Bombay High Court

Raghunath S/O Baliram Bhambhere vs Assistant Registrar, ... on 8 December, 2017

Bench: Z.A. Haq

 Judgment                                          1                                wp1041.17.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 1041 OF 2017


 Shri Raghunath S/o. Baliram Bhambhere,
 Aged about 68 years, Occu: Agriculturist,
 R/o. At Post Chinchkhed, Tah.: Shegaon,
 Distt. : Buldhana. 
                                                                       ....  PETITIONER.

                                    //  VERSUS //

 1. Assistant Registrar, Co-operative
    Societies, Shegaon, Distt. Buldnana.

 2. Chinchkhed Gram Seva Sahakari Sanstha
    Maryadit, Chinchkhed, Tah. : Shegaon,
    Distt. : Buldhana. 

 3. Waman S/o. Yashwant Bhambhere,
    Aged about 70 years, R/o. At Post
    Chinchkhed, Tah. Shegaon, Distt. :
    Buldhana. 

 4. Najuk S/o. Prakash Bhambhere,
    aged about 40 years, R/o. At & Po.
    Chinchkhed, Tah. : Shegaon,
    Distt. Buldhana. 

 5. Vasudeo S/o. Haribhau Bhambhere,
    aged about 45 years, R/o. At & Po.
    Chinchkhed, Tah. : Shegaon,
    Distt. Buldhana.

 6. Sapurda S/o. Rasaheb Bhambhere,
    aged about 60 years, R/o. At & Po.
    Chinchkhed, Tah. : Shegaon,
    Distt. Buldhana.  

 7. Jagdev S/o. Ganpat Chopde,
    aged about 57 years, R/o. At & Po.
    Chinchkhed, Tah. : Shegaon,
    Distt. Buldhana. 




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  Judgment                                              2                                wp1041.17.odt




 8. Shrikrushna S/o. Fakirchand Bhambhere,
    aged about 60 years, R/o. At & Po.
    Chinchkhed, Tah.:Shegaon, Distt:Buldhana.

 9.  Mahadev S/o. Rajaram Bhambhere,
    aged about 55 years, R/o. At & Po.
    Chinchkhed, Tah.:Shegaon, Distt:Buldhana.

 10. Dnyandev S/o. Mahipat Bhambhere,
     aged about 50 years, R/o. At & Po.
     Chinchkhed, Tah.:Shegaon, Distt:Buldhana.

 11. Shri Vitthal S/o.Vishwanathan Bhambhere,
     aged about 38 years, R/o. At & Po.
     Chinchkhed, Tah.:Shegaon, Distt:Buldhana.

 12. Sau. Ushabai Kadu Hinge, 
     aged about 60 years, R/o. At & Po.
     Chinchkhed, Tah.:Shegaon, Distt:Buldhana.
                                                       .... RESPONDENTS
                                                                          .
  ___________________________________________________________________
 Shri A.M.Ghare, Advocate for Petitioner. 
 Shri N.R. Patil, A.G.P. for Respondent No.1. 
 Shri Chetan Sharma, Advocate h/f.Shri S.P.Bhandarkar, Adv. for Respondent
 Nos. 7, 9 to 12.  
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : DECEMBER 08, 2017.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The petitioner and respondent Nos. 3 to 12 got elected as

members of the Executive Committee of the respondent No.2-society on 27 th

June, 2016. According to the petitioners, they along with respondent Nos. 3

Judgment 3 wp1041.17.odt

to 8 submitted their resignation to the respondent No.1-Assistant Registrar

and also to the Secretary of the respondent No.2-Society. The respondent

No.1 undertook the exercise of verifying whether the resignation letters were

submitted by the concerned members and whether 5 out of 11 members had

submitted resignation letters wilfully. As out of 11 members, 5 members

submitted their resignation and quorum for conducting the meeting of the

Executive Committee as per the bye-laws is 7, remaining members of the

committee could not conduct any meeting of the executive committee.

4. On 29th November, 2016, the petitioner submitted an

application to the respondent No.1-Assistant Registrar requesting that

Administrator be appointed to manage the affairs of the respondent No.2-

society. On 23rd December, 2016 the respondent No.1-Assistant Registrar

issued notice under Section 77-A of the Maharashtra Co-operative Societies

Act, 1960 (hereinafter referred as "the Act of 1960"). The respondent Nos. 3

to 12 filed their replies. The respondent Nos. 3 to 8 affirmed that they had

submitted their resignation letters. The respondent Nos. 9 to 12 opposed the

appointment of administrator. On 25th January, 2017 the respondent No.1-

Assistant Registrar recorded that the petitioner and the other members who

had submitted their resignation letters cannot insist for appointment of the

administrator and then on 27th January, 2017 issued show cause notice

under Section 78 of the Act of 1960 to the members who submitted their

resignation letters, calling upon their explanation.

Judgment 4 wp1041.17.odt

The petitioner has approached this Court with a grievance that

the respondent No.1-Assistant Registrar is deliberately avoiding to appoint

administrator and is not discharging his duty under Section 77-A and Section

78 of the Act of 1960.

6. After hearing the learned advocates for the respective parties, I

find that there is no dispute that 5 members out of 11 members have

submitted their resignation letters. There is no dispute that as per the bye-

laws quorum required for conducting meeting of the Executive Council is of 7

members. In the reply filed by the respondent No.1-Assistant Registrar before

this Court there is no acceptable explanation as to why the notice issued

under Section 77A of the Act of 1960 is withdrawn.

7. Though the petitioner has challenged show cause notice issued

by the respondent No.1-Assistant Registrar under Section 78 of the Act of

1960 and has prayed that it be quashed, there is a dispute as to whether

there is any government shareholding or loan or financial assistance in terms

of any cash or kind or any guarantee by the government in favour of the

respondent No.2-society so as to attract Section 78 of the Act of 1960. The

petitioner contends that government aid is not given to the respondent No.2-

society and therefore, in view of the fourth proviso below clause (a) of sub-

section (1) of Section 77-A of the Act of 1960, the provisions of Section 78

cannot be invoked by the respondent No.1-Assistant Registrar.

Judgment 5 wp1041.17.odt

8. The learned A.G.P. has pointed out from paragraph No.11 of the

reply filed by the respondent No.1 before this Court that the balance sheet of

the respondent No.2-society, dated 31 st March, 2016, shows that the

respondent No.2-society has received government aid, specially from the

Central Government. As there is a dispute as to whether the respondent

No.2-Society is receiving any aid from the Government, in my view, it would

not be appropriate, at this stage, to consider the challenge of the petitioner to

the show cause notice issued under Section 78 of the Act of 1960.

9. In view of the above, following order is passed:

i) The decision of the respondent No.1-Assistant Registrar to

withdraw /drop the notice /proceedings under Section 77A of

the Act of 1960 is quashed.

ii) The respondent No.1-Assistant Registrar shall proceed further

as per Section 77A of the Act of 1960 and take appropriate

decision after granting opportunity of hearing to the concerned

members/ persons.

iii) The challenge raised by the petitioner to the show cause notice

issued under Section 78 of the Act of 1960 is not considered at

this stage and it will be open to the parties to file their replies

to the show cause notice before the respondent No.1-Assistant

Judgment 6 wp1041.17.odt

Registrar. The respondent No.1/Assistant Registrar shall take

appropriate decision in the matter after considering the replies

filed before him and after hearing the concerned members/

persons.

iv) The petitioner and the respondent Nos. 7 and 9 to 12 shall

appear before the respondent No.1-Assistant Registrar on 12 th

January, 2018 and abide by further instructions/ orders in the