Bombay High Court
Sanchyareshwar Krushi Malprakriya ... vs The State Of Maharashtra And Others on 30 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 966
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1274 OF 2021
Sanchyareshwar Krushi Mal Prakriya
Ayodgik Sahakari Sanstha Ltd.,
Pachelegaon, Taluka Jintur,
District Parbhani,
Through its Representative
Santosh S/o Rajeshwar More,
Age : 42 years, Occu: Agril.,
R/o Pachelegaon, Taluka Jintur,
District Parbhani.
Versus
1. The State of Maharashtra,
Through its Secretary,
Co-operation, Textile & Marketing
Department, Mantralaya,
Mumbai.
2. The Divisional Joint Registrar,
Aurangabad @ District Co-operative
Election Officer, Aurangabad,
Taluka and District Aurangabad.
3. The District Co-operative Registrar,
Co-operative Society, Parbhani,
Taluka and District Parbhani.
4. The Assistant Registrar,
Co-operative Society, Sonpeth,
Taluka Sonpeth, District Parbhani.
5. The Parbhani District Central
Co-operative Bank Ltd., Parbhani
Through its Chief Executive Officer.
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.....
Mr. N. B. Khandare h/f Mr. N. R. Pawade, Advocate for the
Petitioner.
Mr. S. B. Pulkundwar, AGP for Respondent-State.
Mr. S. K. Kadam, Advocate for Respondent No.2.
.....
CORAM : V. K. JADHAV, J.
DATED : 30TH JANUARY, 2021
PER COURT :-
1. This pertains to non-inclusion of the name of the
petitioner in the provisional voter list prepared for the
general election of the management committee of Parbhani
District Central Co-operative Bank Ltd., Parbhani (for short,
"DCC Bank").
2. The term of the managing committee of the DCC Bank
(for short, "DCC Bank") was over and thus general election
of the said Bank was commenced by publishing provisional
voter list on 16.03.2020. The petitioner society was
registered in the year 2011 under the provisions of the
Maharashtra Co-operative Societies Act, 1960 (for short, "Act
of 1960"). The petitioner society is a member of the DCC
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Bank since the date of establishment of the society
continuously. Even the petitioner society has participated in
the general election of the DCC Bank conducted in the year
2015.
3. By an order dated 21.05.2019, in terms of the
provisions of Section 102 of the Act of 1960, the Registrar
has issued an interim order, thereby directing to wind up the
petitioner society.
4. On 21.02.2020, a resolution was passed and the
proposal for recommendation of name of the petitioner was
forwarded to the respondent authority. On 01.03.2020, the
petitioner enquired about the status of the proposal
forwarded by the society and learned from the authority that
the Registrar has issued an interim order, thereby directing
to wound the society. The petitioner society has placed the
copies of the audit report and also the original record to
substantiate that the society is functioning continuously. The
Registrar, on perusal of the said record, satisfied himself and
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by order dated 17.03.2020, vacated the said interim order of
winding up.
5. The petitioner society thereafter again passed a
resolution in respect of recommendation of the name of the
petitioner vide its resolution dated 21.12.2020. On
16.03.2020, the provisional voter list was published wherein
name of the representative of the petitioner society was not
mentioned. The petitioner society has therefore taken
objection on 14.01.2021 along with a copy of the resolution
dated 21.12.2020 before the respondent authority. However,
respondent no.2, by order dated 18.01.2021, rejected the
objection of the petitioner.
6. Being aggrieved by the order dated 18.01.2021 passed
by respondent no.2, by which the objection raised by the
petitioner for non-inclusion of the name of the petitioner in
the provisional as well as final voters list prepared for the
election of Parbhani DCC Bank was turned down, the
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petitioner, who is the original objector, has preferred this
Writ Petition.
7. Learned counsel for the petitioner submits that by
order dated 21.05.2019, the respondent has issued interim
order directing the petitioner society to be wound up. The
said order was passed under misconception that the society
has ceased to work. Moreover, the said interim order was not
communicated to the society though it is mandatory in view
of the provisions of Section 102 (2) of the Act of 1960. The
petitioner society has been working continuously. However,
as the petitioner society learned about passing of the said
interim order, it approached to the Registrar requesting to
vacate the said interim order. The petitioner society has
placed the audit report and the relevant original papers
before the Registrar. Accordingly, the Registrar has vacated
the said interim order. Learned counsel submits that even the
liquidator was not appointed over the petitioner society in
view of the provisions of Section 103 of the Act of 1960.
Learned counsel submits that in terms of the provisions of
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Section 103 sub-section (3), only after a final order is passed
confirming the interim order, the officers of the society shall
vacate their offices and while the winding up order remains
in force, the general body of the society shall not exercise
any powers. In terms of Sub-section (2) of Section 103, in
terms of the interim order, the officers of the society shall
hand over to the liquidator the custody and control of all the
property, effects and actionable claims to which the society is
or appears to be entitled, and of all books, records and other
documents pertaining to the business of the society and,
shall have no access to any of them. Learned counsel submits
that in the instant case, after passing of the said interim
order dated 21.05.2019, no liquidator was appointed and
the petitioner society was continuously functioning even
thereafter. The learned counsel submits that in the ensuing
election of the DCC Bank, the petitioner society has
remained unrepresented and the same is also in the
backdrop that subsequently, the interim order directing the
society to wind up also came to be vacated.
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8. Learned counsel for the petitioner, in order to
substantiate his contention, placed reliance in a case
Vineshkumar Mavjibhai Parmar v. Dethali Gopalak Vividh
Karyakari Sahakari Mandali Limited and Others, reported in
(2017) 1 SCC 273.
9. Learned counsel for the petitioner submits that the
Supreme Court had an occasion to deal with a similar issue
with reference to the provisions of the Gujarat Cooperative
Societies Act, 1961 which provisions are pari mataria to the
provisions of the Act of 1960.
10. Learned counsel Mr. S. K. Kadam appearing for
respondent no.2-Election Officer submits that as per the
schedule of the program of election of the DCC Bank, the
provisional voter list was to be published on 16.03.2020 and
the objections, if any, were invited till 26.03.2020 which is
subsequently postponed due to outbreak of Covid-19.
Learned counsel Mr. Kadam submits that at present, the final
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voter list is prepared and notified also. In view of the same,
no interference is required in the impugned order.
11. Learned counsel Mr. Kadam further submits that in
terms of the provisions of Sub-section (2) of Section 103 of
the Act of 1960, the officers of the society shall have no
access to any records and other documents pertaining to the
business of the society and therefore, after passing of the
interim order dated 21.05.2019, recommendation of the
name of the petitioner cannot be made vide resolution dated
21.12.2020.
12. I have also heard learned AGP for the respondent
State.
13. In order to provide for the orderly development of the
co-operative movement in the State of Maharashtra, the law
relating to the co-operative societies in the State was
consolidated and amended by the enactment of Maharashtra
Co-operative Societies Act, 1960. In the instant case, the
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petitioner society has approached this Court for non-
inclusion of the petitioner society in the voter list for the
election of the DCC Bank. Though the petitioner society
raised objection, it was turned down mainly on the ground
that the petitioner society has recommended the name of the
petitioner as its representative to be included in the voter list
during subsistence of the interim order passed by respondent
no.2 directing the petitioner society to wind up.
14. In terms of the provisions of Section 102 of the Act of
1960, the Registrar may issue an interim order to the society
directing it to be wound up. In terms of the provisions of
Sub-section (2) of Section 102 of the Act of 1960, a copy of
such interim order shall be communicated, in the prescribed
manner, to the society calling upon it to submit its
explanation to the Registrar within a month from the date of
issue of such order and the Registrar, on giving an
opportunity to the society and to the creditors of the society,
if any, of being heard, may issue final order, vacating or
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confirming the interim order. Section 102 of the Act of 1960
is reproduced hereinbelow :
"102. (1) If the Registrar, -
(a) after an inquiry has been held under section 83 or
an inspection has been made under section 84 or 89A
or on the report of the auditor auditing the accounts
of the society, or
(b) on receipt of an application made upon a
resolution carried by three-fourth of the members of
a society present at a special general meeting called
for the purpose, or
(c) of his own motion, in the case of a society which-
(i) has not commenced working, or
(ii) has ceased working, or
(iii) possesses shares or member's deposits not
exceeding five hundred rupees, or
(iv) has ceased to comply with any conditions
as to registration and management in this Act or the
rules or the by-laws,
is of the opinion that a society ought to be
wound-up, he may issue an interim order directing it
to be wound-up.
(2) A copy of such order made under sub-section
(1) shall be communicated, in the prescribed manner,
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to the society calling upon it to submit its explanation
to the Registrar within a month from the date of the
issue of such order, and the Registrar, on giving an
opportunity to the society and to the creditors of the
society, if any, of being heard, may issue a final order,
vacating or conforming the interim order."
15. In terms of the provisions of Section 103 (1), after
passing of an interim order, the Registrar may also appoint a
person to be liquidator of the Society and in terms of the
provisions of Sub-sections (2) and (3), certain provisions are
prescribed as to the business of the society to be transacted
on appointment of the liquidator. Section 103 of the Act of
1960 is reproduced hereinbelow:
"103. (1) When an interim order is passed under the
last preceding section or a final order is passed under
that section, for the winding-up of a society, the
Registrar may, in accordance with the rules, appoint a
person to be Liquidator of the society, and fix his
remuneration.
(2) On issue of the interim order, the officers of the
society shall hand over to the Liquidator the custody
and control of all the property, effects and actionable
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claims to which the society is or appears to be
entitled, of all books records and other documents
pertaining to the business of the society and, shall
have no access to any of them.
(3) When a final order is passed confirming the
interim order, the officers of the society shall vacate
their offices, and while the winding-up order remains
in force, the general body of the society shall not
exercise any powers.
(4) The person appointed under this section as
Liquidator shall, subject to the general control of the
Registrar, exercise all or any of the powers mentioned
in section 105. The Registrar may remove such
person and appoint another in his place, without
assigning any reason.
(5) The whole of the assets of the society shall on
the appointment of Liquidator under this Section vest
in such Liquidator, and notwithstanding anything
contained in any law for the time being in force, if
any immovable property is held by a Liquidator on
behalf of the society, the title over the land shall be
complete as soon as, the mutation of the name of his
office is effected, and no Court shall question the title
on the ground of dispossession, want of possession or
physical delivery of possession.
(6) In the event of the interim order being vacated,
the person appointed as Liquidator shall hand over
the property, effects and actionable claims and books,
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records and other documents of the society to the
officers who had delivered the same to him. The acts
done, and the proceedings taken by liquidator, shall
be binding on the society, and such proceedings shall,
after the interim order has been cancelled under the
preceding section, be continued by the officers of the
society."
16. In the instant case, though on 21.05.2019 the interim
order directing the petitioner society to be wound up was
passed by the Registrar concerned, however, no record is
placed pointing out that there was sufficient compliance of
Sub-section (2) of Section 102 of the Act of 1960. The
petitioner has consistently stated in his objection and even
before the respondent authorities that a copy of such interim
order was neither communicated to him in the prescribed
manner, nor a liquidator was appointed in terms of the
interim order directing the petitioner society to be wound
up. It is not brought to my notice that after passing of the
interim order directing the petitioner society to be wound
up, the Registrar has appointed a liquidator. On the other
hand, it reveals from the available record that by subsequent
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order dated 17.03.2020 the Registrar concerned has
withdrawn the earlier interim order directing the petitioner
society to be wound up. It is thus clear that the petitioner
society remained unrepresented in the ensuing election of
the DCC Bank.
17. The Hon'ble Supreme Court, in the case of
Vineshkumar Mavjibhai Parmar (Supra), relied upon by
learned counsel for the petitioner, in the similar set of facts,
after considering the provisions of Sections 107 and 108 of
the Gujarat Co-operative Societies Act, 1961, which are
pari materia to the provisions of Sections 102 and 103 of the
Act of 1960, in para no. 25 of the Judgment, has made the
following observations:
"25. The Gujarat Legislature expressly provided
under the Societies Act for the curtailment of certain
rights of the officers of the societies facing liquidation
proceedings. It must be remembered that at the same
time it also declared that such officers cease to be the
officers of the Society only when a final order of
winding up is passed. In a given case if the Registrar
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after an appropriate enquiry following the interim
order of winding up decides not to finally wind up
the society, the officers of the society would once
again be entitled to exercise all the rights associated
with it and perform all the functions attached to the
office. Therefore, merely because the officers of
Credit Society facing liquidation are disabled from
enforcing certain rights attached to the office or
perform certain obligations appended to the office, it
does not necessarily follow that they are disabled
from performing every function entrusted by law to
such office."
18. In the instant case, the Registrar, after an appropriate
enquiry following the interim order of winding up, has
decided not to finally wind up the society. Even as per the
record available and in terms of the submissions made on
behalf of the parties, a liquidator was also not appointed
following the interim order. In view of the same, if the
petitioner society has recommended name of its
representative on 21.02.2020 and even exercised the right of
recommending name of the representative after vacating the
interim order of winding up, the petitioner society is not
disabled from performing every function. This aspect should
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have been considered by the respondent authority while
rejecting the objection raised by the petitioner society.
Further more, in terms of the provisions of Sub-sections (2)
and (3) of Section 103 of the Act of 1960, after reading it
conjointly, only after a final order is passed confirming the
interim order, the officers of the society are required to
vacate their offices. Moreover, in the instant case, the
Registrar has also not appointed a liquidator following the
interim order of winding up.
19. In view of the above, the petitioner society cannot
remain unrepresented in the ensuing election of the DCC
Bank and therefore, the order impugned is liable to be
quashed and set aside. Hence the following order:
ORDER
The Writ Petition is allowed in terms of prayer clauses "A" and "B" and disposed off accordingly.
( V. K. JADHAV, J. ) vre/-
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