Shri Chandrakant Dhondiba ... vs Government Of Maharashtra, ...
2003 Latest Caselaw 43 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard learned Advocate for the parties, Perused the record. Rule. By consent rule is made returnable forthwith.

2. The petitioner challenges orders dated 27.11.2001, 31.1.2002 and 7.2.2002 passed by the lower authorities acting under the provisions of the Maharashtra Cooperative Societies Act, 1960, hereinafter called as "the said Act", rejecting the application filed by the petitioner for registration of the proposed Society, viz. Dipak Aba Vikas Karyakari Sahakari Society Ltd., Ajnale, Taluka Sangola, District Solapur.

3. The facts in brief are that the petitioner being an agriculturist, with the help of some of the villagers, who are also agriculturists from the village of Kolavale, proposed to form Vividh Karyakari Sahakari Society in the said village for catering the needs of agriculturists and as Chief Promoter of the said proposed society applied for the registration thereof. The request for registration was turned down by the respondent No. 4, without even giving an opportunity to the petitioner and the same was communicated to the petitioner by the letter dated 21st November, 2001, by respondents No. 5. The proposal for registration of the society was in fact submitted by the petitioner on 25th June, 2001. The refusal was communicated by letter dated 21st November 2001. The only ground disclosed for refusal was that there is one more society in the village and therefore it is not appropriate to grant registration of another society in the same village. The petitioner preferred an appeal being the Appeal No. 118 of 2001 before the respondent No. 3, which came to be dismissed by the order dated 21.11.2001. The petitioner thereafter preferred the revision application which also came to be rejected by the order dated 7.2.2002 passed by the Minister in charge. Hence, the present petition.

4. The decision of the respondent in the matter of refusal of registration of the proposed society of the petitioner is challenged on two grounds. Firstly, that in view of the communication of refusal being beyond the period of 4 1/2 months, the petitioner society is deemed to have been registered in terms of provisions of law contained in Section 9 of the said Act and therefore, the said communication about rejection of request for registration of the society is bad in law. Secondly, that in terms of the Government policy, the refusal on the ground of existence of the society in the village is permissible only in case the proposed society lacks financial potentiality to disburse loan of Rs. 50 lakhs. Undisputedly it is not the case of the respondent that the petitioner's proposed society would be lacking in this regard and therefore, mere existence of another society in the locality cannot be a justification for refusal of registration of the petitioner society.

5. Undisputed facts which are very relevant for the decision revealed from the records are that the proposal for registration was submitted by the petitioner to the competent authority under the said Act on 25th June 2001, whereas the first communication regarding refusal of registration to the petitioner society was under letter dated 21.11.2001.

6. The Section 9 of the said act deals with the subject of registration of the societies. Sub-section 1 thereof provides that if the Registrar is satisfied that a proposed society has complied with the provisions of the said Act and the rules, or any other law for the time being in force, or policy directives issued by the State Government under Section 4 of the said Act and that its proposed by-laws are not contrary to the said Act, or the rules thereunder, the Registrar shall, within two months from the date of receipt of the application registrar the society and its by-laws. Sub-section two thereof provides that where there is a failure on the part of the Registrar to dispose of such application within the period of 2 months, as specified in Sub-section 1, the Registrar shall within a period of fifteen days from the date of expiration of the said period of two months, refer the application to the next higher officer and where the Registrar himself is the registering officer, to the State Government, who or which, as the case may be, shall dispose of the application within two months from the date of its receipt and on the failure of such higher officer or the State Government, as the case may be, to dispose of the application within that period, the society and its by-laws shall be deemed to have been registered and thereafter the Registrar shall issue certificate of registration under his seal and signature within a period of fifteen days.

7. The provisions of law relating to the registration of society, therefore, disclose that in case the Registrar fails to take appropriate decision in terms of Sub-section 1 of Section 9, within a period of two months from the date of the proposal for registration of the society, the Registrar shall refer the application to higher officer or the State Government, as the case may be, and such reference should be within fifteen days from the date of expiry of the period of two months, from the date of receipt of the proposal. On such reference being made to the higher officer, the State Government, as the case may be, shall dispose of the application within two months from the date of its receipt. In other words, on the whole the proposal for registration of society shall be disposed of one way or other within a period of four and half months from the receipt of such application by the Registrar. In case of failure to dispose of such application within the said specified period of four and half months, the application for registration shall be deemed to have been allowed and the society is deemed to have been registered and in that case, the Registrar is enjoined to issue certificate of registration under his seal and signature within a period of fifteen days after the expiry period of four and half months. Sub-section 3, in fact, makes it abundantly clear that where the Registrar refuses to registrar a proposed society, he shall forthwith communicate his decision, with the reasons therefor, to the person making the application and if there be more than one, to the person who as signed first thereon. Needless to say, such a communication should germinate from the office of the Registrar within fifteen days from the expiry of four and half months, i.e. one hundred and thirty five days, in case of refusal being by the higher officer or the State Government, and the provision in that regard is very clear in Section 9 of the said Act. The law is well settled that when a particular mode is prescribed for doing an act, the authorities are bound to follow the procedure prescribed under the law, and not to act in disregard to such procedure.

8. Considering the facts of the case that the proposal for registration was submitted to the Registrar on 25.6.2001 and the communication of refusal was made by the respondent to the petitioner by the letter dated 27.11.2001, that itself discloses that it was beyond the period of one hundred and fifty days which is the outer limit for issuing the communication of refusal of the proposal from the office of the Registrar. Besides, as rightly submitted by the learned Advocate for the petitioner, even the decision regarding the refusal has been taken beyond a period of one hundred and thirty five days, which is the outer limit for taking decision by the higher authority or the State Government, as the case may be, in terms of Sub-section 2 of Section 9 of the said Act. Being so, on both counts the petitioner society is justified in contending that on account of failure on the part of the respondents to take appropriate decision within the specified period, and to communicate the same within the prescribed period, the petitioner society is entitled to claim the deemed registration in terms of the provisions of law. contained in Section 9(2) of the said Act.

9. As regards the second ground of challenge, the communications dated 27.11.2001 discloses that refusal has been on the ground of existence of other society in the village and on no other ground. The Government Resolution dated 7th February 2001 and Clause 3 thereof clearly provides that refusal on the ground of existence of other society is permissible provided the proposed society is lacking in the requirement of minimum of Rs. 50 lakhs potentiality to disburse loan under the prescribed guidelines. Mere existence of another society in the village by itself is not the condition which is prescribed for the purpose of rejecting the proposal for registration of another society in the village. Being so the order rejecting the proposal on the ground of mere existence of another society is also not in accordance with the policy of the Government reflected from the said government Resolution and on that count also the decision of the respondents, rejecting the registration cannot be sustained and is liable to be set aside.

10. For the reasons stated above the impugned orders are set aside and the proposal of the petitioner society for registration is deemed to have been allowed and registration granted in terms of Section 9(2) of the said Act. The Registrar is directed to issue necessary registration certificate under his seal and signature within thirty days from the receipt of this order.

Rule is made absolute in above terms with no order as to costs.

Parties to act on the authenticated copy of this order.