TRIMBAK P RATHOD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition was admitted on 3rd March, 2004 and interim stay to the impugned order, passed by the Cooperative appellate Court, was granted, but ex-parte. The interim order was thereafter vacated by order dated 25th June, 2004 by the operation of clause 3 of Article 226 of the Constitution. The Petitioners, therefore, moved Civil application No. 5039 of 2004 for interim stay and, therefore, by consent of the parties the petition has been finally heard.

(2.) THE elections of Respondent No. 8 society were held allegedly on 15th May, 2001 in which the Petitioners were elected as managing committee members' and further elections of office bearers were held on 30th May, 2001 in which also the Petitioners were declared elected. Election Dispute No. 406 of 2001 came to be filed by the present Respondent nos. 2 to 7 before the Cooperative Appellate Court at Aurangabad and by order dated 14th November, 2003 the Dispute was dismissed as time-barred. The Respondent Nos. 2 to 7, therefore, went in appeal before the cooperative Appellate Court at Aurangabad and Appeal No. 215 of 2003 came to be allowed partly vide judgment and order dated 11th February, 2004. The order of the Cooperative Court was set aside and the Dispute no. 406 of 2003 was restored to the file. The Appellants were granted liberty, if so desired, to file an application for condonation of delay and the Cooperative Court was directed to consider the issue of limitation as per law, afresh. Being aggrieved by the view taken by the learned Member of the Cooperative Appellate Court, this petition has been filed.

(3.) IT is noted from the record that election Dispute No. 406 of 2001 was filed on 17th November, 2001 challenging the elections held on 15th may, 2001 and 30th May, 2001. A consequential prayer was also made to the effect that the Respondent's election in the meeting held on 12th September, 2000 be declared as valid. The present Petitioners had filed their written statement on or about 24th December, 2001 opposing the dispute but they did not raise preliminary issue regarding the election dispute having been filed beyond limitation. The learned Judge of the Co-operative Court proceeded to frame issues on 21st February, 2003 and there was no issue regarding the limitation. Separate application came to be filed by the present Petitioners on or about 10th November, 2003 in Election Dispute No. 406 of 2001 raising, for the first time, the preliminary issue regarding limitation. The Respondents submitted their say on 14th november, 2003 and on the same day both the parties were heard. The learned Judge of the Cooperative Court held that the dispute was time-barred as it was not filed within two months. The learned Member of the co-operative Appellate Court did not agree with the view taken by the co-operative Court. The Appellate Court noted that prayer clause (D) in the dispute was regarding the meeting dated 12th September, 2000 and, therefore, for the same relief the dispute could not have been rejected as time-barred. This view is grossly erroneous.