/9/2008. The reliance placed by the petitioners in support of their prayer is on the notification dated 5/6/2008 issued by the State Government invoking its powers under Section 73(1C) of the Maharashtra Co-operative Societies Act, 1960 (for short the Act). As per the petitioners, the respondent no.3 – society is a notified society and, therefore, the elections were required to be held under the supervision of the Registrar, Co-operative Societies. In addition, the petitioners also challenge the factum of the elections and it is their contention that the elections were not, in fact, held and it was only a paper manipulated election. It is also alleged that the elections were preponed. Mr. Kadam has relied upon a decision of this court in Writ Petition No. 6975 of 2008 rendered by the Aurangabad Bench (DB) on 5/12/2008 (unreported). 3. The affidavit filed by the Assistant Registrar, Co-operative 3 wp-2915-09 Societies, Taluka – Gaganbavada, Dist. Kolhapur, admits that the election for the Managing Committee of respondent no.3- society was required to be held as per the notification dated 5/6/2008 by the State Government, but the said notification was received by the affiant only on 17/7/2008 and in the meanwhile from 9/7/2008 to 17/7/2008 election program of 11 Vividh Karyakari Societies was sanctioned and the election program proceeded further. It is further submitted that the election process which was already set in motion was completed on 18/9/2008 so far as the respondent no.3- society is concerned. The affiant, therefore, states that the election held was proper but at the same time it was not in keeping with the notification issued on 5/6/2008. 4. The decision of the Aurangabad Bench in Writ Petition No. 6975 of 2008 supports the petitioners’ case for quashing and setting aside the election held on 18/9/2008 for the Managing Committee of respondent no.3 – society, but Mr. Patwardhan the learned counsel for the respondent no.3-society has placed before us a copy of the subsequent notification issued by the Government of Maharashtra on 31/3/2009 which states that all the Primary Agricultural Credit Societies, otherwise also named as Vividh Karyakari Sahakari Sanstha all over the State of Maharashtra and 4 wp-2915-09 having paid up share capital of above Rs.10,00,000/- (Rupees Ten Lakh) are being made notified society for the purpose of Subsection (1) of Section 73(1C) of the Act and under Chapter – VA of Maharashtra Co- operatives Societies Rules, 1961. Admittedly, respondent no.3 – society does not have the paid up share capital of above Rs.10,00,000/- and hence it cannot be said to be a notified society. Consequently, the challenge raised in this petition becomes stale after the notification dated 31/3/2009 was issued by the State Government and during the pendency of this petition, which was filed on 21/2/2009. 5. Though the petition has become stale, the remedy of the petitioners to challenge the election by initiating appropriate proceedings under the Act and the Rules framed thereunder cannot be taken away and such a remedy could not be resorted to within the limitation prescribed in view of the pendency of this petition. Hence, it is necessary to protect the petitioners’ remedy to challenge the election held on 18/9/2008. 6. We, therefore, dispose off this petition as infructuous on account of the subsequent notification issued by the Government of Maharashtra on 31/3/2009 and at the same time, we direct that if the 5 wp-2915-09 petitioners initiate appropriate proceedings to challenge the election held on 18/9/2008 within a period of three weeks from today, the said challenge shall be considered on its own merits and without raising the objection of limitation. Undoubtedly, the proceedings, so initiated, shall be concluded expeditiously. All the contentions on merits of the respective parties are left open. (A. A. SAYED, J.) (B. H. MARLAPALLE, J.)