Anant Gunvantrao Sable vs The State Of Maharashtra Through ...
2016 Latest Caselaw 5544 Bom

                                                                      wp6102.15


                                           1




                                                                          
                                                  
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR
                             Writ Petition No.6102 of 2015




                                                 
     Anant Gunvantrao Sable,
     aged about 43 years,
     occupation - Agriculturist,




                                        
     resident of near Old Bus Stand,
     Anjangaon Surji,        
     Tq. Anjangaon Surji,
     Distt. Amravati.                                .....           Petitioner.
                            
                                        Versus


     1.     The State of Maharashtra,
      

            through the Minister of
            Co-operation, Handloom & Textile,
   



            Madam Cama Road,
            Mumbai-32.

     2.     The Joint Registrar,
            Co-operative Societies,





            Amravati,
            Tq. & Distt. Amravati.

     3.     The District Deputy Registrar,
            Co-operative Societies,
            Amravati, Tq. & Distt. Amravati.





     4.     The Amravati Distt. Central
            Co-operative Bank Ltd.,
            Amravati,
            Office at Arwind Square,
            Amravati,
            Tq. & Distt. Amravati.




    ::: Uploaded on - 27/09/2016                  ::: Downloaded on - 29/09/2016 00:19:37 :::
                                                                           wp6102.15


                                            2




                                                                              
                                                      
     5.     Jagan Narhari Harde,
            aged - major,
            occupation -
            resident of Ambagaon,




                                                     
            in front of Rest House,
            Anjangaon Surji,
            Distt. Amravati.                           .....        Respondents.




                                         
                                    *****
     Mr. N.A. Gaikwad, Adv., for the petitioner.
                             
     Mr. K.L. Dharmadhikari, Asstt. Govt. Pleader for respondent nos.1
     to 3.
                            
     Mr. J.B. Kasat, Adv., for respondent no.4.

     Mr. A. M. Ghare, Adv., for respondent no.5.

                                          *****
      


                                      CORAM :        A.S. CHANDURKAR, J.
   



             Date when arguments
             were concluded                     :     11th August, 2016





             Date when judgment
             is pronounced                      :     23rd September, 2016





     J U D G M E N T:

01. In view notice for final disposal, the learned counsel for the

parties have been heard at length by issuing Rule and making the

same returnable forthwith.

wp6102.15

02. The question that arises for consideration in this Writ

Petition is :

Whether the petitioner, by virtue of having let out premises jointly owned by him to the respondent no.4 - Co-operative Bank, can be said to be disqualified to hold

the post of Director under the provisions of Section 73CA

(1) (vi) of the Maharashtra Co-operative Societies Act, 1960 [for short, referred as "the said Act"] ?

The aforesaid question arises in view of the following facts:-

03. The petitioner has been elected as a member of the

Managing Committee of the respondent no.4 - the Amravati District

Central Co-operative Bank Ltd. It is the case of the respondent no.5

that on 6th March, 2010, the Managing Committee of the said Bank

passed a resolution by which it was resolved to shift the Surji Branch of

the Bank to Anjangaon. The Branch was shifted to a building owned by

the petitioner and his brother at Anjangaon. According to the

respondent no.5, the petitioner had participated in the said meeting

wherein the resolution was passed and as the Branch was shifted in

the building jointly owned by the petitioner, he stood disqualified under

the provisions of Section 73CA (1) (vi) of the said Act. On that basis,

wp6102.15

the respondent no.5 on 28th July, 2014 filed an application before the

Divisional Joint Registrar, Co-operative Societies, seeking

disqualification of the petitioner.

04. The petitioner filed his reply and opposed the aforesaid

application. It was his case that though the petitioner and his brother

were co-owners of the property in question, by virtue of a partition

between them, the ground floor of said premises stood in the name of

his brother and it was he who had entered into the lease agreement

with the Bank. The rent was being paid to the petitioner's brother and

hence the petitioner could not be held to be so disqualified.

05. The District Deputy Registrar, Co-operative Societies,

directed the authorized Enquiry Officer and Asstt. Registrar to submit a

report in the matter. Such report came to be submitted on 13th

February, 2015, observing that by passing a resolution for shifting of

the branch, it could not be said that the petitioner had attracted

disqualification under the provisions of Section 73CA (1) (vi) of the said

Act. The Divisional Joint Registrar accepted the aforesaid report and

by order dated 11th May, 2015, dismissed the application for

disqualification.

wp6102.15

06. The respondent no.5, being aggrieved, filed a Revision

Petition under Section 154 of the said Act. The Hon'ble Minister for Co-

operation, Marketing & Textiles, by order dated 20th October, 2015,

came to the conclusion that as the petitioner had interest in the

property in which the Branch of the Bank was shifted, he was liable to

be disqualified from holding the post of Director. By the impugned

order, the petitioner was held disqualified to continue as a Director of

the Bank under the provisions of Section 73CA (1) (vi) of the said Act.

As a consequence thereof, the Divisional Joint Registrar passed an

order of disqualification dated 31st October, 2015. Being aggrieved,

the aforesaid order is assailed in the present Writ Petition.

07. Shri N.A. Gaikwad, learned counsel for the petitioner,

submitted that the petitioner has been wrongly disqualified by the

impugned order. According to him, though the plot in question stood

in the joint names of the petitioner and his brother, the lease

agreement was with the petitioner's brother. The Asstt. Registrar in

her report had rightly found that rent was being paid to the petitioner's

brother and that the petitioner was not getting any benefit,

whatsoever, by virtue of shifting of the said Branch to Anjangaon. He

submitted that though all the necessary documents in that regard

were placed on record, the same were not taken into consideration by

wp6102.15

the Hon'ble Minister. He referred to the provisions of Section 75 of the

said Act and Explanation-I thereto to indicate that the expression

"family", which included brother, was only for the purposes of said

Section and same could not be applied to the facts of the present case.

He placed reliance upon the Judgment of learned Single Judge in

Nanaji Ganuji Bhokre Vs. Commissioner, Amravati Division,

Amravati & others [1994 (2) Mh. L.J. 1277], and submitted that the

impugned order was liable to be set aside.

08. Per contra, Shri A.M. Ghare, the learned counsel for the

respondent no.5, supported the impugned order. According to him,

the facts on record were crystal clear and it was obvious that only

because the petitioner was the Director of the Bank that such

resolution came to be passed for shifting the Branch of the Bank to the

premises jointly owned by the petitioner. That the rent was being paid

in the account of the petitioner's brother was hardly relevant and that

there were no mutation entries showing separate interests of the

brothers was indicative of this fact. The learned counsel placed

reliance on the judgment of learned Single Judge in Aruna Bhagwant

Tiple Vs. Divisional Joint Registrar, Co-operative Societies,

Nagpur & others [2011 (1) Mh. L. J. 196] and submitted that the

expression "office of profit" ought to be interpreted in the light of the

wp6102.15

law laid down by the Hon'ble Supreme Court in Jaya Bachchan Vs.

Union of India & others [2006 (5) Mh. L.J. 233]. It was, therefore,

submitted that the impugned order did not call for any interference.

Shri J. B. Kasat, learned counsel for the respondent no.4 and

Shri K. L. Dharmadhikari, learned Asstt. Govt. Pleader appeared for the

respondent nos. 1 to 3 and they too supported the impugned order.

09.

I have heard respective counsel for the parties at length and

I have given due consideration to their respective submissions.

The disqualification of the petitioner has been sought under

the provisions of Section 73CA (1) (vi) of the said Act. Section 73CA (1)

(vi) of the said Act reads thus:-

"73CA. Disqualification of committee and its members

(1) Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being member of a committee, no person shall be eligible for being appointed, nominated, elected, co-opted or, for being a member of a

committee, if he-

(I) to

(v) .... ..... ..... ..... .....

(vi) is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he

wp6102.15

holds or is appointed to the office of a Managing Director or any other office declared by the State Government by general or special order not to disqualify its holder or is entitled to be or is nominated as functional director on the committee of a society under sub-section (2) of

Section 72A."

10. After the application for disqualification was filed, the

District Deputy Registrar, Co-operative Societies, Amravati, called for a

report from the Asstt. Registrar, Co-operative Societies, Amravati. The

Enquiry Officer on 13th February, 2015 submitted his report. It was

found by the Enquiry Officer that on 31st December, 2008, the

petitioner and his brother Jayant had jointly purchased property

bearing Plot No.4, admeasuring 81.51 square meters situated at

Anjangaon Surji. This property was purchased from one Dnyaneshwar

Purushottam Patil. The petitioner was a member of the Managing

Committee of the respondent no.4 - Bank since 6th October, 2009.

Thereafter, on 6th March, 2010, Resolution no. 38 was passed by the

Bank resolving to shift its branch from Surji to Anjangaon for the

convenience of its customers. On 26th April, 2010, the brother of the

petitioner - Jayant executed a document agreeing to let out the said

building jointly owned by him and his brother to the Bank for a period

of five years on a monthly rent of Rs. 6720-00. These are the findings

recorded by the Enquiry Officer in her report.

wp6102.15

From the aforesaid, the facts are clear that the petitioner

and his brother had jointly purchased the building in question on 31st

December, 2008 and after the petitioner was elected as a member of

the Managing Committee of the respondent no.4-Bank, this building

was let out to house a branch of respondent no.4 - Bank at Anjangaon.

11.

The validity of Section 73FF (1) (vi) of the said Act [as it then

stood] has been upheld by the Division Bench in Murlidhar Bhaulal

Malu Vs. Sudhakar Honaji Patil & another [1987 Mh. L. J. 944].

While doing so, it was observed by the Division Bench that as per the

scheme of the said Act, two types of disqualifications were prescribed.

One involved a stigma and other was in relation to a conflict between

interest and duty. The provisions of Section 73FF (1) (v) and (vi) of the

said Act involved conflict between interest and duty. It was then held

that the word "any" would also contemplate a conflict between interest

and duty - qua - the same society or qua - a federal society if the said

society is a member of the concerned federal society. After

amendment, this provision now stands re-numbered as Section 73CA

(1) (vi) in the said Act.

12. In the light of the aforesaid law laid down by the Division

Bench, it is clear that the provisions of Section 73CA (1) (vi), after its

wp6102.15

amendment, intend to prevent any conflict between interest and duty.

The said disqualification is intended to ensure purity of administration

of co-operative societies. In the aforesaid background, if the facts of

the present case are considered, it becomes evident that the building

in question was admittedly owned by the petitioner and his brother.

After the petitioner was elected as a member of the Managing

Committee, the Bank passed a resolution for shifting its branch to a

convenient place and on that basis, this branch was shifted in the

premises owned by the petitioner and his brother. Though it was

urged by the learned counsel for the petitioner that by virtue of an

understanding between the petitioner and his brother, all the amount

of rent was being deposited in the account of the petitioner's brother

and the petitioner himself had not benefited from this lease, the said

submission cannot be accepted. Admittedly, the petitioner is a co-

owner of the building in question and hence resort to the provisions of

Section 75 of the said Act by the counsel for the petitioner is

misplaced. That the amount of rent should be paid exclusively to the

brother of the petitioner is an arrangement between the two brothers

and same cannot have an overriding effect over the legal fiction that is

created by virtue of the provisions of Section 73CA (1) (vi). It is

obvious that the petitioner has a direct interest in the shifting of the

branch in the premises jointly owned by him and he stands to benefit

wp6102.15

by the same. An arrangement by which the entire rent is to be paid to

his brother cannot be used by the petitioner to extricate himself from

the rigors of disqualification under the said provision.

13. Hon'ble Minister, while considering the Revision Application

preferred by the respondent no.5, has found that by virtue of the

premises jointly owned by the petitioner and his brother being let out

to the Bank, the petitioner had received benefit in said transaction.

This conclusion arrived at is based on facts noticed by the Enquiry

Officer in his report dated 13th February, 2015. This finding recorded

by the Hon'ble Minister cannot be said to be contrary either to the

record or to the spirit of Section 73CA (1) (vi) of the said Act. The

decision relied upon by the learned counsel for the petitioner in Nanaji

Ganuji Bhokre [supra] pertains to disqualification under the provisions

of Section 73FF (v) of the said Act and hence same does not assist the

case of the petitioner. The observations of Hon'ble Supreme Court in

Jaya Bachchan [supra] and learned Single Judge in Aruna Bhagwant

Tiple [supra] support the submissions made on behalf of the

respondent no.5.

14. As a sequel to the aforesaid discussion, I do not find that the

impugned order suffers from any jurisdictional error. The respondent

wp6102.15

no.1 has rightly appreciated the controversy in question and has

applied the law in the correct perspective. Hence Writ Petition stands

dismissed. Rule stands discharged with no order as to costs.

At this stage, learned counsel for the petitioner seeks

continuation of the interim protection that was granted by this Court

on 18th November, 2015. The request as made is opposed by the

learned counsel for the respondent no.5.

In the facts of the case, the ad interim relief granted on 18th

November, 2015 shall continue for a period of six weeks. The same

shall cease to operate automatically thereafter.

Judge

-0-0-0-0-

|hedau|

CERTIFICATE

I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.

Uploaded by : R.B. Hedau, Uploaded on : 27th Sept., 2016 Pvt. Secretary.

-0-0-0-0-