As per case facts, a complaint alleged financial irregularities and election non-compliance against the Managing Committee, leading to their removal and disqualification. This disqualification was affirmed on appeal. Despite this, ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15682 OF 2023
Kanika Dang, Age 50 years,
Flat No.401, Bhagtani Heights CHSL.,
Yari Road, Versova, Andheri West,
Mumbai 400 061 … Petitioner
Vs.
1.Divisional Joint Registrar, Mumbai
6th Floor, Malhotra House,
Opposite GPO, Mumbai 400 001
2.Laxmi Nagrath,
16th Floor, Bhagtani Heights CHSL.,
Panch Marg, Versova, Andheri West,
Mumbai 400 051 … Respondents
WITH
WRIT PETITION (ST.) NO.4264 OF 2026
Kanika Dang, Age 57 years,
Flat No.401, Bhagtani Heights CHSL.,
Yari Road, Versova, Andheri West,
Mumbai 400 061 … Petitioner
Vs.
1.The State of Maharashtra,
through the Hon’ble Minister,
Cooperation, Marketing & Textile
Department, Hutatma Rajguru Chowk,
Madam Cama Marg, Mantralaya,
Mumbai 400 032
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.05.05
11:29:47 +0530
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2.Divisional Joint Registrar, Cooperative
Societies, Mumbai Division, Mumbai,
6th Floor, Malhotra House,
Opposite GPO, Mumbai 400 001
3.Deputy Registrar of Cooperative
Societies, K/West Division, Mumbai,
Gruha Nirman Bhavan, Ground Floor,
Room No.69A, MHADA Building,
Bandra (East), Mumbai 400 051
4.Chairman/Secretary of Bhagtani
Heights, Yari Road, Versova,
Andheri (West), Mumbai 400 063
5.Laxmi Nagrath,
Age Adult, Flat No.1601/1602,
16th Floor, Bhagtani Heights CHSL.,
Panch Marg, Versova, Andheri West,
Mumbai 400 061 … Respondents
Mr. Girish S. Godbole, Senior Advocate with Mr. Aditya
Joshi and Ms. Niharika Chandurkar for the petitioner.
Mr. Y.D. Patil, AGP for respondent No.1-State.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 29, 2026.
PRONOUNCED ON:MAY 5, 2026
JUDGMENT:
1.In view of the fact that both these writ petitions involve
identical questions of law as well as substantially similar factual
background, it is considered appropriate to decide and dispose of
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both the petitions by this common judgment.
2.By Writ Petition No.15682 of 2023, instituted under Articles
226 and 227 of the Constitution of India, the petitioner has called
in question the legality and propriety of the stay order dated 28
March 2023 passed by respondent No.1 in Appeal No.90 of 2023.
The petitioner has further prayed for setting aside the selection of
respondent No.2 as an elected member, as reflected in the Minutes
of Meeting dated 23 April 2023, and for a declaration that
respondent No.2 was ineligible to contest and be elected to the
Managing Committee. By Writ Petition No.4264 of 2026, also filed
under Articles 226 and 227 of the Constitution of India, the
petitioner has impugned the order dated 12 July 2023 passed by
respondent No.1 in Revision Application No.264 of 2023 under
Section 154 of the Maharashtra Cooperative Societies Act, 1960,
whereby the said revision application preferred by respondent
No.4 came to be allowed, resulting in quashing and setting aside of
the order dated 3 February 2022 passed by respondent No.2, as
well as the order dated 13 September 2021 passed by respondent
No.3.
3.For the sake of convenience, the parties shall hereinafter be
referred to as per their description in Writ Petition No.4264 of
2026.
4.The factual matrix, as set out by the petitioner and forming
the basis of the present proceedings, indicates that a complaint
was lodged before respondent No.3 on 12 July 2021. By the said
complaint, the petitioner sought removal of the Managing
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Committee of Bhagtani Heights CHSL on the ground that elections
were not conducted in accordance with the directives issued by the
State Cooperative Election Authority. It was further alleged that
the members of the Managing Committee had indulged in serious
financial irregularities and had acted in a manner prejudicial to the
interest of the Society and its members, thereby warranting their
removal and disqualification. Upon receipt of the said complaint,
the Society submitted its written response on 17 August 2021,
contending that the allegations made in the complaint were devoid
of merit and substance. It was asserted that the Managing
Committee was functioning strictly in accordance with the
applicable statutory provisions, rules, and bye-laws governing the
Society. After considering the material on record, respondent No.3,
by order dated 13 September 2021 passed under Section 78A(1)
(b) of the Maharashtra Cooperative Societies Act, 1960, proceeded
to remove the members of the Managing Committee and further
declared them disqualified from being members of the Society for
a period of five years.
5.Being aggrieved by the aforesaid order dated 13 September
2021, the Society along with respondent No.5 preferred Appeal
No.296 of 2021 before respondent No.2 on 4 October 2021, along
with an application seeking interim relief by way of stay. The
appeal sought quashing and setting aside of the order of
disqualification. The said appeal was admitted; however, the
application for stay was rejected by order dated 14 October 2021.
Thereafter, by a reasoned order dated 3 February 2022, respondent
No.2 dismissed Appeal No.296 of 2021 and affirmed the order
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dated 13 September 2021 passed by respondent No.3.
6.It is the case of the petitioner that during the period between
7 April 2022 and 28 March 2023, various stages of the election
process were undertaken, including publication of the election
programme and voters’ lists. In all such lists, respondent No.5 was
shown as a debarred member. Respondent No.5 raised objections
seeking deletion of her name from the category of disqualified
members. Despite such status, on 23 March 2023, respondent No.5
submitted her nomination form for contesting the election to the
Managing Committee for the term 2023-2024 to 2027-2028. The
petitioner lodged objections to the acceptance of the said
nomination.
7.Thereafter, respondent No.5 instituted Appeal No.90 of 2023
before respondent No.2 on 27 March 2023, purporting to
challenge the order of disqualification. In doing so, respondent
No.5 incorrectly referred to the date of the impugned order as 23
September 2021 instead of 13 September 2021, and did not
disclose that the earlier Appeal No.296 of 2021 had already been
dismissed on 3 February 2022, thereby affirming the
disqualification order. According to the petitioner, this amounted
to suppression of material facts. In the said Appeal No.90 of 2023,
respondent No.5 also moved an application seeking interim relief.
By order dated 28 March 2023, respondent No.2 granted an ad-
interim stay in terms of prayer clause (b), thereby staying the
operation of the order dated 13 September 2021, though it was
incorrectly described as the order dated 23 September 2021. The
petitioner contends that such interim protection was granted
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without consideration of the fact that the earlier appeal had
already been dismissed, and the disqualification order stood
confirmed.
8.On the same day, namely, 28 March 2023, the Returning
Officer rejected the nomination of respondent No.5 on the ground
that she stood disqualified by virtue of the order dated 13
September 2021 passed under Section 78A(1)(b) of the
Maharashtra Cooperative Societies Act, 1960. Aggrieved thereby,
respondent No.5 preferred Appeal No.49 of 2023 under Section
152A of the said Act before respondent No.3 on 29 March 2023.
9.By order dated 31 March 2023, respondent No.3 allowed
Appeal No.49 of 2023 and accepted the nomination of respondent
No.5. It appears that this decision was rendered solely on the basis
of the interim stay granted on 28 March 2023 in Appeal No.90 of
2023, without independently examining the legality or correctness
of the disqualification.
10.The petitioner thereafter filed an intervention application in
Appeal No.90 of 2023 before respondent No.2 on 10 April 2023,
seeking to be impleaded as a party respondent in the said
proceedings. In the meantime, as reflected in the Minutes of
Meeting dated 16 April 2023 and 23 April 2023, respondent No.2
came to be elected as a member of the Managing Committee and
was also entrusted with the charge of the office of Secretary.
Subsequently, respondent No.5 filed Revision Application before
respondent No.1 on 24 April 2023, challenging the order dated 3
February 2022 whereby Appeal No.296 of 2021 had been
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dismissed. Around the same time, the petitioner submitted written
arguments in Appeal No.90 of 2023 on 26 April 2023, pointing out
that respondent No.5 had suppressed material facts and seeking
impleadment as a necessary party.
11.The said Revision Application No.264 of 2023 came to be
allowed by respondent No.1 by order dated 12 July 2023. By the
said order, both the order dated 3 February 2022 passed by
respondent No.2 and the order dated 13 September 2021 passed
by respondent No.3 were quashed and set aside.
12.Being aggrieved by the order dated 28 March 2023 granting
interim stay, as well as the consequential order dated 31 March
2023 allowing Appeal No.49 of 2023, the petitioner instituted Writ
Petition No.15682 of 2023 on 12 August 2023. The grievance
raised therein was that the said orders were obtained by
suppression of material facts and constituted an abuse of the
process of law. However, at that stage, the petitioner did not
challenge the subsequent order dated 12 July 2023 passed in
revision, allegedly due to lack of proper legal advice.
13.By judgment and order dated 11 September 2025, this Court
dismissed Writ Petition No.15682 of 2023 on the ground that it
had become infructuous, proceeding on an understanding that the
dispute pertained only to rejection of nomination papers. The
petitioner has thereafter initiated review proceedings by filing
Review Petition (St.) No.41010 of 2025 seeking recall of the said
judgment. In these circumstances, the present two writ petitions
have been filed.
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14.Mr. Godbole, learned Senior Advocate appearing for the
petitioner submitted that respondent No.5 had been disqualified
from continuing as a member of the Managing Committee for a
period of five years by order dated 13 September 2021. It was
urged that the said order of disqualification was carried in Appeal
No.296 of 2021 by respondent No.5 along with other members of
the Managing Committee, which appeal came to be dismissed by
judgment and order dated 3 February 2022, thereby affirming and
confirming the disqualification. It was further submitted that,
thereafter, by order dated 20 March 2023, the nomination paper of
respondent No.5 came to be rejected on account of the subsisting
disqualification. However, respondent No.5, on 28 March 2023,
preferred Appeal No.90 of 2023 under Section 152 of the
Maharashtra Cooperative Societies Act, 1960, without disclosing
the factum of dismissal of the earlier Appeal No.296 of 2021. It
was contended that on the very same day, respondent No.2 passed
an ex parte order granting stay to the operation of the
disqualification order dated 13 September 2021. It was further
pointed out that on 29 March 2023, respondent No.5 instituted
Appeal No.49 of 2023 under Section 152A of the said Act,
challenging the rejection of her nomination paper, and by order
dated 31 March 2023, the said appeal came to be allowed, thereby
permitting her nomination. As a consequence thereof, the entire
Managing Committee came to be declared elected unopposed.
15.Learned Senior Advocate further submitted that the
aforesaid sequence of events clearly demonstrates an abuse of the
process of law and amounts to fraud upon the statutory
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authorities. It was urged that once the disqualification had
attained finality upon dismissal of Appeal No.296 of 2021,
respondent No.5 could not have been permitted to reagitate the
same issue by filing another appeal, that too by suppressing
material facts. It was contended that the interim relief obtained in
such proceedings was vitiated by such suppression. It was further
submitted that any act of obtaining an order by concealment of
material facts amounts to fraud on the Court, and a party guilty of
such conduct cannot be permitted to retain the benefit derived
therefrom. On this premise, it was urged that the declaration of
respondent No.5 as an elected member of the Society deserves to
be quashed and set aside.
16.In support of the aforesaid submissions, reliance was placed
on the judgment of the Supreme Court in the case of
K.
Prabhakaran v. P. Jayarajan
,
(2005) 1 SCC 754, to contend that the
eligibility of a candidate is required to be assessed with reference
to the date of scrutiny of the nomination papers. It was submitted
that in the present case, on the date of scrutiny, namely 28 March
2023, the order granting stay to the disqualification had not yet
been passed, and therefore, respondent No.5 continued to remain
disqualified on that date.
17.Further reliance was placed on the judgment of the Supreme
Court in the case of
Ramchandra Ganpat Shinde v. State of
Maharashtra
, (1993) 4 SCC 216, to submit that where the very
foundation of an order is tainted by fraud, the beneficiary of such
order cannot be permitted to retain any advantage flowing
therefrom. It was contended that any order obtained by fraud is
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liable to be treated as non est in the eye of law.
18.In so far as Writ Petition No.4264 of 2026 is concerned, it
was submitted that although the petitioner has challenged the
order dated 12 July 2023 at a belated stage, the revision
application itself was filed beyond the prescribed period of
limitation of sixty days. It was urged that without any order
condoning the delay, respondent No.1 proceeded to entertain and
allow the revision application and passed the impugned order
dated 12 July 2023. According to the learned Senior Advocate,
such an order is rendered without jurisdiction. It was further
submitted that when an order is without jurisdiction, the question
of delay or laches in approaching this Court assumes lesser
significance, particularly when sustaining such order would result
in perpetuating a fraud allegedly committed by respondent No.5
upon the statutory authorities. On these grounds, it was prayed
that the impugned order be set aside.
19.Respondent No.5 has tendered written submissions
controverting the allegations made against her. It was contended
that the allegations pertain to the period from 2015 to 2020,
during which respondent No.5 was not a member of the Managing
Committee and had no role in the affairs of the Society. It was
further submitted that her name came to be proposed for co-option
to the Managing Committee only in March 2021 pursuant to a
resolution of the Society. On this basis, it was urged that she had
no connection with the alleged irregularities for the relevant
period. It was therefore contended that the present writ petitions,
in so far as they concern respondent No.5, do not disclose any
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cause of action against her, and hence, are liable to be dismissed.
REASONS AND ANALYSIS:
20.I have given my anxious consideration to the rival
submissions. The matter involves question whether respondent
No.5, after having suffered an order of disqualification dated 13
September 2021 and after losing Appeal No.296 of 2021, could
again move a fresh appeal by concealing the earlier final
adjudication, obtain an ex parte stay on 28 March 2023, secure
acceptance of her nomination, and thereafter sustain an election
result which was brought about on the basis of such stay. On the
total material before this Court, the answer must be in the
negative.
21.The sequence of events is of great importance. The order
dated 13 September 2021 was passed under Section 78A(1)(b) of
the Maharashtra Cooperative Societies Act, 1960. That order
removed the Managing Committee members and declared them
disqualified for a period of five years. The said order was
challenged in Appeal No.296 of 2021. That appeal was rejected on
3 February 2022. The result was that the disqualification attained
finality. The conduct of respondent No.5 in filing Appeal No.90 of
2023 on 28 March 2023 goes to the root of the matter and creates
serious doubt about the fairness of entire proceedings. The appeal
was filed by suppressing material fact. The fact that Appeal No.296
of 2021 had already been dismissed on 3 February 2022 was not
disclosed. This suppression affects the rights of the parties. In law,
such suppression is material because it affects the decision-making
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process. The maintainability of the second appeal itself was
dependent on the earlier dismissal. The request for stay also could
not have been considered without knowledge of that earlier order.
A litigant approaching any judicial or quasi judicial authority is
expected to disclose all relevant facts. This obligation is an
essential condition for obtaining discretionary relief. If a party
withholds a prior order, then such party cannot later contend that
the relief granted should be treated as binding as if everything was
placed before the authority.
22.The order dated 28 March 2023 granting stay to the
disqualification order therefore based on suppression of material
fact. An order obtained by suppression of material fact is non est.
A person cannot derive advantage from a process which is built on
concealment. The circumstances in which it was obtained make it
unsustainable.
23.The subsequent conduct further strengthens this conclusion.
On 29 March 2023, respondent No.5 filed Appeal No.49 of 2023
challenging rejection of her nomination paper. That rejection had
been made by the Returning Officer because on the date of
scrutiny she stood disqualified. This action of the Returning Officer
appears to be in accordance with settled legal position. It is now
well settled that eligibility of a candidate must be seen on the date
of scrutiny of nomination. This principle is well recognised in view
decision in
K. Prabhakaran. On 28 March 2023, when the
nomination was examined, the disqualification order was in force.
The stay order, even if passed on the same day, no material is
placed on record to show that order of stay was passed prior to
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actual scrutiny. Therefore, at the time of scrutiny, respondent No.5
remained ineligible. The rejection of nomination was thus justified.
Even if it is assumed that the order dated 31 March 2023 allowing
Appeal No.49 of 2023 and accepting the nomination was a
consequence of the earlier stay. If the stay order is found non est
and void, the subsequent order accepting nomination cannot stand
on its own.
24.The submission advanced on behalf of respondent No.5 that
the election process had progressed and that her nomination was
accepted pursuant to the stay order does not assist her case. The
law does not recognise benefit obtained through concealment. The
principle laid down in
Ramchandra Ganpat Shinde makes this
position clear. If the foundation of an order is affected by fraud,
collusion or material suppression, then the benefit flowing from
such order cannot be retained. It is not open to argue that once an
interim order is passed and acted upon, the situation becomes
irreversible. Courts do not accept such argument because it would
encourage misuse of process. Fraud cannot be allowed to be
converted into a legal right. If such reasoning is accepted, then any
party can obtain an order by suppressing facts and then claim
protection on the ground that subsequent steps have taken place.
That would defeat the purpose of justice. Therefore, the benefit
claimed by respondent No.5 cannot be protected.
25.In this background, the submission of the petitioner that the
declaration of respondent No.5 as elected member deserves to be
set aside appears to be justified. The election in question cannot be
said to be result of a fair process. Approval cannot be granted to
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such a process. The equitable consideration also does not favour
respondent No.5. She had already faced an adverse order which
had attained finality. It cannot be accepted that she was unaware
of dismissal of earlier appeal. In spite of that, a second appeal was
filed without disclosure. Such conduct amounts to abuse of legal
process. The nomination paper therefore becomes incomplete.
26.The challenge to the order dated 12 July 2023 passed in
Revision Application No.264 of 2023 raises a issue touching the
authority of the revisional forum to entertain the proceedings at
all. It is not in dispute that the revision application was filed
beyond the prescribed period of limitation of sixty days. When a
statute prescribes a time limit, it expects adherence unless delay is
explained and condoned. In the present case, there is no material
to show that any application for condonation of delay was
allowed. The revisional authority appears to have proceeded to
decide the matter on merits without addressing the question of
limitation. If the proceeding itself is time-barred, the authority
cannot assume jurisdiction. Once this foundational defect exists,
the exercise of power becomes without jurisdiction. The orders
dated 3 February 2022 and 13 September 2021 had already
attained finality. They could not have been reopened in a revision
which was not maintainable. Jurisdiction flows from the statute. If
the statute does not permit exercise of power, the authority cannot
act because it considers it appropriate. Therefore, the order dated
12 July 2023, having been passed without jurisdiction, cannot be
allowed to stand merely because it has been acted upon thereafter.
An act done without jurisdiction remains void, irrespective of
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subsequent developments.
27.The issue regarding delay in filing the writ petitions also
does not persuade this Court to decline relief. The principle of
delay and laches is based on equity. Where the impugned action is
shown to be without jurisdiction and obtained by suppression, the
Court is not bound to refuse interference merely because some
time has elapsed. The nature of illegality becomes relevant. If the
order is void, allowing it to continue would result in perpetuation
of illegality. In matters concerning election to managing committee
of a cooperative society, such continuation would affect the rights
of members of the society. Therefore, the passage of time cannot
validate an order which is otherwise void. In the present case,
considering the manner in which the orders were obtained, this
Court is of the view that they cannot be allowed to stand.
28.The defence raised on behalf of respondent No.5, that the
allegations pertain to a period when she was not a member of the
Managing Committee, does not carry the matter further. The
controversy before this Court is not confined only to the alleged
irregularities of the earlier period. The question is whether
respondent No.5, who stood disqualified by a valid order, could
lawfully re-enter the election process by adopting a course which
involved suppression of material facts and obtaining interim
protection. The focus, therefore, shifts from past conduct to the
legality of subsequent steps. Even assuming that respondent No.5
had no role in earlier irregularities, that circumstance does not
cure the defects in the manner in which the later appeal was filed
and prosecuted. The record clearly shows that the earlier dismissal
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of Appeal No.296 of 2021 was not disclosed, that an ex parte stay
was obtained on suppression of facts, and that such stay became
the sole basis for acceptance of nomination and participation in the
election. These facts stand established. They are sufficient to
vitiate the entire process.
29.The purpose of an election is to secure a lawful
representation. If the process itself is distorted by an order
obtained through suppression or by acting beyond jurisdiction,
then the Court cannot remain a silent spectator. The constitutional
power under Articles 226 and 227 exists precisely to correct such
situations. If the Court declines to interfere in such a case, it would
indirectly validate a process which is contrary to law. That would
defeat the object of judicial review. The Court is not expected to
protect a result which is the outcome of fraud. Therefore, in a case
where the election is founded upon an order which is based on
fraud, interference becomes not only permissible but necessary.
30.For these reasons, this Court is satisfied that respondent No.5
was not entitled to the benefit of the stay order dated 28 March
2023. The nomination accepted on the strength of that stay, and
the consequence flowing therefrom, cannot be sustained. Likewise,
the revisional order dated 12 July 2023, having been passed in
proceedings which were time-barred and without jurisdiction,
cannot be allowed to stand. The overall assessment of the matter
leaves no doubt that the petitioner has made out a case for
interference.
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31.In the result, the following order is passed:
(i) Writ Petition No.15682 of 2023 is allowed;
(ii) Writ Petition No.4264 of 2026 is also allowed;
(iii) The order dated 28 March 2023 passed in Appeal
No.90 of 2023 is quashed and set aside;
(iv) The order dated 31 March 2023 passed in Appeal
No.49 of 2023 is quashed and set aside;
(v) The order dated 12 July 2023 passed in Revision
Application No.264 of 2023 is quashed and set aside;
(vi) The declaration of respondent No.5 as elected member
of the Managing Committee, being founded on the aforesaid
orders, is set aside;
(vii) Rule is made absolute in the above terms. No order as
to costs.
(AMIT BORKAR, J.)
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