Bombay High Court
Rahul Appasaheb Patare And Others vs The Divisional Joint Registrar Co ... on 30 August, 2016
Bench: T.V. Nalawade
WP No. 6221/2016
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 6221 OF 2016
WITH
CIVIL APPLICATION NO. 12075 OF 2016
1. Rahul S/o Appasaheb Patare,
Age-37 years, Occu. Agril,
2. Sow. Vaishali Bhausaheb Kokane,
Age: 40 years, Occ. Household,
3. Madhukar Bhagwat Kokane,
Age:57 years, Occ. Agril.,
4. Jagannath Dada Lokhande
Age: 55 years, Occ. Agril.,
5. Bhausaheb Vishwanath Magar,
Age: 50 years, Occ. Agril.
All R/o Taklibhan, Tq. Shrirmapur,
Dist. Ahmednagar. ....Petitoners.
Versus
1. The Divisional joint Registrar,
Cooperative Societies, Nashik,
Division, Nashik,
2. The Assistant Registrar,
Cooperative Societies, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar
3. The Administrator,
Taklibhan Vividh Karyakari Seva
Sahakari Sanstha, Ltd., Taklibhan,
Tq. Shrirapur, Dist. Ahmednagar
4. Sarjerao Kisanrao Kapse,
Age: 55 years, Occ. Agril.
5. Anil Yashwant Kokane,
Age: 37 years, Occ. Agril.
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WP No. 6221/2016
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6. Shri. Tulshidas Eknath Khandagale,
Age: 57 years, Occ. Agril.
7. Santosh Ashok Khandagale,
Age: 32 years, Occ. Agril.
8. Ratnakar Shankar Dukare,
Age: 37 years, Occ.Agril.
9. Devika Eknath Rannavare,
Age: 32 years, Occ. Agril.
10. Rahul Pralhad Kapse,
Age: 30 years, Occ.Agril.
11.
Sow. Kalpna Shahaji Kokane,
Age: 44 years, Occ.Agril.
Respondent No. 4 to 11 are
R/o Taklibhan, Tq. Shrirampur,
Dist. Ahmednagar. ...Respondents.
...
Mr. R. R. Karpe. h/f Mr. S.S. Gangakhedkar, Advocate for
Petitioners.
Mr. S.R. Yadav, AGP for respondent/State.
Mr. P. P. Khandagale-Patil, Advocate for respondent No.4
Mr. V. D. Hon Senior Counsel h/f Mr. A.V. Hon, Advocate for
respondent Nos.4 to 11.
...
CORAM : T.V. NALAWADE, J.
DATED : 30th August, 2016.
JUDGMENT :
1) Rule. Rule made returnable forthwith. By consent,
heard both the sides for final disposal.
2) The petition is filed to challenge the order made by
WP No. 6221/2016
Divisional Joint Registrar, Nashik Division, Nashik in appeal No.
199/2016 on 13.6.2016. In the appeal filed by present
respondents, office bearers of Taklibhan Vividh Karyakari seva
Sahakari Sanstha Ltd., Tahsil Shrirampur, District Ahmednagar,
respondent No. 3, the learned Joint Registrar of Cooperative
Societies Nashik had granted interim relief, stay to the operation
of order made by the learned Registrar Cooperative Societies on
24.5.2016 by which learned Assistant Registrar had appointed
administrator on the aforesaid Society as provided under section
77(A) of Maharashtra Co-operative Societies Act, 1960
(hereinafter referred to as 'the Act' for short). It appears that due
to stay order, the charge which was taken over by the
Administrator was required to be returned back to the
respondents. Office bearers represented to the Administrator
and authority that the stay was of such nature. The order dated
27.6.2016 does not show that stay of such nature was granted.
3) Civil Application No. 12075/2016 is filed by the
petitioners to inform to this Court that the learned Divisional
Joint Registrar, Cooperative Societies has decided the appeal
itself and the appeal is allowed. In view of this circumstance, the
prayer is also made in the Civil Application to allow amendment
in the writ petition to include the relief of setting aside the
WP No. 6221/2016
decision given in the appeal itself. In view of the nature of
dispute and as in the original proceeding also, this Court could
have made observations with regard to the propriety of stay
order in view of the provisions of aforesaid Act, this Court
allowed the amendment and the matter is heard as it is a matter
against the decision given by the Divisional Joint Registrar in
Appeal No. A-199/2016 dated 11.8.2016.
4)
The record produced and submissions made show
that present petitioners have raised the dispute with regard to
the entitlement of 393 persons shown in the voters list to remain
as voter and the proceeding in that regard was filed by petitioner
well before declaration of the programme of election of this
Society. As per the latest position, the revision filed by 207
persons to challenge the order made by the learned Assistant
Registrar by which Assistant Registrar has held that they cannot
become members is dismissed by the Joint Divisional Registrar,
but the revision filed by 69 other persons against the same
decision is still pending. Remaining 117 persons preferred not to
challenge the decision of Assistant Registrar. In view of the
dispute which is going on with regard to the entitlement of 393
persons to vote in the election and the order made by Returning
Officer against the present petitioner, another proceeding, Writ
WP No. 6221/2016
Petition No. 4196/2016 is filed and the said petition is still
pending in this Court. In the said petition, this Court by order
dated 7.4.2016 has allowed all the 393 persons in respect of
whom there is dispute, to vote in the election, but their votes are
ordered to be kept in separate ballet box. As one revision is still
pending and this Court has indirectly held that the matter as
regards entitlement of these persons to vote needs to be
considered first, the results of the elections are withheld.
5) The term of the previous office bearers is already
over and in view of that circumstance, Assistant Registrar had
made the order of appointment of Administrator. The learned
counsel for petitioners submitted that in the final order the
learned Divisional Joint Registrar has considered the position of
law prior to the amendment dated 14.2.2013 and so, error is
committed in setting aside the order made by the learned
Assistant Registrar. He submitted that in view of the position of
law created due to the amendment, no scope is left for
extending tenure of the officer bearers under any circumstances.
He took this Court through relevant provisions of aforesaid Act.
6) The provision of section 77A of the Act gives power
to the Registrar to make appointment of Administrator under
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various circumstances and one of the circumstance is expiry of
the term of the office bearers. The relevant portions of section
77A (1) (b) and other relevant portions are is as under :-
"77A. Appointment of member of committee,
new committee or administrator, where
there is failure to elect member, to
constitute committee or where committee
does not enter upon office
(1) Where the Registrar is satisfied that,-
(i-a) ..........
(a) ..........
(b) the term or extended term as the case may
be, of the committee of any society or of any of its
members has expired or for any other reason
election is held and there is a failure to elect all or
any of the members required to fill the vacancies;
(c) .....
(d) .....
(e) ......
(f) .......
the Registrar may, either suo-motu or on the
application of any officer of the society, by order
appoint-
(i) any member or members of the society to
be the member or members of the committee to
fill the vacancies;
(ii) a committee, consisting of not more than
three members of the society; or one or more
administrators, who need not be members of the
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society, to manage the affairs of the society till a
new committee enters upon office:
Provided that, before making such order, the
Registrar shall publish a notice on the notice board
at the head office of the society, inviting
objections and suggestions with respect to the
proposed order within a period specified in the
notice and consider all objections and suggestions
received by him within that period:
Provided further that, it shall not be necessary to
publish such notice in any case where Registrar is
satisfied that immediate action is required to be
taken or that it is not reasonable practical to
publish such notice.
(2) .............
(3) The Committee or Administrator so
appointed shall hold office for a period of six
months from the date of assuming the
management of the society and shall make
necessary arrangements for constituting a new
committee within the said period and for enabling
the new committee including any new committee
referred to in clause (f) of sub-section (1), which is
determined by the Court to have been legally
elected, to enter upon office.
Provided that, if a new committee is not, or can
not be constituted at the expiry or termination of
the term of office of the committee or
Administrator, for any reason beyond the control
of the committee or Administrator, the term of
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office of the committee or Administrator, as case
may be, shall be deemed to be extended, until the
new committee is duly constituted."
7) Aforesaid proviso to sub section (3) of section 77A
came to be deleted with effect from 14.2.2013. The provision of
section 73AAA (3) provided as under before amendment :-
"(3) The term of the office of the elected
members of the committee and its office bearers
shall be five years from the date of election and
the term of the office bearers shall be co-terminus
with the term of the committee."
The aforesaid provisions show that no scope is left to the
directors of the Cooperative Society to continue in the office
when the term of the Directors expire and similarly, the office
bearers also cannot continue in the office. It appears that the
learned Divisional Joint Registrar considered the provision which
is already deleted and also the referred the case on which
reliance was placed by the office bears viz. 1984 AIR BOMBAY
56 [Ghatageppa Parreppa Mugeri and Ors. Vs. M.R. Naik
and Ors.]. The observations in the case were made by this
Court in view of the previous provisions of the Act and it was
held that there was no failure on the part of the members of the
Society to elect members of Managing Committee and so, the
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previous members were entitled to continue in the office. In that
case, there was stay order of the Court to the elections and due
to that new members could not be elected after the expiry of
term of previous members. This Court has no hesitation to hold
that in view of the position of law created after the amendment
of 14.2.2013, no such scope is left and the previous managing
committee members or the office bearers cannot continue in
their office under any circumstances.
8) In the present matter, the previous office bearers are
interested in getting the result in favour of aforesaid 393 voters
and they want that these persons need to be allowed to vote in
the elections. Only due to this circumstance and as the result of
revision filed by around 69 persons is yet to come out, the
results are withheld. Thus, it can be said that only due to the
desire of previous office bearers that these 393 persons need to
be allowed to vote in the election the results are withheld. It
cannot be said that those office bearers are not at fault as
decision in respect of many members has come out and it is held
that they cannot become the members of the Society and they
were made members by these office bearers. In view of these
circumstances, this Court holds that the decision given by the
learned Divisional Joint Registrar cannot sustain in law and the
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following order is made.
ORDER
(I) The petition is allowed. The judgment and order of
learned Divisional Registrar, Co-operative Societies, Nashik,
Division Nashik delivered in appeal No. A-199/2016 is hereby set
aside. The order made by Assistant Registrar on 24.5.2016 is
hereby restored. The charge is to be immediately taken over by
the Administrator, who is to be appointed by Assistant Registrar.
Civil Application is disposed of as allowed.
According to the learned Senior Counsel, Shri. Hon,
the previous administrator appointed by the society is brother of
the petitioner. So that man is not to be appointed as
administrator and preferably somebody from the department is
to be appointed. The learned AGP to communicate the order to
authority.
Rule is made absolute in aforesaid terms.
Authenticated copy is allowed.
[ T.V. NALAWADE, J. ]
ssc/
