Judgment 1 wp1041.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1041 OF 2017
Shri Raghunath S/o. Baliram Bhambhere,
Aged about 68 years, Occu: Agriculturist,
R/o. At Post Chinchkhed, Tah.: Shegaon,
Distt. : Buldhana.
.... PETITIONER.
// VERSUS //
1. Assistant Registrar, Co-operative
Societies, Shegaon, Distt. Buldnana.
2. Chinchkhed Gram Seva Sahakari Sanstha
Maryadit, Chinchkhed, Tah. : Shegaon,
Distt. : Buldhana.
3. Waman S/o. Yashwant Bhambhere,
Aged about 70 years, R/o. At Post
Chinchkhed, Tah. Shegaon, Distt. :
Buldhana.
4. Najuk S/o. Prakash Bhambhere,
aged about 40 years, R/o. At & Po.
Chinchkhed, Tah. : Shegaon,
Distt. Buldhana.
5. Vasudeo S/o. Haribhau Bhambhere,
aged about 45 years, R/o. At & Po.
Chinchkhed, Tah. : Shegaon,
Distt. Buldhana.
6. Sapurda S/o. Rasaheb Bhambhere,
aged about 60 years, R/o. At & Po.
Chinchkhed, Tah. : Shegaon,
Distt. Buldhana.
7. Jagdev S/o. Ganpat Chopde,
aged about 57 years, R/o. At & Po.
Chinchkhed, Tah. : Shegaon,
Distt. Buldhana.
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8. Shrikrushna S/o. Fakirchand Bhambhere,
aged about 60 years, R/o. At & Po.
Chinchkhed, Tah.:Shegaon, Distt:Buldhana.
9. Mahadev S/o. Rajaram Bhambhere,
aged about 55 years, R/o. At & Po.
Chinchkhed, Tah.:Shegaon, Distt:Buldhana.
10. Dnyandev S/o. Mahipat Bhambhere,
aged about 50 years, R/o. At & Po.
Chinchkhed, Tah.:Shegaon, Distt:Buldhana.
11. Shri Vitthal S/o.Vishwanathan Bhambhere,
aged about 38 years, R/o. At & Po.
Chinchkhed, Tah.:Shegaon, Distt:Buldhana.
12. Sau. Ushabai Kadu Hinge,
aged about 60 years, R/o. At & Po.
Chinchkhed, Tah.:Shegaon, Distt:Buldhana.
.... RESPONDENTS
.
___________________________________________________________________
Shri A.M.Ghare, Advocate for Petitioner.
Shri N.R. Patil, A.G.P. for Respondent No.1.
Shri Chetan Sharma, Advocate h/f.Shri S.P.Bhandarkar, Adv. for Respondent
Nos. 7, 9 to 12.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : DECEMBER 08, 2017.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The petitioner and respondent Nos. 3 to 12 got elected as members of the Executive Committee of the respondent No.2-society on 27 th June, 2016. According to the petitioners, they along with respondent Nos. 3 ::: Uploaded on - 21/12/2017 ::: Downloaded on - 21/12/2017 23:38:58 ::: Judgment 3 wp1041.17.odt to 8 submitted their resignation to the respondent No.1-Assistant Registrar and also to the Secretary of the respondent No.2-Society. The respondent No.1 undertook the exercise of verifying whether the resignation letters were submitted by the concerned members and whether 5 out of 11 members had submitted resignation letters wilfully. As out of 11 members, 5 members submitted their resignation and quorum for conducting the meeting of the Executive Committee as per the bye-laws is 7, remaining members of the committee could not conduct any meeting of the executive committee.
4. On 29th November, 2016, the petitioner submitted an application to the respondent No.1-Assistant Registrar requesting that Administrator be appointed to manage the affairs of the respondent No.2- society. On 23rd December, 2016 the respondent No.1-Assistant Registrar issued notice under Section 77-A of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred as "the Act of 1960"). The respondent Nos. 3 to 12 filed their replies. The respondent Nos. 3 to 8 affirmed that they had submitted their resignation letters. The respondent Nos. 9 to 12 opposed the appointment of administrator. On 25th January, 2017 the respondent No.1- Assistant Registrar recorded that the petitioner and the other members who had submitted their resignation letters cannot insist for appointment of the administrator and then on 27th January, 2017 issued show cause notice under Section 78 of the Act of 1960 to the members who submitted their resignation letters, calling upon their explanation. ::: Uploaded on - 21/12/2017 ::: Downloaded on - 21/12/2017 23:38:58 :::
Judgment 4 wp1041.17.odt The petitioner has approached this Court with a grievance that the respondent No.1-Assistant Registrar is deliberately avoiding to appoint administrator and is not discharging his duty under Section 77-A and Section 78 of the Act of 1960.
6. After hearing the learned advocates for the respective parties, I find that there is no dispute that 5 members out of 11 members have submitted their resignation letters. There is no dispute that as per the bye- laws quorum required for conducting meeting of the Executive Council is of 7 members. In the reply filed by the respondent No.1-Assistant Registrar before this Court there is no acceptable explanation as to why the notice issued under Section 77A of the Act of 1960 is withdrawn.
7. Though the petitioner has challenged show cause notice issued by the respondent No.1-Assistant Registrar under Section 78 of the Act of 1960 and has prayed that it be quashed, there is a dispute as to whether there is any government shareholding or loan or financial assistance in terms of any cash or kind or any guarantee by the government in favour of the respondent No.2-society so as to attract Section 78 of the Act of 1960. The petitioner contends that government aid is not given to the respondent No.2- society and therefore, in view of the fourth proviso below clause (a) of sub- section (1) of Section 77-A of the Act of 1960, the provisions of Section 78 cannot be invoked by the respondent No.1-Assistant Registrar. ::: Uploaded on - 21/12/2017 ::: Downloaded on - 21/12/2017 23:38:58 :::
Judgment 5 wp1041.17.odt
8. The learned A.G.P. has pointed out from paragraph No.11 of the reply filed by the respondent No.1 before this Court that the balance sheet of the respondent No.2-society, dated 31 st March, 2016, shows that the respondent No.2-society has received government aid, specially from the Central Government. As there is a dispute as to whether the respondent No.2-Society is receiving any aid from the Government, in my view, it would not be appropriate, at this stage, to consider the challenge of the petitioner to the show cause notice issued under Section 78 of the Act of 1960.
9. In view of the above, following order is passed:
i) The decision of the respondent No.1-Assistant Registrar to withdraw /drop the notice /proceedings under Section 77A of the Act of 1960 is quashed.
ii) The respondent No.1-Assistant Registrar shall proceed further as per Section 77A of the Act of 1960 and take appropriate decision after granting opportunity of hearing to the concerned members/ persons.
iii) The challenge raised by the petitioner to the show cause notice issued under Section 78 of the Act of 1960 is not considered at this stage and it will be open to the parties to file their replies to the show cause notice before the respondent No.1-Assistant ::: Uploaded on - 21/12/2017 ::: Downloaded on - 21/12/2017 23:38:58 ::: Judgment 6 wp1041.17.odt Registrar. The respondent No.1/Assistant Registrar shall take appropriate decision in the matter after considering the replies filed before him and after hearing the concerned members/ persons.
iv) The petitioner and the respondent Nos. 7 and 9 to 12 shall appear before the respondent No.1-Assistant Registrar on 12 th January, 2018 and abide by further instructions/ orders in the matter.
v) The petitioner shall send copy of this order to the respondent Nos. 2 to 6 and 8 by Speed Post Acknowledgment Due and inform them that the matter will be taken up by the respondent No.1-Assistant Registrar on 12th January, 2018. These respondents may also participate in the proceedings before the respondent No.1-Assistant Registrar, if so advised.
vi) The respondent No.1-Assistant Registrar shall take decision in both the matters till 16th April, 2018.
The writ petition is allowed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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