Bombay High Court
Swapnil S/O Sunil Likhar vs The District Deputy Registrar, ... on 17 July, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
J-wp4442.17.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.4442 OF 2017
Swapnil s/o. Sunil Likhar,
Aged about 31 years,
Occupation : Labourer,
R/o. Ram Mandir Road,
Saoner, Distt. Nagpur. : PETITIONER
...VERSUS...
1. The District Deputy Registrar,
Co-operative Societies, Nagpur.
2. The Nagpur Labour Co-operative
Societies Federation Limited, Nagpur,
through its Secretary,
having Office at Block No.7,
Chandak Layout, Behind New Century,
Cotton Market, Nagpur-18.
3. Dipak Krishnarao Bederkar,
Aged adult,
Occupation : Govt. Service,
Having office at Sahakar Sadan,
Plot No.8, Hindustan Colony,
Amravati Road, Nagpur.
Respondent Nos.4 4. Sudhakar s/o. Bapuji Medpalliwar,
and 5 added and Aged about 77 years,
amended as per President, Jansewa Bandhkam Majoor
Court's order
dt.1.3.2018. Sahakari Sanstha, Nagpur, 125-A,
New Jagruti Colony,
Katol Road, Nagpur.
5. Shri Giridhar s/o. Vishwanath Gedam,
Aged about 65 years,
President, Kalpana Sahakari Majoor
Sanstha Maryadit, Kuhi,
Tahsil Kuhi, Distt. Nagpur. : RESPONDENTS
::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 :::
J-wp4442.17.odt 2/8
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri A.M. Ghare, Advocate for the Petitioner.
Shri K.L. Dharmadhikari, Asstt. Government Pleader for Respondent No.1.
Shri S.S. Ghate, Advocate for the Respondent No.3
Shri V.N. Gaoli, Advocate for Respondent Nos.4 and 5.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
th
DATE : 17
JULY, 2018.
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent.
4. I have heard extensive argument canvassed before me on behalf of the petitioner and the respondents. The points that these arguments raised basically relate to maintainability of this petition before this Court and the impugned order passed under Section 77-A of the Maharashtra Co-operative Societies Act, 1960 (in short, "MCS Act, 1960") being illegal and arbitrary.
5. According to the learned Assistant Government Pleader for respondent No.1, learned counsel for the respondent No.3 and learned counsel for respondent Nos.4 and 5 the petition is not maintainable in view of the provisions made in Section 152 of the MCS Act, 1960. Learned counsel for the petitioner submits that the petition is maintainable for the reason that the impugned order is manifestly contrary to the provisions of law and amounts to exercise of jurisdiction ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 ::: J-wp4442.17.odt 3/8 not available to the authority in view of the non-existence of the conditions necessary for exercise of the jurisdiction.
6. Learned Single Judge of this Court while deciding Writ Petition No.6220/2016, Shri Rajendra s/o. Hiralal Jain and another vs. The State Government, through its Secretary and two others, on 7 th March, 2017 has made an observation, which could be considered in the light of the settled principle of law that if the concerned authority has acted illegally and contrary to the provisions of law, the writ petition filed to invoke jurisdiction of this Court under Article 227 of the Constitution of India would be maintainable. In the present case, upon consideration of the impugned order as well as the material available in the paper book, I find that the conditions necessary for exercise of the jurisdiction under Section 77-A of the MCS Act have not been stated to exist and, therefore, no jurisdiction in appointing an administrator or an authorized officer superseding the entire committee could have been exercised by the respondent No.1 and, therefore, the order of the respondent No.1 has to be termed as patently illegal as well as without jurisdiction. This would enable me to further hold that this writ petition is maintainable, following the principle of law stated by the learned Single Judge of this Court in Rajendra (supra).
7. Now, let us consider the merits of the case. There can be no dispute about the power of the Registrar or District Deputy Registrar to dispense with notice which he is required to give under first proviso to ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 ::: J-wp4442.17.odt 4/8 Section 77-A(1)(b-1) of the MCS Act, and power of dispensing with publication of a notice is given in second proviso. But, for exercising such second proviso power, the Registrar has to satisfy himself that immediate action is required to be taken or that it is not reasonably practicable to publish a notice as required under first proviso to the said provision of law. These conditions for exercise of second proviso power would denote that the Registrar must consider existence of some emergency or a situation requiring taking of immediate action, failing which the loss of some kind to the members of the Society or the Federation would be imminent. If no immediate action is necessary, even then, it is permissible for the Registrar to dispense with the notice but then requirement is that issuance of publication of the notice as required under the first proviso, in the subjective opinion of the Registrar founded on the basis of some objective material before him, is not reasonably practicable for him. The expression reasonably practicable to publish a notice, would suggest that the situation contemplated by the Legislature is one of a case wherein, necessary logistics are not available to publish a notice as soon as possible and something injurious to or disastrous for the interest of the Federation or member Society is likely to happen in the meantime. Having understood these provisions of law so, let us now consider the reasons stated in the impugned order for dispensing with the notice.
8. A bare perusal of the impugned order would show that the ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 ::: J-wp4442.17.odt 5/8 reasons stated for dispensing with the notice are too stereotyped to be called reasons contemplated in law. This could be seen from use of generalist expression cannoted by such words as impracticable, unnecessary and unnecessarily time consuming. The order disqualifying the members was passed under Rule 58 of the Maharashtra Co-operative Societies Rules, 1961 (in short, "Rules 1961") on 9.5.2017 and the order impugned in this petition passed under Section 77-A was rendered on 15.5.2017 out of which, admittedly the intervening four days were holidays. Therefore, it was necessary for the Deputy Registrar to specify the events or emergency or the urgent situation which required taking of immediate action or the difficulty faced by him in publishing notice by displaying it on the notice board of the Federation as required under first proviso to the aforesaid provision of law. But, the Deputy Registrar has not done it and instead used some rhetorical expression dotted with stereotypes to justify his decision to dispense with the notice. Such a decision rendered in the absence of necessary material supporting it has to be termed as arbitrary and contrary to the said provisions of law.
9. After all requirement of publication of a notice under first proviso goes to sub serve the cause of rule of law by which every authority exercising administrative or judicial or quasi judicial power is governed. It also fulfills the requirement of principles of natural justice by enabling other members of the society to express their willingness or otherwise to be members of the executive committee so as to fill up the ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 ::: J-wp4442.17.odt 6/8 vacancy. Therefore, absent a situation of extreme urgency and as clarified in the second proviso, the power to dispense with notice must not be exercised. The scheme of the provision of Section 77-A is such that this power has to be exercised sparingly and only in exceptional circumstances, which does not seem to be the case here, as seen from the reasons stated in the impugned order, for exercise of such a power by the Registrar.
10. It is further seen that the Registrar is also required to consider other options available to him under the scheme of Section 77-A of the MCS Act for filling up the vacancy. The other option is stated in Section 77-A(1)(b-1)(i). It lays down that the Registrar may either suo motu or on the application of any officer or member of the society by order call upon any member or members of the society to be member or members of the Committee to fill the vacancies. The third proviso to this Section also clarifies as to how the Registrar has to proceed further in the matter when there are no members of the society who are willing to work on such society. The third proviso prescribes that in such a case, the Registrar would have the power to appoint one or more authorized officers not being members of the society to look after the affairs of the society. All these provisions made in Section 77-A when considered together would reasonably show that the power to appoint authorized officer by superseding all the members of the executive committee has to be exercised only as a last resort to remedy a situation arising from ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 ::: J-wp4442.17.odt 7/8 non-functioning of the executive committee and vacuum being created in the management of the Federation as a result thereof. So, unless the option so given under this provision is explored, it would not be open for the Registrar to straight away consider the option of appointing an administrator or an authorized officer who is not a member of the Federation, to substitute for the executive committee of the Federation. This option has also not been exercised in the present case, making the impugned order as patently illegal.
11. In the circumstances, I am of the view that the impugned order is manifestly illegal as well as arbitrary.
12. Shri S.S. Ghate, learned counsel for the respondent No.3 by relying upon the case of Chandralok Sahakari Gruha Nirmal Sanstha ltd., Shegaon vs. Assistant Registrar, Co-operative Societies, Shegaon, reported in 1992 Mh.L.J. 1118, submits that in this case there is no averment to the effect that the impugned order is perverse and unless it is shown that the power exercised for dispensing with notice was exercised in a perverse manner, the impugned order could not be faulted on this count. There can be no doubt about the principle of law so laid down in the case of Chandralok (supra) on which learned counsel for respondent No.3 places reliance. But, the discussion so far made, I must say, sufficiently points out that the impugned order has been demonstrated to be manifestly "illegal and arbitrary" the words used in the grounds of challenge incorporated in the petition and these two ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 ::: J-wp4442.17.odt 8/8 terms include what is conveyed specifically by the idea of ""perversity" used to challenge the impugned order. Therefore, by following this principle of law only, I would say the impugned order is manifestly illegal and arbitrary.
13. In the circumstances, this writ petition deserves to be allowed and it is allowed accordingly.
14. The impugned order is quashed and set aside.
15. The matter is remanded back to the District Deputy Registrar for a fresh consideration, if he wishes to do so.
16. Rule is made absolute in the above terms. No costs. Civil Application No.1106/2018.
In view of forgoing conclusion, I do not think that now it would be appropriate to turn the attention of this Court to the merits of this application and, therefore, the application is disposed of in terms of the order passed in this case.
JUDGE okMksns ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 01:09:58 :::