Bombay High Court
Dongarshewali Matsyavyavsay ... vs State Of Maha., Through ... on 19 August, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6965 OF 2015
Dongarshewali Matsyavyavsay Sahkari Sanstha,
Mary., Dongarshewali, Reg. No. 433,
Through its President, Habib Shah Kadar Shah,
Age years, Occ : Fishing,
R/o Dongarshewali, Taluka - Chikhli,
District - Buldhana. ... Petitioner
// VERSUS //
(1) State of Maharashtra,
Through Commissioner of Fishery,
Taraporwala, Netaji Subhash Marg,
Charni Road, Mumbai - 400 002
(2) Deputy Registrar, Co-operative Societies
(Fisheries), Maharashtra State, Mumbai.
(3) Assistant Commissioner, Fisheries (Technical)
Administrative Building, Buldhana,
Tq. & Dist. Buldhana.
(4) Assistant Registrar, Co-operative Society
(Fishery), Administrative Building, Buldhana,
Tq. & Dist. Buldhana.
(5) Durga Matsyavyavsay Sahakari Sanstha,
Mary, Dongarkhandala, Reg. No. 229,
Through its President,
Ramdhan Baliram Jadhave,
Age : 50 Yrs., Occ : Fishing,
R/o Dongarkhandala, Tq. & Dist. Buldhana. ... Respondents
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Shri A. P. Kalmegh, Advocate for the petitioner
Shri S. P. Deshpande, Additional Government Pleader for the respondent nos. 1 to 4
Shri Chetan R. Sharma, Advocate for the respondent no. 5
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CORAM : PRASANNA B. VARALE, J.
DATE : 19-8-2016.
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ORAL ORDER
Rule.
2. Heard finally with consent of learned counsel appearing for
the parties.
3. By the present petition, the petitioner challenges the order
passed by the Deputy Registrar, Co-operative Societies (Fisheries) dated
23-11-2015 in Appeal No. 21/2013.
4. Shri Kalmegh, learned counsel for the petitioner submitted
that the petitioner-society is a co-operative society and the members of the
society are largely economically backward and mostly engaged in fishing
activities for earning their livelihood. It is submitted by learned counsel
for the petitioner by inviting my attention to the documents placed on
record, namely, registration certificate of society placed on record at
Annexure-A and the communication dated 12-1-2011 i.e. no objection
certificate issued by the Assistant Commissioner, Fisheries for registration
of the society that the no objection certificate/communication dated
12-1-2011 itself shows that the area of operation of the proposed
petitioner-society was shown as Saona No. 2 Pazar Talao, Saona No. 3
Pazar Talao, Saona Village Talao, Palaskhed Pazar Talao, Dongar Khandala
Pazar Talao, Valati Pazar Talao and Sonewadi Pazar Talao. Shri Kalmegh,
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learned counsel further submitted that no objection certificate clearly show
that under the area of operation of the petitioner-society, area to the
extent of 32 Hectares for fishing activity was available. Shri Kalmegh,
learned counsel then referred to the various documents, such as, the
application submitted for registration of the society, list of the members of
the society and list of the amount deposited as an initial amount at the
time of registration of the society, the project report etc. Model bye-laws
were also submitted and copy of the same is also placed along with
the petition. Shri Kalmegh, learned counsel further submitted that the
petitioner approached the respective authorities of the State for seeking
amendment in the bye-laws on the ground that no notice was issued
and the society, namely, Durga Matsyavyavsay Sahakari Sanstha i.e.
respondent no. 5 being the resident society submitted an appeal before the
respondent no. 2 along with condonation of delay application. It seems
that the application seeking condonation of delay was rejected. Being
aggrieved by the said order, the writ petition was filed before this Court.
This Court, by setting aside the order rejecting the application for
condonation of delay, directed the authorities to decide the appeal on
merits. The respondent no. 2, on hearing the respondent no. 5 i.e. the
appellant before the authority concerned and the petitioner as well,
passed the order dated 23-11-2015. By the said order, the appeal was
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allowed and the order of grant of registration to the petitioner-society
dated 18-1-2011 and order of amendment to the bye-laws dated 28-7-2011
was set aside by the Deputy Registrar, Co-operative Societies (Fisheries).
Shri Kalmegh, learned counsel vehemently submitted that the order passed
by the authorities concerned and impugned in the present writ petition is
unsustainable on more than one grounds. Shri Kalmegh, learned counsel
submitted that the Deputy Registrar, Co-operative Societies held that
Dongarshewali Talao was illegally transferred to the petitioner and, as
such, the amendment to the bye-laws itself was illegal act. The Deputy
Registrar further held that there was a breach of conditions while issuing
registration certificate to the petitioner-society. It is the submission of
Shri Kalmegh, learned counsel that the Deputy Registrar committed a
grave error in observing that the area of operation under the petitioner-
society was less than 30 Hectares i.e. it was 28 Hectares and this was a
breach of mandatory conditions of year 1989. Shri Kalmegh, learned
counsel for the petitioner submitted that the observations of the Deputy
Registrar that the area of operation under the petitioner-society was less
than 30 Hectares and it was 28 Hectares and the same was in contrast to
factual aspects. Shri Kalmegh, learned counsel submitted that the
requirement for registration of the society is area of operation under
society should be 30 Hectares when the proposal is submitted for grant of
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registration certificate. Shri Kalmegh, learned counsel then submitted that
no objection certificate issued by the Assistant Commissioner, Fisheries
(Technical) dated 12-1-2011 clearly shows that the area under operation
of the society was of nearly 7 tanks and it was more than 30 Hectares.
Shri Kalmegh, learned counsel submitted that by observing this fact itself,
the authority concerned granted no objection certificate. Shri Kalmegh,
learned counsel then submitted that there was absolutely no material
available with the authority, namely, Deputy Registrar to arrive at the
conclusion that area of operation of the petitioner-society was 28 Hectares
instead of 30 Hectares. In spite of such material not being available with
the authority, the authority misdirected itself and arrived at the conclusion
that area under operation with the petitioner-society is only of 28 Hectares
prior to grant of registration certificate to the society. Thus, Shri Kalmegh,
learned counsel prays for quashing and setting aside the order impugned
in the present petition.
5. Shri Deshpande, learned Additional Government Pleader for
the respondent nos. 1 to 4 made an attempt to support the order passed by
the learned Deputy Registrar impugned in the present petition with the
help of the reply filed on behalf of the respondent nos. 2 and 4. It is stated
in the reply that the total area of operation of the petitioner-society is less
than 30 Hectares and therefore, the petitioner-society does not fulfill the
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mandatory requirement of registration of Co-operative society for the
purpose of fishing business. Neither any material is placed along with the
reply nor such a material is referred to by the learned Deputy Registrar in
the order impugned in the present writ petition. It is observed that the
petitioner-society was registered under the no objection certificate for the
area of 28 Hectares. As against this observation, the petitioner specifically
submitted that while issuing the no objection certificate for grant of
registration, the authority, namely, the Assistant Commissioner,
Fisheries(Technical) itself referred to various tanks under the area of
operation of petitioner-society and total area referred to in this
communication is more than 30 Hectares. Thus, there is considerable
merit in the submission of learned counsel Shri Kalmegh that the
observations of the Deputy Registrar is not in consonance with the facts or
the record.
6. The other ground which is referred to in the order of Deputy
Registrar is that there was a change in area of operation and this fact was
brought to the notice of Assistant Commissioner. It reveals that a
communication was forwarded to the Assistant Registrar, Co-operative
Societies, Buldhana dated 21-7-2011 from the office of the Assistant
Commissioner, Fisheries(Technical), Buldhana informing that the
petitioner-society is a local society and there is no objection for adding
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area of 14 Hectares in the area of operation of the petitioner-society.
Thus, this communication clearly shows that subsequent to the no
objection certificate issued to the petitioner-society dated 12-1-2011, the
authority, namely, Assistant Commissioner, Fisheries himself permitted the
area of 14 Hectares in addition to area of 28 Hectares, if it was so, then
one fails to understand on what basis and on what material, the Deputy
Registrar arrived at a conclusion that there was a breach of condition
committed by the petitioner-society and the area of operation of petitioner-
society was less than 30 Hectares and it was only 28 Hectares.
7. The learned counsel for the respondent no. 5 supports the
order impugned in the petition. It was the submission of learned counsel
for the respondent no. 5 that no opportunity of hearing was granted to the
respondent no. 5 - Society while permitting the amendment to bye-laws.
8. Insofar as submissions of learned counsel appearing for the
respondent no. 5 is concerned, it was submitted by the petitioner that
requirement for registration of the society refers to consideration of the
aspect of economical viability of the society. It was submitted by the
learned counsel for the petitioner that if registration of one society
prejudicially affects the interest of another society, in that situation, the
authority may not grant registration to such society. Learned counsel for
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the petitioner submits that in case of the petitioner, the tank allotted to the
petitioner-society was by way of auction. The respondent no. 5 was the
contesting bidder in the auction process and at the time of auction
conducted for allotment of tank, no objection was raised by the respondent
no. 5. Shri Kalmegh, learned counsel submitted that while allotting the
tank under the auction process, the respondent no. 5 was contesting with
the petitioner in the auction and on assessing the contesting claim of the
petitioner and the respondent no. 5, the tank was allotted to the petitioner-
society. Thus, it is the submission of Shri Kalmegh, learned counsel that
the respondent no. 5 was only interested to oppose the petitioner in whose
favour the tank was allotted and approached the authority at a belated
stage i.e. after two years subsequent to allotment of the tank in favour of
the petitioner. Shri Kalmegh, learned counsel then submitted that in the
impugned order passed by the Deputy Registrar, though the Deputy
Registrar observed that due to amendment in the bye-laws of the
petitioner-society, the respondent no. 5 - Society was affected, no reasons
are assigned in the order by the learned Deputy Registrar to arrive at that
conclusion. There is considerable merit in the submissions of learned
counsel Shri Kalmegh. Considering all these aspects, in my opinion, the
order passed by learned Deputy Registrar impugned in the present petition
is clearly unsustainable. The order, thus, needs to be quashed and set
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aside.
9. In view of the above observations, the writ petition is allowed.
The order dated 23-11-2015 passed by the Deputy Registrar, Co-operative
Societies (Fisheries) is quashed and set aside.
Rule is made absolute in above terms.
ig JUDGE
wasnik
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