Bombay High Court
Sadashivrao Mandalik Kagal Taluka vs Regional Jt. Director (Sugar on 3 May, 2012
Author: Chief Justice
Bench: Mohit S. Shah, N.M. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1800 OF 2012
Sadashivrao Mandalik Kagal Taluka
Sahakari Sakhar Karkhana Ltd.
Hamidwada-Kaulge, Taluka Kagal,
Distruct- Kolhapur. ... Petitioner
Versus
1. Regional Jt. Director (Sugar),
Kolhapur Region, Kolhapur and others ... Respondents
ALONGWITH
WRIT PETITION NO. 1801 OF 2012
Sadashivrao Mandalik Kagal Taluka
Sahakari Sakhar Karkhana Ltd.
Hamidwada-Kaulge, Taluka Kagal,
Distruct- Kolhapur ... Petitioner
Versus
1. Regional Jt. Director (Sugar),
Kolhapur Region, Kolhapur and others. ... Respondents
ALONGWITH
WRIT PETITION NO. 1802 OF 2012
Methe Vijay Jyoti and others. ... Petitioners
Versus
1. Regional Jt. Director (Sugar),
Kolhapur Region, Kolhapur and others. ...Respondents
ALONGWITH
WRIT PETITION NO. 1803 OF 2012
1. Jadhav Amol Ramkrishna and others. ... Petitioners
Versus
1. Regional Jt. Director (Sugar),
Kolhapur Region, Kolhapur and others. ... Respondents
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Mr. Amit Borkar for the petitioner.
Mr. S.S.Patwardhar with Mr.V.B. Rajure for the respondents.
Ms. P.S. Cardozo, Assistant Government Pleader for State.
CORAM : MOHIT S. SHAH, C.J. &
N.M. JAMDAR, J.
JUDGMENT RESERVED ON : 25 APRIL 2012
JUDGMENT PRONOUNCED ON : 03 MAY 2012
JUDGMENT (Per Chief Justice)
These petitions have been placed before us to decide reference made by learned Judge of this Court (Coram : G.S.Godbole, J.) in respect of the provision relating to hearing of appeals by the by the Secretary in the Co-operation Department of State of Maharashtra under section 152 of the Maharashtra Co-operative Societies Act, 1960 (the MCS Act).
2. The petitions filed before the learned Judge arose from orders passed by the Regional Joint Director (Sugar) and Joint Registrar, Co- operative Societies in proceedings under Section 11 read with Section 25A of the MCS Act. All the petitioners had filed statutory appeals under section 152 of the MCS Act before the State Government. The Secretary issued notices to the petitioners to appear before him in respect of hearing of the appeals. This action of the Secretary was questioned in the petitions. During the hearing of the petitions before the learned Judge (Coram : G.S.Godbole, J.), reliance was placed on judgment of another learned Judge (Coram : R.M.S. Khandeparkar, J.) in the case of Shri Ravindra V. Gaikwad v. The State of Maharashtra and others1 to contend 1 2002(2) All MR 489 SRK 2 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 3 wp-1800-12 that the Secretary will have no power to hear the appeals under section 152 of the Cooperative Societies Act. Reliance was placed, in particular, on the following observations:-
"The contention that in view of the rule 105 of the said rules, exercise of appellate jurisdiction by the Secretary cannot be found fault with, is devoid of substance. It is well established that the rules framed under the Act cannot override the statutory provisions in the Act. When the statute specifically provides that the appeals lie to the State Government, they are necessarily to be heard and decided by the State Government or by the authority to which the State Government is empowered to delegate such powers under the Rules of Business considering the provisions contained in Article 166(3) of the Constitution of India. Undoubtedly, the Rules of Business and the Standing Orders framed thereunder do not empower the allocation of the said powers to the Secretary of any department. Indeed, in that regard, the observations of the Full Bench of this court are very clear in the matter of Sheikh Mohamed Fatemohamed and etc. v. Raisuddin Azimuddin Katil and others reported in AIR 2000 BOMBAY 353. No doubt, the same are in relation to the provisions contained in Hyderabad Abolition of Inams and Cash Grants Act, 1954 but, are on the similar point relating to the jurisdiction or the power of the Secretary to exercise revisional or appellate jurisdiction under the Act when the Act empowers the State Government to perform such functions. It is always to be remembered, that if the stature prescribes a procedure for doing a thing, then the thing has to be done according to that procedure and all other modes are ruled out. (Vide: Haresh Dayaram Thakur vs. State of Maharashtra and others,2 Being so, the impugned order which has been passed by the Secretary of Cooperation cannot be held to be good in law as the Secretary had no jurisdiction or authority to hear the appeal under section 152 of the said Act. On this count also, the impugned order dated 2nd August, 2001 cannot be sustained."
2 AIR 200 SC 2281 : (2000)6 SCC 179 SRK 3 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 4 wp-1800-12
3. The learned Judge (Coram : G.S.Godbole, J.) having found himself not in agreement with the view expressed by the Single Judge ((R.M.S.Khandeparkar, J.) referred the matters for constitution of the larger Bench by order dated 29 February 2012 for answering the following questions:-
(i) Whether, irrespective of the provisions contained in Rule 105 of the MCS Rules, 1961, the Secretary in the Ministry of Co-operation can be not held to have jurisdiction to entertain, hear and decide the Appeals filed under the MCS Act, 1960;
(ii) Whether the Judgment in the case of Ravindra Gaikwad (supra) lays down a correct proposition of law to the extent it holds that hearing of Appeals under Section 152 of the MCS Act, 1960 by the Secretary in the Co-operation Department was without jurisdiction."
4. Two issues arise for consideration. First, whether there is any statutory provision that empowers the Secretary to hear the appeals arising under section 152 of the MCS Act. Secondly, if there is such a provision that empowers the Secretary to hear an appeal under section 152 of the MCS Act, whether it will be bad in law because it is not in accordance with Conduct of Business Rules.
5. As far as first issue is concerned, section 152 needs to be noticed, which reads as under:-
"152. Appeals (1) An appeal against an order or decision under sections 4, 9, 11, 12, 13, 14, 17, 1, 19, 21, 21a, 29, 35, 77A, 78, 79, 88 and 105 including an order for paying compensation to a society shall lie :-
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(a) if made or sanctioned or approved by the Registrar, or the Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the State Government,
(b) if made or sanctioned by any person other than the Registrar, or the Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the Registrar, (2) Where an appeal against an order or decision to the Co-operative Appellate Court has been provided under this Act, it shall lie to the Co-operative Appellate Court.
(3) An appeal under sub-section (1) or (2) shall be filed within two months of the date of the communication of the order or decision;
(4) Save as expressly provided, no appeal shall lie against any order, decision or award passed in accordance with the provisions of the Act; and every such order, decision or award shall, whether expressly provided or not, be final, but shall always be subject to the provisions for revision in this Act, and where an appeal has been provided for, any order passed on appeal shall likewise be final, but be subject to such revision provisions."
(emphasis supplied)
6. The State of Maharashtra has framed rules, titled Maharashtra Cooperative Societies Rules, 1961 (MCS Rules). Rule 105 of the said Rules reads as under:-
"105. Constitution of authority by the State Government to hear appeals which lie to that Government. The appeals which lie to the State Government under the Act may be heard by [the Secretary, the Additional Secretary or any of the Deputy Secretaries to Government, Co-operation and Rural Development Department.]"
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The words in the bracket were inserted by way of substitution by Government Notification dated 15 December 1962.
7. Since 15 December 1962, Rule 105 thus delegates to permits the Secretary, the Additional Secretary or any of the Deputy Secretary to the Government, Cooperation and Rural Development Department to hear the appeals which lie to the State Government under the Act.
8. Neither the order making the reference nor the judgment in Shri Ravindra V. Gaikwad's case make reference to the provisions of section 165(i) (ii) and (lxxii) which read as under:-
(1) The State Government may for the whole or any part of the State and for any society or class of societies, make rules for the conduct and regulation of the business of such society or class of societies, and for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may-
(i) to (lxxi) ......................
(lxxii) prescribe in the case of appeals lying to the State Government the authority to which power of hearing appeals may be delegated;
9. A conjoint reading of Sections 152(1)(a), 165(i)(ii)(lxxii) and Rule 105 clearly shows that the Secretary/Additional Secretary/ Deputy Secretary of the Co-operation Department will have authority to hear appeals filed to the State Government under the Act. Since the State Legislature by enacting section 165(2) (lxxii) has specifically conferred power on the State Government to prescribe the authority to which power of hearing appeals, lying to the State Government, may be delegated SRK 6 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 7 wp-1800-12 and the said statutory provision was not noticed in Shri Ravindra V. Gaikwad v. State of Maharashtra and others,1 the said decision must be treated as per incurian and cannot be treated as having laid down the correct law.
10. As far as the position in respect of Rules of Business are concerned, we may refer to Article 166 which reads as under:-
"166. Conduct of business of the Government of a State.-
(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."
11. A perusal of the above provisions would show that the rules made by the Governor under clause (3) are for the more convenient transaction of the business of the State Government in the matter of all executive actions of the State Government. Article 166 is to be found in Chapter 2 of Part VI of the Constitution dealing with the State Executive. Article 154(1) provides that the executive powers of the State shall be 1 2002(2) All MR 489 SRK 7 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 8 wp-1800-12 vested in the governor and shall be exercised by him either directly or through officer subordinate to him in accordance with the Constitution. Clause (2) of Article 154 specifically provides that nothing in Article 154 prevents the Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
12. The issue in respect of rules of business vis-a-vis the appeals entertained by the State Government is no longer res-integra. A Full Bench of this Court has held in Shaikh Mohamed Fatemohamed v.
Raisuddin Azimuddin Katil and others3, that the right of appeal under the State legislation having been granted by the statute, it cannot be regulated by general power of rule making as provided under Article 166 of the Constitution, more so when Article 166 does not deal with the business of the nature of deciding quasi judicial disputes and appeals arising therefrom. The Full Bench has in terms held that the quasi judicial functions are not within the purview of Article 166, much less covered by rules of business made under Article 166(3). Thus, the rules of business will have no application to the quasi judicial disputes and appeals arising therefrom.
13. Article 246(3) provides that subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (State List). Entry 32 in List II pertains, interalia, to incorporation, regulation and winding up of Co-operative Societies. It is, thus, clear that the Maharashtra Co-operative Societies Act, 1960 is 3 AIR 2000 Bombay 353 = 2001(1) Mh.L.J. SRK 8 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 9 wp-1800-12 made by the Legislature in the State of Maharashtra in exercise of the powers conferred by Article 246(3) of the Constitution read with Entry 32 in List II (State List). Sections 152 and 165(2)(lxxii) read with Rule 105 of the MCS Rules are provisions of law conferring quasi judicial power upon authorities subordinate to the Governor.
14. The learned Judge (R.M.S. Khandeparkar, J.) held that since the Legislature never intended that the appeals to be heard by the State Government should be heard by any other authority than the concerned Minister as per Rules of Business and that since the statute prescribed a procedure for doing thing when the thing has to be done according to that procedure and other modes are ruled out. It has to be noted that the Legislature which has made such provision in section 154(4) itself has made section 165(2) (lxxii) specifically conferring the power upon to the State Government to prescribe the authority to which power of hearing appeals, which lie to the State Government, may be delegated. The power to make rules made by the State Government under section 165 is subject to the conditions that the Rules are made after previous publication and all such Rules are to be laid for at least 30 days before each House of the State Legislature as soon as possible after they are made, and shall be subject to such modification as the Legislature may make. It is, thus, clear that the State Legislature has delegated the power to specify the authority to which the appellate power of the State Government may be delegated. The State Legislature has also retained the power to make such modification in such rules of delegation as the delegate (State Government) may make. In our view, therefore, the State Legislature can SRK 9 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 10 wp-1800-12 never be said to have intended to exclude delegation of the appellate power to an authority to officers like Secretary, Additional Secretary or Deputy Secretary of the State Government.
15. The learned Counsel appearing for the Petitioners also submitted that Section 154 of MCS Act while conferring revisional powers on the State Government specifically provides in sub-section (4) as under:-
(4) The State Government may, by order, direct that the powers conferred on it by this section shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised also by an officer of the rank of Secretary to Government.
(emphasis supplied) It is submitted that since the same Legislature has conferred appellate powers on the State Government as a rule making authority, the State Government could not have delegated the appellate power to the Secretary, Additional Secretary or Deputy Secretary.
16. The argument is misconceived. The revisional power is to be exercised where any decision or order has been passed by any subordinate officer and no appeal lies against such decision or order. The revisional powers may be exercised not merely upon an application which may be made by any party to the dispute, but such power can also be exercised suo-motu for the purpose of satisfying the revisional authority as to the legality of any order of the subordinate officer or as to the regularity of the SRK 10 Of 12 ::: Downloaded on - 09/06/2013 18:29:32 ::: srk 11 wp-1800-12 proceedings. Hence, the Legislature deemed it fit to provide that the revisional power may also be exercised by an officer of the rank of Secretary to Government.
Accepting the Petitioners' argument will have the effect of nullifying the provisions of Section 165(2)(lxxii). No rule of interpretation of statutes permits the Court to nullify one provision of a legislation by referring to another provision of the same legislation.
17. Thus, in view of the clear provisions of Section 165(2)(lxxii), the State legislature has specifically conferred power upon the State Government to prescribe the authority to which power of hearing lying with the State Government can be delegated pursuant to which under Rule 105, the power is delegated to the Secretary, Additional Secretary or Deputy Secretary. Thus, there is no illegality in the Secretary, Additional Secretary or Deputy Secretary to the Government of Maharashtra in the Cooperation Department hearing the appeals which lie to the State Government under the MCS Act. Further, the rules of business under Article 166 of the Constitution, which have no application to the quasi judicial powers of the State Government as held by the Full Bench of this Court, do not and cannot prohibit the State Government from delegating its quasi judicial powers, when such delegation is expressly authorised by the Legislature.
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18. In view of the above discussion, our answers to the questions, therefore, are as under:-
(a) In view of the provisions of section 152(1) and section 165(2) (lxxii) of the Maharashtra Cooperative Societies Act, 1960 (MCS Act) read with Rule 105 of the Maharashtra Cooperative Societies Rules, the Secretary, Additional Secretary or Deputy Secretary to the Government of Maharashtra in the Cooperation Department has jurisdiction to entertain, hear and decide the appeals filed under the MCS Act.
(b) The judgment in the case of Shri Ravindra V. Gaikwad v. State of Maharashtra and others, 2002(2) All MR 489 holding that hearing of appeals under section 152 of the MCS Act, by the Secretary, Cooperation Department was without jurisdiction, does not lay down the correct law and the said decision is hereby overruled.
Reference accordingly stands disposed of.
CHIEF JUSTICE N.M. JAMDAR, J.
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