WP/15561/2022 of MR. SHIVRAJ VAMANRAO MOHOD AND ANR Vs STATE OF MAHARASHTRA AND ORS on 28 December 2022

1. By this petition, the Petitioners who have their own milkproducing society, are challenging the order dated 30[th] November2022 passed in Appeal No. 38 of 2022, by Joint Registrar, Co-operative Societies (Milk), State of Maharashtra (Mumbai)(hereinafter referred to as “the Appellate Authority” for short). Thisimpugned Order is passed by exercising power u/s. 152A of theMaharashtra Co-Op. Societies Act, 1960 (hereinafter “the said Act”for short). The said appeal was filed by Respondent No. 6 (having

511-28-12-22-WP-15561-2022.dochis own milk producing society) challenging rejection of hisnomination for contesting election of managing committee ofRespondent No. 5, under Order dated 23[rd] November 2022 passed byRespondent No. 4 – the Election Officer.

2. Brief background of the present dispute is that Respondent No.5 is an apex body of the milk producing Co-operative Societies in theState of Maharashtra, known as “Mahanand”. Election for ManagingCommittee of Respondent No. 5 is declared. Petitioners with theirmilk producing Society as well as Respondent No. 6 with his milkproducing Society are desirous of contesting said election.

3. It is to be noted at the outset that, there is no dispute aboutthe fact that all the three Petitioners have filed their nomination forcontesting the said election, which are accepted. It is also notdisputed that the election program of the said election was declaredon 15.11.2022 which is now modified by program dated 15.12.2022.According to the said program, the last date for withdrawingnomination is tomorrow i.e. 29[th] December 2022 till 3.00 pm. This isthe reason why this petition was hard-pressed for immediately taking

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on board in vacation and heard.

4. Heard learned counsel Mr. Chavan for the Petitioners, learnedAGP Ms. Solunke for Respondent Nos. 1 and 2 State, Mr. Deelip Patil-Bankar, Chief standing Counsel SCEA for Respondent Nos. 3 and 4and Ms. Yadav for Respondent No. 6.

5. All the parties present before me are ad-idem that this petitionunder Article 226 and 227 of the Constitution of India filedchallenging the impugned Order u/s. 152A of the said Act passed bythe Appellate Authority at Mumbai, can be heard and entertained bya single Judge of this Court at Bombay.

6. Mr. Chavan, Learned counsel for the Petitioners argued thematter at length and in great detail. He invited this Court’s attentionto the order dated 23.11.2022, by which nomination of RespondentNo. 6 was rejected for breach of bye-law No.7.2.4 (a) of Resp. No. 5.He further invited the attention of the Court to bye-laws No. 4.2which makes provision for active members of the society who arerequired to supply 2% of the milk collected by them to Respondent

511-28-12-22-WP-15561-2022.docNo. 5. He further invited the attention of the Court to the bye-lawsNo. 7.2.4 contending that on the ground that Respondent No. 6 hadnot supplied required 2% milk out of its collection, the nominationof Respondent No. 6 was rejected. He contended that for the reasonof not being active member, the Respondent No. 6 is actuallydisqualified based on bye-laws No. 7.2.4.(c). Mr. Chavan, furthercontended that the impugned Order is passed allowing appeal,apparently because the Appellate Authority was of the opinion thatRespondent No. 6 has supplied requisite milk to Respondent No. 5.He invited the attention of the Court to the documents compilation(stated to be submitted before the Appellate Authority) andparticularly on the contract between Respondent Nos. 5 and 6 forsupply of the milk. He further contended that based on materialavailable, the Appellate Authority could not have come to theconclusion that Respondent No. 6 has supplied required milk toRespondent No. 5, so as to bring him within compliance of bye-lawnos. 7.2.4. He further contended that in fact the appeal ofRespondent No. 6 could not have been even entertained as there wasdelay of 3 days in filing the same.

511-28-12-22-WP-15561-2022.doc8.On the other hand, learned counsel Mr. Patil-Bankar appearingfor the Election Officer / Authority relied on the reply filed byRespondent No. 4. He contended that the process of the election isalready started. Final list of the contesting candidates would bepublished on 30.12.2022 and polling is scheduled on 08.01.2023.He further contended that as per the settled position of law, it wouldnot be appropriate to interfere in the election process, moreparticularly in view of the Rule 78 of the Mah. Co-Op. Societies(Election to Committee) Rules, 2014. He also contended that in anycase the Petitioners have remedy of challenging result of election,under Section 91 of the Maharashtra Co-operative Societies Act,1960. In support of his case, he relied upon the Judgment of theHon'ble Supreme Court in case of Shaji K. Joseph Vs. V. Viswanathand Others, (2016) 4 SCC 429 and contended that the High Courtshould not interfer, after the process of election has commenced. Heinvited attention of this Court to paragraph nos. 15 and 16 of thesaid Judgments, which read thus :

“15.In our opinion, the High Court was not rightin interfering with the process of election especiallywhen the process of election had started uponpublication of the election program on 27-1- 2011and more particularly when an alternative statutoryremedy was available to Respondent 1 by way of

referring the dispute to the Central Government asper the provisions of Section 5 of the Act read withRegulation 20 of the Regulations. So far as theissue with regard to eligibility of Respondent 1 forcontesting the election is concerned, though primafacie it appears that Respondent 1 could contest theelection, we do not propose to go into the saidissue because, in our opinion, as per the settled law,the High Court should not have interfered with theelection after the process of election hadcommenced. The judgments referred tohereinabove clearly show the settled position oflaw to the effect that whenever the process ofelection starts, normally courts should not interferewith the process of election for the simple reasonthat if the process of election is interfered with bythe courts, possibly no election would be completedwithout court’s order. Very often, for frivolousreasons candidates or others approach the courtsand by virtue of interim orders passed by courts,the election is delayed or cancelled and in such acase the basic purpose of having election andgetting an elected body to run the administration isfrustrated. For the aforestated reasons, this Courthas taken a view that all disputes with regard toelection should be dealt with only after completionof the election.

16. This Court, in N.P. Ponnuswami v.Returning Officer (supra) has held that once theelection process starts, it would not be proper forthe courts to interfere with the election process.Similar view was taken by this Court in Shri SantSadguru Janardan Swami (Moingiri Maharaj)Sahakari Dugdha Utpadak Sanstha v. State ofMaharashtra (supra)”.

9. He also relied upon Judgment of Hon’ble Supreme Court incase of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj)

511-28-12-22-WP-15561-2022.docSahakari Dugdha Utpadak Sanstha and Anr. Vs. State of Maharashtraand Ors.(2001) 8 SCC 509 and invited the attention of the Court toparagraph no. 12 of the said Judgment contending that once theprocess of election is set in the motion, this Court should not stay thecontinuation of the election process for any reason, even thoughthere may be some illegality or breach of rules while preparing theelectoral rolls.

10. Learned AGP Ms. Solunke supported the impugned orderpassed by the Appellate Authority under section 152A of theMaharashtra Co-operative Societies Act, by which the nomination ofRespondent No. 6 is accepted.

11. Learned Counsel Ms. Yadav appearing for Respondent No. 6vehemently opposed and contended that the Petitioners have nolocus to challenge the impugned order passed in favour of her client.She contended that the impugned order is an order by which powersunder Section 152A of the Maharashtra Co-operative Societies Act,has been exercised and findings given in the impugned order arebased on material available before the Authority. She contended that

511-28-12-22-WP-15561-2022.docthe real intention behind the present petition is to reduce the contestin the election, which his client wishes to contest. She submittedthat since the Petitioners’ nominations are also accepted, they will beable to participate in the election and, therefore, this petition isnothing but an attempt to stall a democratic process. She alsosupported the argument of Respondent No. 4 that once process ofelection is set in motion, this Court should not interfere with it,specially when nominations are accepted. She relied uponcertificates which were part of compilation placed on record, morespecifically certificate dated 23.11.2022 and contended that requisitesupply of the milk has been done by Respondent No. 6. Shesubmitted that so far as arguments of delay in filing the appeal isconcerned, the impugned order itself would show that the order ofrejection of nomination was communicated to her client on24.11.2022 by Whatsapp and 26[th] and 27[th] November, 2022 weregovt. holidays and as such there is no delay in filing appeal. Shetherefore urged that the said order should be read on merits and noton technical ground of delay.

12. I have considered the submissions of learned counsels

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carefully, perused the record and heard both sides at length.

13. The contentions of the Petitioners about non compliance of thebye-laws of Respondent no. 5 in as much as the Respondent No. 6has not supplied the requisite quantity of 2% of his milk collection toResp. No. 5 – Mahanand and whether Respondent No. 6 hasfollowed the terms of contract, whether there was technical delay infiling appeal, is something that would require evidential scrutiny.These contentions are within the realm of “disputed questions offact” and can not be gone into in writ jurisdiction of this Court.These contentions can always be taken in dispute u/s. 91 of the saidAct, if such occasion arises and the Petitioners challenge the result ofelection. In such peculiar facts of the matter, this Court can notexercise jurisdiction under Article 226 r/w 227 of the Constitution ofIndia, to adjudicate upon any disputed questions of fact as aforesaid.

14. Perusal of the Judgments of the Hon’ble Supreme Court reliedupon by Respondent No. 4, Election Officer, shows a clear andsettled position, as clear as sunshine, that this Court should notinterfere in any part of the election process (including preparation of

511-28-12-22-WP-15561-2022.docvoters list and nomination process) once the election program isdeclared and set in motion. I am in respectful agreement with thesaid Judgments of the Hon’ble Supreme Court. In the present matter,the election program is declared and modified as on 15.12.2022 andaccording to said program, tomorrow is the last date for withdrawalof the nomination and election is due for polling on 08.01.2023. It istherefore not possible to interfere with the democratic processalready set in motion, in any manner.

15. In view of the aforesaid facts and settled legal position, thisCourt is not inclined to grant any relief, either interim or final in thispetition. The writ petition is accordingly dismissed. No order as tocosts.

16. It is however made clear that, this Court has not expressed anyopinion about the contentions, raised above by both sides. After thesaid election is over, the Petitioners will be at liberty to challenge theresult of the election including that of Respondent No. 6, if occasionso arises, as provided u/s. 91 of Maharashtra Co-operative SocietiesAct, 1960. All contentions of the parties on merits, including those

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raised before this Court and as may be raised at that time, arespecifically kept open.

[M.M.SATHAYE,J.]