Bombay High Court
Shri Tukaram S/O Appaji Gunware vs The State Of Maharashtra on 10 October, 2013
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
W.P.No.9628/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.9628 OF 2012
Hiradgaon Vividh Karyakari
Seva Sahakari Society Ltd.,
At Hiradgaon, Taluka Shrigonda,
District Ahmednagar
through its Chairman
Shri Tukaram s/o Appaji Gunware,
Age 62 years, Occu.Agriculture,
R/o Hiradgaon, Taluka Shrigonda,
District Ahmednagar ..Petitioner
Versus
1.
The State of Maharashtra
through the Secretary for
Co-operation Department,
Mantralaya, Mumbai
2. The Divisional Joint Registrar,
Co-operative Societies,
Nashik Division, Nashik
3. The Assistant Registrar,
Co-operative Societies,
Shrigonda, Taluka Shrigonda,
District Ahmednagar
4. Shri Nagnath Vividh Karyakari
Seva Sahakari Society Ltd.,
at Hiradgaon, Taluka Shrigonda,
District Ahmednagar,
through its Chief Promotor,
Shri Bharat s/o Jairam Darekar,
Age 35 years, Occu.Agriculture
R/o Hiradgaon, Taluka Shrigonda,
District Ahmednagar
5. Dattu s/o Zumbar Bhujbal,
Age 41 years, Occu.Agriculture
6. Sou.Alka w/o Raosaheb Bhujbal,
Age 32 years, Occu.Agriculture
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W.P.No.9628/2012
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7. Sou.Rekha w/o Shantilal Darekar,
Age 40 years, Occu.Agriculture
8. Sou.Nikita w/o Sharad Darekar,
Age 33 years, Occu.Agriculture
9. Waman s/o Shankar Darekar,
Age 50 years, Occu.Agriculture
10. Vilas s/o Rangnath Darekar,
Age 45 years, Occu.Agriculture
11. Mohan s/o Rangnath Darekar,
Age 36 years, Occu.Agriculture
12. Nana s/o Gulab Darekar,
Age 40 years, Occu.Agriculture
13. Ganesh s/o Shantilal Darekar,
Age 18 years, Occu.Agriculture
14. Sou.Anjanabai w/o Ramrao Darekar,
Age 60 years, Occu.Agriculture
15. Sou.Usha w/o Govind Shinde,
Age 42 years, Occu.Agriculture
16. Subhash s/o Zumbar Bhujbal,
Age 35 years, Occu.Agriculture
17. Bandu s/o Zumbar Bhujbal,
Age 47 years, Occu.Agriculture
18. Sou.Radhabai w/o Sahadu Bodkhe,
Age years, Occu.Agriculture
19. Suchetra w/o Mihir Darekar,
Age 35 years, Occu.Agriculture
20. Keshav s/o Shrirang Bhujbal,
Age 45 years, Occu.Agriculture
21. Mahesh s/o Bhanudas Bavadhkar,
Age 28 years, Occu.Agriculture
22. Sou.Suvarna w/o Shivaji Bhujbal,
Age 36 years, Occu.Agriculture
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W.P.No.9628/2012
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23. Sanjay s/o Vishwanath Darekar,
Age 42 years, Occu.Agriculture
24. Balu s/o Kondiba Bhise,
Age 50 years, Occu.Agriculture
25. Dattatraya s/o Kondiba Bhise,
Age 47 years, Occu.Agriculture
26. Sou.Manda w/o Appa Bhore,
Age 40 years, Occu.Agriculture
27. Kailas s/o Dattatraya Bhujbal,
Age 32 years, Occu.Agriculture
28. Ashok s/o Dattatraya Bhujbal,
Age 36 years, Occu.Agriculture
29. Sou.Surekha w/o Sambhaji Darekar,
Age 42 years, Occu.Agriculture
30. Amit s/o Sambhaji Darekar,
Age 32 years, Occu.Agriculture
31. Ravindra s/o Sahadu Darekar,
Age 32 years, Occu.Agriculture
32. Sou.Suchitra w/o Milind Darekar,
Age 30 years, Occu.Agriculture
33. Nana s/o Bapu Kale,
Age 42 years, Occu.Agriculture
All R/o Hiradgaon, Taluka Shrigonda,
District Ahmednagar ..Respondents
Mr V.D.Hon, Advocate for petitioner
Mr V.D.Rakh, A.G.P. for respondents 1 to 3
Mr N.V.Gavare, Advocate for respondent No.4
Mr H.D.Deshmukh, Advocate for respondents 5 to 33 (Intervenors)
(Respondents No.5 to 33 added as per Court's order dated
10.10.2013 passed in C.A.No.2269 of 2013)
- WITH -
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W.P.No.9628/2012
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WRIT PETITION NO.346 OF 2013
Munjoba Ukkadgaon Vividh
Karayakari Seva Sahakari
Society Ltd., at Ukkadgaon,
Taluka Shrigonda, District
Ahmednagar through its
Chairman Shri Dattatraya
s/o Kundlik Katore, Age 59 years,
Occu.Agriculture, R/o Ukkadgaon
Taluka Shrigonda,
District Ahmedangar ..Petitioner
Versus
1. The State of Maharashtra
through the Secretary for
Co-operation, Textile and
Marketing Department,
Mantralaya, Mumbai
2. The Divisional Joint Registrar,
Co-operative Societies,
Nashik Division, Nashik
3. The Assistant Registrar,
Co-operative Societies,
Shrigonda, Taluka Shrigonda,
District Ahmednagar
4. The proposed Yashwant Vividh
Karyakari Seva Sahakari Society
Ltd., at Ukkadgaon, Taluka
Shrigonda, District Ahmednagar
Through its Chief Promoter
Shri Balasaheb Sarjerao Mahadik,
Age 43 years, Occu.Agriculture,
R/o Ukkadgaon, Taluka Shrigonda,
District Ahmedangar
5. Balu s/o Sampat Katore,
Age 52 years, Occu.Agriculture
6. Dattatraya s/o Balasaheb Katore
Age 37 years, Occu.Agriculture
7. Arun s/o Ashok Katore,
Age 32 years, Occu.Agriculture
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8. Vaijanath s/o Dnyandeo Mahadik,
Age 32 years, Occu.Agriculture
9. Surekha w/o Vaijanath Mahadik,
Age 28 years, Occu.Agriculture
10. Nandabai w/o Nanasaheb Katore,
Age 42 years, Occu.Agriculture
11. Savita w/o Dilip Katore,
Age 37 years, Occu.Agriculture
12. Suryabhan w/o Manik Mahadik,
Age 45 years, Occu.Agriculture
13. Sambhaji s/o Rangnath Golande,
Age 43 years, Occu.Agriculture
14. Bhimak s/o Kundlik Salunke,
Age 65 years, Occu.Agriculture
15. Santosh s/o Janardhan Mahadik,
Age 25 years, Occu.Agriculture
16. Amol s/o Mohan Katore,
Age 23 years, Occu.Agriculture
17. Bhau s/o Narsing Mahadik,
Age 39 years, Occu.Agriculture
18. Aba s/o Kundlik Salunke,
Age 68 years, Occu.Agriculture
19. Subhash s/o Trimbak Mahadik,
Age 55 years, Occu.Agriculture
20. Sandip s/o Ramdas Katore,
Age 36 years, Occu.Agriculture
21. Dilip s/o Kanshiram Katore,
Age 38 years, Occu.Agriculture
All R/o Ukkadgaon, Taluka
Shrigonda, Dist.Ahmednagar ..Respondents
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W.P.No.9628/2012
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Mr V.D.Hon, Advocate for petitioners
Mr V.D.Rakh, A.G.P. for respondents 1 to 3
Mr N.V.Gaware, Advocate for respondent No.4
Mr H.D.Deshmukh, Advocate for respondents No.5 to 21
(Intervenors)
(Respondents 5 to 21 added as per Court's order dated
10.10.2013 passed in C.A.No.2251 of 2013)
- WITH -
WRIT PETITION NO.486 OF 2013
Shri Kshetra Mahadeodara Vividh
Karyakari Seva Sahakari Society
Ltd., at Kosegavhan, Taluka
Shrigonda, District Ahmednagar
through its Chairman -
Yuvraj s/o Raosaheb Shinde,
Age 32 years, Occu.Agriculture,
R/o Kosegavhan, Taluka Shrigonda,
District Ahmednagar ..Petitioner
Versus
1. State of Maharashtra
through its Secretary for
Co-operation, Marketing
and Textile Department,
Mantralaya, Mumbai
2. The Divisional Joint Registrar,
Co-operative Societies,
Nashik Division, Nashik
3. The Assistant Registrar,
Co-operative Societies,
Shrigonda, Taluka Shrigonda,
District Ahmednagar
4. The proposed Kosegavhan
Vividh Karyakari Seva
Sahakari Society Ltd.,
at Kosegavhan, Taluka
Shrigonda, District Ahmednagar
through its Chief Promoter -
Bhimrao s/o Bapurao Nalage,
Age 40 years, Occu.Agriculture,
R/o Kosegavhan, Taluka
Shrigonda, District Ahmednagar
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W.P.No.9628/2012
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5. Shri Harshwardhan Patil,
Honourable Cabinet Minister for
Co-operation, Marketing &
Textile Department, Mantralaya,
Mumbai 431 032. ..Respondents
Mr N.V.Gaware, Advocate h/f Mr S.N.Patil, Advocate for petitoner
Mr V.D.Rakh, A.G.P. for respondents 1 to 3
Mrs Madhveshwari D.Thube - Mhase, Advocate for respondent No.
4
- WITH -
WRIT PETITION NO.1683 OF 2013
1. Ghodegaon Vividh Karyakari
Seva Sahakari Sanstha
Maryadit, Ghodegaon,
Taluka Shrigonda, District
Ahmednagar, through its
Chairman - Gangaram s/o
Bhanudas Mache, Age 54
years, Occu.Agriculture,
R/o Ghodegaon, Taluka
Shrigonda, Dist.Ahmednagar
2. Ghodegaon No.2 Vividh
Karyakari Seva Sahakari
Sanstha Maryadit, Ghodegaon,
Taluka Shrigonda, District
Ahmednagar through its
Chairman - Ganpat s/o
Mahadu Nikam, Age 60 years,
Occu.Agriculture, R/o Ghodegaon
Taluka Shrigonda, District
Ahmednagar ..Petitioners
Versus
1. State of Maharashtra
through its Secretary,
Co-operation Department,
Mantralaya, Mumbai
2. The Divisional Joint Registrar,
Co-operative Societies,
Nashik Division, Nashik
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W.P.No.9628/2012
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3. The Assistant Registrar,
Co-operative Societies,
Shrigonda, Taluka Shrigonda,
District Ahmednagar
4. The proposed Jaibhavani
Vividh Karyakari Seva
Sahakari Society Ltd. at
Ghodegaon, Taluka Shrigonda,
District Ahmednagar, through
its Chief Promoter -
Rambhau s/o Namdeo Mache,
Age 45 years, Occu.Agriculture
R/o Ghodegaon, Taluka Shrigonda,
District Ahmednagar ..Respondents
Mr A.M.Gaikwad, Advocate for petitioners
Mr V.D.Rakh, A.G.P. for respondents 1 to 3
Mr A.D.Shinde, Advocate for respondent No.4
CORAM : MRS.MRIDULA BHATKAR, J.
DATE OF RESERVING THE JUDGMENT : 25.09.2013 DATE OF PRONOUCNING THE JUDGMENT : 10.10.2013 JUDGEMNT Rule. Rule made returnable forthwith. By consent of learned Counsel for the parties, heard finally at the stage of admission.
1. Writ Petition No.9628 of 2012 is filed by the existing society challenging the order in the Revision passed by the Honourable Minister (Co-operation), dated 7.11.2012 and also challenging the registration certificate dated 19.11.2012 issued by the Assistant ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 9 Registrar, Co-operative Societies, Shrigonda in favour of respondent No.4. Writ Petition No.346 of 2013, order dated 5.12.2013 passed by Honourable Minister is challenged. In Writ Petition No.1683 of 2013 which is filed by the existing society, the order dated 20.2.2013 passed by the Honourable Minister (Co-
operation) in Revision Application No.49 of 2013 is challenged. In Writ Petition No.486 of 2013, which is also filed by the existing society, the order dated 10.1.2013 passed by Honourable Minister for Co-operation, Marketing and Textile in Revision Application No. 983 of 2011 is challenged.
2. In all these writ petitions, the order of the Honourable Minister allowing the registration of a new co-operative society is challenged. The Honourable Minister by his orders, set aside the orders passed by the Assistant Registrar and Divisional Joint Registrar, by which the proposals made for registration of new societies were rejected. Earlier, this Court clubbed all these writ petitions and by consent of learned Counsel for the parties, common arguments were made and are being decided by this common judgment. However, in Writ Petition No.486 of 2013, additional points are involved and, therefore, though the common submissions are made in all these writ petitions, the arguments advanced on the additional points in Writ Petition No.486 of 2013 are specifically considered at the end of the judgment and accordingly, order is passed.
::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 103. Before dealing with the submissions of the learned Counsel, it will be useful to give background of all these petitions. Under Section 4 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "M.C.S. Act" ), the State has power to issue regulations, resolutions and circulars as per the policy. The State of Maharashtra has formulated a policy by issuing Government Circular dated 7.2.2001 stating that a transaction financial and capital of a proposed society should be more than Rs.50 lacs. Thereafter, on 5.3.2007, a Circular was issued by State of Maharashtra informing that there should not be new registration of the Co-operative Societies and all the Registrars were directed to take note of the said Circular and to implement the same with immediate effect. Pursuant to the said Circular, the State Government issued Resolution on 3.12.2011 by which Government has decided that in view of Baidyanathan Committee, i.e. State Government, Central Government and National Bank for Agricultural and Rural Development Agricultural (NABARD) have entered into a tripartite agreement dated 13.11.2006 and the Government appointed a Committee to take an overall view to collect data in respect of existing societies, their economic condition; also in respect of existing societies, which are economically very poor and dying and on the report of that committee, the State to finalise the policy. Till then, the Government has decided not to register any new society with a ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 11 view to protect the co-operative movement and to give life support to the economically weak existing co-operative societies.
4. The legislature in 2012 amended the Article 19 (c) of the Constitution by way of Ninety-seventh amendment Act, 2011 w.e.f. 12.1.2012 by inserting words, "Co-operative Societies" in Article 19 (1) (c). The Constitution thus recognized formation of co-operative society as a fundamental right, included in Part III of the Constitution. Action of the Assistant Registrar rejecting the applications for registration of new society is based on the Circular dated 5.3.2007and Government Resolution dated 3.12.2011.
Validity of said Circular and Govt.Resolution is challenged by the respondents while countering the petitions, especially on the basis of the amended Article 19 (1) (c) of the Constitution.
5. Learned Counsel for the petitioners submitted that the orders passed by the Assistant Registrar and the orders passed by Divisional Joint Registrar, thereby confirming the order of the Assistant Registrar are legal and the Honourable Minister should not have quashed and set aside the same. It was submitted that a finding given by the office of the Registrar ought to have been accepted by the Honourable Minister. The Assistant Registrar has refused to entertain the proposals for registration of new co-
operative society without giving any reason or discussing merits of the matter, wholly keeping in view the Circular of 2007 issued ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 12 by the Government. If the Government has directed the Registrars, Co-operative Societies to stop the registration of new societies in view of its policy, then Registrar has rightly followed the said directions for which the orders cannot be faulted with.
The Honourable Minister has overreached his revisional powers under Section 154 of the M.C.S. Act. If the Honourable Minister found that the order passed by the Registrar to be illegal or not consistent with the policy of the Government, then the Honourable Minister should have given directions with well reasoned order to the Registrars to entertain the proposals and decide those applications on merit, considering the factual aspects of each proposal, as it is the power of the Assistant Registrar under Section 9 of the M.C.S. Act. While responding to point raised by the respondents about the validity of the policy, decision of the State in the light of recent amendment in Article 19 (1) (c) of the Constitution, reliance was placed on the Article 243-ZH of the Constitution. It was submitted by learned Counsel that subject of Co-operative Society falls under State list of the Constitution and that is the source of power of the State to take policy decisions, consistent with the object of the M.C.S. Act. It will not be out of place to mention the submissions of learned Counsel for the petitioner in Writ Petition No.346 of 2013 that all over in Maharashtra, the permission for registration of new societies is not given, except in Ahmednagar, especially in Shrigonda taluka.
::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 13If there is such policy, it is obligatory on the part of the Honourable Minister to consider the said policy. Therefore, it is prayed that the impugned orders may be quashed and set aside.
6. It is argued by the Counsel for the respondents - newly registered societies, by virtue of the Constitutional amendment in 19(1) (c), the earlier Government Circular dated 5.3.2007 and Government Resolution dated 3.12.2011 in respect of restricting registration of new societies are null and void and have automatically cancelled and have become ineffective, as they are contrary to the fundamental right.
7. By way of reply, legal objections were raised that Honourable Minister of State has power to hear and decide the matter in the revisional jurisdiction under Section 154 of the Maharashtra Co-operative Societies Act. Section 4 of the M.C.S. Act deals with the registration of the societies and Sections 6 and 9 both are to be considered. It was argued that though under proviso to Section 4 of the M.C.S.Act, a restriction is imposed in respect of the registration of the societies. It cannot override the main Section 4 of the M.C.S.Act enabling the registration of the society. Non-registration of the society is contrary to the policy of the legislature. Section 6 of the M.C.S. Act states about the conditions for registration and Section 9 of the Act speaks about the registration itself. Section 9 of the M.C.S. Act states that if at ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 14 all there is inaction on the part of the Registrar in deciding the application for registration within a period of two months, then the society is deemed to have been registered. Thus, the deeming provision takes care of the object of the Statute. An appeal is provided under Section 152 and revision is provided under Section 154 of the M.C.S. Act. Under the revisional powers the Minister can take suo moto decision in respect of the matter, it is necessary to see the legality, propriety and regularity while passing the orders.
ig If it is followed, then the order cannot be faulted with. It is submitted that the revisional powers are akin to the appellate powers. The circular is not a policy and the Assistant Registrar while rejecting the application for registration, has erroneously relied on the said circular. Resolution was issued by the State Government on 3.12.2011, however, the proposal of the respondents in Writ Petition No.486 of 2013 was moved on 29.1.2011 and registration was refused on 26.8.2011, i.e. much prior to the issuance of the said Government Resolution. When the proposal was moved, Government Resolution dated 3.12.2011 was not in existence and no retrospective effect can be given to any Government Resolution unless it is specifically mentioned. It was submitted that a ceiling of transaction of Rs.50 lacs can be considered as reasonable restriction but not to register the society cannot be justified, as a reasonable restriction considering the object of the amendment, of the Article 19 (c). The spirit behind ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 15 the amendment of Article 19 (c) is to motivate and encourage the co-operative movement. The policy is void ab initio and does not fall within the parameters of reasonable restrictions. It was submitted that the propriety means correctness and State Government did not act in excess of the statutory authority. It is further submitted by learned Counsel for respondent No.4 in Writ Petition No.1683 of 2013 that under the writ jurisdiction, this Court has supervisory jurisdiction and that cannot be invoked when the Honourable Minister has powers under the Statute to entertain the revision and pass the orders, unless it is pointed out that the Honourable Minister has exceeded his powers causing miscarriage of justice.
8. In Writ Petition No.9628 of 2012 and Writ Petition No.346 of 2013, intervenors were heard and they supported the respondents in respect of registration of new co-operative societies.
9. Learned Counsel for both the sides have placed reliance on the ratio laid down by the Honourable Supreme Court and the High Courts on the point of writ jurisdiction of this Court under Article 227 of the Constitution and also in respect of revisional jurisdiction under Section 154 of the Maharashtra Co-operative Societies Act. Therefore, before considering the legal contentions raised by the parties on these issues, it will be proper to cull out the ratio of these cases as follows :
::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 16(A) On the point of revisional powers of the Honourable Minister under Section 154 of the M.C.S. Act, a reliance is placed on the judgment of the Full Bench of this Court in Smt.Shireen Sami Gadiali and anr. Vs. Spenta Co-op. Housing Society Ltd.
and ors., reported in 2011 (3) ALL MAH 766 wherein the Full Bench while referring the judgment of the Honourable Supreme Court in Everest Apartments Co-operative Housing Society Ltd., Bombay Vs. State of Maharashtra, reported in AIR 1966 (SC) 1449 discussed the revisional powers conferred on the State Government. It is considered that though in the case of Everest Apartment (supra), the revisional powers under Section 154 of the M.C.S. Act were held that the jurisdiction conferred by Section 154 of the M.C.S. Act is potential but not compulsive.
However, the Full Bench of this Court has distinguished the judgment in the case of Everest Apartment (supra) on the ground that the judgment of the Honourable Supreme Court in Everest Apartment's case was prior to the amendment to provisions of Section 154 of the M.C.S. Act, i.e. in the year 1974. The provisions of Section 154 of the M.C.S. Act, as per the the amendment of 1974 can be exercised either suo moto or on application and they are compulsive. In the case of Shireen Sami Gadiali Vs. Spenta Co-operative Housing Society (supra), the Full Bench of this Court has held that while considering the scope of Section 154 of the ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 17 M.C.S. Act, second revision is not available before the same authority. The ratio laid down in the said case is of no use to the respondents, on the point whether the order of the Honourable Minister is bad in law or not.
(B) In Ranjeet Singh Vs. Ravi Prakash, reported in 2004 AIR (SC) 3892, the Honourable Supreme Court held that the High Court as exercised its certiorari jurisdiction for correcting the judgment of the appellate Court and by giving reference of the case in Surya Dev Rai Vs. Ram Chander Rai and ors., reported in (2003) 6 SCC 675, it was held that error committed by the Court or authority should be a self-evident error. Such error is amenable to correction in certiorari jurisdiction of the High Court and the error which needs to be established by complicated arguments cannot possibly be an error available for correction by writ of certiorari. No re-appreciation or re-evaluation of evidence can be done in the writ jurisdiction under Article 227 of the Constitution and High Court should not act like an appellate Court which is not permissible to do so under Article 226 or Article 227 of the Constitution.
(C) In the case of Chandra Singh and Ors.,Vs.State of Rajasthan and anr., reported in (2003) 6 Supreme Court Cases 545 while deciding the issue of superannuation of the judicial Officers, in Rajasthan, the Honourable Supreme Court held ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 18 that High Court may not strike down an illegal order although it would be lawful to do so, as the issuance of writ of certiorari is a discretionary remedy.
(D) Honourable Supreme Court in Chandrasinh Manibhai Vs. Surjit Lal Ldhamal Chhabda, reported in 1951 AIR (SC) 199.
The Honourable Supreme Court in the said judgment held that the Bombay Hotel and Lodging House Rent Rates Act, 1947 was retrospectively applicable only to a limited extent and the previous appeals and execution proceedings were governed by the provisions of law in force at the time when the decrees were passed. High Court has committed error in applying the provisions of the said Act retrospectively for want of specific provision.
(E) In the case of Bhikaji Narain Dhakras Vs. State of Madhya Pradesh, reported in 1955 AIR (SC) 781, the Honourable Supreme Court has considered the reasonable restrictions in Clause 6 of Article 19 of the Constitution. In the said case, the Court dealt with the provisions of the Motor Vehicles Act of 1939 which were amended by C.P. & Berar Motor Vehicles (Amendment) Act of 1947. The Supreme Court had an opportunity to consider the provisions of the Act. The provisions prior to the Constitution, which were in existence and the validity of those provisions, i.e. right to practice any profession ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 19 or to carry on any occupation, trade and business conferred by way of fundamental right by Article 19 (1) (g) of the Constitution which were controlled by Clause 6. It was held that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution and law made in contravention of this clause shall to the extent of the contravention be void.
(F) Much was argued on the point of legality and propriety in order to show that the order passed by the Honourable Minister is legal and proper, as it is the requirement of the order while invoking the revisional power under Section 154 of the M.C.S. Act.
Learned Counsel relied on the meaning of word, "legality" which means a quality of being legal. The word, "propriety" means correctness of behaviour of morals and quality of being appropriate. The word, "propriety" is explained in Raman and Raman Ltd., Vs. State of Madras, reported in 1956 AIR (SC)
463. The said case was under the Motor Vehicles Act, 1939, which was amended in 1948. In the said matter, under the Act the permit granted to a transport company was a subject matter.
It was held that if the authority has granted permit in the conflicting claims of the appellant and respondent concerning the facilities available to them for operation of the bus service, it is the State government to decide, considering the interest of the ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 20 public generally and the High Court should restrict itself from interfering such decision in its certiorari jurisdiction.
(G) On the point of judicial review in State of Uttar Pradesh Vs. Johri Mal, reported in 2004 AIR (SC) 3800, the Honourble Supreme Court, while dealing with the issue in respect of appointment of a District Government Counsel, under Section 24 of the Code of Criminal Procedure, laid down the guidelines on limited scope of judicial review as follows :
(1)Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies;
(2) A petition for a judicial review would lie only on certain well-defined grounds;
(3) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal;
(4) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a court, is limited to seeing that tribunal functions within the limits of its authority and that its decisions do not occasioned miscarriage of justice;::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 21
(5) The courts cannot be called upon to undertake the government duties and functions. The court shall not ordinarily interfere with the policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies.
10. Keeping in view the scope of writ of certiorari, as it is a supervisory jurisdiction and the High Court should not exceed its jurisdiction in the administrative decisions; the legality of the orders passed in the present case is to be examined. The object of Co-operative Societies Act and Rules is to regularise the financial transaction and the Bank finance and with a view to enable the urban co-operative Banks to play more positive role by giving financial support to the housing and agricultural sectors and to promote co-operative movement. Under Section 4 of the M.C.S. Act, a Co-operative Society can be registered. Section 4 of the M.C.S. Act reads as follows :
" 4. Societies which may be registered A society, which has as its objects the promotion of the economic interests or general welfare of its members, or of the public, in accordance will co-operative principles, or a society established with the object of facilitating the operations of any such society, may be registered under the Act;::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 22
Provided that, no society shall be registered if it is likely to be economically unsound, or the registration of which may have an adverse effect on development [of the co-operative movement, or the registration of which may be contrary to the policy directives which the State Government may, from time to time, issue.]."
Thus, under proviso, three factors are found harmful and to be taken into account before registration under Section 4 of the M.C.S. Act. They are as follows :
(i) If found economically unsound;
(ii) If Registration have adverse effect on
development of co-operative movement;
and
(iii) If registration is contrary to the Policy and the Directives issued by the State Government from time to time.
11. It is settled principle of Interpretation of Statute that proviso should not be interpreted in such a manner that it would override the main Section. Proviso is a condition put to the main Section.
However, interpretation of proviso should not render the main Section non-functional. Section 4 of the M.C.S. Act specifies the factors for consideration prior to registration and if proposal of ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 23 new society fulfills those conditions, then it may be registered under the Act. The factors specified are negative in nature. If a registration of a society is likely to be counterproductive to the purpose of registration of the society itself then proviso enables the authority to refuse the registration of a society. The proviso is a good law of the land today. Article 19 (c) of the Constitution was amended in the year 2012 by way of Ninety-seventh Amendment which is as follows :
"19. Protection of certain rights regarding freedom of speech, etc -
(1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions and Co-operative Societies Thus, by way of amendment, formation of co-operative society is recognised as a fundamental right under Article 19 of the Constitution. No fundamental right conferred by the Constitution can be abridged or violated by any legislation or any Act of the State, except Clause 6 of Article 19 of the Constitution.
Clause 6 of Article 19 of the Constitution allows State to make the law imposing reasonable restrictions on the exercise of the right in the interest of the general public. Thus, Clause 6 of Article 19 of ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 24 the Constitution empowers the State to make policy, placing reasonable restrictions on the fundamental rights in the interest of general public. Co-operative movement or the Co-operation is a subject entrusted to the State as per entry No.32 of State list in Seventh Schedule of the Constitution. Thus, the State dealing with this subject is empowered to take policy decisions, with a view to promote the co-operative movement and also provide better facilities.
12. Thus, the State has to legislate and deal with the subject of co-operation. Undoubtedly, the State cannot legislate or formulate any policy, which is inconsistent with the fundamental rights, if such policy framed, is violative of fundamental Article 19 (c) then that policy or Government Resolution is void and is ineffective.
Article 243-ZH (c) of the Constitution reads as under :
" Article 243-ZH (c) - "co-operative society" means a society registered or deemed to be registered under any law relating to co-operative societies for the time being in force in any State"[emphasis supplied].
So, formation of co-operative society was earlier statutory right but now it is a fundamental right. However, it is true that in the absence of State law, the fundamental right to form a co-
operative society cannot be enjoyed. We cannot imagine a situation where a group of persons coming together and applying ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 25 to the office of Registrar for formation of the society and the Registrar without going into the merits of its viability has to register the said society, as it is a mandate of fundamental rights at Article 19 (c). Fundamental rights are basic rights. They are guaranteed by the Constitution but their enjoyment is restricted.
Any restriction has to pass a test of reasonableness. Indeed, no fundamental right can be enjoyed without reasonable restriction.
State has to frame law, rules and regulations for the purpose of registration of the society facilitating and promoting development of the co-operative movement. A right to form co-operative society is guaranteed as a fundamental right with a view that agriculturists in the rural area, small scale business traders, artisans should be in a position to get economic, technical support and they should survive and nurture.
So far as Policy or Government Resolution issued by a Sub-
ordinate legislation i.e. the State reconciles with the Statute, it is not bad in law. In view of disbursement of powers as per entry No.32 list to Seventh schedule and Article 243-ZH (c) and in view of the proviso to Section 4 of the M.C.S. Act, State has power to make the policy in respect of the Co-operative societies.
13. Affidavit is filed on 7.3.2013 by respondent No.7 - Rajgopal Devara, working as Secretary (Co-operation), Co-operation, Marketing and Textile Department, Mantralaya, Mumbai. He has ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 26 defended the Circular dated 5.3.2007 and stated that the intention behind the Circular was to avoid unhealthy competition by registration of the new societies and to enable existing societies viable. Similarly, at the time of considering the proposal of the new society, opportunity of hearing to be given to the existing society and decision is to be taken on merit. It is further mentioned by the Secretary that the Honourable Minister has given decision in the revision on the basis of the merits of each individual case.
14. In the present case, State has issued Circular in the year 2007 and Government Resolution in December 2011. Earlier by issuing Government Resolution dated 7.2.2001, government has put restriction on registration of the co-operative societies by keeping bench-mark of transaction of Rs.35 lacs in Kokan, Marathwada and Vidarbha regions and of Rs.50 lacs for the registration of the Co-operative societies in a developed region.
Thereafter, Baidyanath committee was established to examine working, future prospects, present condition and economical viability in respect of the co-operative movement and to find out the difficulties, flaws in the movement and to give suggestions to promote the movement. The recommendations of the committee were accepted by the State Government and the tripartite agreement dated 13.11.2006 between State Government, Central ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 27 Government and National Bank for Agricultural and Rural Development Agricultural (NABARD) was entered into. The State Government has set up a Committee to take decision on the basis of suggestions which is yet to submit its report and, therefore, the State could not take any final policy decision. It was found by the State that instead of growth, there is swelling as the societies are coming up like mushrooms. Branching of the co-operative societies is a must to boost the co-operative movement, which may take a shape of banyan tree and, therefore, with view to restrict rising societies like mushrooms, the State has come out with a policy that for some period in the interest of general public, there should not be any registration of new society. It is to be noted that the State has not put permanent ban on the registration of any society. It appears that the State requires a time to arrive at appropriate decision so a pause is taken and, therefore, Circular of 2007 was issued. The said Circular did not have a mandatory force, therefore, government issued Government Resolution in the year 2011.
15. Section 154 of the M.C.S. Act confers revisional powers to the State. Scope of the revisional powers is specified under Section 154 of the M.C.S. Act. A Minister enjoys revisional powers under Section 154 of the M.C.S. Act, not only on application of any party, but suo moto may call, examine and may consider the legality and decision and order of the Sub-ordinate Officer and ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 28 also verify the regularity of those proceedings and if at all it appears to the Honourable Minister, then he may modify, annul or reverse such order. Thus, the State has wide powers and the State can modify the order passed by the Sub-ordinate Officer and so also can reverse the said order However, it is necessary that the revisional authority should be satisfied that the order passed below is not proper and is illegal. This Court has limited powers under Article 227 of the Constitution while issuing a writ of certiorari. Though these are plenary powers, the High Court may refuse to invoke the writ jurisdiction, even if a possible view is taken, out of two available views by the revisional authority. If the order passed by the revisional authority is erroneous, ex facie, then interference under the writ jurisdiction is justifiable. On the background of this legal position, the proceedings before the Court are examined.
16. While invoking writ jurisdiction no need to go into the merits of the matter, i.e. whether a particular society was having how many members, what was its financial capacity etc. The order can be tested only on the point of illegality which should be self-
evident.
17. The revision is preferred before the Honourable Minister by the new societies for the registration. Writ Petition No.1683 of 2013 is filed by the intervenors. In all the petitions, the order of ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 29 the Honourable Minister by using the revisional authority has passed the order of registration of the new co-operative society.
To prefer a revision, there should be some order passed by the Sub-ordinate Officer. In all these cases, the relevant portion of the order passed by the Assistant Registrar, Co-operative Societies, Shrigonda which is in Marathi, is an order of first forum which is as follows :
ß vki.k ojhy izek.ks dkxni=s uohu laLFkk uksan.khlkBh lknj dsyy s s vlwu vki.kkl fu;ks- laLFkk uksanfo.ks vko';d vlys rjh ek-
lgdkj vk;qDr o fuca/kd lgdkjh laLFkk egkjk"Vª jkT; iq.ks ;kaps ifji=d tk-dz-vFkZ@e-l-@fodkl @uks-iw- iz@ oS-lferh@2007 fn-5@7@2007 ps ifji=dkUo;s ;k dk;kZy;kl vls dGfo.;kr vkys vkgs dh] jkT;krhy lqekjs 12755@&fo-dk- lsok lgdkjh laLFkk rksV;kr vkgsr R;ke/;s lq/kkj.kk d:u R;k vkfFkZd n`"V;k l{ke dj.;kP;k n`"Vhus izk-oS| + ukFku lferhus fofo/k mik; ;kstuk lqpfoysY;k vkgsr- izk- oS| + ukFku lferhP;k f'kQkj'kh jkT; 'kklukus LohdkjY;k vlwu R;k f'kQkj'khph vaaeyctko.kh dj.;kpk f=Lrjh; lkeaTkL; djkj fn-13@11@2006 jksth dsanz 'kklu jkT; 'kklu o ukckMZ ;ke/;s Lok{kjhr >kysyk vkgs- rlsp lnj lferhP;k vaeyctko.kh fo"k;d jkT; Lrjh; dk;kZUo;s o vuqioz rZu lferhus R;kpk fnukad 11@1@2007 jksth ek- iz/kku lfpo] lgdkj i.ku oL=ks| + ksx foHkkx ;kps v/;{krs[kkyh >kysY;k lHksr fu.kZ; >kY;k izek.ks jkT;krhy vkfFkZd n`"V;k nqcy Z fdaok rksV;kr pky.kk&;k laLFkkauk fu/kh nsowu R;k lcy dj.;kfo"k;h dk;Zdez kph vk[k.kh dj.;kr vkyh o R;kp osGl s uohu fo-dk- laLFkk uksanfo.;kps can djkos vls Bjfo.;kr vkys-
lnj ifji=dkr iq<s v'kkgh lwpuk fnY;k vkgsr dh] uksan.khiwoZ ijokuxh ns.;kckcr dks.kR;kgh izLrko ;k dk;kZy;kdMs ikBow u;sr o lnj lwpukph vaeyctko.kh Rojhr djkoh-::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 30
ifji=dkrhy lwpukl vuql:u vkiys lanfHkZ; uksan.kh izLrkok ckcr iq<hy dk;Zokgh djrk ;s.ks 'kD;r ukgh lcc vkiyk lanfHkZ; ewG izLrko lkscr tksMwu ijr dj.ksr ;sr vkgs-‐ Þ
18. Admittedly, the Assistant Registrar has not decided the issue of registration or non-registration on merit of the societies, but has rejected to entertain the application at threshold only on the ground of existence of the Circular of the government dated 5.3.2007. Admittedly that circular cannot substitute a mandate of Government Resolution. Realising this later, State issued Govt.
Resolution in 3.12.2011. In these matters, Assistant Registrar, however, relied on the Circular wherein a policy of the Government not to register new co-operative societies for temporary period was informed to all the Divisional Joint Registrars and District Deputy Registrars of Co-operative Societies, Maharashtra. An application for the registration as per Section 9 of the M.C.S. Act, is to be submitted to the Registrar and the Registrar has to satisfy himself about the registration of the society. Section 9 of the Maharashtra Co-operative Societies Act reads thus :
"9. Registration (1) If the Registrar is satisfied that a proposed society has complied with the provisions of this Act and the rules [or any other law for the time being in force, or policy directives issued by the State ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 31 Government under section 4] and that its proposed by-laws are not contrary to this Act or to the rules, he [shall, within two months], from the date of receipt of the application register the society and its by-laws.
A particular procedure is laid down under the Act.
Honourable Minister has revisional powers to annul, modify and reverse the order of the Sub-ordinate Officer. In the present matters, reversal or annulment or modification of the order means to cancel the order of rejection and to send those applications of registration to the Registrar, Co-operative Societies with a direction to entertain the application as the reasoning given by him while rejecting to entertain the application for registration is wrong. When no order was passed on merits by the Registrar, there was no material before the revisional authority to satisfy himself about the legality, propriety and the regularity of the order on that issue. As the Registrar has refused to entertain the applications, the orders passed by the Honourable Minister on merit ex facie disclose that the revisional authority has passed the order beyond his revisional scope. While doing so, the Honourable Minister was required to deal with the reasoning given by the Assistant Registrar or Divisional Joint Registrar. Refusal to entertain the application and return of the same if considered more or less similar to rejection of the plaint under Order VII, Rule 11 of the Civil Procedure Code and that order is challenged, the ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 32 higher Court is expected to deal with the correctness and legality of the reason given for rejection. There is no need to decide a suit on merit. When procedure lays down hierarchy of the fora then that is to be followed by all the authorities. While deciding the order of registration under Section 154 of the M.C.S.Act, the Honourable Minister has invoked his revisional powers in excess.
WRIT PETITION NO.486 OF 2013
19. Now let me advert to the additional point raised in Writ Petition No.486 of 2013. Learned Counsel for the petitioner submitted that the existing society has filed this writ petition against the order of registering the new society. Existing society was registered on 29.11.2011 and the Honourable Minister allowed the registration of the second society on 10.1.2013. He submitted that the proposal by the petitioner - society was moved in August 2011. He raised two points in this petition (i) that under Article 166 of the Constitution, Rules of business are framed and the powers to be conferred upon the State i.e. the Minister. In this petition, a revision of the respondent - new society was heard by Honourable Cabinet Minister of Co-operation and he decided it in favour of the new society by order dated 10.1.2013. He relied on Government Order dated 25.8.2010 issued by Under Secretary, by which according to him, as per Clause 4 of the said ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 33 Govt.Resolution the Honourable State Minister was authorized to take decision in respect of the subject allotted to him. The said Government Order was issued along with Annexure "A" and "B"
and in the said Annexure "A", at serial No.14 subject of Co-
operative societies is allotted to Honourable Minister for Co-
operation and as per Annexure "B", subject listed were allotted to Honourable State Minister. However, by issuing corrigendum on 15.10.2010, the Government has specifically assigned subjects at Serial No.14 and Serial No.15 in respect of Co-operative societies and Co-operative Credit Societies to Honourable State Minister (Co-operation and Marketing) and those subjects were inserted at Serial Nos.12 and 13 in Annexure "B". Learned Counsel thus submitted that in respect of the registration of the Co-operative society, the power was vested with the Honourable State Minister alone at the relevant time and the Honourable Cabinet Minister ought not to have dealt with the said file, as Honourable Cabinet Minister cannot usurp the powers without following the procedure of law. It is further submitted that if such file is taken suo moto by the Honourable Cabinet Minister, then it is necessary for him to give some reasons for dealing with the said file.
20. In reply along with the common submissions, the order was defended on the separate grounds. The writ petition filed by the intervenor, is devoid of merit. The original application was sent to the Secretary and it was not in the proceeding. Moreover, the ::: Downloaded on - 27/11/2013 20:25:10 ::: W.P.No.9628/2012 34 Honourable Cabinet Minister has power to deal with the file which was assigned to the Honourable Minister of State.
21. In reply on the point of Rules of business, my attention was drawn to Clause 5 of the Govt.Order dated 25.8.2010. As per the said clause, a subject which is allotted to Honourable State Minister (Co-operation and Marketing) can be dealt with by the Honourable Minister (Co-operation and Marketing) and decision can be taken and if required, necessary instructions can be given by him. Therefore, though there is division of work and allotment as per the Rules of business by virtue of Clause 5 of Government Order dated 25.8.2010, the powers of the Honourable Minister (Co-operation and Marketing) to deal with any subject, if necessary are kept intact.
22. Second limb of objection was raised that the Honourable Minister has not followed the principles of natural justice as the petitioner was not heard though he had submitted application to intervene in the said revision on 3.10.2012. The petitioner -
society is working actively from the date of its registration i.e. 29.11.2011 and it was binding on the part of the Honourable Minister to allow the application of the intervenor and hear the petitioner.
::: Downloaded on - 27/11/2013 20:25:11 ::: W.P.No.9628/2012 3523. A revision was preferred by the proposed society, i.e. respondent No.4. Perused application dated 3.10.2012 annexed in Writ Petition No.486 of 2013. This application was not filed in Revision Application No.983 of 2011 (between Bhimrao Bapurao Nalage, Chief Promoter Vs. Divisional Additional Registrar, Co-
operative Societies, Nasik Division, Nasik and Assistant Registrar, Co-operative Societies, Shrigonda). In the said application, Honourable Cabinet Minister has passed the order.
ig The petitioners - intervenors addressed the Secretary and, therefore, it appears that as the application was not filed specifically in the said revision application, the Honourable Cabinet Minister did not consider the same. Thus, there is no violation of natural justice.
24. In the result, Writ Petition No.9628 of 2012, Writ Petition No. 346 of 2013, Writ Petition No.1683 of 2013 are allowed. The impugned orders passed by the Honourable Minister, Co-
operation, Marketing and Textile, Maharashtra State in the revision applications filed by the petitioners in these three petitions, are quashed and set aside. Rule is thus made absolute in terms of prayer clause (B) only to the extent of these three petitions.
::: Downloaded on - 27/11/2013 20:25:11 ::: W.P.No.9628/2012 3625. Insofar as Writ Petition No.486 of 2013 is concerned, the same stands dismissed. Rule discharged.
( MRS. MRIDULA BHATKAR, J.) . At this stage, learned Counsel for appearing in Writ Petition No.9628 of 2012 and Writ Petition No.346 of 2013 for respondent No.4 submits that the order be stayed for a period of four weeks.
He further submits that there is already interim stay granted in Writ Petition No.486 of 2013 and the same may be continued for a period of four weeks. Prayer granted.
( MRS. MRIDULA BHATKAR, J.) (vvr/9628.2012wp) ::: Downloaded on - 27/11/2013 20:25:11 :::