1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 34 OF 2010 IN WRIT PETITION NO. 10891 OF 2009 Shri Ramesh Chandulal Shah and others ).. Appellants Versus Shri Ghanshyam Chunilal Surana and others ).. Respondents Mr. S.B. Shetye a/w Mr. Rahul Hare, Ms.Nisha Ruikar and Mr.Niranjan Mogre for the Appellants. Mr. R.V. Govilkar with Mr. Sanjay Aradhye and Ms.Ujwala Sawant for Respondent Nos.1 and 2. Mr. R.M. Patne, Assistant Government Pleader, for Respondent Nos.12 and 13. CORAM : ANIL R. DAVE, C.J. AND S.C. DHARMADHIKARI, J. DATE : 10TH MARCH 2010. ORAL ORDER (Per Chief Justice) Being aggrieved by an interim order dated 4th January 2010 passed in Writ Petition No. 10891 of 2009, this Letters Patent Appeal has been filed by the Appellants-original Respondents. 2. The facts giving rise to the present Appeal and the Petition in a nutshell are as under. 2 3. The Appellants are members of Anand Park Co-operative Housing Society Limited. They had filed nomination for contesting the election as members of the Managing Committee of the said Society. According to the election programme, which was notified by the Returning Officer of the Society, nomination papers were to be filed between 3rd December 2009 and 10th December 2009. The scrutiny thereof was to be made on 13th December 2009. On 14th December 2009, the Returning Officer was supposed to declare valid nominations and the last date for withdrawal of nomination papers was 15th December 2009. On 1st January 2010, declaration of the list of contesting candidates was to be made and 17th January 2010 was the date of election. 4. The nomination papers filed by the Respondents-present Appellants had been rejected and, therefore, they had filed an Appeal under the provisions of Section 152A of the Maharashtra Co-operative Societies Act, 1960 (hereinafter for the sake of brevity referred to as “the Act”). The said Appeal had been filed on 15th December 2009 and the Appeal had been heard and allowed on 19th December 2009. 5. Immediately after the nomination papers had been cancelled, the Returning Officer had declared the results on 14th December 2009. 3 6. It was the case of the present Appellants before the learned Single Judge that the Returning Officer ought not to have declared the results on 14th December 2009 especially when the Act provides for an appeal which can be filed by the persons whose nomination papers are rejected. In view of the provisions of Section 152A of the Act, an Appeal had already been filed by the present Appellants on 15th December 2009. That Appeal had been filed within the period of limitation. In these circumstances, it is the case of the present Appellants that the result ought not to have been declared by the Returning Officer on 14th December 2009. 7. Writ Petition No. 10891 of 2009 has been filed with a prayer that the order passed in the Appeal filed by the present Appellants in Appeal No.5 of 2009 be quashed and set aside. By virtue of the order passed in the said Appeal, the nomination papers of the present Appellants had been held to be valid. 8. After hearing the learned Advocates, the learned Single Judge has admitted the Petition and has granted interim relief whereby it has been directed to maintain status quo. In other words, the declaration of result of the election made by the Returning Officer on 4 14th December 2009 has been held to be valid and, therefore, it would not be open to any authority to hold the election during the pendency of the Appeal. 9. Mr.Shetye, the learned Advocate appearing for the Appellants, has submitted that the learned Single Judge ought not to have granted any interim relief in favour of the Petitioners i.e. the candidates who have been declared to be elected as members of the Managing Committee for the reason that the Returning Officer ought not to have made a declaration on 14th December 2009 with regard to validly nominated candidates. It has been further submitted that the Statute provides for an Appeal against an order rejecting nomination papers and, therefore, till the Appeal was filed and the final result of the Appeal was declared, the Returning Officer ought not to have declared the result, especially in view of the fact that the date for declaration of the result was 19th January 2010. 10. The learned Advocate appearing for the Appellants has drawn our attention to Section 152A(1) and (2) of the Act dealing with the provisions of Appeal which can be filed against rejection of nomination. Moreover, it has been submitted by him that if the Respondent candidates were aggrieved by the order dated 19th 5 December 2009 passed by the Returning Officer, they ought to have filed an Appeal under Section 91 of the Act as it deals with resolution of disputes touching the constitution, elections of the committee or its officers. In the instant case, as the candidates had not resorted to the provisions of Section 91 of the Act, the learned Single Judge ought not to have granted any interim relief whereby the entire process of election has been adversely affected. 11. On the other hand, Mr. Govilkar, learned Advocate appearing for the Respondents-original Petitioners, who have been declared as elected candidates by virtue of the declaration made on 14th December 2009, has submitted that it was not open to the Deputy Registrar, Co-operative Societies-Respondent No.12 herein to entertain the Appeal in view of the fact that a common Appeal was filed by all the candidates whose nominations had been rejected. According to him, a separate Appeal ought to have been filed by each candidate whose nomination paper had been rejected. Moreover, unless the order dated 14th December 2009, whereby the Returning Officer has declared the election is quashed and set aside, no further election can be held and, therefore, it has been submitted by him that the learned Single Judge was justified in granting the interim relief. 6 12. Upon hearing the learned Advocates and looking to the relevant provisions of the Act, we are of the view that the interim relief ought not to have been granted by the learned Single Judge. 13. In our opinion, when Section 152A(1) of the Act provides for an Appeal which can be filed by a candidate whose nomination has been rejected, till the Appeal is decided by the Deputy Registrar of the Co-operative Societies-Respondent No.12 herein, the Returning Officer ought not to have declared the result on 14th December 2009, more particularly when the result of the election was to be declared at a later point of time. It is pertinent to note that the polling was to take place according to the election programme on 17th January 2010. The nomination papers had been rejected on 13th December 2009 and the Appeal had been filed on 15th December 2009 i.e. within the period of limitation. Section 152A(1) of the Act specifically provides that the Appeal is to be filed within three days of the date of rejection of the nomination and such an Appeal is to be disposed of within ten days from receipt of such an Appeal. 14. In the instant case, not only the Appeal was filed by the candidates whose nominations had been rejected within the period of 7 limitation prescribed under Section 152A(1) of the Act, but even the Appeal had been disposed of within the period prescribed in the Act. 15. In the aforesaid circumstances, in our opinion, it was not open to the Returning Officer to declare the result without waiting for the final outcome of the Appeal. 16. The contention raised by Mr.R.V. Govilkar, the learned Advocate appearing for the Respondents, that a common Appeal by all the candidates whose nominations had been rejected was not maintainable cannot be considered at this stage. 17. It is a settled legal position that normally when the election process begins, the Courts should not interfere except when there is a specific provision with regard to Appeal. In the instant case, the Act provides for filing of Dispute, etc. under Section 91 of the Act. 18. In our opinion and in view of the interim relief granted by the learned Single Judge, practically the Writ Petition has been allowed because the candidates who have been declared elected would continue during the pendency of the Writ Petition or till a fresh election takes place. The said thing would not be just and proper. In view of the 8 provisions of Section 91 of the Act, if the process of election should have been continued and only after completion of the process of election, the dispute should have been referred to the concerned authority. 19. In the circumstances, the impugned interim order dated 4th January 2010 passed by the learned Single Judge is quashed and set aside. The concerned authority is directed to initiate election process from the stage when the names of the validly nominated candidates were to be published. Necessary notification shall be issued within two weeks from the date of receipt of this order by the Deputy Registrar, Co- operative Societies, Respondent No.12 herein. The Deputy Registrar, Co-operative Societies shall also nominate the Returning Officer who shall in turn publish the election program as stated hereinabove within two weeks from the date of his appointment. 20. The Appeal is allowed and the impugned order dated 4th January 2010 is quashed and set aside with no order as to costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J.