Mr. Aselmo Furtado And 23 ORS., v. State Of Goa, Thr. The Chief Secretary And 17 ORS.,

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.112 of 2017 1.

Mr. Aselmo Furtado Son of Mr. Exaltacao Furtado Age 48 years, residing at H.No.64, Choquiwado, Carmona Salcete Goa Chairman and duly Authorised member of Orlim Dudh Utpadak Sahakari Saustha Maryadit 2.

Mr. Vinayak Poko Pilarnkar Son of Mr. Poko Venkatesh Pilankar Age 55 years, residing at Merces Wadi E-26 P.O. St. Cruz, Tiswadi Goa Chairman and duly Authorised member of Merces Co-op Milk Producers Society Ltd 3.

Mr. Nitin v. PrabhuGaonkar Son of Mr. Vishvanath Shamba PrabhuGaonkar Age 41 years, residing at H.No.183, Goankar Wada, Veling Mardol Goa.

Chairman and duly authorised member of Tribhuvan Sahakari Dudh Vyavsayik Saustha Maryadit 4.

Mr. Pramod Vasudev Sidhaye Son of Mr. Vasudev Sidhaye, Age 34 years, Residing at H.No.62, Kanolkar wado, Nanoda Bicholim Goa, Chairman and duly authorised member of Nanoda Dudh Udyapak Sahakari Saustha Maryadit 5.

Mr. Vishwas Sukhatankar Son of Mr. Sitaram Narayan Sukhtankar, Age 60 years, residing at H.No.386, Ganpatiwada Khandol, Mercel Ponda Goa. Chairman and duly authorised member of Shri Shantadurga Sahakari Dugdh Utpadak Vyavsayik Saustha Maryadit 6.

Mr. Dattaram Sawant Son of Mr. Atmaram Dattaram Sawant

Age 44 years residing at H.No.773 Sawant wada Mandrem Pednem Goa Chairman and duly authorised member of Shri Bhagwati Sapteshwar Sahakari Dudh Utpadak Vyavsayik Saustha Ltd.

7.

Mr. Vijaykant V. Gaonkar Son of Mr. Vithoba Arjun Gaonkar, Age 43 years, residing at H.No.136, Jakem Netravali Sanguem Goa Chairman and duly authorised member of Shri Mahamaya Dudh Utpadak Sahakari Saustha Maryadit Jackem 8.

Mr. Vaibhav M. Parab Son of Mr. Manohar Shankar Parab Age 39 years, residing at Varcha wada Menkurem, Bicholim Goa Chairman and duly authorised member of Amthane Sahakari Dudh Utpadak Saustha Maryadit.

9.

Mr. Mhalgo Kusdo Gaonkar Son of Mr. Kusdo Malgo Gaonkar Age 50 years, residing at H.No.Valgoni Netravali Sanguem, Goa Chairman and duly authorised member of Netravali Sahakari Dudh Vyavsayik Saustha Ltd.

10.

Mr. Durgesh M. Shirodkar Son of Mr. Madhukar D. Shirodkar Age 46 years, residing at H.No.308, Nr Sai Baba Gogol Margao Goa Chairman and duly authorised member of of Shri Santari Sahakari Dudh Vya, Saustha Ltd 11.

Mr. Lala Anant Satarkar Son of Mr. Anant P Satarkar Age 55 years, residing at H.No.

1551, Konem Prio Post Mardol Ponda Goa Chairman and duly authorised member of Priol Gosavardhan Sahakari Dudh Vyavasaik Saustha Maryadit

12.

Fondu Gaonkar, Son of Kushali Gaonkar, Aged about 43 years, residing at 602, Gaonkar Wada Ambavulim Quepem Goa.

Chairman and duly authorised member of Amala Dudh Utpadak Sahakari Dudh Saustha Maryadit.

13.

Orlim Dudh Utpadak Sahakari Saustha Maryadit a society registered under thereafter Goa Cooperative Societies Act 2001 having its registered office at Orlim Salcete Goa through its Chairman Mr. Aselmo Furtado 14.

Merces Co-op Milk Producers Society Ltd A society registered under the Goa Cooperative Societies Act 2001 having its registered office at MercesWadi through its Chairman Mr. Vinayak Poko Pilarnkar 15.

Tribhuvan Sahakari Dudh Vyavsayik Saustha Maryadit, A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Mardol Goa through its Chairman Nitin V.

Prabhugaonkar 16.

Nanoda Dudh Udyapak Sahakari Saustha Maryadit, A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Nanoda Bicholim Goa through its Chairman Pramod Vasudev Sidhaye 17.

Shri Shantadurga Sahakari Dugdh Utpadak Vyavsayik Saustha Maryadit, A society registered under the Goa Coopertive Societies Act 2001 having its registered office at Mercel Ponda Goa through its Chairman Vishwas Sukhatankar

18.

Shri Bhagwati Sapteshwar Sahakari Dudh Utpadak Vyavsayik Saustha Ltd.

A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Mandrem Pednem, Goa through its Chairman Dattaram Sawant 19.

Shri Mahamaya Dudh Utpadak Sahakari Saustha Maryadit Jackem A society registered under the Goa Co-operative Societies Act 2001 having its registered office at Jackem, Netravali, Sanguem Goa through its Chairman Vijaykant V. Gaonkar 20.

Amthane Sahakari Dudh Utpadak Saustha Maryadit A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Amthane, Bicholim Goa, through its Chairman Vaibhav M. Parab 21.

Netravali Sahakri Dudh Vyavsayik Saustha Ltd A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Netravali, Sanguem Goa, through its Chairman Mhalgo Kusdo Gaonkar 22.

Shri Santari Sahakari Dudh Vya, Saustha Ltd A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Santemol Raia, through its Chairman Durgesh M. Shirodkar 23.

Priol Gosavardhan Sahakari Dudh Vyavsayik Saustha Maryadit, A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Priol, Goa

through its Chairman Mr. Lala Satarkar 24.

Amala Dudh Utpadak Sahakari Dudh Saustha Maryadit A society registered under the Goa Cooperative Societies Act 2001 having its registered office at Ambauli, Quepem Goa, through its Chairman Mr. Fondu Gaonkar ..

Petitioners Vs.

1.

State of Goa Through the Chief Secretary, Secretariat, Porvorim-Goa 2.

The Registrar of Cooperative Societies Department of Cooperation, Sahakar Sakul, Patto, Panaji, Goa 3.

Mr. Satish D. Sawant Cooperative Officer/ Spl. Auditor (Coop Societies) and Returning Officer for Election to the Goa State Cooperative Milk Producers Union Ltd Office of the Registrar of Cooperative Societies, Department of Cooperation, Sahakar Sakul, Patto, Panaji, Goa 4.

Goa State Cooperative Milk Producers Union Ltd Having its office at Curti, Ponda through its Managing Director 5.

Vithoba Datta Dessai Major in age, Having office at Goa State Cooperative Union Ltd Curti, Ponda 6.

Vijaykumar Shankarrao Patil Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 7.

Ulhas Pandurang Sinari Major in age,

Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 8.

Rajesh K. Phaldessai Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 9.

Rajendra Yeshwant Sawal Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 10.

Naresh Dharma Malik Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 11.

Gurudas Keshav Parab Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 12.

Dhananjay Nandaba Dessai Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 13.

Madhav Attmaram Sahakari Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 14.

Babu Narhari Komarpant Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 15.

Ajay Laxmikant Dessai

Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 16.

Baburao Shrikant Fotto Dessai Major in age, Having office at Goa State Cooperative Milk Producers Union Ltd, Curti, Ponda 17.

Dinesh Sahakari Major in age, residing at H.No.47/1, Mestawada, Curti, Ponda, Goa 18.

Vikas Prabhu, Major in age, Having office at Gananath Sahakari Dugdh Vyavsaik Saunstha Maryadit, Nirankal, Goa.

..

Respondents.

Mr. D. J. Pangam and Mr. Amey Kakodkar, Advocates for the petitioners.

Mr. S. D. Lotlikar, Advocate General with Mr. D. Shirodkar, Additional Government Advocate for respondent nos.1 and 2. Mr. Vivek Rodrigues, Advocate for respondent no.4. Mr. Ryan Menezes, Ms. G. Almeida and Ms. C. Rebeiro, Advocates for respondent nos.5 to 12, 14 to 15, 17 to 18. Mr. A. F. Diniz and Mr. Ryan Menezes, Advocates for respondent no.13.

Mr. I. Agha, Advocate for respondent no.16.

Coram :- ANOOP V. MOHTA & C. V. BHADANG, JJ.

DATE : - 2 nd March, 2017

ORAL JUDGMENT : (Per Anoop V. Mohta, J.) Heard the learned Counsel for the parties finally. 2.

The case of the petitioners is that - On 18/08/2016, the petitioners' society received letters from the Managing Director of Goa State Cooperative Milk Producers Union ("Milk Union") calling for names and other details of their Chairman/ Representative for preparing the provisional voters list, as well as, the resolutions duly authorizing them to vote and contest the forthcoming elections of the Milk Union. In the letters, it was not mentioned about submitting of any declaration. The letters stated that any documents after 31/08/2016 would not be accepted. On 04/01/2017, an election programme was declared and the date of elections was set for 29/01/2016. Last date for submitting nominations was 12/01/2017. The petitioners filed their nominations before the Returning Officer well in advance.

On 13/01/2017, the Returning Officer scrutinised the nomination papers and the objections raised against the petitioners' nomination papers. The petitioners filed reply to the same. By the impugned order, the Returning Officer rejected the nomination papers filed by the petitioners on the ground that declaration as per bye-law non.20.1.2 was not filed.

and further seeking a declaration that the said Bye Law No.20.1.2 of the Milk Union as illegal ultra vires and unconstitutional. 3.

On hearing the learned Counsel appearing for the parties, we are inclined to accept the preliminary objection raised by the respondents that under Section 83 of the Goa Co-operative Societies Act (the Act, for short), a statutory remedy is available to the petitioners to challenge the election and all related aspects. Section 83 of the Act reads thus :

"83. Dispute.-

(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the election to the Board of Directors or office bearers of society shall be referred by any of the parties to the dispute, to the Cooperative Tribunal within a period of 30 days from the date of declaration of the result of the election: Provided that, the Co-operative Tribunal may entertain such dispute after expiry of such period if the party aggrieved satisfies the Co-operative Tribunal that he had sufficient cause for not referring the dispute within aforesaid period.

(2) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, as the case may be, to the Registrar, if both the parties thereto are one or other

of the following:- (a) a society, it's Board, any past Board, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society;

(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;

(c) a person, other than a member of the society, who has been granted a loan by the society, or with whom the society has or had transactions and any person claiming through such a person;

(d) a surety of a member, past member, or a deceased member, or a person other than a member who has been granted a loan by the society whether such a surety is or is not a member of the society;

(e) any other society, or the Liquidator of such a society.

(3) When any question arises whether for the purposes of the foregoing sub-section a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.

(4) Save as otherwise provided under sub-section (3) of section 86, no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1).

Explanation 1.- A dispute between the Liquidator of a society and the members of the same society

shall not be referred to the Registrar under the provisions of sub-section (1).

Explanation 2.- For the purpose of this section, a dispute shall include,- (i) a claim by or against a society for any debt or demand due to it from a member or due from it to a member, past member or the nominee, heir or legal representative of a deceased member or servant or employee whether such a debt or demand be admitted or not;

(ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect of a loan of a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not;

(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any servant, past servant or deceased servant, or by its board of directors, past or present, whether such loss be admitted or not;

(iv) a refusal or failure by a member, past member or a nominee, heir or legal representative of deceased member to deliver possession to a society of land or any other asset resumed by it for breach of conditions of the assignment."

4.

The Apex Court in Gujrat University Vs. N. U. Rajguru; [1987(Supp.1) SCC 512], has observed as under :

"This Court set aside the High Court's order. Krishna Iyer, J. speaking for the court observed:

"It is well-settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well-settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument." 5.

The challenge even if raised to portion of clause 20.1.2 of the Bye-laws of Union in a limited extent, needs to be considered on its own merits by the Tribunal, in accordance with law. There is force in the submission raised by the learned Counsel appearing for the respondents that the petitioners' society is not a State, as contemplated under Article 12 of the Constitution of India. The society is governed by the respective Bye-laws framed by the members of the society and all are bound by the same. The Election Officer and/ or Officer concerned are

also bound by the same for holding the election within the framework of Rules and Regulations and/ or Bye-laws. As provided in Section 12 of the Act, the Tribunal, in a given case, may consider the objection to the respective Bye-laws. Therefore, at this stage, in view of the above, we are granting liberty to the petitioners to make a representation and/ or appropriate application even for correcting the same, if so instructed. 6.

This Court on 24/01/2017, has by keeping all objections open and by noting the fact that the challenge is to the whole election process and considering the rejection of nomination of the petitioners for want of declaration in terms of rule 74 of the Goa Co-operative Society Act and Rules, 2003 (20.1.2), as referred above, and taking note even of the preliminary objection, granted interim relief, which is reproduced as under :

"5. Keeping all the objections of the respondents open, as it is pointed out by Shri D. Pangam, the learned Counsel for the petitioners that the challenge in the above petition is to the whole election process and manner in which it was conducted by the respondent no.3, until returnable date, no further action on the basis of the subject notification under Rule 74 shall be taken by the respondents."

7.

The interim relief has been in force/ continuing till this

date by granting extensions on 31/01/2017, 15/02/2017, 23/02/2017 and 28/02/2017. The matter is listed today for final disposal at the admission stage, as already ordered. 8.

We have heard accordingly. Therefore, taking overall view of the matter, without expressing anything on merits of the issue so raised, we are not entertaining the present writ petition as the petitioners have an alternate remedy available under the concerned Statute.

9.

By keeping all points open, liberty is granted to the petitioners to invoke appropriate remedy by filing petition/ appeal within one week before the appropriate Tribunal/ Authority. The concerned Tribunal/ Authority to decide the same by giving an opportunity to all the concerned, in accordance with law at the earliest and preferably within four weeks.

10.

Interim order so granted by this Court, as recorded above, has been in force till this date. Therefore, to avoid complications, we are inclined to continue the same for a period of four weeks, within which time, it is expected that, subject to parties co-operation, the Tribunal/ Authority shall decide the issue in accordance with law.

11.

The petition is accordingly disposed of, with liberty so expressed. No costs.

C. V. BHADANG, J.

ANOOP V. MOHTA, J.

SMA