Bombay High Court
Vitthal S/O Ashokrao Patil, And 8 ... vs The Honble Minister For ... on 24 February, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6045/2013
PETITIONERS: 1. Vitthal s/o Ashokrao Patil,
Aged about 24 years, Occupation : Labour,
resident of Bhiradwadi, Bungalow No.2,
Balapur Road, Old City, Akola, Tq. and
District : Akola.
ig 2. Abdul Rashid Abdul Sattar,
Aged adult, Occupation : Labour,
resident of Takedipura, At Post Akola,
Tq. Akot, District : Akola.
3. Gajanan s/o Madhukar Shinde,
Aged Adult, Occupation - Labour
resident of Near Sailani Baba Dargah,
Tq. Telhara, District : Akola.
4. Mohd. Zahur Mohd. Kamal,
Aged adult, Occupation - Labour
resident of Sayyadpura, Patur,
Tq. Patur, District Akola.
5. Jankiram s/o Ragla Rathod,
Aged adult, Occupation - Labour
resident of Gawandgaon, Tq. Patur,
District Akola.
6. Samadhan s/o Sukhdeo Borkar,
Aged Adult, Occupation - labour,
resident of Bhim Nagar, Patur,
Tq. Patur, District Akola.
7. Manikrao s/o Nagorao Fatkar,
Adult Adult, Occupation - Labour,
resident of Babulgaon, Tq. Patur,
District : Akola.
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8. Siddharth s/o Ganpatrao Wankhede,
Aged Adult Occupation - Labour,
resident of at Balapur, Lotnapur,
Tq. Balapur, District : Akola.
9. Sachin Kharode,
Aged Adult, Occupation - Labour,
resident of Shivnagar, Telhara,
Tq. Telhara, District Akola.
...VERSUS...
RESPONDENTS:
ig 1. The Hon'ble Minister for Cooperation,
State of Maharashtra, Mantralaya,
Mumbai - 32.
2. The Divisional Joint Registrar,
Cooperative Societies, Amravati,
District Amravati.
3. The District Deputy Registrar,
Cooperative Societies, Akola,
District Akola.
4. The Akola Zilla Majoor Kamgar Sahakari
Sanstha Sangh Ltd., Akola, through its
Manager, c/o Dr. Sarda, Opposite L.R.T.
College, resident of Patrakar Colony,
Ratanlal Plots, Akola, Taluq and District
Akola.
5. Shri Pralhad s/o Dayaram Dhore,
Aged about 45 years, Occupation
Chairman, Shri Gadge Maharaj Labour
Cooperative Societies, Ltd., Shivapur,
Resident of Shivapur, at Post Kanheri Sarap,
Taluq and District Akola.
6. Shri V.M. Borade, Assistant Registrar,
Cooperative Societies, Barshitakli and
Administrator, Akola.
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Shri A.H. Patil, Advocate for petitioners
Shri A.S. Fulzele, Addl. G.P. for respondent nos.1 to 3
Shri V.G. Wankhede, Advocate for respondent no.4
S/Shri R.L. Khapre & R.N. Ghuge, Advocates for respondent no.5
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CORAM : SMT. VASANTI A. NAIK, AND
A.S. CHANDURKAR, JJ.
DATE : 24.02.2016
ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)
1.
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Counsel for the parties.
2. The petitioners are aggrieved by the order dated 24.10.2013
passed by the respondent no.1 in exercise of revisional powers under
Section 154 of the Maharashtra Co-operative Societies Act, 1960 (for
short, the said Act). A declaration is also sought that the provisions of
Section 78 of the said Act are inconsistent with Part IXB of the
Constitution of India.
3. By an order dated 12.11.2012 the District Deputy Registrar
passed an order of supersession under Section 78 (1) of the said Act. This
order came to be challenged by filing an appeal before the Divisional Joint
Registrar. The Divisional Joint Registrar on 28.12.2012 set aside the order
dated 12.11.2012 and remanded the proceedings to the District Deputy
Registrar for fresh consideration. The respondent no.5 challenged the said
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order by filing a revision application under Section 154 of the said Act. By
the impugned order dated 24.10.2013 said revision application has been
allowed and the order passed by the Divisional Joint Registrar has been
set aside and the order passed by the District Deputy Registrar has been
confirmed.
4. Shri A.H. Patil, learned Counsel for the petitioners submitted
that it was not open for the revisional Authority to have restored the order
passed by the District Deputy Registrar. It was submitted that the
challenge as raised was to the order remanding the proceedings for
consideration and therefore, if the appellate order was to be set aside, the
appeal itself should have been directed to be reconsidered on merits. It is
further submitted that the provisions of Section 78 of the said Act prior to
its amendment could not be given any further effect after the amendment
in terms of Ordinance No.2 of 2013 and hence, said exercise was not in
accordance with law.
5. Shri A.S. Fulzele, learned Additional Government Pleader
appearing for the respondent nos.1 to 3, Shri V.G. Wankhede, learned
Counsel appearing for the respondent no.4 and Shri R.L. Khapre, learned
Counsel appearing for the respondent no.5 supported the impugned
orders. It was submitted that the respondent no.1 had rightly set aside the
order passed by the appellate Authority and had confirmed the order
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passed by the District Deputy Registrar. It was submitted that it was not
necessary to reconsider the challenge to the order of supresession in view
of the fact that the appellate Authority itself had set aside the said order
which was found to be not in accordance with law. It was further
submitted that the declaration as sought with regard to the provisions of
Section 78 of the said Act did not have any merit and the proceedings
could be continued in view of provisions of Section 166 (4) of the said
Act.
6. Perusal of the impugned order dated 24.10.2013 reveals
that the respondent no.1, while entertaining the revision application that
had raised a challenge to the order of remand, proceeded to set aside the
order of remand passed by the appellate Authority and restored the order
of supersession. It is to be seen that against the order of supersession the
petitioners had filed an appeal and adjudication of the appeal on merits
was necessary in the facts of the present case. The effect of the impugned
order is that the petitioners have lost the statutory remedy of appeal that
has been provided against the order of supersession. There was no
opportunity for the petitioners to challenge the order of supersession on
merits. We, therefore, find that the respondent no.1 after setting aside the
order of the appellate Authority ought to have remanded the proceedings
to the same Authority for consideration of the challenge to the order of
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supersession in accordance with law. To that extent, the challenge as
raised to the impugned order is liable to succeed.
7. Insofar as the other declaration sought by the petitioners is
concerned, the same is a matter which could be urged before the
respondent no.2 in the appeal while raising a challenge to the order of
supersession. It is, therefore, not necessary to record any finding at this
stage on said aspect.ig
8. In view of aforesaid, the following order is passed :
(i) The order dated 24.10.2013 passed by the respondent
no.1 is set aside. The proceedings are remanded to the respondent no.2
for reconsidering the appeal filed by the petitioners challenging the order
of supersession dated 12.11.2012. The grounds raised in the present
petition in that regard are kept open for being urged before the Appellate
Authority.
(ii) The Appellate Authority shall decide the said appeal
within a period of three months from the date of appearance of the
petitioners as well as the contesting respondents.
(iii) The parties undertake to appear before the said
Authority on 15.03.2016.
(iv) The ad interim relief that was operating since
5.11.2013 shall continue to operate till the appeal is decided.
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Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
