Bombay High Court
Hanuman Dudh Vyavasaik Sahakari ... vs State Of Maharashtra And Ors. on 6 December, 2000
Equivalent citations: 2001(3)BOMCR505
Author: B. H. Marlapalle
Bench: B.H. Marlapalle, N.V. Dabholkar
JUDGMENT B. H. Marlapalle, J.
1. Heard learned Counsel for the respective parties, learned A.G.P. for the respondent Nos. 1 & 2. Rule.
The respondent Nos. 1 to 4 waive service. The respondent No. 5 is personally present and the respondent No. 6 is a formal party and, therefore, the notice is dispensed with. Rule made returnable forthwith and the parties have been heard at length on 27th to 30th November, 2000.
2. The petitioner Nos. 1, 3 and 5 are the registered village level dairy co-operative societies and the petitioner Nos. 2,4 and 6 are the Chairmen of the respective societies. They have brought in issue the legality, propriety and justifiability of the order dated 9th October, 2000 passed by the respondent No. 5 purportedly under section 77A of the Maharashtra Co-operative Societies Act, 1960 (for short, the Act), thereby, appointing an Administrative Board (Prashashak Mandal), consisting of three members i.e. the respondent No. 5 himself as the Chairman and two other persons viz. the respondent No. 3 and the respondent No. 4 as members.
3. Writ Petition No. 3631 of 1999 came to be decided by us by our judgment dated 7th September, 2000, wherein, we held that the existing managing committee of the respondent No. 6 Sangh, which had completed its tenure of five years as well as extended tenure of one more year, had no right to continue in office if the elections for the new managing committee were not held within that period and they deemed to have vacated the said office. The respondent No. 6, being a specified co-operative society, we had directed the respondent No. 2 herein to take over the affairs of the respondent No. 6 Sangh forthwith under section 73H(2) of the Act. Our said judgment, which was stayed by us for a period of two weeks, came to be challenged before the Supreme Court and the S.L.P. was dismissed on 26th September, 2000. On 27th September, 2000, the respondent No. 5 took over the affairs of the respondent No. 6 Sangh pursuant to our order in Writ Petition No. 3631 of 1999 from the said date. Subsequently, on 9th October, 2000, the respondent No. 5 has passed the impugned order. At this stage, it is pertinent to note that the present respondent No. 3 was one of the members of the earlier managing committee which vacated office pursuant to our judgment in Writ Petition No. 3631 of 1999. The learned Government Pleader as well as learned Counsel for the respondent Nos. 3 and 4 have raised the following preliminary objections to the maintainability of the petition before us:
(A) The respondent Nos. 3 and 4 being private persons no writ could be issued against them.
(B) The petition suffers from nonjoinder of the necessary parties in as much as by the impugned order the Divisional Deputy Registrar, Co-operative Societies (Dairy), Pune Region, Pune, has been appointed as the Chairman of the Administrative Board and he has not been impleaded as one of the respondents.
(C) The impugned order passed under section 77-A of the Act is appealable at the first instance under section 152 and subsequently, such an appellate order can be challenged in a revision under section 154 of the Act and, therefore, in view of statutory alternate remedy being available, the petition, invoking prerogative jurisdiction under Article 226 of the Constitution of India, is not tenable.
(D) Even if it is presumed that the petition is tenable, irrespective of the alternative statutory remedy under the Act, it lies before the Single Bench of this Court, as per the High Court Appellate Side Rules, 1960.
4. A number of authorities have been cited in support of these contentions and to mention a few, these are:
(1) The Beed District Central Co-operative and Milk Production and Distribution Federation v. The State of Maharashtra and others, 1984 C.T.J. 196 decided by a Division Bench of this Court.
(2) Shri Shivaji Balvantrao Patil Kavekar v. State of Maharashtra and others, Writ Petition No. 1622 of 2000- unreported decided by a Single Bench of this Court.
(3) Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunolop India Ltd. and others, .
(4) Sheela Devi v. Jaspal Singh, .
(5) Commissioner of Income-tax, Lucknow v. U.P. Forest Corporation, .
(6) Karnataka Chemical Industries and others v. Union of India and others, 1999 A.I.R. S.C.W. 4876.
(7) Sri Ramdas Motor Transport Ltd. and others v. Tadi Adhinayayana Reddy and others, .
On the other hand, Shri N.H. Patil, learned Counsel for the petitioners urged before us that the restriction of alternative remedy does not come in his way and availability of an alternate remedy by itself does not operate as a bar against entertaining a writ petition under Article 226 of the Constitution of India as it is only a matter of discipline and not as a matter of rule. He submitted that the peculiar facts of this case require us to entertain the petition, even without placing it before the Single Bench, as the impugned order has its origin in our judgment in Writ Petition No. 3631 of 1999. The availability of an alternate remedy would not serve the interest of justice in as much as the respondent Nos. 3 and 4 are politically influential persons (the respondent No. 3 is a sitting M.L.A) and the lower appellate authority would find itself put to limitations in interpreting the spirit of our directions in Writ Petition No. 3631 of 1999. In any case, the availability of an alternate remedy does not come in the way of the petitioner in view of the law laid by the Apex Court in the case of "Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, and in the case of State of Himachal Pradesh v. Raja Mahedra Pal and others, .
5. The substantive prayers in the present writ petition are:
"(B) Issue a Writ of Prohibition or any other appropriate Writ, order or directions in the nature of Writ of Prohibition, prohibiting the respondent No. 2 from allowing the respondent No. 3 and 4 from acting as members of the Administrative Committee of the respondent No. 6 Sangh in any manner and for that purpose issue necessary orders.
(C) Quash and set aside the impugned order dated 9-10-2000 issued by the respondent No. 2 appointing the respondent Nos. 3 and 4 as members of the Administrative Committee of the respondent No. 6 Sangh and for that purpose issue necessary orders."
It is abundantly clear that no writ is sought against the respondent Nos. 3 and 4 and the petitioners have prayed for quashing and setting aside the impugned order as well as issuance of a writ against the respondent No. 2 from allowing the respondent Nos. 3 and 4 acting as members of the Administrative Committee. The first preliminary objection raised by the contesting respondents is unsustainable as the writ or directions are sought against respondent No. 2.
6. In the affidavit in reply, filed on behalf of the respondent Nos. 1,2 and 5, it is, inter alia, stated that presently the office of the respondent No. 2 is vacant and the respondent No. 5 Shri D.R. Ghode, who is the Divisional Deputy Registrar, Co-operative Societies (Dairy), Pune Division, Pune, is holding the charge for both the posts i.e. at Pune as well as Nasik. The charge of the respondent No. 6- Sangh, pursuant to our judgment in Writ Petition No. 3631 of 1999 was taken over by the same officer and the impugned order has also been passed by him only. In the impugned order, it has been shown that the respondent No. 5 is the Chairman of the Administrative Committee and his office has been shown as at Pune. It is for these reasons that a contention has been raised by the contesting respondents that the Chairman of the newly appointed Administrative Committee has not been impleaded as a party. These arguments have not impressed us and the respondent No. 5 in person has been impleaded as a party and it is not material whether his office has been shown as at Nasik or as at Pune, especially when he is holding the charge of both the places as at present. Even otherwise there is no relief sought against the Divisional Deputy Registrar, Pune, in his capacity as the Chairman of the Board of Administrators. We, therefore, overrule the second preliminary objection.
7. In para No. 11 of our judgment in Writ Petition No. 3631 of 1999, we had stated as under :
"In the premises, the petition is hereby rejected summarily. Ad interim order dated 2nd August, 1999 stands vacated. We direct the District Deputy Registrar to take over the affairs of the respondent No. 4 forthwith under section 73-H(2) of the Act and we further direct the State of Maharashtra and the Registrar not to initiate any action under section 77-A of the Act for a period of four weeks from today for appointment of an Administrative Committee or an Administrator."
8. The provisions of section 73-H(2) and 77-A of the Act read as under:
"73-H. Responsibility of committee to hold election before expiry of term.
(1)... ... ...
(2) Where there is a wilful failure on the part of the committee to hold the election to the committee before the expiration of its term, the committee shall cease to function on the expiration of its term and the members thereof shall cease to hold office and the Registrar may himself take over the management of the society or appoint an Administrator (who shall not be from amongst the members of the committee the term of which has so expired) and the Registrar or Administrator shall hold election within a period of six months and the committee shall be constituted before the expiration of that period.
77-A. Appointment of member of committee, new committee or Administrator, where there is failure to elect member, to constitute committee or where committee does not enter upon office.---
(1) Where the Registrar is satisfied that,-
((1-a) a provisional committee has failed to make necessary arrangements for holding election for the constitution of the first committee, before the expiry of its term as specified in sub-section (1-A) of section 73:)
(a) at the first constitution of the committee of any society there is a failure to elect all or any of the members of the committee:
(b) the term (or extended term as the case may be,) of the committee of any society or 'of any of its members has expired or for any other reason election is held and there is a failure to elect all or any of the members required to fill the vaancies;
(c) any committee is prevented from entering upon office;
(d) a new committee has failed to enter upon office on the date on which the term of office of the existing committee expired; or
(e) a new committee cannot for any reason be constituted before the expiry of the term of office of the existing committee;
(f) where more than one group of persons in a society is claiming to be elected as the committee members and proceedings in respect thereof have been filed in the Co-operative Court;) the Registrar may, either suo-motu or on the application of any office of the society, by order appoint-
(i) any member or members of the society to be the member or members of the Committee to fill the vacancies;
(ii) a committee, consisting of not more than three members of the society; or one or more administrators, who need not be members of the society, to manage the affairs of the society till a new committee enters upon office;
Provided that, before making such order, the Registrar shall publish a notice on the notice board at the head office of the society, inviting objections and suggestions with respect to the proposed order within a period specified in the notice and consider all objections and suggestions received by him within that period;
Provided further that, it shall not be necessary to publish such notice in any case where Registrar is satisfied that immediate action is required to be taken or that it is not reasonable practical to public such notice.
(2) The committee or administrator so appointed shall, subject to the control of the Registrar and to such instructions as he may, from time to time, give, have power to discharge all or any of the functions of the committee or of any officer of the society and taken all such action as may be required to be taken in the interests of the society.
(3) The Committee or administrator so appointed shall hold office for period of six months from the date of assuming the management of the society and shall make necessary arrangements for constituting a new committee within the said period and for enabling the new committee including any new committee referred to in Clause (f) of sub-section (1), which is determined by the Court to have been legally elected, to enter upon office.
Provided that, if a new committee is not, or can not be constituted at the expiry or termination of the term of office of the committee or administrator, for any reason beyond the control of the committee or administrator, the term of office of the committee or administrator, as case may be, shall be deemed to be extended, until the new committee is duly constituted.
(4) The Registrar shall have the power to change the committee or any or all members thereof or any or all the administrators appointed under sub-section (1) at his discretion even before the expiry of the period specified in the order made under sub-section (1).
(5) The provisions of sub-section (2A) of section 78 shall apply mutatis mutandis for fixation of remuneration to be paid to the members or administrators appointed under sub-section (1)."
9. In the case of the Assistant Collector of Central Excise (supra), the Supreme Court observed:
"Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute."
The same view has been reiterated by the Apex Court in the case of "Karnataka Chemical Industries and others (supra), Commissioner of Income Tax, Lucknow v. U.P. Forest Corporation" (supra); "Sheela Devi v. Jaspal Singh" (supra) as well as "Ramdas Motor Transport Ltd. v. Tadi Adhinarayana Reddy" (supra).
In the case of Whirpool Corporation Ltd. (supra), the Supreme Court stated:
"Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a petition. But, the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceeding are wholly without jurisdiction or the vires of an Act is challenged."
In para No. 20 of the said judgment, the Apex Court proceeded further to observe:
"Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a petition under Article 226 of the Constitution, inspite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
In the case of "State of Himachal Pradesh" (supra), the Apex Court stated that the constitutional Court should insist upon the party to avail the alternative remedy instead of invoking the extraordinary writ jurisdiction of the Court and the availability of such a remedy, however, does not debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of such special circumstances are required to be noticed before issuance of the directions by the High Court while invoking the jurisdiction under the said Article.
In the instant case, if there are special circumstances warranting our indulgence, rather than directing the petitioners to resort to the alternate statutory remedy, we shall be justified in entertaining the petition. In addition, if the submissions made by the learned Counsel for the petitioner that the impugned order is in breach of the principles of natural justice and/or has been passed by usurping the powers by the respondent No. 5, are upheld, the petition deserves to be entertained, as per the law laid down by the Apex Court. We will deal with this issue a little later.
10. So far as the contention that the petition should be placed before a Single Bench of this Court is concerned, the learned Counsel for the contesting respondents have relied upon the provisions of Rule 18(12) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 as well as our judgment in Writ Petition No. 4871 of 1997. As per the said rules, a writ petition under Article 226 or 227 or under Article 226 read with 227 of the Constitution of India, challenging the orders passed under the Act may be heard and finally disposed of by a Single Judge to be appointed in that behalf by the Chief Justice. The term "Order" has been defined under the said rules in the explanation thereunder as follows:
"Explanation.---The expression "Order" appearing in Clauses (1) to (4) means any order passed by any judicial or quasi-judicial authority empowered to adjudicate under the above mentioned statutes."
When we had heard Writ Petition No. 4871 of 1997 (one of us Marlapalle, J. was a member of the Bench), the petitioners had contended that the petition was required to be placed before the Single Judge and this was not opposed/resisted by the learned Counsel for the respondents, save and except the prayer for vacating the interim order granted earlier, if the petition was to be placed before the Single Bench. In addition, our attention was not invited to the term "Order" as defined under the Appellate Side Rules. It was under these circumstances that by our order dated 4th December, 1997, Writ Petition No. 4871 of 1997 came to be directed to be placed before a Single Bench.
11. Mr. V.D. Hon, learned Counsel for the respondent No. 4 submitted that the impugned order passed under section 77-A of the Act is quasi-judicial in nature, if regards be had to the provisions of the said section, which lay down the procedure to be followed before passing such an order and the fact that in the Act itself a remedy of an appeal under section 152 is provided against the said order.
On the other hand, Shri N.H. Patil, learned Counsel for the petitioners urged before us that in the instant case, the respondent No. 5 while passing the impugned order has usurped the powers and passed the impugned order de hors the provisions of section 77-A and in any case, mere reading of the impugned order shows as if it is an administrative order. The contents of the impugned order do not make it, by any stretch of imagination, a quasi judicial order. The State Government or the Registrar had the powers to pass such an order, if so desired, pursuant to the judgment in Writ Petition No. 3631 of 1999 the respondent No. 2 or 5, as the case may be, did not have the authority in law to pass the impugned order. This submission has been sought to be controverted by the learned Government Pleader by relying upon the Government Resolution dated 11th January, 1980 issued by the State Government whereby the powers under section 77-A of the Act have been delegated to the Divisional Deputy Registrar i.e. respondent No. 2 or 5, as the case may be.
In terms of our directions in Writ Petition No. 3631 of 1999, at the first instance, we had directed the respondent No. 2 to take over the affairs of the respondent No. 6 Sangh as per the provision of section 73-H(2), 1st Part, and therefore, the purported order passed by the respondent No. 5 on 27th September, 2000 is only an order of taking charge of the affairs of the respondent No. 6 Sangh and it was not an order exercising the powers under the said section by the respondent No. 2 or 5. We had also directed that in case the State Government or the Registrar desired to initiate any action under section 77-A of the Act is shall not be done for a period of four weeks from the date of the order, for appointment of an Administrative Committee or an Administrator. Our order indicated that in case the State of Maharashtra or the Registrar desired to initiate any action under section 77-A of the Act, it shall not be done for a period of four weeks and it was not a direction given to the State Government or the Registrar to initiate such an action. At the same time, if the decision of the State Government or the Registrar was to take such action, it was suspended for a period of four weeks. The spirit of our order implied that the powers under section 77-A, if so required, were to be exercised by the State of Maharashtra or the Registrar and while doing so we had in mind the chain of litigation pending between the parties, inter se, right upto the Supreme Court. We are in agreement with the contentions of Shri N.H. Patil, learned Counsel for the petitioners that the impugned order, read as it is, does not sound to be a quasi judicial order and in its letter and spirit it appears to be an administrative order. We, therefore, deem it appropriate not to send the petition for being decided by the Single Bench and hence we proceed to hear and decide the petition ourselves.
12. The learned Counsel for the contesting respondents have taken exceptions to the oral arguments advanced by Shri N.H. Patil, learned Counsel for the petitioners, in support of his challenge to the impugned order passed under section 77-A, on the ground that no such pleadings are made in the petition and the submissions are being made by way of an afterthought and to make out an entirely different case before this Court. In addition, it is also submitted by the private respondents that the challenge to the impugned order is on the basis as if it has been passed under section 73-H(2) of the Act. In support of these arguments, they have relied upon the judgments of the Apex Court in the case of:
(1) S.R. Bommai and others etc. v. Union of India and others etc., .
(2) Bharat Singh and others v. State of Haryana and others, .
(3) New Delhi Municipal Committee v. State of Punjab etc., .
In reply, Shri N.H. Patil, learned Counsel for the petitioners, has relied upon yet another judgment of the Apex Court in the case of Babubhai Muljibhai Patel v. Nandlal K. Barot & others, and submitted that in a petition under Article 226 of the Constitution of India, this Court has jurisdiction to try issues both of fact and law and if the legal challenge is propounded by way of oral arguments, the absence of specific pleadings or the existence of clumsy pleadings does not come in the way of the petitioners to set out their case as elaborately as possible to convince this Court the illegality of the impugned order. There is no doubt that the impugned order emanates from our judgment in Writ Petition No. 3631 of 1999 and it is, therefore, necessary for us to examine not only the legality of the said order as brought in question by the petitioners but indeed the compliance of our directions in letter and spirit. It was not our intention while deciding the Writ Petition No. 3631 of 1999 to empower the Government or the Registrar straightaway to proceed to pass an order under section 77-A of the Act without following the procedure as set out therein and in the circumstances embodied in the said section. Our order in Writ Petition No. 3631 of 1999 was not a direction to the State Government or the Registrar to pass an order and in fact it was a choice left to the State Government or the Registrar to exercise such powers in case so required by circumstances and impliedly, by following the requirements of the said section. The absence of specific pleadings in the writ petition against the challenge to the impugned order does not deter us from examining the legality and justifiability of the impugned order and we cannot be detained in the absence of such specific and elaborate pleadings so long as the learned Counsel for the petitioners has made out a case for our direct intervention during the course of his oral submissions. In a writ petition when an order passed by exercising statutory provisions is assailed, the legality of such an order is required to be examined on the touchstone of such statutory provisions and the onus of establishing that the order is legal, just and proper, in a given case, rests on the authority which has passed such an order. The same principle is applicable in the instant case as well and it would not be prudent for us to throw away the petition on the ground that it suffers from adequate/elaborate pleadings or specific grounds in support of the challenge to the impugned order.
13. The analysis of the provisions of section 77-A of the Act shows that where the Registrar is satisfied that any of the circumstances as set out in Clause (I-a) to (f) exist he has the powers either suo motu or on the application of any officer of the society to appoint any member or members of the society to be the members of the committee to fill the vacancies under sub-clause (1). Whereas under sub-clause (ii) thereto he is empowered to appoint a committee of not more than three members of the society or one or more administrators who need not be members of the society, to manage the affairs of the society till the new committee enters upon office. However, these powers are governed by the procedural limitations as set out in both the provisos thereunder. The first proviso states that before making such an order, the Registrar shall publish a notice on a notice board at the head office of the society inviting objections and suggestions with respect to proposed order within a period specified in the notice and consider all objections and suggestions received by him within that period. Whereas, the second proviso states that it shall not be necessary to publish such a notice in any case where the Registrar is satisfied that immediate action is required to be taken or that it is not reasonably practical to publish such a notice. This procedure as laid down under the first proviso is mandatory and the exception thereto is set out in the second proviso. This Court had an occasion to deal with the interpretations of the procedural aspects as set out under section 77-A and for the satisfaction of the Registrar in the case of Ghatageppa Parreppa Mugeri and others v. M.R. Naik and others, 1983 Mh.L.J. 984, a Division Bench of this Court observed thus :
"One of the important requirement of section 77-A(1) is in the first proviso thereto under which the Registrar has to invite objections and suggestions with respect to the proposed order to be made. The proviso is a salutary provision where the point of view of the members of the Managing Committee as to why in a given case order should or should not be made has to be placed before the authority concerned and has to be considered by him before he decides to act or not to act under section 77-A(1) of the Act. The power to dispense with the statutory requirement of notice inviting objections as mentioned in the second proviso in case immediate action is required to be taken, is an extraordinary one which cannot be exercised as a matter of course. When the exercise of such a power is challenged, the Assistant Registrar is bound to put on record the circumstances which according to him justified non-compliance or dispensing with the requirement of the first proviso. Supersession of an existing managing committee by an administrator is not something which concern only the members of the managing committee inasmuch as it vitally affects the rights of the members of a co-operative society to have the business of their society being run by the elected members of the managing committee and that is why a general provision of publication of notice on the notice board at the head office of the society is made. If recourse has to be taken to the extraordinary powers and dispensing with a notice on a wrong assumption that the members of the outgoing committee of the society only are entitled to the notice, it is sufficient to vitiate the action taken by the Assistant Registrar on the assumed ground that the situation warranted an immediate action. ... ..."
A similar point was also considered by yet another Division Bench of this Court in the case of Chandralok Sahakari Gruha Nirman Sanstha Ltd., Shegaon v. Assistant Registrar, Co-operative Societies, Shegaon, 1992(1) Mh.L.J. 1118 and while reiterating the earlier view in the case of "Ghatageppa Parreppa Mugeri" (supra), the Court examined the record as well as reasons given by the authority invoking powers under section 77-A of the Act and it was held that so far as the reasons given by the Registrar are not perverse, it is not open to this Court to interfere with the impugned order and mere failure to publish the notice would not be a ground to hold that the reasons are perverse.
14. On the backdrop of these legal pronouncements and procedural aspects as set out in section 77-A of the Act, it is imperative to examine the legality and propriety of the impugned order. The affidavit in reply filed on behalf of the respondent Nos. 1, 2 and 5 briefly sets out the reasons in support of the impugned order in para No. 6 therein the following words:
"6. I say and submit that the petitioner in Writ Petition No. 3631/1999 had filed S.L.P. in the Supreme Court of India, challenging the order passed by this Hon'ble Court. The S.L.P. was dismissed by the Supreme Court on 26-9-2000 and therefore, the protection to the managing committee members of the respondent No. 4 had expired and the respondent No. 2 had taken the charge of the affairs of the respondent No. 6 Sangh. I say that looking to the day to day activities of the Sangh and more particularly when the Milk is a perishable good, order under section 77-A of the said Act is passed fort the day to day management of administration of the Sangh."
It is, thus, abundantly clear that the only reasons in support of the order is the necessity to handle the day to day activities of the management of the Sangh, more particularly, when the Milk is a perishable item. There is nothing in the affidavit explaining the circumstances or the reasons as to why the notice mandated in the first proviso to section 77-A(1) of the Act was dispensed with. In addition, no explanation has come forward making out a case for satisfaction of the requirement of the second proviso therein. When there are no reasons given in respect of the order passed by exercising statutory provisions, the question of examining the perversity or validity of the reasons does not arise. Even a plain reading of the order does not give any reasons as to why the notice, as required under the first proviso to section 77-A(1), was not given before the said order was passed. As observed little earlier, the impugned order appears to be plain & simple, an administrative order passed by the respondent No. 5 and by no stretch of imagination, it could be even read as an order by application of mind or by following the procedure as set out in section 77-A of the Act.
15. There is something more which also requires to be commented on the impugned order. It opens with the preamble that the respondent No. 2 had taken over the charge of the respondent No. 6 by exercising the powers under section 73-H of the Act and it is necessary to appoint an Administrative Board under section 77-A of the Act. In the latter part of the order, it is stated that the respondent No. 5 invoked his powers under section 77-A of the Act and ordered the appointment of Administrative Board consisting of himself and two other members. The satisfaction of the Registrar which is a sine qua non for appointing a committee or administrators as required under section 77-A of the Act is totally absent in the impugned order. Sub-section (1) of section 77-A of the Act gives two options to the Registrar viz. (1) appointment of a committee from amongst the members of the society consisting of not more than three of them and (2) one or more administrators who need not be members of the society. If the first option is exercised, it must be a committee of not more than three members of the society and if the second option is exercised, it must be an appointment of one of more administrators who need not be the members of the society. In the instant case, the respondent No. 5 has appointed an Administrative Board consisting of himself as the Chairman and respondent Nos. 3 and 4 as members who also are the members of the respondent No. 6 Sangh. If there was a necessity to appoint more than one administrators, it was not incumbent upon the respondent No. 5 to pick up such administrators from amongst the members of the society. The order does not name them as additional administrators but names them as members which provision is not set out in the scheme of section 77-A(1).
16. Sub-section (2) of section 77-A of the Act states that the committee or administrators so appointed shall, subject to the control of the Registrar and to such instructions as he may, from time to time give, have power to discharge all or any of the functions of the Committee or of any officer of the society and take all such actions as may be required to be taken in the interest of the society. This provision vests with the Registrar the authority to control and supervise over the actions of the committee or the administrators so appointed under sub-section (1) and it, therefore, envisages that a committee or administrators are different from the Registrar who is responsible for the control and supervision of their actions. The scheme of the Act does not envisage the powers of the Registrar to be clubbed with the powers of the committee or administrators and therefore, in no uncertain words, the statute warrants that the Registrar is a different authority than the committee or administrators so appointed under sub-section (1) of section 77-A of the Act. The respondent No. 5 acting as Registrar under the delegated powers by the State Government has issued the impugned order appointing himself as the Chairman of the Administrative Board and two others members which has in turn resulted in the merger of the Administrative Board and the supervisory and controlling authority into one single body. This is contrary to the provisions of sub-section (2) of section 77-A of the Act. The Legislature in its wisdom has kept these two authorities distinct viz. the committee or the administrators on one hand and the Registrar on the other hand. When a statute provides something to be done in a particular manner, it ought to be done in that manner alone as has been held by the Apex Court in the case of Babaji Kondaji Garad and others v. Nasik Merchants Co-operative Bank Ltd. Nasik and others, 1984(1) Bom.C.R. 399 and Babasaheb Rajaramji Dampurikar and another v. Collector of Parbhani District and others, . The impugned order, therefore, suffers on this count as well and it is not only in contravention of the provisions of section 77-A(2) of the Act but also in a way, detrimental to the interests of the respondent No. 6 Sangh. This board of administrators acquiring the twin role wholly goes against the interests of the respondent No. 6 Sangh and thereby against its members, by and large. Undoubtedly, the respondent No. 6 Sangh is a specified co-operative society and its business turnover is considerably high. There has been a chain of litigation in respect of the affairs of the respondent No. 6 during the last two years or so. Taking all these aspects into consideration, and to keep the mighty opposite groups at bay so that the political and power clout of either of them does not affect the affairs of the Sangh at least until the new managing committee takes office, it was imperative for the Registrar to ensure that the Board of Administrators is different from the authority responsible for the control and supervision of the actions of the Board of Administrators. This has not been done for the reasons best known to the respondent No. 5. The spirit behind the scheme of sub-section (2) of section 77-A shows that the Registrar while invoking the powers under sub-section (1) thereof cannot appoint himself as an administrator or include himself in the Board of Administrators or the administrative committee. The respondent No. 5 ought to have realized this aspect and therefore, the impugned order totally lack application of mind. Admittedly, the respondent No. 5 is holding the charge of the post of Divisional Deputy Registrar for two different divisions viz. Pune Division and Nasik Division and the normal office work at two different divisions may not permit him to spare adequate time for the affairs of the respondent No. 6 Sangh and it would have been, therefore, prudent on the part of the respondent No. 5 to ensure that he did not pass the order including his own name as the Chairman of the Administrative Board. At the some time, when he had the choice of including more administrators from amongst those who are not the members of the society, he ought to have exercise such an option by keeping in mind the warring factions of the respondent No. 6 Sangh engaged in legal battles over the last two to three years. Court cases are pending from the lowest Court (Co-operative Court) to the highest Court of the land between these two factions and therefore, it would have been in the interest of the society to appoint administrators who are alien to the said society. We make it clear that while recording these observations, we have not considered the allegations made against the respondent No. 3 in the instant petition and we have considered the petition solely on the legal challenge to the impugned order. The paramount considerations which ought to have influenced the mind of the respondent No. 5 while exercising the powers under section 77-A(1) of the Act ought to have been in the interest of the respondent No. 6. We have no hesitation to hold that the impugned order also suffers on the count that it does not serve the welfare of the Sangh in the peculiar circumstances that the affairs of the Sangh are required to be managed as at present, keeping in view the interests of its members, employees, etc. The respondent No. 5 has not only failed to follow the principles of natural justice in as much as he did not issue a notice as required under the first proviso of section 77-A(1) of the Act but indeed he has, in a way, usurped the powers in his favour while passing the impugned order and therefore, the availability of alternate remedy did not come in our way for entertaining and deciding this petition. If the State Government or the Registrar chooses to exercise the powers under section 77-A(1) of the Act in respect of the respondent No. 6 Sandh again, it is necessary that the Registrar applies his mind afresh so as to comply with the mandatory requirements and pass fresh order after recording his satisfaction for such an appointment and for the reasons stated therein and in due compliance of the procedure set out in the scheme of the said section.
17. Resultantly, we allow the petition and quash and set aside the impugned order dated 9th October, 2000 passed by the respondent No. 5 appointing the Board of Administrators for respondent No. 6 Sangh. The respondent No. 2 or 5, as the case may be, shall continue to hold the charge of respondent No. 6, Sangh, as per the provisions of section 73-H(2) of the Act and pursuant to our directions in Writ Petition No. 3631 of 1999. In case, the State Government or the Registrar, as the case may be, chooses to invoke the powers under section 77-A of the Act in respect of the respondent No. 6 Sangh afresh, the same shall be done as per the mandatory provisions and having regards to the observations we have made in this judgment. Rule is made absolute accordingly with no orders as to costs.
At this stage, Mr. P.M. Shah, learned Counsel for the respondent No. 4 submitted an oral application for stay of this judgment for a period of four weeks. We are satisfied that the prayer made is devoid of merits and same is hereby rejected.