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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.4523 OF 2008.
PETITIONER: Shri Dilip s/o Devaji Yenorkar,
aged 38 years, Occu: Nil, r/o
Rajguru Ward, Bhandara.
-VERSUS -
RESPONDENTS: 1. The Divisional Joint Registrar,
Co-operative Societies, Nagpur.
2. The Assistant Regisgtrar, Coopertive
Societies, Bhandara.
3. Shri H.D.Kuhikar, Offixer Grade-II,
Administrator, Hindustan Nagari
Sahakari Pat Sanstha Ltd., Bhadara.
4. Hindustan Nagari Sahakari Pat
Sanstha Ltd., Bhandara, through its
Manager.
5. Shri Rambhau s/o Tukaram Sakharkar,
aged about 57 years, Occu: Agrist.
R/o Santaji Ward, Bhandara.
6. Smt.Sushilabai w/o Shamraoji Pahune,
aged about 66 years, Occu: Agrist.
R/o Shivaji Ward, Bhandara.
7. Shri Shantaram s/o Gangaram Nagpure
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aged about 61 years, Occu: Business,
R/o Rajgopalachari Ward, Bhandara.
8. Shri Shamrao s/o Tukaram Bhongade,
aged about 63 years, Occu: Agrist.
r/o Baba Nagar, Bhandara.
9. Shri Madhukar s/o Kisanji Mendhe,
aged about 66 years, Occu: Retired,
R/o Shivaji Ward, Bhandara.
10. Shri Kundalik s/o Ganesh Barai,
aged about 46 years, Occu: Business,
R/o Shivaji Ward, Bhandara.
11. Shri Gajanan s/o Mahadeo Badwaik,
aged about 41 years, Occu: Business,
R/o Suyog Nagar, Bhandara.
12. Shri Waman Pandurang Madankar,
aged about 41 years, Occu: Business,
r/o Suyog Nagar, Bhandara.
13. Shri Avinash Pandurang Dalal,
aged about 58 years, Occu: Business,
R/o Rajgopalachari Ward, Bhandara.
14. Shri Suryabhan Chambharuji Gabhane,
aged 56 years, Occu: Nil, r/o Kranti Ward
Bhandara.
15. Sau.Vaishali w/o Vonod Sakharkar,
aged about 32 years, Occu: Nil,
R/o Shivaji Ward, Bhandara.
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16. Shri Rajiumar Tukaramji Sakharkar,
aged about 42 years, Occu: Agrist.
R/o Shivaji Ward, Bhandara.
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Mr.R.L.Khapre, Adv. for the petitioner.
Mr. P.S.Tidke Adv. for respondent no.5.
Mr.T.A.Mirza,AGP for respondent nos.1 and 2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Coram: C.L.PANGARKARJ.
Dated : 5th MAY, 2009.
ORAL JUDGMENT:
1. Rule. Rule is made returnable forthwith. Heard
finally with consent of the parties.
2. This writ petition is preferred against the order
passed by the Divisional Joint Registrar, Cooperative
Societies, Nagpur, whereby he allowed the appeal preferred
by respondent nos.5 to 16.
3. The facts giving rise to this petition are as follows –
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The petitioner is the member of the society known
as Hindustahan Nagari Sahakari Pat Sanstha Ltd. Bhandara.
Respondents nos.5 to 16 are the Board of Directors of the
Cooperative Society. The said Society is registered. The
petitioner, who is the member of the said Society noticed
certain irregularities committed by respondents no.5 to 16.
Therefore, he made complaint to the Assistant Registrar of
Cooperative Society, Bhandara. The Assistant Registrar
Cooperative Societies accordingly appointed Shri R.N.Vasu
to submit enquiry report. Said Vasu conducted an enquiry
and submitted report on 9/2/2007 in which he found many
irregularities. The Enquiry Officer also found that the
respondent nos.5 to 16 have not furnished a bond as
contemplated by Section 73 of the Maharashtra Cooperative
Societies Act. In pursuance to the said report, respondent
no.2 i.e. the Assistant Registrar issued a notice to
respondents no.5 to 16 calling their explanation. They
submitted their explanation. After considering the
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explanation as well as the complaint and after giving
opportunities to the parties, respondent no.2 passed
an order under Section 78(1) of the Maharashtra
Cooperative Societies Act superseding the Committee of
respondents no.5 to 16 and appointing an administrator.
The said order was challenged before the Divisional Joint
Registrar by respondents no.5 to 16 under Section 152 of
the M.C.S. Act by way of appeal.
4. The Joint registrar disagreeing with the finding of
the Assistant Registrar allowed the appeal and quashed the
order and being aggrieved by that, this writ petition has
been preferred.
5. I have heard the learned counsel for the petitioner
and the respondents.
6. The foremost contention that is raised by the
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learned counsel for the respondents is that the writ petition
in the instant case is not maintainable since an efficacious
remedy is available under Section 154 of the Maharashtra
Cooperative Societies Act by way of revision. Shri Tidke
learned counsel for the respondents submits that the
Assistant Registrar passed an order under Section 78 of the
Act and the petitioner had preferred an appeal under
Section 152 of the Act before the Joint Registrar. He submits
that as against an order of the Joint Registrar, a revision lies
under section 154 (2) of the Act. Section 154 reads as
follows –
“154(2) – Under this Section, the revision
shall lie to the State Government if thedecision or order is passed by the Registrar,
the Additional Registrar or a Joint Registrar,
and to the Registrar if passed by any otherofficer.”
7. It is clear from the Section that a revision could be
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filed before the Government against the order of the Joint
Registrar. Shri Khapre, learned counsel for the petitioner
submits that even if a remedy by way of revision may be
available that does not necessarily bar a writ petition. He
contends that when order passed is patently illegal and
without jurisdiction, a writ petition does lie. He contends
that an appeal to the Joint Registrar could lie only as against
the order under section 78 of the Act and the Assistant
Registrar had also passed an order under Section 73(1AB) of
the Act which is not an order under Section 78 and
therefore, the Joint Registrar could not have entertained an
appeal as against that part of the order. It is clear from
Section 152 that an appeal against order under Section
73(1AB) is not provided under Section 152. Learned
counsel for the petitioner submits that Joint Registrar
therefore had no jurisdiction to set aside the order under
section 73(1AB) while entertaining an appeal under section
152. I do not find substance in the contention. Section
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73(1AB) reads as follows –
“73(1AB) The members of the Committee shall
be jointly and severally responsible for all thedecisions taken by the committee during its
term relating to the business of the society.
The members of the committee shall be jointly
and severally resp0onsible for all the acts andomissions detrimental to the interest of the
society. Every such member shall execute abond to that effect within fifteen days of his
assuming the office, in the form as specified bythe State Government by general or special
order. The member who fails to execute suchbond within the specified period shall be
deemed to have vacated his office as amember of the Committee.
8. The section says that where the elected members
fail to furnish bond within fifteen days of assuming the
office, they shall be deemed to have vacated the office. It is
by deeming fiction that the member looses his office and
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right to hold it. In fact, no order of such vacation as such
would be necessary. By operation of law they cease to hold
such office. The office of the member, therefore, falls
vacant on 16th day upon failure to execute the bond. There
is, however, no doubt that the Assistant Registrar will have
to verify the position as to whether such bond was
executed and furnished or not within stipulated time to take
further necessary steps. Such verification would all the
more be necessary to confirm that the office has fallen
vacant. In the instant case, none of the members had
furnished bond and as such office had fallen vacant. This
fact that the respondent had failed to execute the bond
came to the notice of the Registrar only after he took
inspection. He could not have, therefore, taken any action
under Section 78 unless it was confirmed that the bonds
were not furnished within the stipulated time. After it
comes to the knowledge of the Registrar that the said post
of the member has fallen vacant and the member ceases to
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hold office, the Registrar can then alone proceed under
Section 78 of the Act. Beside Section 78 of the Act, there is
no other provision in the Act to take care of contingencies
where all members of the Committee are deemed to have
vacated the office. Section 78 says that when a member of
the committee has ceased to discharge his function or
when such member stands disqualified, the Registrar is to
remove them and appoint another committee and
administrator. Thus, whenever a disqualification occurs
under Section 73(1AB), the Registrar would no doubt be
required to take steps under Section 78 of the Act. There
is, therefore, to my mind only one order under Section 78
after the deemed vacation of the office. There is no
separate order under Section 73(1AB) and no separate
order under the said Section is contemplated. The
Registrar had, therefore, necessarily passed an order under
Section 78 only. Consequently an appeal under Section
152 was rightly entertained by the Registrar. I have
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already pointed out that the revision against an order of the
Joint Registrar can be filed before the Government.
9. This takes me to the contention whether the writ
petition should, therefore, be entertained or not.
According to Shri Khapre, learned counsel for the petitioner,
since part of the order of Joint Registrar is without
jurisdiction, the writ petition is maintainable. The foregoing
discussions would show that there is only one order under
Section 78 and no order under Section 73(1AB) of the Act
and I have also found that the appeal was rightly
entertained by the Joint Registrar. The order passed by him
is, therefore, not without jurisdiction. Mr. Khapre relied on
the decision of the Supreme Court reported in Supreme
Court Service Rulings (Vo.2), 129 Dr.(Smt.) Kuntesh
Gupta .vs.. MGT of Hindu Kanya Mahavidyalaya) and AIR
1999 SC 22 (Whirlpool Corporation ..vs.. Registrar of Trade
Marks, Mumbai). These decisions have no bearing on the
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case at hand as the order is not one without jurisdiction.
Similarly in a decision reported in 2003(2) SCC
107(Harbanslal Sahnia and anr. ..vs.. Indial Oil
Corpn. Ltd. And ors.), the Supreme Courts holds that the
High Court may entertain the writ petition in three
contingencies. (i) Where the writ petition seeks
enforcement of any of the fundamental rights; (ii) where
there is failure of principles of natural justice; or (iii) where
orders or proceedings are wholly without jurisdiction or the
where virus of an Act is challenged. None of the above
contingencies exists in the case at hand.
10. Shri Khapre, learned counsel for the petitioner,
contends before me that the revision under Section 154 of
the Act is not an adequate remedy. He contends that if
Section 154 is read, it would be clear that the Government
may or may not entertain a revision. I am unable to agree
to the submission. Revisional power can be exercised by
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the State of its own motion or upon an application and it
can decide the legality and propriety of the decision under
challenge. Shri Khapre had relied upon a decision of this
court reported in 1999 (3) Mh.L.J. 982 (Balasaheb
Kondiram Pawar ..vs.. State of Mah.). The court
observes as follows –
5. It is, therefore, clear that the party
cannot claim as a matter of right to movethe Government for revision of the
impugned orders. If that is so, section
154 cannot be called as an alternativeand efficacious remedy. The Supreme
Court has indeed, a very succinctly
described section 154 being potential but
not compulsive. This power is reposed inGovernment to intervene to do justice
when occasion demands it and of the
occasion for its exercise, the Governmentis made the sole Judge. According to me,
therefore, the present writ petition is
maintainable.”
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The very same learned judge while dealing with the
provisions of Section 152 and 154 of the act observes as
follows in another decision reported in 1999(1) Mh.L.J.
619 (Prabhu Shriram Sahakari Dudh Vyawasaik
Sanstha Maryadit, Ahmednagar ..vs.. State of
Maharashtra ).
“4. ……… The orders passed by the
Registrar under Section 9 of the Act to
register or not to register a co-operative
society are challengable under Section152 of the Act by filing an appeal.
Section 152 provides for appeals
against the orders or decisions underSections 4,9 etc. (we are concerned with
these two sections). Full-fledged
appellate authoritiesd are prescribed
and they are armed with the regularpowers of appellate forums. A complete
hierarchy is also given under the said
Section. The decisions or orders or::: Downloaded on – 09/06/2013 14:34:44 :::
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subject to the provisions for revision inthe Act. Similarly, section 154 has
vested the State Government with therevisionary powers. Even in this
section, minute hierarchy is created
with the powers.”
11.
Upon going through the section itself, it is clear
that an adequate remedy by way of revision is available.
The authority i.e. The State can certainly go into the
question of legality and propriety of the order under
challenge. I do not find upon going through the scope of
Section 154 that the remedy provided is in any way
inadequate. The supreme Court in a recent decision
reported in (2006)5 SCC 469 (A.P.Foods ..vs..
S.Samuel and ors.) observes as follows –
6. In a catena of decisions it has been held
that a writ petition under Article 226 of the
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Constitution of India should not be
entertained when the statutory remedy is
available under the Act, unless exceptional
circumstances are made out.
12. A bare reading of Section 22 of the Act
makes the position clear that where the
dispute arises between an employer and
employees with respect to the bonus
payable under the Act or with respect to the
application of the Act in public sector then
such dispute shall be deemed to be an
industrial dispute jwithin the meaning of the
ID Act.
13. As disputed questions of fact were
involved, and alternative remedy is
available under the ID Act, the High Court
should not have entertained the writ
petition, and should have directed the writ
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petitioners to avail the statutory remedy.”
12. Thus, the clear ratio is that the court should not
entertain when statutory remedy is available We have
seen that the revision does lie to the State Government
against the order of Joint Registrar.
ig The remedy is both
adequate and efficacious. When a particular forum is
provided that remedy must be availed. The restraint has
to be observed or else the High Court would be flooded with
litigation and the very purpose of creating alternate forum
would be defeated. That has to be avoided and the forum
created under the Act must be left to deal with the
disputes. Therefore, I do not find that the writ petition can
be entertained. Same is dismissed.
JUDGE.
chute
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