Allowed

Vijay Namdeorao Wadettiwar, Mla v. Babasaheb S/O Sonbaji Wasade and Ors.

Bombay HC2 Aug 2012CAZ/414/2012

Case brief

AI extract

What is this about?

This court allowed the applicant leave to file a Letters Patent Appeal against an interim order of the learned Single Judge which refused his application to join as a party respondent in a writ petition challenging the removal of directors. The High Court held the Single Judge's observations prejudiced the applicant's ability to oppose interim relief. The main appeal was taken up, keeping in view

What did the court decide?

Leave to file Letters Patent Appeal granted; main appeal taken up; joinder application kept pending for decision on merits.

Vijay Namdeorao Wadettiwar, Mla Vs Babasaheb S/O… — Cooperative Societies | Bombay HC (2012)

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020812mcano.414.12. 1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Civil Application No. 414 of 2012 in Letters Patent Appeal No. 311 of 2012. (Arising out of Interim Order passed in W.P.No. 241/2012 dated 26.7.2012)

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Vijay Namdeorao Wadettiwar vs. Babasaheb s/o Sonbaji Wasade and others.

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Notes, Office Memoranda of

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Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders.

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Mr. P.C.Madkholkar, Advocate for appellant/applicant. Mr. M.G.Bhangde, Senior Counsel with Mr. R.M.Ahirrao, Advocate for R-1 and 2. Mr. N.W.Sambre, G.P. For R-3 and 4.. Mr. M.V.Samarth, Adv. For R-5.

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CORAM : S. C. DHARMADHIKARI &

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M. T. JOSHI, JJ. DATE : 2.8.2012

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This is an application by the applicant - Vijay Namdeorao Wadettiwar, who has sought leave to file Letters Patent Appeal, aggrieved and dissatisfied with the order dated 26th July, 2012 passed in Writ Petition No. 241/2012.

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The applicant seeks leave to file an Appeal on the

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basis that by an order passed on the same date namely 26th July, 2012, the learned Single Judge has granted interim stay in terms of prayer clause (iii) of the Writ Petition No. 241/2012, which Writ Petition has been filed by respondent nos. 1 and 2 – Babasaheb Sonbaji Wasade and Devanand Ramchandra Guru, against the orders passed by the Divisional Joint Registrar and the State of Maharashtra.

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The applicant seeks leave to file an Appeal because he had sought relief vide C.A.no. 1782/2012 in W.P.No. 241/2012 to join him as party respondent to this Writ Petition and take his preliminary submissions on record.

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In that application what he alleges is that, his joinder is necessary to point out all the factual and legal aspects leading to the original petitioners inviting action of their removal in terms of Section 78(1) of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as “the Act”). The Writ Petition challenges the orders removing them under section 78(1) of the Act, which orders have been passed by the Divisional Joint Registrar and the State Government on account of certain developments, which have been highlighted

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in this application. It is apprehended by the applicant/appellant before us that Chandrapur District Central Cooperative Bank Limited -original respondent no.3 to the Writ Petition and respondent no. 5 before us, may not oppose the reliefs i.e. sought in the Writ Petition. There is every likelihood that on account of certain arrangements inter se and the subsequent developments, the orders under Section 78(1) of the Act may be quashed and set aside. To oppose said course and to prevent the disqualification proceedings being reduced to a nullity, that the applicant sought his joinder.

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This application was opposed by contesting respondents 1 and 2. They contended that there is no substance in any of the contentions inasmuch as the applicant is seeking to join in a litigation with which he is not concerned. He is trying to inflict injury on the original petitioners. However, the basis for his apprehension is that he may be defeated in the forthcoming election of Board of Directors of the Chandrapur District Central Cooperative Bank which elections are going to be held in the month of August, 2012. With a view that petitioners do not participate therein he seeks to implead himself as party respondent in W.P.No.241/2012..

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This reply is filed on 10th July, 2012. There is also a reply filed on 19th July, 2012 on behalf of the Chandrapur District Central Cooperative Bank Limited opposing, the joinder.

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It appears from the record that this application was placed before the learned Single Judge on July 26,2012 and the following order has been passed.

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“By the present application, learned Advocate Mr. Madkholkar for the applicant-intervener, vehemently prays for joining the applicant as party-respondent to the present petition.

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Though Mr. Madkholkar made detail submission by referring to the earlier order passed by this Court, the record clearly discloses that the applicant was not party to the earlier round of application and those who were party to the earlier round of litigation are not before this Court making a prayer for joining them as party-respondent. Mr. Madkholkar, in support of the impugned order submits that the authorities have considered a report of the Committee constituted of which one of the members was a financial expert. Though Mr. Madkholkar placed a heavy reliance on that report, the order impugned in the petition nowhere refers to the said so called report nor the authority seems to have offered any

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opportunity to the parties in respect of that so called report. Mr. Madkholkar further submits the petitioners have caused loss to the bank and as the aspect of the consideration of the authority has also referred by this Court. I am unable to persuade myself to accept the submissions of the learned Advocate Mr. Madkholkar.

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At present, I see no reason to allow the application and no orders are necessary to be passed in this application. Stand over to 6th September, 2012 for further orders.”

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Mr. Madkholkar, learned counsel appearing on behalf of the applicant in Civil application No. 1782/2012, so also in support of his prayer for grant of leave to file Appeal, submitted that if the application for joinder before the learned Single Judge is merely stood over to 6th September, 2012 for further orders, then the observations reproduced by us hereinabove would mean that the application for joinder is rejected. If there is a rejection of that application then, there is no occasion to stand it over or adjourn it and the learned Judge is of the opinion that there was no reason to allow the application and no orders are necessary, then, it should be deemed as rejected and in any event on 6th September, 2012, there would be nothing left to argue unless the observations

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made by the learned Single Judge are set aside.

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In such circumstances and when it was on the basis

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of the application for joinder that the present applicant wants to oppose grant of any interim relief in the main writ petition that the applicant is seriously prejudiced by the order on his civil application and equally by grant of interim stay in the writ petition.

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Our attention is also invited by Mr. Madkholkar to the fact that in Writ Petition No. 241/12 it was pointed out by the applicant that when original petitioners Babasaheb Wasade and Devanand Guru were removed in terms of the order under Section 78(1) of the Act, vacancies caused were filled in by co-option of the present applicant Vijay Namdeorao Wadettiwar and Subhash Tajne. This co-option and the proceedings in relations thereto were challenged by the petitioners in filing Writ Petition No. 393/2010 in which a Division Bench of this Court passed order, copy of which is at page no.322 of this paper book. In these circumstances, it cannot be said that the applicant before us was either intermeddler or had absolutely no connection or nexus with the

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lis or any relief that is sought in the original Writ Petition No. 241 of 2012 enabling rejection of his request for joinder.

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In these circumstances, Mr. Madkholkar, learned counsel submits that since the impugned order is vitally affecting the applicant before this court, leave may be granted to the applicant to file an appeal.

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On the other hand, Mr. Bhangde, learned Senior Advocate appearing for respondents 1 and 2 opposes grant of leave by contending that the applicant was never before the authorities inasmuch as the authorities were seeking to remove the original petitioners from the office and particularly that of a Director of the District Central Cooperative Bank Limited. The proceedings or the lis was between the authorities who issued show cause notice to the Original petitioners for removal and passed the ultimate order. At no stage, the applicant was before them or was concerned with the lis or the litigation. Even in so far as the writ petition is concerned, he has no right to intervene or become a party thereto as his presence is not necessary for adjudication of the controversy raised in the writ petition. Whether enough

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grounds are made out for removal of the original petitioners under Section 78(1) of the Act or the orders passed can be sustained on the touch stone of Section 78(1) of the Act, are matters which would be decided in the writ petition and for a decision thereon the presence of the applicant -Vijay Namdeorao Wadettiwar is not necessary. In these circumstances and when the Applicant is not effected or concerned with the main controversy, the leave to appeal should not be grated.

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Out attention is invited to three decisions of the Supreme Court in the case of Baby Samuel vs. Tukaram Laxman Sable and others reported in 1995 Supp (4) Supreme Court Cases, 215 and the decision of the Hon'ble Supreme Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania and others reported in (2010) 9 Supreme Court Cases, 437. Mr. Bhangde, has made great emphasis on the Judgment in the case of State of Himachal Pradeshand another vs. Kailash Chand Mahajan and others, reported in 1992 Supp (2) Supreme Court Cases 351.

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After hearing both sides at some length and

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perusing the application seeking leave to file appeal, reply thereto and impugned order which we have reproduced above, we are of the opinion that the course adopted by the learned Single Judge is enough for grant of leave to file an appeal. The learned Single Judge had before him the application made by the present applicant seeking relief of his joinder as party respondent to the original writ petition on the footing that he is a necessary party and that his presence is necessary for effective and proper adjudication of the controversy inasmuch as he would be in a position to point out all political developments or events. They ought not influence this court while adjudicating the matter of disqualification / removal of the original petitioners. It is on this foundation that relief was sought by making serious allegations. What the learned Single Judge did on this application is, to hear both sides and without passing any final order thereon making observations which would virtually put the present applicant out of the court.

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The above reproduced paragraph of the order refers to the submissions made on behalf of the present applicant and holds that the applicant was not a party to the earlier round of litigation and those who are party to the earlier

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round of litigation, are not before the Court and yet a prayer for joinder is made. The submission, that authorities have considered the report of the committee constituted, on which one of the member is finance expert and reliance was placed on that report is also noted but the learned Judge proceeds to make comments even with regard to that report. We do not find any findings by the learned Judge that the applicant is neither a necessary or proper party and, therefore, his joinder is unnecessary or otherwise. That is the fundamental requirement which was expected to be complied with while dealing with and deciding such an application. By making certain general observations and keeping the application pending and not hearing the applicant thereafter on the question of grant of interim stay in the writ petition, would seriously prejudice the applicant and that is enough to grant him leave to file an appeal. Accordingly, we allow the application and grant leave to file appeal and take up the Letters Patent Appeal itself.

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Having noted the the controversy before the learned Single Judge and finding that the application seeking joinder of the applicant/appellant before us is kept on 6th

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September, 2012, we are of the opinion that in the larger interest of justice we should refrain from expressing any opinion as to whether the presence of the applicant/appellant before us is necessary or proper or otherwise. We would prefer to keep that application pending by clarifying that the said application should be dealt with and decided on its own merits and in accordance with law after noting the objections of the original petitioners but without being influenced by the observations or contents of the order dated 26th July, 2012. It is that course which would protect the parties.

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Mr. Madkholkar, learned counsel however, submits that on the main appeal this court should hear him as the grant of interim stay would mean that the petitioners, who are before this court in W.P.No. 241/12 viz. Babasaheb Sonbaji Wasade and Devanand Ramchandra Guru would file their nominations for the ensuing Board Election and would contest the same. The authorities before whom nominations would be presented will not be in a position to consider the objections that would be raised by the applicant Vijay Namdeorao Wadettiwar inasmuch as they would not be in a position to understand and interpret the interim order passed on 26th July, 2012 in Writ

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Petition No. 241/2012.

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With the assistance of the counsel appearing for the parties, we have perused the interim order dated 26th July, 2012 that grants interim relief on the basis of prima facie case but interim relief is granted in terms of prayer clause (iii). Prayer clause (iii) of the Writ Petition reads as thus:-

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“During the pendency of this Petition, stay the effect, operation and implementation of the impugned order dated 13.12.2011 at AnnexureA, passed by the Hon'ble Minister of State for Co-operation, Marketing and Textiles Department, Government of Maharashtra, Mantralaya, Mumbai in Appeal No. 38/10 as well as the impugned order at Annexure -B dated 18.01.2010 passed by the Respondent no.2 Divisional Joint Registrar, Nagpur Division, Nagpur in a proceeding under Section 78 of the Maharashtra Co-operative Societies Act, 1960 initiated against the Petitioners.”

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In our view, it would be open for the applicant- Vijay

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Namdeorao Wadettiwar, in case the original petitioners Babasaheb Wasade and Devanand Guru file their nominations, to oppose them if they are being considered and accepted, on the ground that the proviso below clause (b) of Sub Section 1 of Section 78 of the Act, would not enable these persons to contest the election as they are not eligible for being re-elected/ re-nominated/ re-co-opted as member of the Committee. The Appellant -Applicant can also urge that the order of removal is not set aside or quashed but merely stayed. Hence, the original Petitioners in Writ Petition No. 241 of 2012 are disqualified and, therefore, cannot contest the election. Equally, it would be open for the original petitionersBabasaheb Sonbaji Wasade and Devanand Ramchandra Guru to urge that interim stay being granted in the Writ Petition pending in this Court, so also no final orders being passed thereon, their nomination papers should be accepted. Keeping open all objections and contentions of the parties, we dispose of this Letters Patent Appeal.

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A steno copy of this order be given to the parties to

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act upon.

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JUDGE JUDGE

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Vijay Namdeorao Wadettiwar, Mla v. Babasaheb S/O Sonbaji Wasade and Ors.

Case brief

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What did the court decide?

Vijay Namdeorao Wadettiwar, Mla v. Babasaheb S/O Sonbaji Wasade and Ors.

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