Full Judgment Text
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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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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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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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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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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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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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
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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.
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3. 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
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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
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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.
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If 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
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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. 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
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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 :
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(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
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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
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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
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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
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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;
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(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;
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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
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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
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W.P.No.9628/2012
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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
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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
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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
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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
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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
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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
dsysys 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
vaeyctko.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 vuqizorZu
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 nqcZy fdaok rksV;kr pky.kk&;k laLFkkauk fu/kh
nsowu R;k lcy dj.;kfo"k;h dk;Zdzekph vk[k.kh dj.;kr vkyh o R;kp
osGsl 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-
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W.P.No.9628/2012
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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
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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
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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
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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
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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.
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23. 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. 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.
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25. 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)
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