Full Judgment Text
2008:BHC-AS:18188
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE
WRIT PETITION NO. 3994 OF 2008
WRIT PETITION NO. 3994 OF 2008 WRIT PETITION NO. 3994 OF 2008
Ashta Lokmanya Nagri Sahakari
Patsanstha Maryadit, Sangli. ... Petitioner.
V/s.
Shri Shankar Bapu Nimbalkar
and another. ... Respondents.
A.B.Vagyani for the petitioner.
Umesh Mankapure for respondent No.1.
A.I.Patel, AGP for respondent No.2- State.
CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J.
DATED: 16th September 2008. DATED: 16th September 2008. DATED: 16th September 2008.
JUDGMENT : JUDGMENT : JUDGMENT :
-------- -------- --------
. Rule, returnable forthwith.
. Heard by consent of parties.
2. This petition, filed under Article 227 of the
Constitution of India, is directed against the
judgment and order dated 19th March, 2008 passed in
Revision Application No.383/2007 by the Divisional
Joint Registrar, Kolhapur Division, Kolhapur.
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Factual Matrix : Factual Matrix : Factual Matrix :
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3. The petitioner herein is a Special Recovery
Officer of Ashta Lokmanya Nagri Sahakari Pathsanstha
Maryadit, Ashta, Sangli a credit society ("Credit
Society" for short) registered under the Maharashtra
Co-operative Societies Act, 1960 ("MCS Act" for
short). On 7th February, 1997, the respondent No.1
approached to the Sangli Branch of the Credit Society
for obtaining loan of Rs.1 lakh for construction of
the house.
4. The Credit Society, on 23rd March, 1997,
sanctioned loan in favour of the respondent No.1. The
respondent No.1 has mortgaged his agricultural land
being Gat No.22-B admeasuring 4 hectors situated at
village Salagare, taluka- Miraj, district- Sangli by a
registered deed of mortgage dated 14th March, 1997.
5. The respondent Nos.1 borrowed amount of loan
and agreed to repay it with interest thereon. The
amount of loan was used for construction of the house.
However, he committed default in repayment of the
outstanding dues of the Credit Society.
6. The respondent No.1 filed dispute under
section 91 of the MCS Act being Dispute No.752/1999 in
the Co-operative Court, Sangli against the Credit
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Society claiming for one time settlement of the loan
account and also applied for injunction. The said
dispute was, ultimately, withdrawn by respondent No.1
on 27th June, 2005.
7. The Credit Society initiated proceeding under
section 101 of the MCS Act on 18th July, 2005 for the
recovery of their dues with interest and expenses and
obtained recovery certificate from respondent No.5,
the Deputy Registrar, Co-operative Societies, Miraj.
This order was not challenged by the respondent No.1.
It, thus, became final and conclusive.
8. The Credit Society initiated execution
proceedings. The petitioner- recovery officer issued
public notice on 19th December, 2005 in "Dainik Tarun
Bharat" news paper informing the public at large that
the mortgaged property of respondent No.1 will be
auctioned on 20th January, 2006 at village Salagare.
9. The Credit Society did not receive good
bidders for the auction sale, as such fresh public
notice was published on 10th February, 2006 in "Dainik
Tarun Bharat" news paper informing the date of public
auction scheduled on 23d February, 2006.
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10. The respondent No.1 with the help of Shetkari
Sanghatana, a political party obstructed the public
auction. With the result, again the Credit Society
was required to publish notice on 5th July, 2006
informing the date of public auction scheduled on 20th
July, 2006. By the time fresh auction could be
called, outstanding loan amount against respondent
No.1 became due and payable in the sum of
Rs.2,26,024.50.
11. On 20th July, 2006, auction sale was held in
respect of 2 hectors of land out of the mortgaged
property. The Credit Society received bid of
Rs.2,61,000/- from one Mr.Vikram Kamble and Vijay
Parit respectively. The auction purchasers deposited
15% of the auction sale price and the said amount was
lying in deposit with the Credit Society. The
Assistant Registrar, on 26th October, 2006, confirmed
the auction sale.
12. The respondent No.1 had attempted to obstruct
auction sale from time to time. He filed revision
under section 154 of the MCS Act being Revision
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Application No.225/2006 before the Divisional Joint
Registrar, Kolhapur on 20th September, 2006, to
challenge the auction sale.
13. The respondent No.1 incidentally raised an
objection to the recovery certificate obtained under
section 101 of the MCS Act. According to him, the
Assistant Registrar, Co-operative Societies, Islampur,
who had issued the said recovery certificate, did not
have territorial jurisdiction.
14. The respondent No.1 did not comply with
mandatory provision of section 154(2)(a) of the MCS
Act requiring him to deposit 50% of the loan amount
and/or auction sale price. He did not join the
auction purchaser as party respondent. The petitioner
raised objection by filing reply to the said revision
application. The Divisional Joint Registrar,
Co-operative Societies, Kolhapur, vide his order dated
3rd January, 2007, partly allowed the said revision
application and thereby set aside the auction sale
dated 20th July, 2006 subject to repayment of the
outstanding dues of the Credit Society after taking
fresh accounts.
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15. Pursuant to the above order, a Government
Auditor, Shri K.A.Shinde of the District Central
Co-operative Bank Ltd., Sangli was directed to
recalculate interest amount and take fresh accounts
within one month from the date of the order. The
Government Auditor, Shri K.A.Shinde, submitted his
report on 17th March, 2007. The respondent No.1 did
not repay the amount as per the calculations made
and/or the accounts settled by the Government Auditor
in view of the above order.
16. The Divisional Joint Registrar vide his letter
dated 12th September, 2007 informed the Credit Society
to take appropriate steps as per the order dated 3rd
January, 2007 passed in Revision Application
No.226/2006.
17. In view of the aforesaid directions, the
petitioner issued a notice dated 22nd September, 2007
to respondent No.1 demanding due amount of
Rs.2,07,851/- as per the Government Auditor’s Report.
The order of Divisional Joint Registrar dated 3rd
January, 2007 was not complied with by the respondent
No.1. He did not pay or deposit amount due and
payable as settled by the Government Auditor. The
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outstanding loan amount till 30th April, 2008 became
due and payable in the sum of Rs.2,21,971/-.
18. The respondent No.1 chose to file another
revision being Revision Application No.383/2007 before
the Divisional Joint Registrar, Kolhapur Division
challenging the aforesaid report submitted by the
Government Auditor and the notice dated 22nd
September, 2007 issued by the petitioner demanding due
amount. The objection was again raised by the
petitioner to the tenability of the second revision,
that too, against the report of the Auditor, at the
instance of respondent No.1 additionally contending
that it was time barred and; that the mandatory
provision was not complied with by the respondent No.1
requiring him to deposit 50% of the due amount.
However, the Divisional Joint Registrar, Kolhapur
Division, Kolhapur entertained revision petition and
on the top of it allowed it by the impugned order
directing settlement of account as mentioned in the
earlier order dated 19th March, 2008. This order is a
subject matter of challenge in this writ petition
filed under Article 227 of the Constitution of India.
Consideration : Consideration : Consideration :
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19. Having heard rival parties, the first question
which needs consideration is as to how second revision
application was maintainable at the instance of
respondent No.1, that too against the report of the
Government Auditor and the demand notice dated 22nd
September, 2007 when the earlier order of the
revisional authority dated 3rd January, 2007 was
rightly or wrongly holding the field.
20. The earlier order was passed by one Shri
P.W.Patil, the then Divisional Joint Registrar,
Kolhapur in Revision Application No.225/2006, whereas
the second order impugned in this petition is passed
by Dr.A.B.Jogdand, Divisional Joint Registrar,
Kolhapur in Revision Application No.383/2007. This
Court is at loss to understand how second revision
application was entertained by the Divisional Joint
Registrar on the face of the judgment of this Court in
the case of Matru Ashish Co-op. Hsg.Society Ltd. v. Matru Ashish Co-op. Hsg.Society Ltd. v. Matru Ashish Co-op. Hsg.Society Ltd. v.
Bhagwan V. Moorjaney Bhagwan V. Moorjaney, 2004 (3) Mh.L.J. 98; Madhukar Bhagwan V. Moorjaney Madhukar Madhukar
Deshmukh v. Jalgaon Jilha Maratha Vidya Prasarak Deshmukh v. Jalgaon Jilha Maratha Vidya Prasarak Deshmukh v. Jalgaon Jilha Maratha Vidya Prasarak
Co-op. Samaj Ltd. Co-op. Samaj Ltd., 2002 (3) Mh.L.J. 201; and Harish Co-op. Samaj Ltd. Harish Harish
Com.Premises Co-op.Soc.Ltd. v. Varsha D. Joshi Com.Premises Co-op.Soc.Ltd. v. Varsha D. Joshi, Com.Premises Co-op.Soc.Ltd. v. Varsha D. Joshi
2006 (5) Bom.C.R. 853. As a matter of fact, Shri
A.B.Jogdand, Divisional Joint Registrar is liable to
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be proceeded with for having committed contempt of
this Court by not following the law laid down by this
Court of which he cannot plead ignorance being a
officer holding higher position that of the Divisional
Joint Registrar.
21. Secondly, this Court is also at loss to
understand as to how the second revision application
was maintainable against the report of the auditor
which is neither an order nor direction issued under
the provisions of the Act. It was nothing but a
quantification of the amount as directed vide order
dated 3rd January, 2007 passed by the then Divisional
Joint Registrar, Kolhapur. Consequently, notice dated
22nd September, 2007 was issued demanding amount
calculated by the auditor. All these actions were
nothing but the steps taken in execution and
implementation of the earlier order dated 3rd January,
2007. These glaring facts are apparent on the face of
record. Shri A.B.Jogdand, Divisional Joint Registrar
while passing the impugned order has conveniently
closed his eyes to factual matrix available on record.
22. Apart from the above, once the impugned order
under section 101 has become final and conclusive,
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then it was not open even for Mr.P.W.Patil, the
Divisional Joint Registrar to direct recalculation of
the amount due and come to conclusion. It was not
open for Mr.Patil to touch the amount mentioned in the
recovery certificate issued under section 101 of the
MCS Act, especially, when it had become final and
conclusive. He has also over-stepped his
jurisdiction. This Court exercising writ jurisdiction
under Article 227 of the Constitution of India cannot
shut its eyes to this glaring illegalities. The
revisional authority had no jurisdiction to overturn
the contract between the parties and to substitute its
own views.
23. The impugned orders passed by Shri P.W.Patil
and Shri A.B.Jogdand, the then Divisional Joint
Registrars not only showed impropriety but they have
also overstepped their jurisdiction for reasons best
known to them.
24. The facts are available on record to draw an
inference that the respondent No.1 made all his
attempts to obstruct the auction sale of the mortgaged
property by taking help of the political party,
namely, Shetkari Sanghatana. He has obstructed the
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recovery of money belonging to the co-operative
society and these two officers of the Co-operative
Department helped the respondent No.1 in his endeavour
to arrest recovery proceedings.
25. The learned counsel for respondent No.1 during
the course of hearing went on to make wild allegations
against the Credit Society alleging that no credits of
the repayments made by him were given in the accounts
maintained by the Credit Society. This Court had to
summon ledger account of the Credit Society to find
out whether or not the credits were given.
Ultimately, the submission made by respondent No.1
turned out to be absolutely false.
26. On the above backdrop, the impugned order
dated 19th March, 2008 as well as earlier order dated
3rd January 2007 to the extent it reopens the account
of the Credit Society are liable to be set aside. The
matter also needs to be reported to the Commissioner,
Co-operation, Maharashtra State, Pune and the
Secretary, Co-operation Department, Government of
Maharashtra, Mumbai so as to bring it to their notice
the arbitrary and colourable exercise of powers by
Shri P.W.Patil and Shri A.B.Jogdand, the then
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Divisional Joint Registrars by overturning the law
laid down by this Court. The State Government should
not feel shy to take appropriate remedial action, if
found necessary.
27. In the result, not only impugned order dated
19th March, 2008 is quashed and set aside but order
dated 3rd January, 2007, to the extent it reopens an
account, is also liable to be declared as bad and
illegal. The said order to that extent is also set
aside. The petition is allowed. Since the Recovery
Certificate has become final and conclusive, the
Recovery Officer shall proceed to recover amount due
from the respondent No.1 as per the recovery
certificate ignoring the calculations made by the
Government Auditor, since all those directions were
issued in the proceedings which were without
jurisdiction. All orders which are without
jurisdiction are liable to be ignored. [see Kiran Kiran Kiran
Singh v. Chaman Paswan Singh v. Chaman Paswan, AIR 1954 SC 340 (para-6)] Singh v. Chaman Paswan
28. Rule is made absolute in terms of this order
with costs quantified in the sum of Rs.25,000/- to be
paid by respondent No.1 to the petitioner.
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29. The registry is directed to forward the copy
of this order to the Commissioner of Co-operation,
Maharashtra State, Pune and the Principal Secretary,
Department of Co-operation, Government of Maharashtra,
Mumbai for information.
V.C.DAGA, J.) V.C.DAGA, J.) V.C.DAGA, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE
WRIT PETITION NO. 3994 OF 2008
WRIT PETITION NO. 3994 OF 2008 WRIT PETITION NO. 3994 OF 2008
Ashta Lokmanya Nagri Sahakari
Patsanstha Maryadit, Sangli. ... Petitioner.
V/s.
Shri Shankar Bapu Nimbalkar
and another. ... Respondents.
A.B.Vagyani for the petitioner.
Umesh Mankapure for respondent No.1.
A.I.Patel, AGP for respondent No.2- State.
CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J.
DATED: 16th September 2008. DATED: 16th September 2008. DATED: 16th September 2008.
JUDGMENT : JUDGMENT : JUDGMENT :
-------- -------- --------
. Rule, returnable forthwith.
. Heard by consent of parties.
2. This petition, filed under Article 227 of the
Constitution of India, is directed against the
judgment and order dated 19th March, 2008 passed in
Revision Application No.383/2007 by the Divisional
Joint Registrar, Kolhapur Division, Kolhapur.
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Factual Matrix : Factual Matrix : Factual Matrix :
-------------- -------------- --------------
3. The petitioner herein is a Special Recovery
Officer of Ashta Lokmanya Nagri Sahakari Pathsanstha
Maryadit, Ashta, Sangli a credit society ("Credit
Society" for short) registered under the Maharashtra
Co-operative Societies Act, 1960 ("MCS Act" for
short). On 7th February, 1997, the respondent No.1
approached to the Sangli Branch of the Credit Society
for obtaining loan of Rs.1 lakh for construction of
the house.
4. The Credit Society, on 23rd March, 1997,
sanctioned loan in favour of the respondent No.1. The
respondent No.1 has mortgaged his agricultural land
being Gat No.22-B admeasuring 4 hectors situated at
village Salagare, taluka- Miraj, district- Sangli by a
registered deed of mortgage dated 14th March, 1997.
5. The respondent Nos.1 borrowed amount of loan
and agreed to repay it with interest thereon. The
amount of loan was used for construction of the house.
However, he committed default in repayment of the
outstanding dues of the Credit Society.
6. The respondent No.1 filed dispute under
section 91 of the MCS Act being Dispute No.752/1999 in
the Co-operative Court, Sangli against the Credit
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Society claiming for one time settlement of the loan
account and also applied for injunction. The said
dispute was, ultimately, withdrawn by respondent No.1
on 27th June, 2005.
7. The Credit Society initiated proceeding under
section 101 of the MCS Act on 18th July, 2005 for the
recovery of their dues with interest and expenses and
obtained recovery certificate from respondent No.5,
the Deputy Registrar, Co-operative Societies, Miraj.
This order was not challenged by the respondent No.1.
It, thus, became final and conclusive.
8. The Credit Society initiated execution
proceedings. The petitioner- recovery officer issued
public notice on 19th December, 2005 in "Dainik Tarun
Bharat" news paper informing the public at large that
the mortgaged property of respondent No.1 will be
auctioned on 20th January, 2006 at village Salagare.
9. The Credit Society did not receive good
bidders for the auction sale, as such fresh public
notice was published on 10th February, 2006 in "Dainik
Tarun Bharat" news paper informing the date of public
auction scheduled on 23d February, 2006.
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10. The respondent No.1 with the help of Shetkari
Sanghatana, a political party obstructed the public
auction. With the result, again the Credit Society
was required to publish notice on 5th July, 2006
informing the date of public auction scheduled on 20th
July, 2006. By the time fresh auction could be
called, outstanding loan amount against respondent
No.1 became due and payable in the sum of
Rs.2,26,024.50.
11. On 20th July, 2006, auction sale was held in
respect of 2 hectors of land out of the mortgaged
property. The Credit Society received bid of
Rs.2,61,000/- from one Mr.Vikram Kamble and Vijay
Parit respectively. The auction purchasers deposited
15% of the auction sale price and the said amount was
lying in deposit with the Credit Society. The
Assistant Registrar, on 26th October, 2006, confirmed
the auction sale.
12. The respondent No.1 had attempted to obstruct
auction sale from time to time. He filed revision
under section 154 of the MCS Act being Revision
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Application No.225/2006 before the Divisional Joint
Registrar, Kolhapur on 20th September, 2006, to
challenge the auction sale.
13. The respondent No.1 incidentally raised an
objection to the recovery certificate obtained under
section 101 of the MCS Act. According to him, the
Assistant Registrar, Co-operative Societies, Islampur,
who had issued the said recovery certificate, did not
have territorial jurisdiction.
14. The respondent No.1 did not comply with
mandatory provision of section 154(2)(a) of the MCS
Act requiring him to deposit 50% of the loan amount
and/or auction sale price. He did not join the
auction purchaser as party respondent. The petitioner
raised objection by filing reply to the said revision
application. The Divisional Joint Registrar,
Co-operative Societies, Kolhapur, vide his order dated
3rd January, 2007, partly allowed the said revision
application and thereby set aside the auction sale
dated 20th July, 2006 subject to repayment of the
outstanding dues of the Credit Society after taking
fresh accounts.
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15. Pursuant to the above order, a Government
Auditor, Shri K.A.Shinde of the District Central
Co-operative Bank Ltd., Sangli was directed to
recalculate interest amount and take fresh accounts
within one month from the date of the order. The
Government Auditor, Shri K.A.Shinde, submitted his
report on 17th March, 2007. The respondent No.1 did
not repay the amount as per the calculations made
and/or the accounts settled by the Government Auditor
in view of the above order.
16. The Divisional Joint Registrar vide his letter
dated 12th September, 2007 informed the Credit Society
to take appropriate steps as per the order dated 3rd
January, 2007 passed in Revision Application
No.226/2006.
17. In view of the aforesaid directions, the
petitioner issued a notice dated 22nd September, 2007
to respondent No.1 demanding due amount of
Rs.2,07,851/- as per the Government Auditor’s Report.
The order of Divisional Joint Registrar dated 3rd
January, 2007 was not complied with by the respondent
No.1. He did not pay or deposit amount due and
payable as settled by the Government Auditor. The
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outstanding loan amount till 30th April, 2008 became
due and payable in the sum of Rs.2,21,971/-.
18. The respondent No.1 chose to file another
revision being Revision Application No.383/2007 before
the Divisional Joint Registrar, Kolhapur Division
challenging the aforesaid report submitted by the
Government Auditor and the notice dated 22nd
September, 2007 issued by the petitioner demanding due
amount. The objection was again raised by the
petitioner to the tenability of the second revision,
that too, against the report of the Auditor, at the
instance of respondent No.1 additionally contending
that it was time barred and; that the mandatory
provision was not complied with by the respondent No.1
requiring him to deposit 50% of the due amount.
However, the Divisional Joint Registrar, Kolhapur
Division, Kolhapur entertained revision petition and
on the top of it allowed it by the impugned order
directing settlement of account as mentioned in the
earlier order dated 19th March, 2008. This order is a
subject matter of challenge in this writ petition
filed under Article 227 of the Constitution of India.
Consideration : Consideration : Consideration :
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19. Having heard rival parties, the first question
which needs consideration is as to how second revision
application was maintainable at the instance of
respondent No.1, that too against the report of the
Government Auditor and the demand notice dated 22nd
September, 2007 when the earlier order of the
revisional authority dated 3rd January, 2007 was
rightly or wrongly holding the field.
20. The earlier order was passed by one Shri
P.W.Patil, the then Divisional Joint Registrar,
Kolhapur in Revision Application No.225/2006, whereas
the second order impugned in this petition is passed
by Dr.A.B.Jogdand, Divisional Joint Registrar,
Kolhapur in Revision Application No.383/2007. This
Court is at loss to understand how second revision
application was entertained by the Divisional Joint
Registrar on the face of the judgment of this Court in
the case of Matru Ashish Co-op. Hsg.Society Ltd. v. Matru Ashish Co-op. Hsg.Society Ltd. v. Matru Ashish Co-op. Hsg.Society Ltd. v.
Bhagwan V. Moorjaney Bhagwan V. Moorjaney, 2004 (3) Mh.L.J. 98; Madhukar Bhagwan V. Moorjaney Madhukar Madhukar
Deshmukh v. Jalgaon Jilha Maratha Vidya Prasarak Deshmukh v. Jalgaon Jilha Maratha Vidya Prasarak Deshmukh v. Jalgaon Jilha Maratha Vidya Prasarak
Co-op. Samaj Ltd. Co-op. Samaj Ltd., 2002 (3) Mh.L.J. 201; and Harish Co-op. Samaj Ltd. Harish Harish
Com.Premises Co-op.Soc.Ltd. v. Varsha D. Joshi Com.Premises Co-op.Soc.Ltd. v. Varsha D. Joshi, Com.Premises Co-op.Soc.Ltd. v. Varsha D. Joshi
2006 (5) Bom.C.R. 853. As a matter of fact, Shri
A.B.Jogdand, Divisional Joint Registrar is liable to
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be proceeded with for having committed contempt of
this Court by not following the law laid down by this
Court of which he cannot plead ignorance being a
officer holding higher position that of the Divisional
Joint Registrar.
21. Secondly, this Court is also at loss to
understand as to how the second revision application
was maintainable against the report of the auditor
which is neither an order nor direction issued under
the provisions of the Act. It was nothing but a
quantification of the amount as directed vide order
dated 3rd January, 2007 passed by the then Divisional
Joint Registrar, Kolhapur. Consequently, notice dated
22nd September, 2007 was issued demanding amount
calculated by the auditor. All these actions were
nothing but the steps taken in execution and
implementation of the earlier order dated 3rd January,
2007. These glaring facts are apparent on the face of
record. Shri A.B.Jogdand, Divisional Joint Registrar
while passing the impugned order has conveniently
closed his eyes to factual matrix available on record.
22. Apart from the above, once the impugned order
under section 101 has become final and conclusive,
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then it was not open even for Mr.P.W.Patil, the
Divisional Joint Registrar to direct recalculation of
the amount due and come to conclusion. It was not
open for Mr.Patil to touch the amount mentioned in the
recovery certificate issued under section 101 of the
MCS Act, especially, when it had become final and
conclusive. He has also over-stepped his
jurisdiction. This Court exercising writ jurisdiction
under Article 227 of the Constitution of India cannot
shut its eyes to this glaring illegalities. The
revisional authority had no jurisdiction to overturn
the contract between the parties and to substitute its
own views.
23. The impugned orders passed by Shri P.W.Patil
and Shri A.B.Jogdand, the then Divisional Joint
Registrars not only showed impropriety but they have
also overstepped their jurisdiction for reasons best
known to them.
24. The facts are available on record to draw an
inference that the respondent No.1 made all his
attempts to obstruct the auction sale of the mortgaged
property by taking help of the political party,
namely, Shetkari Sanghatana. He has obstructed the
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recovery of money belonging to the co-operative
society and these two officers of the Co-operative
Department helped the respondent No.1 in his endeavour
to arrest recovery proceedings.
25. The learned counsel for respondent No.1 during
the course of hearing went on to make wild allegations
against the Credit Society alleging that no credits of
the repayments made by him were given in the accounts
maintained by the Credit Society. This Court had to
summon ledger account of the Credit Society to find
out whether or not the credits were given.
Ultimately, the submission made by respondent No.1
turned out to be absolutely false.
26. On the above backdrop, the impugned order
dated 19th March, 2008 as well as earlier order dated
3rd January 2007 to the extent it reopens the account
of the Credit Society are liable to be set aside. The
matter also needs to be reported to the Commissioner,
Co-operation, Maharashtra State, Pune and the
Secretary, Co-operation Department, Government of
Maharashtra, Mumbai so as to bring it to their notice
the arbitrary and colourable exercise of powers by
Shri P.W.Patil and Shri A.B.Jogdand, the then
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Divisional Joint Registrars by overturning the law
laid down by this Court. The State Government should
not feel shy to take appropriate remedial action, if
found necessary.
27. In the result, not only impugned order dated
19th March, 2008 is quashed and set aside but order
dated 3rd January, 2007, to the extent it reopens an
account, is also liable to be declared as bad and
illegal. The said order to that extent is also set
aside. The petition is allowed. Since the Recovery
Certificate has become final and conclusive, the
Recovery Officer shall proceed to recover amount due
from the respondent No.1 as per the recovery
certificate ignoring the calculations made by the
Government Auditor, since all those directions were
issued in the proceedings which were without
jurisdiction. All orders which are without
jurisdiction are liable to be ignored. [see Kiran Kiran Kiran
Singh v. Chaman Paswan Singh v. Chaman Paswan, AIR 1954 SC 340 (para-6)] Singh v. Chaman Paswan
28. Rule is made absolute in terms of this order
with costs quantified in the sum of Rs.25,000/- to be
paid by respondent No.1 to the petitioner.
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29. The registry is directed to forward the copy
of this order to the Commissioner of Co-operation,
Maharashtra State, Pune and the Principal Secretary,
Department of Co-operation, Government of Maharashtra,
Mumbai for information.
V.C.DAGA, J.) V.C.DAGA, J.) V.C.DAGA, J.)
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