Bombay High Court
Talbeed Vividh Karyakari Seva vs 4 The State Of Maharashtra on 17 December, 2011
Bench: G. S. Godbole
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srj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8510 OF 2009
Talbeed Vividh Karyakari Seva ]
(V.K.S.) Sanstha Ltd., Talbeed, ]
Tal. Karad, District - Satara. ] .. Petitioner
v/s.
1
Prop. Shri Chandrasen Vividh
Karyakari Seva Sanstha Ltd.
]
]
Talbeed, Tal- Karad, Dist- Satara ]
2 Deputy Registrar, Co-operative ]
Societies, Karad, Tal- Karad, ]
Dist- Satara. ]
3 Commissioner for Co-operation & ]
Registrar of Co-operative Societies, ]
Maharashtra State, Pune. ]
4 The State of Maharashtra. ] .. Respondents.
Mr. Amit Borkar, for the Petitioner.
Mr. Dhawal Patil i/b. M/s. S.K.Legal Associates, for Respondent No.1
Ms. P. S. Cardozo, AGP for Respondent Nos.2 to 4.
CORAM: G.S.GODBOLE,J.
DATE : 17th DECEMBER, 2011.
P.C:-
1 By order dated 16th September, 2011, notice for final disposal
at the stage of admission was issued. Accordingly, S. K. Legal Associates
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have filed appearance on behalf of Respondent No.1.
2 RULE. Rule made returnable forthwith and heard by consent
of the parties.
3 I have heard Mr. Borkar for the Petitioner, Mr. Patil for
Respondent No.1 and learned AGP for Respondent Nos.2 to 4.
4 The Commissioner for Co-operation and Registrar of Co-
operative Societies, Maharashtra State, Pune had issued circular dated 5th
March, 2007 thereby informing all the subordinate Officers not to forward
any proposals for opening of bank account and name reservation.
Respondent No.1 filed an application for name reservation and opening of
bank account. The Dy. Registrar, Co-operative Societies, Karad rejected
the said application by relying on the circular dated 5th March, 2007.
Aggrieved by this order, Respondent No.1 filed Appeal No.26 of 2009
before the Divisional Joint Registrar, Kolhapur Division, Kolhapur.
However, on 28th July, 2009, the said Appeal was withdrawn on the
ground that only the Government has power to sanction the proposal for
Registration of Society and, hence, Appeal was being withdrawn for filing
an Appeal before the State Government. Thereafter, an Appeal was filed
before the State Government under Section 152. The said Appeal was
opposed by the Petitioner, inter alia on the ground of maintainability of
the Appeal before the State Government and on various other grounds.
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By Judgment and Order dated 17th September, 2009, the Hon'ble Minister
of State Co-operation, Marketing and Textile allowed the said Appeal filed
by Respondent No.1 and the Deputy Registrar was directed to register the
Respondent No.1-Society. This is the order impugned in this Writ Petition.
5 Affidavits have been filed by the Respondents. Respondent
No.1 has stated that the society is already registered and has disbursed the
loan of more than 55 lacks to its members and, if this Court interferes in
writ jurisdiction, that will cause irreparable harm and loss to the
Respondent No.1-Society.
6 The Maharashtra Co-operative Societies Act, 1960 provides
the hierarchy under which Appeal against order passed under Section 9
lies to the State Government only if the order is made by the Registrar or
the Additional or Joint Registrar on whom the power of registration are
conferred. Section 152(i)(b) provides that if the order is made or
sanctioned by any person other than the Registrar or the Additional or
Joint Registrar on whom the powers of registration are conferred, the
Appeal shall lie with the Registrar.
7 Section 154 provides for power of Revision and it is clear that
such a power of Revision can be exercised only in a case where no Appeal
is proved.
8 In the present case, the order refusing the name reservation
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and permission to open the bank account was admittedly order under
Section 9 of the said Act. That order has been passed by the Deputy
Registrar. Thus, Appeal under Section 152 would lie before the Registrar
which power is exercised by the Divisional Joint Registrar of the Co-
operative Societies and Respondent No.1 had, therefore, rightly filed
Appeal before the learned Divisional Joint Registrar, but that Appeal was
withdrawn on the ground that he desires to file an Appeal before the State
Government.
9 It is well settled that Appeal is a creation of statute and even
by consent of the parties, an authority which is not conferred with the
powers of hearing Appeal can not assume to itself power to hear the
Appeal which it is otherwise not competent to hear. In the present case,
though the State Government is a superior authority under scheme of the
Act, in view of the clear provisions of Section 152, the State Government
could not have heard the Appeal nor can the State Government exercise
power of Revision in view of the clear bar contained in Section 154 which
provides that if an Appeal is maintainable, the revision will not lie.
10 The Hon'ble Minister has, however, held the Appeal to be
maintainable and the gist of the reasoning of the Hon'ble Minister in that
regard can be found on pages 31 and 32 and relevant portion quoted
herein below:-
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" ........... In short, the impugned Order is passed on
behalf of Commissioner for Co-operation & Registrar of Co-
operative Societies, Maharashtra State, Pune. In this context,
Ld. Adv. Mr. K. V. Patil for the Appellant vehemently submitted
that the impugned order is passed on behalf of Commissioner
for Co-operation and therefore, said Order can not be
challenged before its subordinate authority i.e. Divisional Joint
Registrar, Co-operative Societies, Kolhapur. In view of this
submission advanced on behalf of Appellant, I am of the
opinion that present Appeal is maintainable before this
authority."
11 This reasoning is erroneous. The Deputy Registrar of Co-
operative Societies cannot be held to have passed the order refusing
permission for opening of bank account and name reservation on behalf
of the Commissioner for Co-operation. This is the only reason given by
the Hon'ble Minister for holding that the Appeal is maintainable. From a
perusal of Section 152 of the Act, it is clear that the aforesaid reason is
wrong. It is well settled that if the statute provides for doing of a
particular thing in a particular manner and confers the statutory powers
on a particular authority, that power can be and has to be exercised only
by that authority and even a superior authority cannot have or exercise
such power. In view of this, the Hon'ble Minister was not competent to
hear and decide the said Appeal.
12 On this ground alone, the Writ Petition deserves to succeed
and is accordingly allowed.
13 The impugned Judgment and Order dated 17th September,
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2009 is quashed and set aside. Respondent No.1-Society will, however, be
at liberty to apply before the learned Divisional Joint Registrar, Kolhapur
to revive Appeal No.26 of 2009 and if an application is made for said
revival, Appellate Authority shall favourably consider such application
since Respondent No.1 cannot be left without any remedy. If the Appeal is
revived, all contentions of the parties on merits of the controversy are kept
open to be agitated in the Appeal. It will be open to Respondent No.1 to
contend that irrespective of the circular dated 5th March, 2007,
registration of new society was permissible and it will also be open to
contend that the circular dated 5th March, 2007 does not have the effect of
taking away the power granted to the Deputy Registrar to register the
society. All the rival contentions of the parties are kept open. It is made
clear that the impugned order is quashed and set aside only on the ground
that Appeal itself was not maintainable and all other contentions of the
parties are kept open.
14 It is needless to state and it is hereby clarified that in so far as
loans which are distributed by Respondent No.1-Society are concerned,
despite this order and despite the cancellation of registration, which is a
consequence of this order, the Respondent No.1-Society will be entitled to
recover loans distributed by the Respondent No.1-Society to its members
and interest thereon.
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15 Rule made absolute in the aforesaid terms with no order as to
costs.
(G.S.GODBOLE,J.)
