Bombay High Court
Maharashtra Co-Operative Courts' Bar ... vs State Of Maharashtra And Ors. on 24 July, 1990
Equivalent citations: 1990(3)BOMCR437
JUDGMENT M.L. Pendse, J.
1. The independence of judiciary is doubtless a basic structure of the Constitution and the concept that the executive should have no control to regulate the working of Courts is a doctrine accepted for over century in all the civilised countries. Indeed, independence of the Judiciary is a basic foundation of establishment of rule of law and the Constitution makers were fully conscious of the same. Though the framers of the Constitution did not completely insulate the judicial system from executive control, the principle that the executive shall not control the working of the Courts is accepted all along. Indeed, the Constitutional Agency has shielded the Courts in our country with many built in safeguards and expects the Courts to discharge the duties solely guided by the doctrine of conscience and principles of Constitution. The Courts are expected to function with neutrality and impartiality while adjudicating disputes between a citizen and citizen and a citizen and the State. It is, therefore, natural that the Courts are assigned a status free from capricious or whimsical interference from outside and it is necessary to grant that status to judges manning the Court so as to lift them above the fear of acting against their conscience. The complaint in this petition filed under Article 226 of the Constitution of India by the members of the Maharashtra Co-operative Courts' Bar Association is about the efforts made by the executive to encroach upon the functions of the Co-operative Courts and thereby underminimg the independence of the Judiciary. The principal challenge is to the Government Resolution dated April 30, 1983 by Government of Maharashtra, Agriculture and Co-operation Department, declaring the Commissioner for Co-operation and Registrar, Co-operative Societies, as controlling Officer for administration purposes and for writing confidential reports on the working of Judges of Co-operative Courts.
2. Before setting out the facts which gave rise to the filing of the petition, it is necessary to briefly deal with the legislation relating to Co-operative Societies. Co-operation is a form of organisation, wherein persons voluntarily associate together as human beings an basis of equality and work together for a common end. The essence of Co-operation is the Co-operative spirit embodied in the motto " Each for all and all for each". Originally the co-operative movement owed its origin to poverty and to the desire for the some way out of all the distress and hardships that poverty entails. The Law Committee appointed under the orders of the Government of India to consider the question of the establishment of Co-operative Societies in India prepared legislation known as "Co-operative Credit Societies Act, 1904". The Co-operative Societies Act of 1912 was the outcome of the experience gained in a decade and the careful and prolonged consideration of the large mess of material Acts, rules and opinions. The Act of 1904 and the Act of 1912 was applicable to various in province the country but the tenancy soon became- apparent in the provinces to have separate Acts to suit the special circumstances. The Province of Bombay took the lead by passing the Bombay Co-operative Societies Act, in 1925. Section 54 of this Act provided that if any dispute arises between members of the Society or between persons connected with Society, it shall be referred to the Registrar for decision by himself or his nominee or if either of the parties so desires, to arbitration of the three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. Section 54A which is substituted in the year 1948 provided that in the case of any award made by the arbitrators under section 54, the aggrieved party can approach the Tribunal for setting it aside or for modifying the award. The section was inserted as it was noticed that in several cases, the arbitrator passed Award which was wrong in law or perverse. The Legislature then provided on the analogy of the provisions contained in section 30 of the Indian Arbitration Act and Para 14 of the Second Schedule to the Code of Civil Procedure, 1908 to invest the Tribunal with powers to set aside the Award and refer the dispute for fresh arbitration. The power to set aside the Award could not be exercised unless objection to the legality of the Award was apparent on the face of it or the Award has been vitiated in consequence of corruption or misconduct on the part of any arbitrators or the Award is in any way perverse.
The Bombay Co-operative Societies Act, 1935 was repealed by enactment of Maharashtra Co-operative societies Act, 1960. Section 91 in Chapter IX of the Act deals with settlement of disputes. Initially, the disputes were referred to the Registrar only, but by amending Act, being Maharashtra Act III of 1974 which came into force from March 1, 1975 the system of Co-operative Courts was introduced. Initially the disputes were referred to the Registrar and the Registrar of the Co-operative Societies then used to transfer it for disposal by the Co-operative Courts, Pursuant to the observations made by this Court in the judgment , Bandra Green Park Co-operative Housing Society Ltd. and another v. Mrs. Devadasi Kalia and others by amending Act being Maharashtra Act 18 of 1982 which came into force from July 1, 1982, the parties to the dispute were permitted to directly approach the Co-operative Court without reference to the Registrar of the Co-operative Court. With this back ground, it is necessary to make reference to some of the provisions of the 1960 Act which is amended from time to time.
3. Section 91 of the Act prescribes that 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 to the Co-operative Court. The expression " Co-operative Court" is defined under section 2(10-aii) of the Act and means a Court constituted under this Act to decide disputes. Sub-section (3) of section 91 of the Act provides that no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1). The Constitution of Co-operative Courts is dealt by section 91A and powers are conferred on the State government to constitute one or more Co-operative Courts for the adjudication of dispute under section 91 or section 105 or other provisions of the Act. A Co-operative Court shall consist of members appointed by the State Government possessing such qualifications as may be prescribed. The qualifications of the Judges of the Co-operative Courts are set out in Rule 77-A of the Maharashtra Co-operative Societies Rule, 1961. Sub-rule (1) provides that the member constituting a Co-operative Court shall be called the Judge of that Court. All appointments of Judges of the Co-operative Courts are to be made by the State Government and no person shall ordinarily be eligible for appointment as a Judge of Co-operative Court unless he is holding or has held a judicial office not lower in rank than that of Civil Judge (Junior Division) Sub- rule (4) confers power upon the State Government to appoint a person to be a Judge of Co-operative Court who has practised as an Advocate for not less then three years or who is enrolled as an Advocate and either (a) has held office not lower in rank than that of Deputy Registrar of Co-operative Societies for not less than three years, or (b) possesses good knowledge and experience of co-operative law and practice Rule 77-B of the Rules provides that no person shall hold the office of a Judge of a Co-operative Court after he attains the age of sixty-two years. Rule a Judge of the Co-operative Court, if he is already in Government service at the time of his appointment, shall continue to be governed by the service conditions rules applicable to him before such appointment and if he is a direct recruit, by the Bombay Civil Services Rules made by the State Government.
4. Section 93(1) of the Act provides that the Co-operative Appellate Court may, at any time, withdraw any dispute from the Judge of the Co-operative Court and may refer it for decision to any other Co-operative Court. The expression "Co-operative Appellate Court" is defined under section 2(10-ai) of the Act and means the Maharashtra State Co-operative Appellate Court constituted under the Act section 149(1) of the Act provides that the Maharashtra State Co-operative Appellate Court is constituted to exercise the powers and to discharge the functions conferred under the Act. The Co-operative Appellant Court shall consist of the President and such number of other members as the State Government may consider necessary. The qualifications for appointment to the Maharashtra State Co-operative Appellate Court are set out in Rule 104 and provides that a person who is qualified to be appointed as a Judge of the High Court or is holding or has held a judicial office not lower in rank than that of the District Judge can be posted to the office of the President of the Maharashtra State Co-operative Court. As regards member of the Appellate Court, he shall be a person who possesses any qualification laid down for appointment to the post or who has held office not lower in rank than that of Joint Registrar of the Co-operative Societies for not less than one year, or who is enrolled as an advocate. Sub-rule (3) of Rule 204 provides that appointments of persons who possess qualifications other than those of holding or having held a judicial or other qualifying office under Government can be made by the State Government only after consultation with the Advocate General for the State. The age limit for holding the office of the President is till attainment of age of sixty-five years and for member of the Court till attainment of age of sixty-two years.
5. Section 94 of the Act deals with the topic of procedure for settlement of disputes and powers of Co-operative Court. The Co-operative Court, hearing a dispute shall have power to summon and enforce attendance of witness and compel the parties to give evidence on oath, affirmation or affidavit and compel the production of documents by the same means and as far as possible in the same manner as provided in the case of Civil Court by the Code of Civil Procedure. Section 95 of the Act confers power upon the Co-operative Court to order attachment before award or issue orders including interlocutory orders. Section 96 provides that the Co-operative Court can make award on the dispute as well as provide for costs and other incidental reliefs. Any party aggrieved by the decision of the Co-operative Court is provided with the right to file appeal before the Co-operative Appellate Court. The principles of lis pendens are applicable in respect of properties which are in dispute before the Co-operative Courts. The Awards passed by the Co-operative Courts can be executed through any Civil Court as arrears of land revenue, If the award in respect of money claim. Section 149 of the Act which was inserted in the year 1974 by Maharashtra Act 5 of 1974 confers power in the Co-operative court to take action in respect of contempt committed. The decision of the Co-operative Court is given finality subject to the appeal permissible before Co-operative Appellate Court. Section 163 of the Act specifically bars jurisdiction of Civil or Revenue Court in respect of any dispute required to be referred to the Co-operative Court for decision.
6. On September 18, 1979, the Government of Maharashtra issued G.R. dealing with the subject of general service conditions of the Judges of the Co-operative Courts. The resolution sets out that the Judges of the C-operative Court shall function under the overall control and supervision of the President of the Maharashtra Sate Co-operative Appellate Court so far as judicial work is concerned. The President or any member of the Appellate Court nominated by the President was authorised to inspect the offices of the Co-operative Courts. As regards the writing of confidential reports of the Judges of the Co-operative Courts, the resolution sets out that the President of the Appellate Court shall be the reporting Officer and the Secretary to the Government shall be the reviewing officer. The President was authorised to frame suitable rules for observance of the judges of the Co-operative Courts so far as the matters like dress, office hours, delivery of judgements, maintenance of record and filing of reports and fixation of targets for disposal of cases. The President was authorised to frame general rules applicable from time to time.
On April 30, 1983, the impugned G.R. was issued by the Government of Maharashtra. The resolution sets out that Co-operative Courts were established in the year 1975 in replacement of the system of appointing Officers on Special Duty to deal with arbitration cases filed under section 91 of the Act. The resolution dated September 18, 1979 conferred power on the President in respect of overall control and supervision of the Co-operative Courts. The resolution then claims that difficulties were faced in the implementation of the resolution on account of ambiguity in determining the distinction between judicial and non-judicial work of the Courts. The resolution claims that there is no item of work relating to the functioning of Co-operative Courts which is not closely linked with the main function of the Courts, viz, deciding cases filed in the Court. It further claims that the experience has shown that the distinction made in judicial and non-judicial work affected the proper functioning of the Courts and led to an anomalous situation regarding the exercise of control and supervision over the working of the Co-operative Courts. The resolution further claims that the Appellate Court lacks independent machinery for exercising control and supervision on functioning of the Co-operative Courts. The resolution then proceeds to recite that the Government has decided that there should be a single authority which should exercise control and supervision on the overall functioning of the Co-operative Courts and, therefore, in supersession of earlier resolution dated September 18, 1979, the government is pleased to direct that the Commissioner for Co-operation and Registrar of Co-operative Societies shall hereafter exercise control and supervision of the functioning of the Co-operative Courts in the State and shall deal with problems relating to establishment, administrative and financial matters. The G.R. then states that the Commissioner for Co-operation and Registrar of Co-operative Societies, Maharashtra State, Pune shall be the reporting officer so far as confidential reports and the working of the Judges of the Co-operative Courts is concerned and the Secretary to the Government of Maharashtra Agriculture and Co-operation Department will be the reviewing officer. This resolution has given rise to the filing of the petitions because it clearly encroaches upon the independence of the Co-operative Courts and deprives the Appellate Court from exercising control over the subordinate Co-operative Courts.
7. The impact of G.R. dated April 30, 1983 is required to be examined from what the Commissioner for Co-operation and Registrar of Co-operative Societies has done prior to the date of resolution and subsequent thereto. On November 24, 1976, the Commissioner for Co-operation had addressed letter to the Judges of the Co-operative Courts directing that while passing the awards, the Judges of the Court should instead of mentioning specific rate of interest direct the defaulters to pay interest at the normal rates of interest as per the bye-laws of the Society. The letter also directs the Co-operative Court Judges not to grant instalments. The letter was written by the Commissioner on the basis of suggestion received from Maharashtra Urban Co-operative Credit Society Limited. Sangli, claiming that while passing the awards the Judges of the Co-operative Courts had awarded interest at 10% per annum while normal rate of interest on loans is 18% per annum and the penal rate of interest is additional 2% on defaulted loans. The Commissioner informed the Judges of the Co-operative Courts that the failure to award interest as pet the rates fixed by bye laws of the Society would lead to growing tendency amongst the borrowers to commit defaults. Another letter dated January 10, 1979 was addressed by the Commissioner for Co-operation to the Judges of the Co-operative Courts complaining that inspite of the earlier letter, the rate of interest awarded is not in accordance with the rate settled by the bye-laws of the society. It hardly requires to be stated that the Commissioner for Co-operation was dabbling with the judicial discretion of the Judges of the Co-operative Court in directing at what rate interest should be awarded. The Commissioner for Co-operation seems to be oblivious of the fact that giving such direction to the Judicial Officers amounts to contempt of Court.
The Commissioner for Co-operation seems to have been fortified in his belief that flats can be issued to the Judges of the Co-operative Courts in view of the passing of G.R. dated April 30, 1983 by Government of Maharashtra. On June 30, 1983 a letter was addressed to the Judge of the Co-operative Courts by the Commissioner directing that the Judges shall not insist that the Society should produce a copy of the resolution authorising officer by name to enable him to prosecute the proceedings before the Co-operative Court. This letter was written on the basis of complaint received by the Commissioner from the Manager of Co-operative Housing Finance Society Limited Bombay. The letter is a direct consequence of conferring unsustainable and unjustifiable powers upon the Commissioner for Co-operation with a misconception that the Commissioner can issue directions to judicial officers. The petitioners who was practising advocates before the Co-operative Courts have, therefore approached this Court by filing this petition on August 2, 1983 to challenge resolution dated April 30, 1983 and the directions issued by the Commissioner for Co-operative by three letters referred to hereinabove. The petition was admitted on August 4, 1983 and the learned Judge granted interim relief restraining the respondents from enforcing resolution and for taking any steps in pursuance thereof.
8. In answer to the petition, Laxminarayan Janardan Giriyan. Section Officer, Agriculture and Co-operation Department, has filed return sworn on August 21, 1987. The return claims that the Co-operative Couets and the Co-operative Appellate court are not Courts of law but forms part of the Co-operative department of the Government of Maharashtra. The return then claims that the provisions of the Maharashtra Co-operative Societies Act cannot be construed to mean that the Co-operative Court is a Court of law within the meaning of the Code of Civil Procedure. It is then claimed that the Co-operative Courts and the Co-operative Appellate court are mere Tribunals and cannot form part of the judiciary. The return claims that the Co-operative Courts are not established by statutes but are constituted by the Government by issuing notification under the power flowing from the act. The return further claims that the Judges of the Co-operative Courts are subordinate to the Government or to the Commissioner for Co-operation and the establishment of the Co-operative Judges is part and parcel of the establishment of the Co-operative department. The return further claims that the resolution of the year 1983 was passed as the Co-operative Appellate Court was not in a position to control and supervise the Co-operative Courts in effective manner and in support thereof anonymous complaints received against some of the Co-operative Court Judges are annexed to the return. The return then claims that the letters, which are under challenge in the petition, were not written with a view to interfere with the administration of justice but only to suggest to the Judges not to act in arbitrary manner.
The return clearly proceeds on the basis that the Co-operative Court established under the Act is not a Court and the Judges thereof are not judicial officers but are the servants employed by the State Government and are under the control of Commissioner for Co-operation. There is nothing more unfortunate than this attitude of the State Government. It has been repeatedly pointed out by this Court that the attitude of the State Government that quasi judicial Tribunals are departments or subsidiary offices of the State Government is wholly misconceived and unjustified. A reference can be usefully made to my decision dated October 8, 1984 delivered in Writ Petition No. 1587 of 1984 where the State Government claimed that Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1939 was nothing but a department of the State Government. It was pointed out that looking to the fact that the Tribunal is constituted for the purpose of adjudicating claims of compensation in respect of accidents involving the death of, or bodily injury or damages to property, the personnel manning the tribunal are required to be highly qualified, it is futile even to suggest that such Tribunals are not Courts but the departments of the State administration and the members of the Tribunals are merely the departmental Heads. It was then observed that it is really regrettable that executives who take such atrocious view of the Legislative provisions should have courage to file the return claiming that the tribunal is a department of the State Government and as the attitude of the State Government as reflected in the return deserves to be deprecated in the strongest possible terms and a hope was sounded that hereafter the Government will not take such untenable stand in any of the proceedings. It was observed that the Executive by filing such return, brings into disrepute not only the State Government but the quasi judicial Tribunals which are manned by eminent members. The observations made therein made no impact on the executive and the hope was belied by the fact that an identical unsupportable return was filed in the present proceedings. The executive is still under the impression, inspite of the judgment, that quasi judicial Tribunals are nothing but the departments of the State administration. By looking to the fact that Courts are constituted under the statutory provisions to finally adjudicate the dispute between a citizen and citizen and a citizen and the State and such Court determine the rights to the property, it is futile and improper even to suggest that the Co-operative Court is not a Court but a department of the State Government and the Co-operative Judges are employees of the state Government under the control of Commissioner for Co-operation. It must be said in fairness to Shri Thakore, learned Counsel appearing on behalf of the State Government, that the claim made in return was not even tried to be supported.
9. Shri Thakore submitted that though the Co-operative Court is not a department of the State Government, still it is not a Court of law but merely a Tribunal to resolve the dispute as contemplated under section 91 of the Act. The anxiety in advancing this submission is to establish that the Judges of the Co-operative Courts are not Judges as understood in common parlance and presiding over judicial forum but merely members of the Tribunal giving awards. The submission is entirely misconceived. Merely because the decision recorded by the Co-operative Court is termed as an award, that would not take away the finality attached to the decisions and the rights to execute such decision. The expression "Award" under Co-operative Act should not be confused with the expression 'Award' used under the Indian Arbitration Act. It hardly requires to be stated that the awards passed by the arbitrator under the Arbitration Act cannot be enforced unless made a rule of law by order of Civil Courts while the awards declared by the Judges of the Co-operative Courts can be executed without reference to any Civil Court. Indeed, the Disputes covered under section 91 of the Act were originally tried by the regular Civil Courts, but because of the enactment of the Act, the jurisdiction of the Civil Court to try claims covered by section 91 of the Act, was withdrawn and conferred upon the Co-operative Courts. It is not the nomenclature of the authority which is relevant to determine whether or the authority is a Court or Tribunal but what is relevant is to ascertain what powers such authority exercises in this connection, a reference can be usefully made to the decision of the Full Bench of this Court Shripatrao Dajisaheb Mahatre and another v. The state of Maharashtra and another. The Full Bench while examining the ambit of powers conferred under Article 227 of the Constitution observed that the power covers judgments of all Courts constituted under the hierarchy of Courts and also extends to tribunals, bodies or authorities, whatever be their label. The Full Bench further observed that such tribunal, body or authority should basically be a Court, i.e. it performs judicial function of rendering definitive judgments having finality and authoritativeness to bind the parties litigating their rights before it in exercise of sovereign judicial power transferred to it by the State. The test laid down by the Full Bench squarely applies to the Co-operative courts constituted under the Act. A reference can also be usefully made to two decisions of the Supreme Court. The first decision is reported in Harinagar Sugar Mills v. S.S. Jhunjhunwala and others, Justice Hidayatullah, as he then was, observed that all Tribunals are not Courts, though all Courts are Tribunals. The word "Courts" is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and upheld rights and to punish wrongs. The learned Judge then referred with approval to the observation made by Chief Justice Griffith in Muddart Parkar & Co. Properietary Ltd. v. Moorchand, (1909)8 C.L.R. 330 to the effect that every sovereign authority must of necessity have power to decide controversies between its subjects, or between itself and its subject, whether the rights relate to life, liberty or property and the exercise of power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. The second decision of the Supreme Court is reported in A.I.R. 1966 Supreme Court 1987 Chandra Mohan v. State of Uttar Pradesh and others, where Chief Justice Subba Rao pointed out the importance of the subordinate judiciary by highlighting the fact that it is the subordinate Judiciary who are brought most closely into contract with the people and its independence should be placed beyond question. It is, therefore, obvious that it is not the nomenclature of the authority which is relevant to determine whether such authority is a Court or the Tribunal but it is the power exercised by that authority under the statute which makes it judicial one. Under the provisions of the Co-operative Societies Act, it is beyond doubt that the powers conferred upon the Co-operative Court are judicial in nature and the decisions recorded by the Judges of the Co-operative Courts have a binding effect upon the parties. The Co-operative Court is conferred with jurisdiction to finally adjudicate all disputes which are initially entertained by the Civil Court. It hardly requires to be stated that the disputes now entertained by the Co-operative Courts are of great magnitude, in as much-as the disputes of Co-operative Sugar Factories and Co-operative Housing Societies are also within the jurisdiction of Co-operative Courts. In my judgment, the contention of Shri Thakore that the Co-operative Court is not a Court of law but merely a tribunal and, therefore, the Judges of the Co-operative Court cannot be treated as Judicial Officers is required to be turned down. The Judges of the Co-operative Court are judicial officers and it is not permissible for the executive to treat them as employees of the Co-operative department and issue directions.
10. The Division Bench of this Court in the case of State of Maharashtra v. Labour Law Practitioner's Association, Bombay and others, reported in 1987 Maharashtra Law Journal 191: 1989(2) Bom.C.R. 17 held that the Labour Court is invested with judicial powers of the State and derives its authority from statutes, and has all the trappings of a Court and the Labour Court and the Industrial Court constitute a hierarchy of system of Courts, the Labour Court being subordinate to the Industrial Court. The Division Bench held that the post of Labour Court Judge is inferior to the post of District Judge, the Industrial Court being equivalent to the District Court and the President of the Industrial Court on par with the District Judge. The Division Bench, therefore, held that the appointment of Judges of Labour Court must be made under the provisions of Article 234 of the Constitution of India. Article 234 of the Constitution deals with the subject of Subordinate Courts and provides that appointment of persons other than District Judges to the Judicial service of State shall be made by the Governor of the state in accordance with the rules made in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 236 of the Constitution defines the expression "District Judge" and the Division Bench held that the expression is inclusive and not exhaustive and the ambit of Article 236(a) of the Constitution of India being very wide would cover every principal Civil Court and will not restrict only to the hierarchy of the Civil Court. The Division Bench, thereupon, held that the President of the Industrial Court would fall within the definition of expression "District Judge" under Article 236 of the Constitution and the Judge of Labour Court being subordinate Judges are required to be appointed in accordance with Article 234 of the Constitution of India. The decision was referred with approval by another Division Bench in judgment reported in 1989 Maharashtra Law Journal 872 : 1989(3) Bom.C.R. 641 Chapadgaon Vividh Karyakari Seva Sahakari Society Ltd. and others v. Collector of Ahmednagar and others, while dealing with the provisions of section 91A of the Co-operative Societies Act. The Division Bench observed :
"It is no doubt true that section 91A of the Act provides for constitution of Co-operative Courts etc. Qualifications for appointment to the said Court or Appellate Court are also prescribed by Rules. Under section 91 powers have been conferred upon the Co-operative Court which are normally exercised by the Civil Court. The said Courts exercise unlimited pecuniary jurisdiction. It is true that it is obligatory on the part of the state government to make appointments to the said Courts in consultation with the High Court. This position is very clear from the decisions of this Court in State of Maharashtra v. Labour Law Practitioner's Association, Bombay and ors, 1987 Maharashtra Law Journal 191 and Krishna Chandra Sharma, Director of Physical Education, K.C. College, Bombay v. Sindh Hyderabad National Collegiate Board, Bombay, 1987 Maharashtra Law Journal 782."
It is therefore, obvious that the Judges of the Co-operative Court from cadre of subordinate Courts as understood by Article 234 of the Constitution of India and the State Government will have to take action to make appointment of the Judges in accordance with the directions contained in Article 234 of the Constitution. In other words, the Judges of the Co-operative Court can be selected only by Maharashtra Public Service Commission in consultation with High Court. The Government of Maharashtra has not carried out the mandate of Article 234, but, on the other hand is treating the Judges of the Co-operative Court as employees of the Co-operative department. Such attitude is wholly incorrect and the State government must immediately take steps to implement the mandatory provisions of the Constitution of India.
11. Shri Thakore submitted that the impugned Government Resolution dated April 30, 1983 does not interfere with the judicial function. The submission is only required to be stated to be rejected. After setting out that there is ambiguity in determining the distinction between judicial and non-judicial work and the functioning of the Co-operative Courts is closely linked with the main function of the court, i.e. decision of cases, it is claimed that there should be a single authority which should exercise control and supervision on the overall functioning of the Co-operative Courts. One would have thought that the executive would constitute Co-operative Appellate Court as a single authority for exercising control and overall supervision on the Co-operative Courts. Instead of adopting that course, the executive appropriated the powers to control the Courts by issuing the impugned Government resolution. The exercise of the power by the executive clearly ignores the independence of the judiciary which is a hall-mark of the democratic Government and which is the basis of rule of law. The desire of the executive to control judicial officers is entirely inappropriate. The Courts are constituted under Statute to create confidence in the citizens and the litigating public, that decisions would be recorded impartially and purely in accordance with the provisions and without any interference of law. If the Judges of the Court are not given assurance that there would be no interference whatsoever from the executive, then litigating public would lose confidence in the Courts and that would be the death of independent institution for determining disputes between citizen and citizen and the citizen and the State. The Co-operative movement has spread rapidly and widely in this State and the disputes which comes before the Co-operative Courts are varied in nature and in large number of cases, the State Government has direct interest in the outcome of the decisions. Several financial Societies are registered under the Co-operative Societies Act and the control over these financial institution is that of the State Government. In case, persons claiming against these institutions or defending actions against these institutions feel that the decisions would be guided by the directions issued by the Commissioner for Co-operation, then that would be the day to close down the Courts set up under the Statute. It hardly requires to be stated that the executive would never desire such result. The writing of letters by the Commissioner for Co-operation clearly indicates that the writer armed with the resolution felt that the directions can be issued to the Judge of the Co-operative Court to control their judicial functions. The questions as to whether the person is authorised to represent the Society, the question as to what rate of interest should be awarded or the question whether instalments should be granted in favour of the person against whom the award is passed are questions which are purely judicial in nature and it is impossible to conceive how the Commissioner for Co-operation, who probably had no concern whatsoever with judicial administration, can issue directions to the Co-operative Courts. Shri Thakore made a faint attempt to urge that till year 1975, the Registrar of Co-operative Societies could have himself disposed of disputes and, therefore, the Registrar is an authority which had equal powers as that of the Co-operative Court. It is even then difficult to appreciate how an authority with equal powers as that of the Court can issue directions to the Court of Co-ordinate jurisdiction. Fortunately, the legislature realised the danger of leaving the decision of disputes to the Registrar of Co-operative Societies and after creation of the Courts, the disputes can be resolved only by the Co-operative Courts subject to the decision of appeal.
There is also one more serious flaw in the impugned resolution. The powers are conferred upon the Commissioner for Co-operation to write confidential reports about the working of the Judges of the Co-operative Court. It is impossible to imagine how such power can ever be conferred upon an authority which has no concern whatsoever with the working of the Courts. Shri Thakore submitted that the resolution merely provides that the Commissioner for Co-operation would deal with the problem relating to establishment, administrative and financial matters and, therefore, the Commissioner would not examine the judicial work of the Judges of the Co-operative Court. The submission has no merit because writing of the confidential reports of the Judges of the Co-operative Court cover the work of assessment of the judicial work of the Judge and it is revolting that the assessment of the judicial work can be left to the Commissioner for co-operation who is not part of hierarchy of Court and who is not familiar with the working of the Court. In my judgment, the resolution completely destroys the independence of the Co-operative Courts and confers arbitrary and unsustainable powers in favour of the executive officer. It is also impossible to imagine how the power of reviewing the confidential reports can be conferred in favour of the Secretary to the Government of Maharashtra, Agriculture and Co-operation department. The secretary cannot be familiar with the assessment of the judicial work of the Judges and can never be the reviewing officer. The State Government should have conferred the powers of writing confidential reports in the President of the Co-operative Appellate Court and reviewing powers can rest only with the High Court. In my judgment, the resolution is required to be struck down as entirely unconstitutional and beyond the powers of the State Government.
12. The danger in conferring unconstitutional powers in the executive Officer are reflected in the letters written by the Commissioner for Co-operation giving directions to the Judges of the Co-operative Court to award interest at a particular rate, not grant instalments in payment of award amount and to permit the Officers of the Society without authority to appear in the proceedings in the Court. The Commissioner either did not realise that he is interfering with the judicial exercise of the powers or had deliberately written letters to bring pressure upon the Judges of the Co-operative Court. The Commissioner did not realise that in writing such letters to judicial Officers, he was guilty of committing contempt of Co-operative Court. Shri Thakore submitted that there was no intention to interfere with the functioning of the Courts while writing these letters. The submission cannot be accepted for more than one reason. In the first instance, the writer of the letters has not filed any affidavit setting out what was the intention in writing the letters. The return is filed by the Section Officer who cannot declare what was the intention of the writer of the letters. Secondly, the intention has to be gathered from the words used in the letters and it is not enough to suggest that though the contents of the letter would destroy the independence of the Judges, that was not the intention of the writer. In my judgment, the executive have tried to make inroads in the judicial powers of the Co-operative Court first by issuing C.R. dated April 30, 1983 and also by issuing letters giving various directions to the Judges of the Co-operative Courts in respect of their judicial functions. In my judgment, the action of the executive is required to deprecated in the strongest possible terms and the petitioners are entitled to the reliefs sought.
13. Accordingly, petition succeeds and the Government Resolution No. SCC-1073/21114 (Cr-112/15-C dated April 30,1983 is struck down. It is also declared that the Judges of the Co-operative Courts would ignore letters or Circulars dated November 24, 1976, January 10, 1979 and June 30, 1988 issued by the Commissioner for Co-operation and Registrar of Co-operation Societies as the same were issued without any authority of law and are beyond the powers of the Commissioner. The Commissioner for Co-operation and the State Government are restrained from issuing any further circulars or taking any steps which would effect the independence of the Co-operative Courts and the Co-operative Appellate Court. The State Government is further directed to make appointments to the post of the Judge of the Co-operative Court by following the requirement of Article 234 of the Constitution of India. The State Government shall frame appropriate rules forthwith in respect of appointments to the Judges of the Co-operative Court and also in regard to the appointment to the post of Judges of the Appellate Court. The State Government shall pay the costs of the petition.