Baburao Gangaram Gadiwad vs The Assistant Registrar Of ...
2003 Latest Caselaw 638 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order of the Divisional Joint Registrar of Co-operative Societies dated 7.5.2003 in Revision Application No. 427 of 2003.

2. This Court issued notice on 3.6.2003 which was made returnable today. The notice indicated that the matter was to be finally disposed of at the notice stage. The respondents are served and are appearing through learned Counsel. Accordingly, the matter is taken up for final disposal forthwith, by consent.

3. Briefly stated, the respondent No. 3-society is a notified society. Elections of respondent No. 3 - society were due to be held in the Co-operative year 2002-2003. In the circumstances, a provisional list of voters was prepared and published in terms of Section 56B of the Maharashtra Co-operative Societies Rules, 1961. Objections to the said list were invited and the last date was 16th April 2003. The objections which were received as per the original programme ought to have been decided by the Registrar on or before 22.4.2003. However, he decided the same on 24.4.2003. The order passed by the Registrar dated 24.4.2003 has not been challenged by any party and that has become final. Ordinarily, while preparing a final voters" list, it was incumbent upon the Registrar to incorporate the effect of the order passed on the objections filed to the provisional voters list. However, in this case, the authorities proceeded to publish a final voters' list on 28.4.2003 without incorporating the effect of the order passed by the Registrar on the aforesaid objections on 24.4.2003. In this backdrop, respondent No. 5 preferred revision application under Section 154 of the Maharashtra Co-operative Societies Act, 1960 before the Joint Registrar, Cooperative Societies, Kolhapur, contending that the final voters list as published is inappropriate as it does not record the effect of the order passed by the Registrar dated 24.4.2003 on the objections filed before me with regard to the provisional voters list. The revisional authority entertained that grievance and by the impugned order directed the Registrar to publish a final voters" list according to Sub-rule 58D of the Maharashtra Cooperative Societies Rules, 1961. This decision is the subject-matter of challenge in the present writ petition.

4. Shri Datar, learned Counsel for the petitioners, contends that the revision filed by respondent No. 5 under Section 154 of the Maharashtra Co-operative Societies Act, 1960 was not maintainable, for it did not challenge any decision or order passed in an enquiry but, in substance, the inaction of the society and Registrar of not incorporating the effect of the order passed on 24.4.2003 on the objections with regard to the provisional voters" list was put in issue. Besides, it is contended that once a final voters' list was published on 28-4-2003, no revision could have been entertained against that list. Reliance is placed on the decision of this Court in the case of Balasaheb Kondiram v. State of Mah. 1999 (3) Mh. L. J. 982. Learned Counsel for the petitioner further submits that the order passed on 24.4.2003 by the Registrar on the objections filed before him to the provisional voters" list was after the cutoff date provided in the original programme, i.e. 22.2.2003 and in that view of the matter, the order of the Registrar dated 24.4.2003 was of no avail; and even for that reason the final voters" list as published on 28/4/2003 was valid in all respects.

5. Learned Counsel for respondent No. 5, however, contends that the revision application as filed under Section 154 of the Maharashtra Co-operative Societies Act, 1960 was the only remedy available to the applicant regarding the grievance of non-incorporation of the effect of the order dated 24.4.2003 passed by the Registrar while preparing the final voters list. He further contends that in such a case Section 154 of the Maharashtra Co-operative Societies Act, 1960 was available and the State Government or the Registrar on an application or suo motu could have corrected that mistake. Learned Counsel, further submits that the authority relied on behalf of the petitioner regarding conclusiveness of the final voters list is inapplicable in the fact situation of the present case. The final voters' list as published on 28/4/2003 was not in conformity with the mandate of Rule 56 D of the Maharashtra Cooperative Societies Rules 1961, which mistake could be corrected in the revision under Section 154 of the Act. In so far as the contention of conclusiveness of the final voters list advanced on behalf of the petitioner is concerned, the respondents contend that, the said argument is without any basis. He submits that merely because final voters" list came to be published on 28.4.2003, which was obviously faulty and also because the order passed by the Registrar dated 24.4.2003 was after 22.4.2003, that would not disengage the authorities from discharging their obligation as contemplated under Rule 56 D to examine each claim or objection and to prepare final voters' list only after taking a decision on the same. Learned Counsel submits that in any case, having regard to the admitted fact that the order was passed by the Registrar on 24.4.2003 relating to the objection with regard to the provisional voters list and the effect of that order has not been incorporated, no interference in exercise of writ jurisdiction is warranted.

6. Having considered the rival submissions, to my mind, the petitioner is right in contending that the remedy under Section 154 of the Maharashtra Co-operative Societies Act was not the appropriate remedy in the present case. Section 154(1) of the Maharashtra Co-operative Societies Act reads thus:-

"154. Revisionary powers of State Government and Registrar.

(1) The State Government or the Registrar, suo motu or on an application may call for and examine the record of any enquiry or proceedings of any matter, other than those referred to in Sub-section (9) of Section 149. Where any decision or order has been passed by any subordinate officer, and no appeal lies against such decision or order for the purpose of satisfying themselves as to the legality or propriety of any such decision or order, and as to the regularity of such proceedings. If in any case it appears to the State Government, or the Registrar, that any decision or order so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may, after giving the person affected thereby an opportunity of being heard, pass such orders thereon as to it or him may same just."

(emphasis supplied).

On plain language of the said provision, it is obvious that the revisional jurisdiction can be invoked only against "any decision or order " passed by subordinate officer in any enquiry or proceedings. It is only on happening of that eventuality that the revisional jurisdiction can be invoked and can be exercised in the matter provided by law. In the present case, however, it is not in dispute that the order passed by the Registrar dated 24.4.2003 in the enquiry on the objections filed to the provisional voters' list was not the subject-matter of challenge before the revisional authority. However, the grievance before the revisional authority was that the final voters' list published on 28.4.2003 was a faulty list as it did not incorporate the effect of the order passed by the Registrar dated 24.4.2003. In substance, respondent No. 5 challenged the final voters' list as such, in the revisional application. Publication of final voters' list, it neither can be labelled as "a decision or order" for the purpose of Section 154 of the Act, although it is a consequential step taken after an enquiry under Rule 56 D of the Rules. From the order impugned before this Court, it is obvious that the revisional authority proceeded on the premise that the final voters' list published on 28.4.2003 was an order passed by the Registrar. But that is not so. By describing the final voters' list as an order, it would not become an order as such. It is on this erroneous premise the Revisional Authority has assumed jurisdiction unto itself and adjudicated the matter. Understood thus, the remedy of revision under Section 154 of the Act was unavailable to challenge the correctness of the final voters' list, which was essentially the grievance of respondent No. 5 in the revision application. On this ground alone this writ petition should succeed and the impugned order is quashed and set aside.

7. Although the petitioner has raised other contentions to assail the correctness of the impugned decision, in view of the above reasoning, it is not necessary for me to elaborate on those contentions as I have already found that the petition would succeed and the impugned order deserves to be set aside being without jurisdiction.

8. Learned Counsel for the respondents contends that the revisional authority had done only that what was necessary to be done in law and that order has been acted upon by the parties and election programme was going on. He submits that serious miscarriage of justice would be caused to respondent No. 5 and similarly placed persons if this Court was to upset the order passed by the revisional authority. However, as mentioned earlier, the revisional authority had no jurisdiction of adjudicating the matter in issue. If that is so, the parties will have to be relegated to the position which obtained prior to the decision of the revisional authority. Respondent No. 5 and similarly placed persons who are likely to be affected by the reversal of decision of the revisional authority would, however, be entitled to take recourse to such other remedy as permissible by law, if so advised. All questions are left open to be considered in the said proceedings. Petition allowed on the above terms.