Bombay High Court
Kumbhargaon Vividh Karyakari Sahakari ... vs Assistant Registrar, Co-Op. ... on 12 November, 1992
Equivalent citations: 1993(1)BOMCR586, (1993)95BOMLR28
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. Rule returnable forthwith. Respondents through respective advocates waive service. By consent rule deemed to be on today's board for final hearing, called out and heard.
2. By this writ petition, the petitioner impugns an Order of the Assistant Registrar, Co-operative Societies, Patan, dated 19th August, 1992, by which the fourth respondent has been granted registration as a multi-purpose co-operative society.
3. The petitioner is a registered multi-purpose co-operative society, and is carrying on its business within the area of village Kumbhargaon, Taluka Patan, District Satara.
4. Sections 3 to 11 of The Maharashtra Co-operative Societies Act, 1960, provide a detailed machinery for registration of different kinds of societies under the Act. Section 4 indicates the types of societies which are entitled to registration under the Act. Section 6 lays down the condition for registration of a society. Under section 8, the proposed society is required to apply to the Registrar in the prescribed form, accompanied by prescribed number of copies of the proposed by-laws and make payment of the prescribed registration fees. Section 9 provides that, if the Registrar is satisfied that the proposed society has complied with the provisions of the Act and the Rules or any other law for the time being in force or policy directives issued by the State Government under section 4, and that the proposed by-laws of the applying society are not contrary to the Act or the Rules, then the Registrar shall register the society and its by-laws within a period of two months from the date of the application. If no such registration is made, then, within a period of 15 days from the date of expiration of the time limit, the Registrar or the Registering Officer, in case it is not the Registrar, is required to refer the application to the next higher officer or the State Government, as the case may be, for appropriate action and disposal according to law. Section 11 provides for the various inquiries which the Registering Officer has to undertake before he grants registration of the society.
5. In the instant case, the power of the Registrar has been delegated to the Assistant Registrar, and he was exercising the powers of the Registrar under section 8. By a judgment of this Court in Sathe Vividh Karyakari Seva Society (Proposed) Ltd. v. Bhairvanath Vividh Karyakari Sahakari Seva Society Ltd. and others, decision dated 21st April, 1989 in Writ Petition No. 803 of 1989 decided by Pratap & Kolse-Patil, JJ., after a careful analysis of the applicable statutory provisions, it has been held, inter alia, that orders under sections 4 to 9 of the Act vitally affect the rights and interests of the parties, and that the authorities seized of the proceedings must, therefore, before deciding the same, issue notices, and give opportunities, to all concerned and affected parties, and, after hearing them, pass a speaking order with reasons disclosed in support thereof.
6. It is trite law that an officer of State, who has been invested with administrative/quasi-judicial functions, has to discharge them independently, on the basis of the material placed on record and after giving an opportunity for hearing to the parties likely to be affected by his order. The Registrar, or his delegatee, the Assistant Registrar, as in the instant case, is, without doubt, discharging administrative, if not quasi-judicial, functions under the statute when he acts as the Registering Authority. Considering the serious consequences which his order of registration or refusal of registration would entail, it is expected that the responsibility invested in the Registering Authority is discharged consistently with principles of natural justice.
7. What is surprising in the present case is that, by a letter/order dated 5th June, 1992 (in subsequent orders, the date is erroneously referred to as 6-6-1992) issued by the Deputy Secretary, Government of Maharashtra, Co-operation and Textiles Department, the Deputy Registrar was informed that the fourth respondent had made an application for registration as multi-purpose co-operative society and that the State Government had granted permission for such registration. The letter calls upon the Deputy Registrar to give a hearing to all the existing multi-purpose co-operative societies in the concerned area, and thereafter to consider the issue of granting registration to the fourth respondent. The Deputy Registrar, in his turn, addressed a letter dated 24th June, 1992, to the Assistant Registrar, conveying the gist of what the Government had informed him. The Assistant Registrar issued a notice of hearing to the petitioner, which was the only other multi-purpose co-operative society functioning in the area. The parties appeared before the Assistant Registrar, and, after hearing them, the Assistant Registrar has passed the impugned Order dated 19th August, 1992, by which he has granted registration to the fourth respondent-society as a multi-purpose co-operative society in the concerned area.
8. Even a bare perusal of the impugned order of the Assistant Registrar shows that it is vitiated by considerations other than germane. Not only has the Registrar pointedly referred to the letter dated 5th June, 1992, issued to him by the Deputy Secretary of the Government of Maharashtra, and the letter dated 24th June, 1992, addressed to him by the Deputy Registrar, but he has also reproduced the gist of the contents of the said letters in the preamble to his order. As if this was not sufficient, in the body of the order also, he has reproduced the arguments addressed on behalf of the fourth respondent, one of which was that the Government had already granted permission, for registration. The coup de grace is in the operative order, which it is worthwhile to reproduce. The operative order reads :
"Upon consideration of all the aforesaid facts, and, following the order of the Government, the proposed Sadguru Multipurpose, Co-operative Society, Shendewadi, Kumbhargaon, Taluka Patan, Dist. Satara, is hereby granted registration."
It is obvious that the Government's "order" was one of the factors which influenced the Assistant Registrar in arriving at his impugned order. I am, therefore, of the view that the Assistant Registrar has, in passing the impugned order, abdicated his statutory functions and acted at the behest of the Government, as if he was obliged to follow a directive issued by the Government. That such is not the situation in law has been pointedly made clear by a judgment of brother Tipnis, J., dated 3rd November, 1992 in Writ Petition No. 4495 of 1992 in the case of Shri Gajanan Sahakari Dudh Vyavasayeek Sansthan Maryadeet v. State of Maharashtra and others. The learned Judge, following the Division Bench judgment referred to hereinbefore, has pointed out that the Assistant Registrar is required to decide the matter by completely ignoring any order issued to him in this behalf by the Government.
9. Mr. Patil, learned Advocate appearing for the fourth respondent, faintly attempted to justify the order on a two-fold basis. Firstly, he contended that the order is an appealable order, and the writ petition, having been filed without exhausting the alternative remedy, it should be summarily rejected. Secondly, he contends that, having participated in the inquiry before the Assistant Registrar, it is not open to the petitioner to impugn the order, which is the result of such participation on the part of the petitioner. In my view, both contentions have no substance. It is futile to drive the petitioner to a remedy by appeal (which, I am told, lies to the Joint Registrar) in the teeth of the so-called "Order" of the Government, without saying something about it. It would be an appeal from Caesar to Caesar. Secondly, every citizen is entitled to assume, even if he comes to know of such letter/order written by the Government, that the officer, before whom he appears, acts in the manner expected of his by the statute. It is only after the Assistant Registrar's order that the petitioner realized that the Government's "order" was also a factor which influenced the Assistant Registrar. In these circumstances, no useful purpose would be served by directing the petitioner to move an appeal in the matter. The better course would be to set aside the impugned order, and specifically direct the Assistant Registrar to decide the matter purely in accordance with the material on record and on application of the relevant provisions of law, by completely ignoring the so-called "order" issued to him by the Government vide its letter dated 5th June, 1992, and very dutifully transmitted to him by his superior officer, the Deputy Registrar, by his letter dated 24th June, 1992.
10. The petition is, therefore, allowed. Rule is made absolute, and the impugned Order of the Assistant Registrar, Co-operative Societies, dated 19th August, 1992, is hereby quashed and set aside. The first respondent, Assistant Registrar, Co-operative Societies, is hereby directed to decide afresh the application of the fourth respondent for registration strictly in accordance with law, on the basis of the material placed before him and also by totally ignoring the letter dated 5th June, 1992, written to him by the Deputy Secretary, Government of Maharashtra, Co-operation and Textile Department (Exhibit 'A'), and the letter dated 24th June, 1992, addressed to him by the Deputy Registrar, Co-operative Societies, after due notice to the parties.
11. The first respondent shall pay the costs of this petition.