Bombay High Court
Vastushilp Majoor Sahakari ... vs State Of Maha. Deptt. Of Co., ... on 28 July, 2016
Bench: A.S. Chandurkar
W.P. No.6739/2015 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6739 OF 2015
Petitioners : 1] Jaidurga Majoor Kamgar Sahakari Sanstha Ltd.,
Gothangaon, Reg. No.1416,
Through its President Shri Ratiram Karu Rane,
Aged about 56, Occ. Labour,
R/o at Gothangaon, Tah. Arjuni Mor, Distt. Gondia.
2] Jijau Majoor Kamgar Sahakari Sanshta Ltd.,
Itkheda, Regd. No.1415,
Tah. Arjuni Mor, Distt. Gondia.
3] Vikas Majoor Kamgar Sah. Sanstha Ltd.,
Rajegaon, Regd. No.673, Tah. and Distt. Gondia.
4] Apna Majoor Kamgar Sahakari Sanstha Ltd.,
Nilaj, Regd. No.684, Tah. Gondia, Distt. Gondia.
5] Saibaba Majoor Kamgar Sah. Sanstha Ltd.,
Panjra, Regd. No.679, Tah. Gondia, Distt. Gondia.
6] Prathampujya Majoor Kamgar Sah. Sanstha Ltd.,
Daldalkuhi, Regd. No.226,
Tah. Salekasa, Distt. Gondia.
7] Saikrupa Majoor Kamgar Sah. Sanstha Ltd.,
Katangtola, Regd. No.670,
Tah. Gondia, Distt. Gondia.
8] Jinmata Majoor Kamgar Sah. Sanstha Ltd.,
Pindkepar, Regd. No.665,
Tah. Gondia, Distt. Gondia.
9] Jagdishji Majoor Kamgar Sah. Sanstha Ltd.,
Panadi, Regd. No.666, Tah. Gondia,
Distt. Gondia.
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W.P. No.6739/2015 2 Judgment
10] Gautam Magaswargiya Majoor Kamgar Sah.Sanstha Ltd.
Dhobisarad, Regd. No.1336,
Tah. Deori, Distt. Gondia.
11] Shivshakti Majoor Kamgar Sah. Sanstha Ltd.
Chiramantola, Regd. No.680, Tah. Gondia,
Distt. Gondia.
-- Versus --
Respondents : 1] State of Maharashtra,
ig Department of Cooperation, Marketing and
Textiles Division, Mantralaya, Mumbai-32,
through its Hon'ble Minister of State.
2] Commissioner for Cooperation and Registrar of
Cooperative Societies,
Government of Maharashtra,
Central Administrative Building, Pune-411001.
3] Divisional Joint Registrar,
Cooperative Societies, Nagpur Division, Nagpur.
4] District Deputy Registrar,
Cooperative Societies, Gondia.
5] Gondia Zilla Majoor Sahakari Federation,
Deori, Taluka - Deori, District - Gondia,
through its President.
with
WRIT PETITION NO.6744 OF 2015
Petitioners : 1] Vastushilp Majoor Sahakari Sanstha Maryadit,
Sarkartole, Taluka - Amgaon,
District - Gondia, through its Secretary.
2] Om Shanti Majoor Kamgar Sahakari Sanstha Maryadit,
Kosamtara, Taluka - Salekasa,
Registration No.225, District Gondia,
through its President.
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W.P. No.6739/2015 3 Judgment
3] Mahalaxmi Majoor Kamgar Sahakari Sanstha Maryadit ,
Pandarabodi, Registration No.674,
Taluka and Distt. Gondia, through its President.
4] Gourav Majoor Kamgar Sahakari Sanstha Maryadit
Gotabodi, Taluka - Deori, Registration No.1334,
District - Gondia, through is President.
5] Amrapali Majoor Kamgar Sahakari Sanstha Maryadit
Shirpurbhagi, Taluka - Deori, District - Gondia,
ig through its President.
6] Jai Bajrang Majoor Kamgar Sahakari Sanstha Maryadit ,
Dandijar, Registration No.872, Taluka - Goregaon,
District - Gondia, through its Secretrary.
-- Versus --
Respondents : 1] State of Maharashtra,
Department of Cooperation, Marketing and
Textiles Division, Mantralaya, Mumbai-32,
through its Hon'ble Minister of State.
2] Commissioner for Cooperation and Registrar of
Cooperative Societies,
Government of Maharashtra,
Central Administrative Building, Pune-1.
3] Divisional Joint Registrar,
Cooperative Societies, Nagpur Division, Nagpur.
4] District Deputy Registrar,
Cooperative Societies, Gondia.
5] Gondia Zilla Majoor Sahakari Federation,
Deori, Taluka - Deori, District - Gondia,
through its President.
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Shri M.V. Samarth, Advocate for the Petitioners in W.P. No.6739/2015
Shri S.K. Tambde, Advocate for the Petitioners in W.P. No.6744/2015
Shri A.M. Kadukar, Assistant Government Pleader for the Respondent Nos.1 to 4
Shri A.M. Ghare, Advocate for the Respondent No.5
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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W.P. No.6739/2015 4 Judgment
C ORAM : A.S. CHANDURKAR, J.
DATE : 28
JULY, 2016.
th
COMMON JUDGMENT :-
01] Since the order dated 18/11/2015 passed by the Hon'ble
Minister for Cooperation in proceedings under Section 154 of the
Maharashtra Co-operative Societies Act, 1960 (for short, the said Act) is
under challenge in both these writ petitions, they have been heard together
and are being decided by this common judgment.
02] The dispute pertains to registration of the petitioner-labour co-
operative societies under the provisions of the said Act. According to the
petitioners, on 19/04/1985, a policy was formulated by the State Government
in the matter of registration of labour co-operative societies in the State of
Maharashtra. It is the case of the petitioners that a 'no objection certificate'
came to be issued on 30/08/2003 by the respondent no.5-Federation in the
matter of grant of registration to their societies. In the meanwhile, on
31/03/2005, the State Government issued directions staying the policy of
grant of registrations to labour co-operative societies. It was further stated in
said communication that in case of proposals for registration of labour co-
operative societies, the said proposals should be forwarded to the State
W.P. No.6739/2015 5 Judgment
Government for necessary action. During the period when the order staying
grant of recognition was operating, Writ Petition No.5178/2005 raising the
issue of registration of the petitioner-societies came to be decided by this
Court on 07/03/2007. This Court directed the State Government to consider
all relevant aspects of the matter and decide the question of registration in
accordance with law. It appears that on 16/06/2007, the State Government
after referring to the order passed in Writ Petition No.5178/2005 addressed a
communication to the Commissioner for Cooperation stating therein that
since 31/03/2005, the registration of new labour co-operative societies had
been stayed. By continuing the same policy, the proposals for registration of
34 labour co-operative societies from Gondia District were not being
accepted. The said proposals came to be returned back. This was followed by
another communication dated 27/07/2007 by the State Government and by
referring to Writ Petition No.5178/2005, directed the said Authority to take
back the original record of the proposals and inform the concerned
accordingly.
03] Thereafter, on 07/11/2008, the State Government vacated the
stay which was initially granted on 31/03/2005 to the registration of new
labour co-operative societies. A further direction was issued to the
Commissioner for Cooperation that the district-wise requirement of new
W.P. No.6739/2015 6 Judgment
societies should be considered and steps should be taken as per the prevailing
procedure in the matter of registration of such societies. It was also stated
that the proposals that had been received should be collected and the
concerned parties should be informed. On 06/12/2008, the State
Government issued a Circular laying down the policy in the matter of
registration of new labour co-operative societies. On the same day, the
Registrar of Co-operative Societies in terms of the earlier letter of the State
Government dated 07/11/2008 issued a communication to the Divisional
Joint Registrar returning of the proposals pertaining to Gondia District for
registration.
04] The respondent no.5 had thereafter approached this Court in
Writ Petition No.386/2010 and by order dated 26/04/2010 liberty was
granted to the respondent no.5 herein to approach the Appellate Authority for
challenging the order of registration of such societies. Accordingly, the
respondent no.5 filed Appeal No.30/2010 before the Divisional Joint
Registrar and by order dated 14/06/2010, the said appeal was dismissed on
the ground that the same was not maintainable. This order was then
challenged by the respondent no.5 by filing Writ Petition No.3000/2010. By
judgment dated 24/02/2014, the earlier order dated 14/06/2010 passed in
the appeal was set aside and the Appellate Authority was directed to decide
W.P. No.6739/2015 7 Judgment
the appeal afresh. Thereafter, the Divisional Joint Registrar passed an order
on 05/01/2015 in the aforesaid appeal and rejected the prayer for
cancellation of registration of the petitioner-societies. A further direction was
issued in terms of Circular dated 06/12/2008 to place the proposals before
the Screening Committee and the Screening Committee was directed to take a
further decision in the matter. The respondent no.5 being aggrieved by this
order challenged the same by filing a revision application under Section 154
of the said Act. By the impugned order, the revision application has been
allowed and the order dated 05/01/2015 passed by the Divisional Joint
Registrar has been set aside. This order is under challenge in these writ
petitions.
05] Shri M.V. Samarth, the learned Counsel for the petitioners in
Writ Petition No.6739/2015 and Shri S.K. Tambde, the learned Counsel for
the petitioners in Writ Petition No.6744/2015 submitted that the Hon'ble
Minister was not justified in allowing the revision application preferred by the
respondent no.5. It was submitted that as the proposals seeking registration
of the labour co-operative societies were pending since 2003 when a ban was
imposed on the grant of registration of such societies. After such ban being
lifted the said proposals ought to have been reconsidered. The Divisional
Joint Registrar after duly considering the entire matter had rightly directed
W.P. No.6739/2015 8 Judgment
the Screening Committee to examine these proposals and take a decision.
According to the learned Counsel, the pending proposals were never rejected
and the communication dated 16/06/2007 issued by the State Government
had been misconstrued by the Hon'ble Minister to mean that the proposals
had been rejected. In fact, it was submitted that as the ban was operating,
there was no question of the proposals being rejected. It was then submitted
that the proposals submitted by the petitioners were governed by the earlier
policy as per Circular dated 19/04/1985 and not by the subsequent policy
dated 06/12/2008. It was pointed out that the Administrator appointed on
the respondent no.5-Federation had in fact granted no objection to the
registration of the petitioner-societies and the proposals were screened on
23/08/2005. The respondent no.5 was, therefore, precluded from
contending otherwise. Sufficient work was available to each labour co-
operative society and hence the Federation was not justified in opposing the
case of the petitioners. It was then submitted that the impugned order was an
unreasoned order and in absence of any cogent reason, the impugned order
could not be sustained. In that regard, reliance was placed by Shri Tambde,
the learned Counsel for the petitioner on the judgment of the Hon'ble
Supreme Court in Assistant Commissioner, Commercial Tax Department,
Works Contract and Leasing, Kota vs. Shukla and Brothers - (2010) 4 SCC
785. It was, therefore, submitted that considering the aforesaid aspects and
W.P. No.6739/2015 9 Judgment
the fact that sufficient work was available for all the petitioner-societies, the
impugned order was liable to be set aside.
06] Shri A.M. Ghare, the learned Counsel for the respondent no.5
and Shri A.M. Kadukar, the learned Assistant Government Pleader for the
respondent nos.1 to 4 supported the impugned order. Shri Ghare, learned
Counsel submitted that as per communication dated 16/06/2007, all the
proposals pertaining to the petitioner-societies had been rejected resulting in
their being no registration granted in their favour. This fact was evident from
the subsequent communication dated 27/07/2007 issued by the State
Government. He submitted that it was not open for the Divisional Joint
Registrar to go behind the communication dated 16/06/2007 issued by the
State Government rejecting the proposals. He invited attention to the
observations of the Divisional Joint Registrar in relation to point no.4 in the
order dated 05/01/2015 wherein it was observed that though the
registrations had been refused, as the same was not after examination of the
proposals on merits the same was of no consequence. According to him, the
matter was now governed by Circular dated 06/12/2008 and, therefore, the
petitioners ought to have applied for registration in terms of said Circular.
The directions issued by the Divisional Joint Registrar to place the matter
before the Screening Committee were beyond his jurisdiction. It was then
W.P. No.6739/2015 10 Judgment
submitted that the no objection referred to by the petitioners which was
issued by the Administrator of the Federation was of no consequence
inasmuch as it was not open for the Administrator to take any policy decision
including consideration of proposals for registration. In that regard, he placed
reliance upon the judgment of the Hon'ble Supreme Court in K. Shantharaj
vs. M.L. Nagaraj - (1997) 6 SCC 37, Jt. Registrar of Co-Operative
Societies, Kerala vs. T.A. Kuttappan - (2000) 6 SCC 127 and the judgment
of the Division Bench in S.M. Kamble vs. Jt. Registrar, Co-operative
Societies - 2007 Mh.L.J. 890. It was urged that the Hon'ble Minister had
rightly considered the controversy and had decided the appeal in terms of
communication dated 16/06/2007. According to him, the only relevant
factor that was required to be considered was the refusal to grant of
registration and this fact had been rightly appreciated by the revisional
authority in the impugned order. All other aspects sought to be urged by the
petitioners were not relevant in the backdrop of the communication dated
16/06/2007 issued by the State Government rejecting the proposals for
registration. It was, therefore, submitted that no case whatsoever was made
out to interfere in writ jurisdiction.
07] I have heard the respective Counsel for the parties at length.
The documents placed on record clearly indicate the following facts :
W.P. No.6739/2015 11 Judgment
(a) Initially policy dated 19/04/1985 in the matter of registration of
labour co-operative societies was in force. The proposals for
registration of the petitioner-societies were pending
consideration. The Administrator appointed on the respondent
no.5-Federation had granted no-objection for registration of
these societies. In the meanwhile, by communication dated
31/03/2005, it was directed that until further orders, no
registration should be granted to any labour co-operative society
and in case any fresh proposal had been submitted, same should
be forwarded to the State Government.
(b) Pursuant to the order dated 07/03/2007 in Writ Petition
No.5178/2005 directing the State Government to decide the
issue regarding grant of registration, the State Government on
16/06/2007 continued its earlier policy of not granting
registration to new labour co-operative societies and on that
basis the proposals of 34 such labour co-operative societies came
to be refused. These proposals were directed to be returned
back. The petitioner-societies were included in the list of said 34
labour co-operative societies.
W.P. No.6739/2015 12 Judgment
(c) On 27/07/2007, the earlier stand taken in the communication
dated 16/06/2007 was reiterated with a direction to intimate all
the concerned parties.
(d) On 07/11/2008, the ban that was operating on the registration
of the labour co-operative societies was lifted. Examination of
the aspect of need of new labour co-operative societies was
directed to be undertaken with a reminder to take back all the
earlier proposals.
(e) On 06/12/2008, a new policy in the matter of grant of
registration of labour co-operative societies came to be
implemented. As per this policy, the requirement of new labour
co-operative societies was required to be examined by
considering various aspects as stated in the policy. A Screening
Committee was also constituted for examining such proposals. It
was further laid down in the said policy that after all
requirements were complied with and the proposal was screened
that such a society would be registered by the concerned
authority.
W.P. No.6739/2015 13 Judgment
(f) The events that have transpired after the new policy came into
force are reflected in various orders passed by the Authorities
under the said Act. Ultimately, after the appeal was decided on
05/01/2015, the Divisional Joint Registrar did not accept the
prayer made on behalf of the respondent no.5 to cancel the
registration of these societies but instead directed screening of
the proposals of these societies by the Screening Committee as
per policy dated 06/12/2008.
(g) The order of Divisional Joint Registrar was set aside by the
Hon'ble Minister while deciding the revision on 18/11/2015. It
was observed that after the State Government had refused to
grant any registration, it was not open for the subordinate
Authorities to have again gone into said question on the basis of
the same proposals.
08] It would first be necessary to refer to the policy dated
06/12/2008 in the matter of grant of registration to labour co-operative
societies. In the said policy, it has been observed that the stay which was
operating in the matter of grant of registration to such societies was being
vacated conditionally. While granting registration, a Taluka was considered
W.P. No.6739/2015 14 Judgment
as the base for taking into account existing societies and work available
therein. The requirement of new labour co-operative societies and work
available was required to be taken into consideration. If it was found that
labour work exceeding Rs.7.50 lakhs in a year was available, then new labour
co-operative societies could be permitted to be registered. Steps that were
required to be taken to ensure availability of sufficient work and proper
service conditions to its members were also given importance. To facilitate
the entire exercise, a Screening Committee consisting of Authorities under the
said Act with a representative of the Federation was constituted and in
Clause-10 of the policy it had been specifically stipulated that unless a
proposal was duly screened by the Screening Committee that the registration
in the true sense would be granted by the Authorities.
09] From the aforesaid policy, it can be seen that it was intended by
the State that unless all necessary compliances as per the said policy were
complied, registration of a new labour co-operative society was not
contemplated. That in a situation where a new policy comes into force, its
requirements have to be complied with even in case where earlier
applications were pending before the new policy came into force is well
settled. Reference in that regard can be usefully made to the following
observations of the Hon'ble Supreme Court of India in P.T.R. Exports
W.P. No.6739/2015 15 Judgment
(Madras) Pvt. Ltd. and others vs. Union of India and others - (1996) 5
SCC 268.
"5. It would, therefore, be clear that grant of licence depends upon
the policy prevailing as on the date of the grant of the licence. The
Court, therefore, would not bind the Government with a policy
which was existing on the date of application as per previous
policy. A prior decision would not bind the Government for all
times to come. When the Government is satisfied that change in
the policy was necessary in the public interest, it would be entitled
to revise the policy and lay down new policy."
10] The documents on record indicate that the earlier exercise that
was being conducted in the matter of grant of registration to the petitioner-
societies was subjected to the order dated 31/03/2005 by which the State
Government stayed the entire process of registration. It is pursuant to this
stay of the process that on 16/06/2007 the proposals relating to the
petitioner-societies were not accepted and were returned back to the
Authorities under the said Act with a further rider to return back the proposal
to the concerned societies. The communication dated 27/07/2007 makes
aforesaid aspect clear. The new policy admittedly came into force on
06/12/2008, which is almost a year and half after the earlier proposals were
not accepted by the State Government and were returned back. In this
background, therefore, the communication issued by the Registrar of Co-
W.P. No.6739/2015 16 Judgment
operative Societies to the Divisional Joint Registrar on the same day i.e.
06/12/2008 when the new policy came into force cannot construed as a
direction to register the said societies. Such exercise of registration could not
have been undertaken de hors the policy dated 06/12/2008.
11] It is relevant to note that even the Divisional Joint Registrar was
conscious of the fact that on 16/06/2007, the proposals for registration of the
petitioner-societies had not been accepted by the State Government. The
observations to that effect can be found while adjudicating issue no.4 in the
order dated 05/01/2015. If this was the aspect that was in the mind of the
Divisional Joint Registrar while considering the appeal, then there was no
question of the petitioner-societies being treated to be duly registered so as to
refuse the prayer for cancellation of their registration. The fact that the
Divisional Joint Registrar himself found it necessary to direct the proposals
pertaining to the petitioner-societies to be scrutinized by the Screening
Committee as per policy dated 06/12/2008 itself indicates that the exercise of
screening the proposals which was contemplated as an exercise prior to grant
of registration had not been undertaken. In fact, in Writ Petition
No.3000/2010 this Court recorded a finding that the procedure prescribed
under the policy dated 06/12/2008 had not been followed. It is the case of
the petitioner-societies that they had been registered in 2008-09. If this was
W.P. No.6739/2015 17 Judgment
the situation obtaining on record, it follows that the petitioner-societies could
not be treated as registered without complying with the policy dated
06/12/2008.
Accepting the contention of the petitioner-societies would defeat
the object behind formulation of the policy dated 06/12/2008 and would
result in such labour co-operative societies being treated as registered giving a
complete go-by to the policy dated 06/12/2008. Moreover, there is no
question of first treating such societies as registered and thereafter examining
whether they satisfy the requirements of the policy dated 06/12/2008 or not.
12] In the impugned order passed by the Hon'ble Minister, this
aspect has been taken into consideration. It was found that the registration
having been refused by the communication dated 06/06/2007, the question
of reconsideration of the proposals on the direction issued by the subordinate
Authorities did not arise. This being a relevant consideration going to the
root of the matter and the same having been taken into account by the
Hon'ble Minister in the impugned order, the submission on behalf of the
petitioners that the impugned order was unreasoned cannot be accepted. The
ratio of the decision of the Hon'ble Supreme Court in Assistant
Commissioner, Commercial Tax Department, Works Contract and Leasing,
Kota vs. Shukla and Brothers (supra) cannot be applied to the facts of the
W.P. No.6739/2015 18 Judgment
present case. Moreover, the no-objection granted by the Administrator is of no
consequence considering the fact that the process of registration was stayed
after which the fresh policy dated 06/12/2008 came into force. The
observations that the Administrator appointed on the Federation could not
have granted a no-objection certificate in the matter of grant of registration is
also correct considering the limited role of an Administrator as held by the
Hon'ble Supreme Court in K. Shantharaj vs. M.L. Nagaraj - (1997) 6 SCC
37, Jt. Registrar of Co-Operative Societies, Kerala vs. T.A. Kuttappan as
well as the judgment of the Division Bench in S.M. Kamble vs. Jt. Registrar,
Co-operative Societies (supra). In the light of the aforesaid discussion, I do
not find that the Hon'ble Minister committed any jurisdictional error by
allowing the appeal preferred by the respondent no.5. Hence, there is no case
made out to interfere in the writ jurisdiction. By observing that it would be
open for the petitioners to seek registration in terms of the policy dated
06/12/2008 in accordance with law. The writ petitions are dismissed with no
order as to costs.
At this stage, the learned Counsel for the petitioners seeks
continuation of the ad interim relief granted on 16/12/2015 for a period of
four weeks. This request is opposed by the learned Counsel for the
respondent no.5 on the ground that under this ad interim order, the members
of the petitioner-societies intend to contest elections.
W.P. No.6739/2015 19 Judgment
The ad interim relief which was granted on 16/12/2015 was to
the effect that no coercive steps be taken against the petitioners pursuant to
the impugned order dated 18/11/2015. By said order, the earlier order
passed by the Divisional Joint Registrar dated 05/01/2015 refusing to cancel
registration has been set aside. It is, therefore, clarified that for a period of
four weeks from today, no coercive steps pursuant to cancellation of the
registration of the petitioner-societies shall be taken by the Authorities against
them.
JUDGE
*waghmare
W.P. No.6739/2015 20 Judgment
C E R T I F I C A T E
I certify that this judgment uploaded is a true and
correct copy of the original signed judgment.
Uploaded by: S.D. Waghmare Uploaded on : 01/08/2016
P.A. to the Hon'ble Judge.
