1 lpa389.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
1) LETTERS PATENT APPEAL NO.389 OF 2012 IN
WRIT PETITION NO.956 OF 2011
AND
COUNTER APPEAL ST.NO.10752 OF 2012
IN LETTERS PATENT APPEAL NO.389 OF 2012 IN
WRIT PETITION NO.956 OF 2011
WITH
2) LETTERS PATENT APPEAL NO.390 OF 2012 IN
WRIT PETITION NO.1743 OF 2011
AND
COUNTER APPEAL NO.10753 OF 2012
IN LETTERS PATENT APPEAL NO.390 OF 2012 IN
WRIT PETITION NO.1743 OF 2011
WITH
3) LETTERS PATENT APPEAL NO.391 OF 2012 IN
WRIT PETITION NO.2149 OF 2011
WITH
4) LETTERS PATENT APPEAL NO.392 OF 2012 IN
WRIT PETITION NO.1742 OF 2011
WITH
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5) LETTERS PATENT APPEAL NO.393 OF 2012 IN
WRIT PETITION NO.2150 OF 2011
WITH
6) LETTERS PATENT APPEAL NO.394 OF 2012 IN
WRIT PETITION NO.957 OF 2011
WITH
7) LETTERS PATENT APPEAL NO.395 OF 2012 IN
WRIT PETITION NO.1741 OF 2011
WITH
8) LETTERS PATENT APPEAL NO.396 OF 2012 IN
ig WRIT PETITION NO.2148 OF 2011
AND
COUNTER APPEAL ST.NO.10754 OF 2012
IN LETTERS PATENT APPEAL NO.396 OF 2012 IN
WRIT PETITION NO.2148 OF 2011
*******
1) LETTERS PATENT APPEAL NO.389 OF 2012 IN
WRIT PETITION NO.956 OF 2011
AND
COUNTER APPEAL ST.NO.10752 OF 2012
IN LETTERS PATENT APPEAL NO.389 OF 2012 IN
WRIT PETITION NO.956 OF 2011
LETTERS PATENT APPEAL NO.389 OF 2012 IN
WRIT PETITION NO.956 OF 2011 :
Sadashiv s/o. Ganpatrao Mahajan,
Aged about 54 yrs., Occ. Agrilst.,
r/o. Waradh, Tq. Ralegaon,
Dist. Yavatmal. ........ APPELLANT
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// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Prafulla s/o. Khushalrao Mankar,
r/o. Bajoriya Nagar, Near Sai
Mandir, Yavatmal, Tah. and
Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
AND
COUNTER APPEAL ST.NO.10752 OF 2012
IN LETTERS PATENT APPEAL NO.389 OF 2012 IN
WRIT PETITION NO.956 OF 2011
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Sadashiv s/o. Ganpatrao Mahajan,
Aged about 54 yrs., Occ. Agrilst.,
r/o. Waradh, Tq. Ralegaon,
Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Prafulla s/o. Khushalrao Mankar,
r/o. Bajoriya Nagar, Near Sai
Mandir, Yavatmal, Tah. and
Dist. Yavatmal.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. A.M.Ghare, Adv. for Appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
*******
2) LETTERS PATENT APPEAL NO.390 OF 2012 IN
WRIT PETITION NO.1743 OF 2011
AND
COUNTER APPEAL ST.NO.10753 OF 2012
IN LETTERS PATENT APPEAL NO.390 OF 2012 IN
WRIT PETITION NO.1743 OF 2011
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LETTERS PATENT APPEAL NO.390 OF 2012 IN
WRIT PETITION NO.1743 OF 2011 :
Prashant s/o. Amrutrao Tayade,
Aged about 35 yrs., Occ. Agrilst.,
r/o. Pimpalkhuti, Post Zadgaon,
Tq. Zadgaon, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Sou. Geeta Vijay Patil,
Aged Major, r/o. Chalbardi, Tah.
Kelapur, Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
AND
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COUNTER APPEAL ST.NO.10753 OF 2012
IN LETTERS PATENT APPEAL NO.390 OF 2012 IN
WRIT PETITION NO.1743 OF 2011
Prashant s/o. Amrutrao Tayade,
Aged about 35 yrs., Occ. Agrilst.,
r/o. Pimpalkhuti, Post Zadgaon,
Tq. Zadgaon, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Sou. Geeta Vijay Patil,
Aged Major, r/o. Chalbardi, Tah.
Kelapur, Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. A.M.Ghare, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
***************
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3) LETTERS PATENT APPEAL NO.391 OF 2012 IN
WRIT PETITION NO.2149 OF 2011
Sadashiv s/o. Ganpatrao Mahajan,
Aged about 54 yrs., Occ. Agrilst.,
r/o. Waradh, Tq. Ralegaon,
Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Vinayakrao s/o. Pundlikrao Ekre,
Aged Major, r/o. Mendholi, Tah.
Wani, Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
**************
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4) LETTERS PATENT APPEAL NO.392 OF 2012 IN
WRIT PETITION NO.1742 OF 2011
Prashant s/o. Amrutrao Tayade,
Aged about 35 yrs., Occ. Agrilst.,
r/o. Pimpalkhuti, Post Zadgaon,
Tq. Zadgaon, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Narendra Anantreddy Bodkurwar,
Aged Major, r/o. Ardhawan, Tah.
Zari, Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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5) LETTERS PATENT APPEAL NO.393 OF 2012 IN
WRIT PETITION NO.2150 OF 2011
Sadashiv s/o. Ganpatrao Mahajan,
Aged about 54 yrs., Occ. Agrilst.,
r/o. Waradh, Tq. Ralegaon,
Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Chandrakant Ramarao Gade Patil,
Aged Major, r/o. Akpuri, Tah.
and Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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6) LETTERS PATENT APPEAL NO.394 OF 2012 IN
WRIT PETITION NO.957 OF 2011
Prashant s/o. Amrutrao Tayade,
Aged about 35 yrs., Occ. Agrilst.,
r/o. Pimpalkhuti, Post Zadgaon,
Tq. Zadgaon, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Manish s/o. Uttamraoji Patil,
r/o. Mahabali Nagar, Behind State
Bank, Arvi Road, Wadgaon, Tah.
and Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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7) LETTERS PATENT APPEAL NO.395 OF 2012 IN
WRIT PETITION NO.1741 OF 2011
Prashant s/o. Amrutrao Tayade,
Aged about 35 yrs., Occ. Agrilst.,
r/o. Pimpalkhuti, Post Zadgaon,
Tq. Zadgaon, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Chandrakant s/o. Dadarao Madavi,
Aged Major, r/o. Madani, Tah.
Babhulgaon, Dist. Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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8) LETTERS PATENT APPEAL NO.396 OF 2012 IN
WRIT PETITION NO.2148 OF 2011
AND
COUNTER APPEAL ST.NO.10754 OF 2012
IN LETTERS PATENT APPEAL NO.396 OF 2012 IN
WRIT PETITION NO.2148 OF 2011
Narsingrao s/o. Ragholu Saturwar,
Aged about 62 yrs., Occ. Agrilst.,
r/o. Marathwakdi, Post - Dhoki Road,
Tah. Kelapur, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Prakash s/o. Anandrao Mankar,
Aged Major, r/o. Khatla, Post -
Munzala, Tah.Kelapur, Dist.
Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Subhash Paliwal, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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AND
COUNTER APPEAL ST.NO.10754 OF 2012
IN LETTERS PATENT APPEAL NO.396 OF 2012 IN
WRIT PETITION NO.2148 OF 2011
Narsingrao s/o. Ragholu Saturwar,
Aged about 62 yrs., Occ. Agrilst.,
r/o. Marathwakdi, Post - Dhoki Road,
Tah. Kelapur, Dist. Yavatmal. ........ APPELLANT
// VERSUS //
1. The Hon'ble Minister for Cooperation
and Textile, State of Maharashtra,
Mantralaya, Mumbai - 32.
2. The Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Sahkar Sankul, Kanta
Nagar, Camp - Amravati.
3. Yavatmal District Central Cooperative
Bank Limited, through its Manager,
Yavatmal.
4. Prakash s/o. Anandrao Mankar,
Aged Major, r/o. Khatla, Post -
Munzala, Tah.Kelapur, Dist.
Yavatmal.
Director, c/o. Yavatmal, District
Central Cooperative Bank Limited,
Yavatmal. ........ RESPONDENTS
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-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. A.M.Ghare, Adv. for the appellant.
Mrs.Bharti Dangre, Addl.G.P. with Mr.A.G.Mujumdar,
A.G.P. for Respondent Nos. 1 and 2.
Mr.P.C.Madkholkar, Adv. with Mr.Ram Karode, Adv.
for Respondent No.3.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
*******
CORAM : B. R. GAVAI &
A. P. BHANGALE, JJ.
DATE : 19/11/2012.
ORAL JUDGMENT (Per B. R. Gavai, J) :
1. Admit. By consent, taken up for final hearing.
2. The appellants/Original Writ Petitioners have approached this Court by way of present intra Court appeals being aggrieved by the part of the findings, as recorded by the learned Single Judge of this Court in Judgment and Order, dated 16.8.2012 passed in Writ Petition No.956 of 2011 along with companion petitions.
2. The facts, in brief, giving rise to the present appeals, are as under :
::: Downloaded on - 09/06/2013 19:24:03 :::15 lpa389.12.odt Respondent no.2/Divisional Joint Registrar, Co-operative Societies, Amravati, on the basis of the report of NABARD and the subsequent report by the District Deputy Registrar, Co-operative Societies, Yavatmal, had issued show cause notices on 26.2.2012 to fourteen Directors of respondent no.3/Yavatmal District Central Co-
operative Bank, who are respondent no.4 respectively in each of these appeals, calling upon then to show cause as to why they should not be held to be 'disqualified' under the provisions of Section 73-EA of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the Act" for the sake of brevity). The basic ground raised in the said show cause notices was that the said Directors of respondent no.3 were the members of Primary Agricultural Co-operative Credit Societies, which Societies were defaulters and as such, they had incurred disqualification under the provisions of Section 73A (ii) of the said Act. All of the said Directors submitted their replies to the said show cause notices. The main defence raised in the reply to the show cause notices was that the show cause notices were vague. It was also contended that the member of the Managing Committee of the Primary Agricultural Cooperative Credit Society cannot be termed to be 'Office bearers of the said Society'. It was further submitted that the said Primary Societies have already paid the outstanding amounts.
::: Downloaded on - 09/06/2013 19:24:03 :::16 lpa389.12.odt The Divisional Joint Registrar/respondent no.2, after considering the submissions made on behalf of the said Directors, held that the said Directors had incurred disqualification as provided under Section 73-
EA of the said Act. Being aggrieved thereby, the said Directors filed statutory appeals before the State Government. The Hon'ble Minister for Co-operation, Maharashtra State, Mantralaya, Mumbai, by Judgment and Order dated 29th September, 2010 allowed the appeals. The appeals were, inter alia, allowed on the following grounds :
a) That the Directors were elected prior to the date on which Section 73-EA of the Act came into operation and as such, disqualification would not incur retrospectively.
b) The replies filed by the petitioners were not sent by the Divisional Joint Registrar to the Federal Society and as such, there was no effective consultation.
c) The Primary Societies had already re-paid the outstanding amounts and as such, disqualification was on a non-existent ground.
d) The Divisional Joint Registrar had not consulted the Reserve Bank of India and as such, the order passed by ::: Downloaded on - 09/06/2013 19:24:03 ::: 17 lpa389.12.odt the Divisional Joint Registrar was not in consonance with the provisions of Section 78 of the said Act.
e) That the members of the Primary Agricultural Co-operative Credit Society could not be termed as 'Office bearers'.
3. Being aggrieved thereby, the present appellants filed Writ Petitions before this Court. The learned Single Judge, while dismissing the petitions, upheld the findings of the Hon'ble Minister to the effect that there was no effective consultation with the Federal Society and therefore, the order passed by the Divisional Joint Registrar on this count was not sustainable. However, the learned Single Judge reversed the findings of the Hon'ble Minister to the effect that the said Directors were not the Office bearers of the Society and that the provisions of Section 73-EA could not be made retrospectively applicable to the Directors and that, since the outstanding amount was already repaid, the disqualification does not stand. The learned Single Judge, however, found that the order passed by the Divisional Joint Registrar was not sustainable on additional ground that the same was in breach of principles of natural justice.
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4. The appellants have approached this Court basically being aggrieved by the findings of the learned Single Judge on the aspect of effective consultation and violation of principles of natural justice.
5. The Directors have also approached this Court by way of separate appeals and counter claims challenging the findings by the learned Single Judge which are adverse to their interest. However, in view of the orders being passed in these appeals, the appellants/Directors have not pressed their appeals and the counter claims and have withdrawn them with liberty to raise challenge to the findings of the learned Single Judge before the appropriate forum at an appropriate stage.
6. In that view of the matter, in the present appeals, we are only concerned with the findings of the learned Single Judge regarding want of effective and prior consultation and breach of principles of natural justice.
7. Mr.Subhash Paliwal, learned Counsel appearing on behalf of the appellants, has submitted that, in the appeals before the Hon'ble Minister, the appellants have not specifically pleaded that ::: Downloaded on - 09/06/2013 19:24:03 ::: 19 lpa389.12.odt there was no effective consultation as there was no resolution of the Managing Committee of the Federal Society. The learned Counsel submitted that the learned Single Judge could not have come to the finding in that respect unless there was specific pleading by the respondents/Directors in the appeal memos before the State Government. The learned Counsel in this respect relies on the Judgment of the Constitution Bench of the Apex Court in the case of Daman Singh and Ors. vs. State of Punjab and Ors. reported in (1985) 2 SCC 670 and the Bench of the Apex Court in the case of Ajodhya Bhagat and Ors. vs. The State of Bihar and Ors. reported in AIR 1974 SC 1886.
8. Mr.Paliwal, learned Counsel further submits that the finding of the learned Single Judge in respect of breach of principles of natural justice is also not sustainable in law. The learned Counsel submits that what is required for incurring disqualification u/s.73EA(ii) is that :
I) The person should be a Director of a District Central Co-operative Bank.::: Downloaded on - 09/06/2013 19:24:03 :::
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II) He should be an Office bearer of a Primary
Agricultural Co-operative Credit Society and that the said person should be either a defaulter of a Primary Agriculture Co-operative Credit Society or an Office bearer of a defaulter Primary Agricultural Co-operative Credit Society.
9. The learned Counsel submits that, in the show cause notices, it is specifically mentioned that the Directors were members of the Primary Agricultural Co-operative Credit Societies and that the said Primary Agriculture Co-operative Credit Societies were defaulters. It is further submitted that the amount outstanding towards the District Central C-operative Bank was also mentioned in the said show cause notices. It is, therefore, submitted that all the factors which were necessary for the Directors to answer an issue regarding disqualification u/s.73-EA(ii) of the Act were put in the notice to the Directors. It is submitted that, not only that, but the report of the NABARD and the report of the District Deputy Registrar, which were demanded by the Directors, were also supplied to them.
The learned Counsel, therefore, submitted that there was sufficient compliance of the principles of natural justice. The learned Counsel further submits that the Directors were incharge of the affairs of the District Central Co-operative Bank and also the Primary Agricultural ::: Downloaded on - 09/06/2013 19:24:03 ::: 21 lpa389.12.odt Co-operative Credit Societies and as such, no prejudice was caused to them.
10. The learned Counsel relies on the judgment of the Apex Court in case of Ashok Kumar Sonkar .vs Union of India and Ors.
reported in (2007) 4 SCC 54 in support of a proposition that, unless prejudice is caused to the party an order could not be set aside on the ground of violation of principles of natural justice.
11. For appreciating the rival contentions, it would be necessary to refer to the provisions of Section 73-EA of the Act.
Section 73-EA of the Act is reproduced hereunder :
"73-EA : Disqualification for being director of District Central Cooperative Bank or State Cooperative Bank :
' Without prejudice to the other provisions of this Act or the Rules made thereunder in relation to the disqualification of being a member of a Committee, no person shall be eligible for being appointed, nominated, co-opted or, for being a director of a District Central Co-operative Bank or of the State Co-operative Bank if he :::: Downloaded on - 09/06/2013 19:24:03 :::
22 lpa389.12.odt
i) is a person who represents a society other than a
primary agricultural credit cooperative society on the board of a District Central Cooperative Bank or State Cooperative Bank, if the society to whom he represents has committed a default towards the payments of such bank for a period exceeding 90 days.
ii) is a person who is defaulter of a primary agricultural credit cooperative society or is an office bearer of a defaulting primary agricultural cooperative credit society.
ii) is a person, who represents a society whose managing committee is superseded. "
12. It is not in dispute that, though the provisions of Section 73-EA of the Act provide for additional disqualification, the procedure, as contemplated under Section 78 of the Act, is required to be followed before removing any person from the Managing Committee of the Society. It is also not in dispute that the provisions of Section 78 requires consultation to be made with the Federal Society before an action of removal of a Director could be taken by a Competent Authority.
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13. Before we proceed to consider the merits of the present appeals, it will be necessary to consider the preliminary objection raised in the appeals that a party cannot be permitted to raise new grounds which are not raised earlier. The learned Counsel specifically relies on paragraph 17 of the judgment in the case of Ajodhya Bhagat and Ors. (cited supra). The said paragraph reads thus :
" The Solicitor General rightly contended that no arguments had been advanced before the High Court with regard to notification not being by the Collector, and that there was no satisfaction of the Collector with regard to Section 4 notification. He rightly submitted that the Government would have given answer on facts, and, therefore, this Court is not only deprived of facts but also of the judgment of the High Court on these aspect.
We are, therefore, unable to allow the appellants to canvass those two grounds. "
14. In the said case, the appellants before the Apex Court had challenged the proceedings for acquisition of their lands. The High Court dismissed the petition rejecting the contention regarding mala-
fides and invalidity of the notification u/s.4 of the Land Acquisition Act. Being aggrieved thereby, an appeal was preferred before the ::: Downloaded on - 09/06/2013 19:24:03 ::: 24 lpa389.12.odt Apex Court. In the appeal, for the first time, it was sought to be urged that there was no satisfaction of the Collector with regard to Section 4 notification. In this factual background, the Apex Court found that the argument which was not advanced before the High Court and which contention could have been very well answered by the State Government before the High Court, could not be permitted to be advanced before the Apex Court for the first time.
15. Insofar as the Judgment of the Apex Court in the case of Daman Singh and Ors. (cited supra) is concerned, the learned Counsel relies on the observations of the Apex Court in paragraph 13, which reads thus :
" The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable.::: Downloaded on - 09/06/2013 19:24:03 :::
25 lpa389.12.odt No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not ?
16. In the afore-said case, validity of the relevant provisions of the Punjab Co-operative Societies Act, 1961; particularly Section 13(8) therein was for consideration before the Constitution Bench of the Apex Court. A grievance was sought to be made before the Apex Court that though several questions were raised before the High Court, the same were not considered by the High Court. In this background, the afore-said observations have been made by the Constitution Bench.
17. In the present case, it is the appellants who had approached this Court by way of Writ Petition under Article 226 or ::: Downloaded on - 09/06/2013 19:24:03 ::: 26 lpa389.12.odt 227 of the Constitution of the India. It is not the respondents/Directors who had approached the learned Single Judge of this Court. In any case, it could be seen from the memo of appeals filed by the petitioners before the State Government that the following two grounds are specifically raised :
"10. That on perusal of the order dated 12-05-2010 it will demonstrate that there was no effective and meaningful consultation with Federal Society and hence the order is illegal and needs to be set aside.
12. That, the Respondent No.1 failed to take into consider that the Respondent No.2 had never demanded the alleged outstanding amount as mentioned in the show cause notice and therefore, unless and until demand notice is made no default under the Act can be constituted to incur any kind of disqualification and therefore, the notice issued by Respondent No.1 U/Sec.78, dt.26-02-2010 was premature in absence of demand notice and therefore, the said order passed by Respondent No.1 is illegal and needs to be set aside. "
18. It can, thus, clearly be seen that specific ground with regard to want of effective and meaningful consultation with the ::: Downloaded on - 09/06/2013 19:24:03 ::: 27 lpa389.12.odt Federal Society has been specifically raised by the appellants. It can further be seen that a specific ground regarding demand not being issued to the appellants and therefore, the notice issued u/s.78 of the Act not being valid in law, has also been raised. Considering these grounds, the appeals, as filed by the respondents/Directors, were allowed by the State Government and being aggrieved thereby, the petitioners/appellants have approached this Court. In this background, if the petitioners/appellants were of the opinion that there was an effective consultation, the onus was on the appellants to canvass before the learned Single Judge that, in fact, there was an effective consultation. In that view of the matter, we find that the reliance placed by the learned Counsel for the appellants on the afore-said two judgments of the Apex Court is of no use to the case of the appellants.
19. Insofar as effective consultation is concerned, the learned Single Judge has basically gone on the premise that consultation with the Federal Society would mean consultation with the Board of Directors of the Federal Society. The learned Single Judge has held that consultation would not mean consultation with the Managing Director, who is not elected Director of the Federal Society. The ::: Downloaded on - 09/06/2013 19:24:03 ::: 28 lpa389.12.odt learned Single Judge has held that, for an effective consultation, it should be shown that entire material was placed before the Board of Directors of the Federal Society. It has been further held that it must be shown that the Board of Directors have applied their mind and thereafter, have come to some conclusion either way, before giving their opinion to the competent Authority. We have also perused the document which is sought to be relied on behalf of the appellants in support of the contention that there was effective consultation. The said document, which is a communication dt.7.5.2010 addressed by the Managing Director of the Federal Society, states that the Authority concerned, after considering the replies of the concerned Directors, should take action in accordance with the provisions of the Maharashtra Co-operative Societies Act. On perusal of the said communication itself, it would appear that there is even not a whisper as to whether the said material was placed before the Managing Committee of the Federal Society and as to whether the Managing Committee of the Federal Society had applied its mind and arrived at any decision. In that view of the matter, we do not find that the learned Single Judge has erred in coming to a finding that there was no effective consultation.
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20. Insofar as the second ground regarding principles of natural justice is concerned, the learned Counsel for the appellants relies on paragraph 32 of the Judgment of the Apex Court in the case of Ashok Kumar Sonkar (cited supra), which reads thus :
" In P.D. Agrawal v. State Bank of India [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43] this Court observed : (SCC 791, para 30) "30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change. "
It was further observed : (SCC pp.793-94, para 39) :
"39. Decision of this Court in S.L.Kappor v. Jagmohan [(1980) 4 SCC 379] whereupon Mr.Rao placed strong reliance to contend that non-observance of the principles of natural justice itself causes prejudice or the same should not be read 'as it causes difficulty of prejudice', cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State ::: Downloaded on - 09/06/2013 19:24:03 ::: 30 lpa389.12.odt Bank of Patiala vs. S.K.Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] and Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] the principle of law is that some real prejudice must have been caused to the complainant.
The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula. (See Viveka Nand Sethi v. Chairman, J & K Bank Ltd. [(2005) 5 SCC 337 : 2005 SCC (L&S) 689] and State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190 : JT (2006) 1 SC 19]. See also Mohd. Sartaj v. State of U.P. [ (2006) 2 SCC 315 : 2006 SCC (L&S) 295 : (2006) 1 Scale 265]".
The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy, as is well known, should not be misplaced. "
21. The afore-cited case arose out of cancellation of appointment of an employee who was appointed de hors the ::: Downloaded on - 09/06/2013 19:24:03 ::: 31 lpa389.12.odt provisions of Articles 14 and 16 of the Constitution of India and also in violation of statutory rules prescribing the eligibility of a candidate to be appointed. Finding that the person appointed did not possess the prescribed qualification, the Apex Court held that the appointment was illegal and ab initio void. The Apex Court itself has distinguished illegal appointment as against irregular appointment which could be regularized in the facts of a particular case. Finding that the appointment of the appellant before the Court was ab initio void and illegal, the afore-said observations have been made regarding principles of natural justice.
22. Nodoubt that, by now, it is a settled principle of law that the principles of natural justice cannot be put in any straitjacket formula. What should be the principles of natural justice in the particular factual situation would depend upon the facts of each case.
The learned Single Judge analysing the scope of Section 73-EA of the Act found that the show cause notices which were given to the respondents/Directors were not sufficient so as to enable them to meet the allegations made against them. The learned Single Judge, while arriving at a finding, has also taken into consideration the gravity of the resultant consequences which would follow upon the ::: Downloaded on - 09/06/2013 19:24:03 ::: 32 lpa389.12.odt action being taken against the Directors under the provisions of Section 78 r/w. Section 73(1) AE of the said Act. We do not find that the learned Single Judge has erred in holding that the show cause notices which were issued to the Respondents/Directors herein were not such which would enable them to effectively answer the allegations made against them. Insofar as the contention of the appellants regarding prejudice being caused to them is concerned, we find that the reasoning given by the learned Single Judge that, in view of gravity of the resultant consequences, a stricter adherence to the principles of natural justice was required, can be in no way faulted with.
In the result, no merit is found in the present appeals.
The appeals are, therefore, dismissed. However, in the facts and circumstances, no orders as to costs.
In view of dismissal of the present appeals, all the pending Civil Applications are disposed of.
JUDGE JUDGE
jaiswal
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