Amba Mata Mahila Matsya Vyasaya ... vs State Of Maharashtra Thr. Dept. Of ...
2017 Latest Caselaw 5510 Bom

wp.2684.16.jud                    1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR

                     WRIT PETITION NO.2684 OF 2016


Amba Mata Mahila Matsya
Vyasaya Sahakari Sanstha,
Haturna, Taluka - Warud,
District Amravati,
Bearing Registration No.ATI/GNL(O)/2013,
through its President Smt. Devika Dilip Pohane,
Aged about 46 years, Occu. Agriculturist,
R/o Haturna, Taluka Warud, District Amravati.                   .... Petitioner

       -- Versus -

01]    State of Maharashtra,
       Through Department of Agriculture,
       Animal Husbandry, Dairy Development &
       Fisheries Development, Hutatma Rajguru Chowk,
       Mantralaya Annexe, Mumbai - 32

02]    State of Maharashtra,
       Through its Deputy Registrar,
       Cooperative Societies (Fisheries),
       Maharashtra State, Sitting in the
       Office of Commissioner for Fisheries,
       Taraporewala Aquarium,
       Netaji Subhash Marg, Charni Road,
       Mumbai - 400 002.

03]    Assistant Registrar,
       Cooperative Societies (Dairy), Amravati.

04]    Dattatreya Macchimar Sahakari
       Sanstha Maryadit, Haturna,
       Tehsil - Warud, District Amravati,
       through its President
       Shri Madhukar Tukaram Kuite,
       R/o Haturna, Tehsil Warud,
       District Amrvati.                                  .... Respondents




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Shri S.K. Tambde, Advocate for the Petitioner.
Shri A.M. Ghare, Advocate for Respondent No.4.
Shri H.D. Dubey, A.G.P. for Respondent Nos.1 to 3.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : AUGUST 3, 2017.


ORAL JUDGMENT :-


                Rule. Rule.         Rule       made   returnable            forthwith.

Heard finally with the consent of learned Counsel for the parties.

02] This petition takes an exception to the order dated

02/03/2016 passed by respondent no.1 dismissing Revision

Application No.13/2014 filed by petitioner-society and confirming

the order passed on 31/10/2014 by respondent no.2 in Appeal

No.16/2014 filed by respondent no.4-society under Section 152

of the Maharashtra Cooperative Societies Act, 1960 (herein after

referred to as 'the Act' for short).

03] The facts giving rise to the petition may be stated in

nutshell as under :

i. Respondent no.2 vide order dated 31/10/2014

recommended registration of petitioner-society.

Accordingly, certificate of registration was issued to

petitioner-society. Respondent no.4 challenged the

said registration under Section 152 of the Act by filing

an appeal. Having found number of deficiencies, the

Appellate Authority allowed the appeal filed by

respondent no.4 and came to the conclusion that

registration of petitioner-society was not in

accordance with the law and the procedure

prescribed.

ii. Being aggrieved by the order of Appellate Authority,

petitioner filed revision application before respondent

no.1. Revision was dismissed vide impugned order

dated 02/03/2016. Hence, this petition.

04] Heard at length Shri S.K. Tambde, learned Counsel for

petitioner and Shri A.M. Ghare, learned Counsel for respondent

no.4. With the assistance of learned Counsel for the parties this

Court has gone through the impugned orders. From the order of

Appellate Authority, it can be seen that in all following nine

deficiencies were noticed :

(i) As per Rule 10(1) of the Maharashtra Co-

Operative Societies Rules, 1961 (hereinafter

referred to as 'the Rules' for short) framed under

the Act, the fisheries societies are required to be

registered for the specific classification and sub-

classification, but petitioner-society was wrongly

classified as common society and sub-classified

as other society.

(ii) In the 'No Objection Certificate' issued by

Assistant Commissioner (Fisheries), Amravati

dated 05/07/2013, it is mentioned that

petitioner-society has only 32 members but in

the proposal sent for registration by petitioner-

society, the number of members shown was 36.

(iii) In the resolution passed in meeting of promoter

members held on 14/04/2013, the area of

operation of petitioner-society mentioned was

within 10 km of Haturna village and the activities

of fishing in the Bopapur Dam built on

Chandrabhaga river. But in 'No Objection

Certificate' issued by the Assistant Commissioner

(Fisheries), area of operation of petitioner-society

was shown as Upper Wardha Dam on getting the

licence and lease for fishing.

(iv) Amravati District Central Co-Operative Bank

issued certificate dated 18/09/2013 regarding

opening of account in the name of petitioner-

society and as per the said certificate, total

amount of Rs.6,000/- came to be deposited in

the account of petitioner-society. Against this,

'No Objection Certificate' issued by Assistant

Commissioner on 05/07/2013 was showing

balance of Rs.6,400/-. As per the proposal

submitted by petitioner-society amount of

Rs.9,720/- was required to be deposited.

(v) By two different resolutions, two members were

selected as Chief Promoters and were authorized

to sign proposal for registration of society.

(vi) The other Promoter Members Smt. Nirmala

Rangrao Kurwade and Smt. Sunita Dashrath

Kurwade informed vide communication dated

05/09/2014 that they have not signed the

proposal and they are not the members.

(vii) Audit report of petitioner-society indicated that

names of two members were inserted by scoring

the names of two members and in the list of

Managing Committee Members, name of Kum.

Ankita Rokade was inserted by scoring the earlier

name.

05] Based on above deficiencies, appellate authority

exercising powers under Section 152 of the Act allowed the

challenge at the behest of respondent no.4 and issued direction

to initiate action in accordance with Section 21A of the Act.

06] So far as deficiencies (i) and (ii) are concerned,

learned Counsel for petitioner submitted that petitioner is not

responsible for issuance of certificate and for wrong mentioning

of number of members in no objection certificate. Regarding

area of operation for fishing, submission is that as per bye-laws

of petitioner-society, activities of fishing were to be within 10 km

area of Haturna village, which includes Upper Wardha Dam built

on Chandrabhaga river. About amount in Bank Account, learned

Counsel fairly concedes that amount of Rs.9,720/- was not

deposited, but Rs.6,000/- came to be deposited. Learned

Counsel then drew attention of this Court to the affidavits of Smt.

Sunita Kurwade and Smt. Nirmala Kurwade and submitted that

they never moved complaint dated 05/09/2014 alleging that

they had not signed the proposal for registration of petitioner-

society. It is submitted that the impugned orders are per se

against the record and need to be set aside.

07] In support of submissions, learned counsel for

petitioner placed reliance on (i) Late Rajiv Gandhi Macchimar

Sahakari Sanstha Maryadit vs. Deputy Registrar, Co-

operative Societies & Ors. - [2015(5)ALL MR 832], (ii)

State of Orissa vs. Dhaniram Luhar - [(2004)5 SCC 568]

and the judgment of this court in Writ Petition No.1/2016 dated

16.6.2017.

08] Per contra, learned counsel for respondent no.4,

submits that deficiencies found by appellate authority clearly

indicate that petitioner was not entitled to registration of society.

Learned Counsel submits that petitioner-society has now filed

affidavits of Smt. Sunita Kurwade and Smt. Nirmala Kurwade.

Those affidavits were not before the revisional authority and this

court in the exercise of writ jurisdiction would not consider the

same.

09] With the assistance of learned counsel for parties, this

court has gone through the orders passed by appellate and

revisional authorities.

10] It is pertinent to note that petitioner-society was not

classified and sub-classified as required under Rule 10 (1) of the

Rules framed under the Maharashtra Cooperative Societies Act.

In no objection certificate, Assistant Commissioner mentioned

that petitioner-society had 32 members, whereas proposal

submitted by petitioner-society was indicating 36 members. The

area of operation of petitioner-society regarding fishing activities

mentioned in no objection certificate was also not in consonance

with the proposal submitted by petitioner-society. It is also

evident from audit report of petitioner-society that names of two

members were inserted by scoring the names of two members

and in the list of managing committee members, name of

another member came to be inserted by scoring the names.

Though Smt. Sunita Kurwade and Smt. Nirmala Kurwade have

filed the affidavits in this petition stating that they never

complained regarding their signatures on proposal for

registration, they never raised this issue before appellate or

revisional authorities. Therefore, they are to be kept out of

consideration.

11] Petitioner-society does not dispute that in the

suspense account of bank, amount of Rs.9,720/- as was required

to be deposited was not deposited. All the above infirmities were

found on scrutiny of 'No Objection Certificate' issued by Assistant

Commissioner and the proposal for registration submitted by

petitioner-society.

12] The revisional authority, by its well reasoned order,

considered the reasons recorded by Appellate Authority in

paragraphs 8 and 9 of order and held the same as legal and

proper. Petitioner-society could not demonstrate any illegality

or perversity in impugned orders. No interference is thus

warranted in the concurrent findings and accordingly following

order is passed.

ORDER

I. Writ Petition No.2684/2016 stands dismissed.

II. Rule is discharged.

III. No costs.

*sdw                                       (Kum. Indira Jain, J)