Narayan Kisanrao Samundre, ... vs The State Of Maharashtra, The ...
2003 Latest Caselaw 172 Bom

JUDGMENT

B.H. Marlapalle, J.

1. Both these Letters Patent Appeals arise from a common decision in Writ Petition Nos.5456 and 5481 of 1995 and the issues raised fall in a narrow compass.

2. In L.P.A.No.10/1995, the appellants were the members of the Managing Committee of Osmanabad Zilha Dudh Utpadak Sangh Maryadit and were served with the show cause notice dt.24.7.1995, informing them that they had suffered disqualification under Section 73FF(1) of the Maharashtra Cooperative Societies Act, 1960 ( the Act for short) for not having refunded the advance taken by them within a period of 30 days and they were asked to show cause as to why the order of disqualification could not be passed against them under Section 78 of the Act. They submitted explanation that the advance amount was repaid after a period of 30 days and before any notice directing them to refund the advance amount was issued to any of them and in any case the amount having been remitted before issuance of the show cause notice, there was no occasion to proceed against them. This explanation was not accepeted by the Divisional Deputy Registrar ( Dairy), Aurangabad, who passed an order of disqualification under Section 78(1A) of the Act on 11.9.1995. An appeal came to be filed against the said order and the disqualification was stayed. However, by order dt.3.11.1995, the appeal came to be dismissed and thus the order of disqualification passed on 11.9.1995 came to be confirmed. The challenge to the order of disqualification as well as the view taken by the lower appellate authority was turned down by this court vide its judgment dt.20th of Nov.,1995.

3. There is no dispute that the appellants had taken advance and it was not remitted within 30 days. They have raised only the following two questions, namely;

(1)There was no notice issued against them, calling upon them to refund the advance amount and a period of 30 days had not expired from the date of such a notice, and

(2)in any case the amount was deposited before the show cause notice was issued and, therefore, the provisions of 73FF (1)(i)(c) of the Act were not attracted and even, if it be otherwise, there was no consultation, leave alone effective consultation, with the federal society, as is mandated under Section 78(1) of the Act, before the order of disqualification was passed.

4. On both the counts, this court, in the impugned judgment, has taken a view that the provisions of Section 73FF(1)(i)(c) operated automatically and there was no necessity for consultation. On the point of notice, this court referred to the language of Section 73FF(1)(i)(c) and held that there was no provision for issuing a notice and failure to do so, will not vitiate the action taken.

5. So far as issue of effective consultation is concerned, Shri R.N.Dhorde, learned Counsel for the appellants, has relied upon following decisions of this court:

(1)Suresh Dyandeo Khumkar and others vs. State of Maharashtra and others ( 1987 Mh.L.J. 474)

2)Ravindra M.Gaikwad and others vs. State of Maharashtra and others. ( 2001 (3) Mah.LR 420)

3)Tukaram Narayanrao Khandebharad vs. State of Maharashtra and others. (1998 (1) Mh.L.J.679)

He contended before us that the consultation is a condition precedent before an order of disqualification is passed under Section 78(1) of the Act and consultation cannot be a mere formality. It must be effective and meaningful consultation. In the impugned decision, this court has taken a view that, in the facts of the case at hand, no consultation was necessary as from the record it was clear that the advance was taken by the appellants and it was not repaid within a period of 30 days. With great respect, we do not agree with this view. While interpreting provisions of a statute, this court cannot make certain provisions therein as redundant or ineffective and every word of the statute has to be given its natural meaning and purpose. Sub section (1) of Section 78 of the Act mandates that while taking an action, the Registrar is required to give an opportunity of stating objections, if any, and consult the federal society to which the society is affiliated. Thus, before the order is passed by the Registrar, these are the two conditions precedent and both of them must be complied with. Admittedly, in the instant case, there was no consultation with the federal society concerned and, therefore, the order passed under Section 78(1)(b) cannot be upheld.

6. However, so far as the order under Section 73FF(1)(i)(c) of the Act is concerned, Shri Dhorde submitted that the said action cannot be independent of the provisions of Section 78(1) in view of the ratio laid down by a Division Bench of this court in the case of Keshaorao Narayanrao Patil vs. District Deputy Registrar, Cooperative Societies, Akola and others (1987 Mh.L.J.709). These submissions do not impress us. Sub-section (1) (i) of Section 73FF reads thus:

"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, elected, co-opted or for being a member of a committee if he -

(i)is a defaulter of any society ;

Explanation :- For the purposes of this clause, the term "defaulter" includes,

(a)In the case of primary agricultural credit society, a member who defaults the repayment of the crop loan on the due date.

(b)In the case of term lending society, a member who defaults the payment of any instalment of the loan granted to him;

(c)in the case of any society, -

(i)a member who has taken anamat or advance; or

(ii)a member who has purchased any goods or commodities on credit or availed himself of any services from the society for which charges are payable; and fails to repay the full amount of such anamat or advance or pay the price of such goods or commodities or charges for such service, after receipt of notice of demand by him from the concerned society or within thirty days from the date of withdrawal of anamat or advance by him or from the date of delivery of goods to him or availing of services by him, whichever is earlier. "

(d)in the case of non-agricultural credit societies, a member who defaults the payment of any instalment of the loan granted;

(e)in the case of housing societies, a member who defaults the payment of dues to the society within three months from the date of service of notice in writing served by post under certificate of posting demanding the payment of dues;

The provisions of sub section (1) open with the words, "Without prejudice to the other provisions of this Act" and, therefore, they must be read independent of Section 78(1) of the Act. The effect of default, as contemplated within sub-section (1) of Section 73FF is the eligibility for being appointed, nominated, elected, co-opted or for being a member of a committee whereas, under Section 78(1)(b), the disqualification contemplated is removal of the member and appointment of any person as a member of such committee in his place or direct the society to elect or appoint a member in his place for the remainder of the term of the office so removed. Thus, in case of a member of a committee the disqualification sustained under Section 73FF(1) is discontinuation of the membership and under the provisions of Section 78(1)(b) there is a removal coupled with appointment of any person as a member of such committee in his place or direction to the society to elect or appoint a new member in his place for the remainder of the term of the office so removed has been contemplated. The consequences of disqualification under Section 73FF(1) are distinct from the consequences contemplated under Section 78(1)(b) of the Act and the provisions of Section 73FF(2) set out the further consequences of disqualification sustained under Seection 73FF(1) and they are required to be read in conjunction with the provisions of Section 78(1) of the Act.

7. In the instant case, admittedly, the appellants were the managing committee members on the relevant date and the impugned order was passed by invoking the powers under Section 73FF(1)(i)(c) as well as Section 78(1)(b) and thus it was a composite order. We have already held that the order passed under Section 78(1)(b) is unsustainable and this defect would not automatically render the action under Section 73FF(1)(i)(c) as ineffective or redundant. If it is noticed that there has been compliance of Section 73FF(1), the disqualification order under the said Section must be upheld.

Under Section 73FF(1), five contingencies, namely, are contemplated,

(a)Failure to repay the full amount of Anamat or advance after receipt of notice of demand by the member from the concerned society, or

(b)within 30 days from the date of withdrawal or anamat or advance by him, or

(c)From the date of delivery of goods from him or availing of services by him whichever is earlier.

(d)in the case of non-agricultural credit societies, a membeer who defaults the payment of any instalment of the loan granted;

(e)in the case of housing societies, a member who defaults the payment of dues to the society within three months from the date of service of notice in writing served by post under ceertificate of posting demanding the payment of dues;

These five contingencies are independent of each other and anyone of them which is satisfied at the earliest could be operated against the concerned member.

8. In the case of Murlidhar Bhaulal Malu v. Sudhakar Honaji Patil (1987 Mh.L.J.944), this court, in para no.9, inter alia held thus:

"Similarly, a member who has taken anamat or advance and fails to repay the full amount of such anamat or advance, within such period as is specified in that behalf, under the bye-laws, of the society or the contract or within 30 days from the receipt of notice of demand by him from the concerned society, whichever is earlier, will become a defaulter."

Three circumstances noticed by this court for default are -

(a)Within such period as is specified in that behalf under the byelaws of the society or,

(b)A contract, or

(c)within 30 days from the receipt of notice of demand by him from the concerned society.

Obviously, the contingency of failure to pay the amount of such anamat within 30 days from the date of withdrawal of anamat was not considered by this court and such a condition does appear in the language of Section 73FF(1)(i)(c)(ii) and, therefore, the action of disqualification as ordered under Section 73FF(1) requires to be upheld.

9. We are informed that fresh elections to the managing committee of the Osmanabad Zilla Dudh Vyavasayik Sangh have been held some time in March, 2000 and only the appellant No.1 in LPA No.10/1995, i.e. Shri Narayan Kisanrao Samundre has been elected in the said elections and it is not known whether the remaining four appellants contested the election or lost or they did not contest at all. The action of disqualification within the meaning of Section 73FF(1) of the Act has already operated against them prior to the election of March, 2000, and the disqualification ordered under Section 78(1)(b) of the Act has been disapproved by us.

10. In the result, we allow these appeals partly and the disqualification ordered under Section 78(1)(b) of the Act is hereby quashed and set aside whereas the disqualification ordered under Section 73FF(1)(c) is upheld against all the appellants. We further clarify that the order of disqualification which has been upheld by us does not come in the way of appellant No.1 in L.P.A.No.10/1995, for being continued as a member of the managing committee pursuant to the elections held in March, 2000.

11. Civil Applications Nos.7394/1995, and 2853/1999 in L.P.A.No.10/1995, and C.A.Nos. 7395/1995, 2854/1999 and 2855/1999 in L.P.A.No.11/1995 do not survive and are disposed accordingly. Costs in cause.