M.E.L. Employees Co-Operative ... vs Divisional Joint Registrar, ...
2004 Latest Caselaw 310 Bom

JUDGMENT

B.R. Gavai, J.

1. Rule. Rule made returnable forthwith.

Shri D.B. Patel, learned A.G.P. waives service on behalf of respondent Nos. 1 and 2 in Writ Petition No. 4448/03 and Shri A.S. Sonare, learned A.G.P. waives service on behalf of respondent Nos. 1 and 2 in Writ Petition No. 4449/03. Shri D.M. Kakani, learned Counsel waives service on behalf of respondent No. 3 in both the petitions.

Heard finally by consent of parties.

2. The present writ petitions impugn the orders passed by the learned Joint Registrar, Co-operative Societies, Nagpur in Appeal No. 256/03 and 257/03, thereby allowing the appeals and quashing and setting aside the order dated 29/30-11-02 issued under Section 35 of the Maharashtra Co-operative Societies Act, 1960 by the respondent No. 2 Assistant Registrar, Co-operative Society.

3. Heard Shri Meghe, learned Counsel for the petitioner, Shri D. B. Patel and Shri A. S. Sonare, learned Assistant Government Pleaders for respondent Nos. 1 and 2 and Shri D. M. Kakani, learned Counsel for respondent No. 3.

4. Shri Meghe, learned Counsel for petitioner, submits that Section 35 of the Maharashtra Co-operative Societies Act requires that prior to expulsion, an opportunity of hearing is required to be given by the General Body. He submits that, that requirement having been complied with, it was erroneous on the part of the learned Joint Registrar, Co-operative Societies to have set aside the order passed by the Assistant Registrar on the ground that the Assistant Registrar, Cooperative Societies had not given opportunity of hearing. According to him, there is complete compliance with the provisions of Section 35 and as such, the order passed by the Divisional Joint Registrar, Co-operative Societies needs to be quashed and set aside. In the alternative, he submits that since the learned Joint Registrar has quashed and set aside the order passed by the Assistant Registrar only on the ground that it is violative of the principles of natural justice, he ought to have remanded back the matter to Assistant Registrar, Co-operative Societies for hearing it on merits afresh.

5. Shri Kakani, learned Counsel for respondent No. 3, submits that the expulsion of the petitioner was in contravention of Rule 29 of the Maharashtra Co-operative Societies Rules. He submits that one months prior notice is required, before an action for expulsion can be taken in the meeting of the General Body. According to him, admittedly, one month's notice was not given in the present case. He further submits that had the learned Assistant Registrar given the respondent No. 3 an opportunity of hearing, all these factors could have been pointed out to the learned Assistant Registrar. He further submits that the approval under Section 35 by the Registrar is not an empty formality and the Assistant Registrar is required to apply his mind as to whether there exists a proper cause for expulsion or not.

6. I have gone through the impugned order. The learned Joint Registrar has found that the Assistant Registrar in his reply had himself admitted that on 26-11-2002 the appellants (present respondent No. 3) were present before him and sought time to file reply. However, the Assistant Registrar, having prima facie found that the Resolution passed by the society was legal, rejected the said prayer. In that view of the matter, I find no error in the conclusion arrived at by the Joint Registrar that the orders passed by the Assistant Registrar were liable to be set aside on the ground of violation of principles of natural justice. However, since the orders were set aside only on the ground of violation of principles of natural justice, the learned Joint Registrar ought to have remanded the matter to the Assistant Registrar with a direction to him to decide the same on merits after giving an opportunity of hearing to both the sides. I find that the learned Joint Registrar has committed an error in not doing so.

7. In the result, the petitions are partly allowed. The order of the Joint Registrar insofar as it sets aside the order of the Assistant Registrar dated 29/30-11-2002 insofar as it relates to respondent No. 3 in both the petitions is maintained. However, the matter is remanded back to the Assistant Registrar, Cooperative Societies, Chandrapur, who is directed to consider the matter regarding expulsion of respondent No. 3 afresh on its own merits after giving sufficient opportunity of being heard to the petitioners as well as respondent No. 3 in both the petitions.

8. Rule is accordingly made absolute in aforesaid terms with no order as to costs.