Bombay High Court
Vijay Kusekar And Anr vs State Of Maharashtra Through The ... on 22 March, 2017
Bench: R.M. Savant
WP-1164.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1164 OF 2017
1] Vijay Kusekar ]
Adult, Indian Inhabitant ]
Occupation : Farmer ]
R/o. At Post Village Andhalgaon, ]
Taluka Shirur, District Pune ]
]
2] Mauli Sonawane ]
Adult, Indian Inhabitant ]
Occupation : Farmer ]
R/o. At Post Village Andhalgaon, ]
Taluka Shirur, District Pune ]..... Petitioners.
Versus
1] State of Maharashtra ]
Through the Secretary ]
Ministry of Co-operation, Irrigation ]
& Textile, Government of Maharashtra ]
Mantralaya, Mumbai - 400 032 ]
]
2] Minister for Co-operation, Irrigation ]
& Textile, Government of Maharashtra ]
Mantralaya, Mumbai - 400 032 ]
]
3] Regional Joint Director ]
Co-operative Societies, Pune Division, ]
Pune ]
]
4] District Deputy Registrar, ]
Co-operative Societies, Pune Rural ]
]
5] Assistant Registrar ]
Co-operative Societies, Shirur, Pune ]
]
(Respondent Nos.1 to 5 to be served ]
through Government Pleader (Writ ]
Cell), Mumbai ]
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6] Rambhau Dabhade Vividh Karyakari Seva]
Sahakari Sanstha Maryadit, Andhalgaon ]
(Proposed Society) Through its Chief ]
Promoter Shri Jitendra Rambhau Dabhade]
Adult, Indian Inhabitant, Occupation : ]
Farmer, R/o. 2-3, Mahadev Mandir ]
Gavathan At Post Andhalgaon, Tal.Shirur ]
District Pune - 412211 ]..... Respondents.
Mr. D J Khambatta Senior Advocate a/w Mr. P S Dani, Senior Advocate
a/w Dr. Abhinav Chandrachud i/by Mr. Sagar A Rane for the Petitioners in
Writ Petition No.1164 of 2017.
Mr. P S Dani, Senior Advocate i/by Mr. Sagar A Rane for the Petitioners in
Writ Petition No.1251 of 2017.
Mr. A Y Sakhare, Senior Advocate a/w Mr. A B Vagyani, Government
Pleader a/w Mrs. V S Nimbalkar, AGP, for the Respondent Nos.1 to 5 in
Writ Petition No.1164 of 2017.
Mr. S K Shinde a/w Mr. P H Gaikwad i/by Mr. Omkar G Nagwekar for the
Respondent No.6 in Writ Petition No.1164 of 2017.
Mr. V D Patil for the Respondent No.6 in Writ Petition No.1251 of 2017.
CORAM : R. M. SAVANT, J.
Reser/ved on : 3rd March 2017
Pronounced on : 22nd March 2017
JUDGMENT :
1 The above Writ Petition is out of the group of Petitions filed by
different Petitioners challenging the orders passed by the Revisionary Authority
i.e. the Hon'ble Minister for Co-operation, Irrigation & Textile, Government of
Maharashtra. By the said orders the Revision Applications filed by the
Societies in question came to be allowed and resultantly the orders passed by
the Deputy Registrar, Co-operative Societies rejecting the applications for
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registration filed by the said Societies as also the orders passed by the
Divisional Joint Registrar dismissing the Revision Applications filed by the said
Societies came to be set aside.
2 By consent of the learned counsel for the parties, the above Writ
Petition being No.1164 of 2017 is treated as a lead matter.
3 Rule, with the consent of the learned counsel for the parties made
returnable forthwith and heard.
4 The above Petition takes exception to the order dated 27/12/2016
passed by the Revisionary Authority i.e. the Hon'ble Minister for Co-operation,
Irrigation & Textile, Government of Maharashtra by which order the Revision
Application No.940 of 2016 filed by the Respondent No.6 came to be allowed
and resultantly the letter dated 10/10/2016 issued by the Deputy Registrar,
Co-operative Societies and the order dated 21/10/2016 passed by the
Divisional Joint Registrar, Co-operative Societies came to be set aside and in
turn the Respondent No.6 was directed to be registered.
5 The facts giving rise to the above Petition in a nutshell can be
stated thus :-
The Petitioners are the members of the Primary Agricultural Credit
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Co-operative Society known as Andhalgaon Vividh Karyakari Seva Sahakari
Sanstha Maryadit operating in the revenue village Andhalgaon, Taluka Shirur,
District Pune. The Respondent No.6 Society sometime in the year 2016 made
an application through its Chief Promoter to the Respondent No.5 herein i.e.
the Assistant Registrar, Co-operative Societies, Shirur, Pune for being registered
as a Primary Agricultural Credit Co-operative Society (for short "PACCS") in
respect of the said village Andhalgaon, Taluka Shirur, District Pune. On receipt
of the said application, the Respondent No.5 forwarded the said application to
the Respondent No.4 herein i.e. the District Deputy Registrar, Co-operative
Societies, Pune Rural along with a letter dated 03/10/2016 communicating
that there is already in existence another society which is registered in the said
village Andhalgaon. The Respondent No.4 herein rejected the application filed
by the Respondent No.6 communicating the rejection by his letter dated
10/10/2016 to the Respondent No.6. In the said letter it is mentioned that the
Respondent No.6 did not comply with Condition No.1 stipulated in the
Government Resolution dated 23/09/2013 issued by the Department of Co-
operation, Marketing and Textiles, Government of Maharashtra. The said
condition stipulates that only one PACCS shall be registered for one revenue
village.
6 The Respondent No.6 aggrieved by the said communication dated
10/10/2016 challenged the same by filing an Appeal before the Respondent
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No.3 i.e. the Divisional Joint Registrar, Pune Division, Pune. The said Appeal
was numbered as Appeal No.142 of 2016. The Respondent No.3 did not find
any reason to interfere with the order passed by the Respondent No.4 and
accordingly dismissed the said Appeal by order dated 21/10/2016. The
Respondent No.6 thereafter aggrieved by the said order dated 21/10/2016
filed a Revision Application being No.940 of 2016 before the Revisionary
Authority i.e. the State Government. The said Revision Application was heard
by the Respondent No.2 herein i.e. the Hon'ble Minister for Co-operation,
Irrigation and Textiles, Government of Maharashtra who by the impugned
order dated 27/12/2016 has allowed the said Revision and has thereby set
aside the communication dated 10/10/2016 as also the order dated
21/10/2016 passed by the Divisional Joint Registrar.
7 The Revisionary Authority as can be seen from the impugned order
has accepted the fact that in so far as the Respondent No.6 is concerned, the
Condition No.1 is not satisfied. However, the Revisionary Authority proceeded
to consider the said case of the Respondent No.6 herein on the touchstone of
Condition No.3 of the said Resolution dated 23/09/2013, and held that the
Respondent No.6 is required to be registered to ensure better credit facilities
and economic benefits to all the prospective account holders from the said
village by providing them membership of the proposed Respondent No.6
Society. The Revisionary Authority has observed that by registration of the
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Respondent No.6 Society financial health of the existing society would not be
affected in any manner. As indicated above, it is the said order dated
27/12/2016 which is taken exception to by way of the above Petition.
8 The fact which is central to the issue as to whether another Society
in the same village can be registered is the interpretation of the said
Government Resolution dated 23/09/2013. It is therefore necessary to advert
to the said Government Resolution at this stage. The background to the
issuance of the said Government Resolution (for short "GR dated
23/09/2013") has been stated in the introductory part of the said GR. The
said GR dated 23/09/2013 has its genesis in the recommendations of the Prof.
Vaidyanathan Committee. The State Government, with a view to facilitate the
implementation of the said recommendations had issued GR dated
05/03/2007 directing that no new PACCS to be registered. The State
Government accordingly took a decision that until the matters relating to the
registration of the new PACCS regarding the bifurcation/amalgamation of the
current existing and functional Co-operative Societies, and in respect of
amalgamating the financially unsound Co-operative Societies into the nearest
financial sound Co-operative Societies and to liquidate and cancel their
registration was resolved, the registration of the new PACSS would stand
suspended until further orders which was directed by GR dated 03/12/2011.
It has been further stated in the said GR dated 23/09/2013 that the
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Commissioner of Co-operation and the Registrar, Co-operative Societies, Pune
had requested the Prof. Dhananjayrao Gadgil Co-operative Management
Society, Nagpur to decide the relevant factors relating to the empowerment of
the existing PACCS. Taking into consideration the recommendations of the
said Dhananjayrao Gadgil Co-operative Management Society Nagpur, the
Commissioner of the Co-operative Societies and the Registrar, Co-operative
Societies, Pune decided to constitute a committee under the chairmanship of
the Divisional Joint Registrar, Latur in order to make final recommendations.
The Committee headed by the Divisional Joint Registrar accordingly made its
final recommendations on 15/09/2011 to the Commissioner of Co-operation
and the Registrar of Co-operative Societies and accordingly the office of the
Commissioner of Co-operation and the Registrar of Co-operative Societies
intimated the State Government regarding its approval to the final report of
the Committee. It is further stated in the said GR that on 31/03/2013 it was
observed that out of the existing 21,318 PACCS in the State 5498 Societies are
ineligible to get any financial help or assistance as per the Vaidyanathan
Committee recommendations. It is further stated that currently, the expected
expenditure on account of the salaries of the employees, rent of the office,
stationery, audit fees, election expenses and other allied expenses is
approximately Rs.1.5 to 2.5 lakhs per annum for the existing PACCS in the
State. In order to meet these financial requirement the annual income of the
existing PACCS is required to be a minimum of Rs.1.5 to 2.5 lakhs per annum.
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It is further stated in the said Resolution that taking into consideration the
aforesaid aspects, the State Government was contemplating finalization of
parameters for the registration and empowerment of the PACCS in the State. It
is further stated in the said Resolution that the following new
parameters/conditions have been finalized in the State for the registration of
new PACCS :-
1 There should be only one Primary Agricultural
Credit Co-operative Society in one Revenue Village
2 Estimated loan disbursal of the proposed Primary
Agricultural Credit Co-operative Society should be as
follows in the financial year preceding the year in
which application is made for registration of the Society
in terms of the crop loan rate fixed by the District
Central Co-operative Bank :-
Western Maharashtra and North Maharashtra
(Khandesh) - Rs.1.5 Crore.
Konkan, Marathwada and Vidharbha - Rs.1.0 Crore.
Villages in the tribal areas of the State - Rs.50 Lacs.
3 In villages, where there is no independent existing
Primary Agricultural Credit Co-operative Society, when
the new Primary Agricultural Co-operative Society is
proposed to be registered there, the villagers who are
members of the existing Primary Agricultural Credit Co-
operative Society in the neighbouring village, such
Primary Agricultural Credit Co-operative Society is
bound to comply with the condition laid down in Point
No.2 above in respect of credit supply stated
hereinabove and also If due to the establishment of a
new Primary Agricultural Credit Co-operative Society in
an independent revenue village, the existing Primary
Agricultural Credit Co-operative Society is in danger of
the facing the negative Net Worth, or their CRAR is
likely to fall below 4%, then in such new revenue
village, there be would be no registration of the new
Primary Agricultural Credit Co-operative Society.
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4 The proposed Primary Agricultural Credit Co-operative
Society which is to be registered should have minimum
75 members (account holder members).
5 In order to scrutinize the applications of the proposed
Primary Agricultural Credit Co-operative Societies and
to inspect and check their financial capacity, the
following Committee is duly authorized :-
1) Additional Commissioner and Special Registrar,
Co-operative Societies, State of Maharashtra,
Pune - President/Chairperson.
2) District Deputy Registrar, Co-operative Societies
of the concerned District - Member
3) District Special Auditor of Co-operative Societies
of the concerned District - Member.
4) Deputy/Assistant Registrar of Co-operative
Societies of the concerned Taluka - Member.
5) Deputy Registrar, Co-operative Societies
(Finance) Head office, Pune - Member Secretary.
6 Following would be the policy in the State in respect of
Primary Agricultural Credit Co-operative Societies
which are currently functioning but which are
financially unsound and whose Negative Net Worth and
CRAR is less than 4% :-
a) The Primary Agricultural Credit Co-operative
Societies which can be amalgamated with the
nearest Societies, such Primary Agricultural
Credit Co-operative Societies may be
amalgamated with the nearest Societies.
b) Those Primary Agricultural Credit Co-operative
Societies which are capable of being made
financially sound, such Societies shall make their
Financial Empowerment Action Plan for the next
three years i.e. (year 2014-15 to 2016-17) and
submit it to the concerned Registrar upto
31.03.2014.
The Primary Agricultural Credit Co-operative Societies,
which do not prepare their Financial Empowerment
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Action Plan and Programme till 31/03/2014 and do not
implement the Financial Empowerment Action Plan
and Programme within next three years and who do
not become financially sound even after the
implementation of the Financial Empowerment Action
Plan, the concerned Registrar shall take necessary steps
to amalgamate them in the nearest Primary Agricultural
Credit Co-operative Society or wind it up.
Taking into consideration the abovementioned policies
of the registration and empowerment of the Primary
Agricultural Credit Co-operative Societies, the
Government is hereby revoking its previous decision
dated 3/12/2011 in respect of suspension of
registration of the Primary Agricultural Co-operative
Societies.
The abovementioned amendments should be followed
by all concerned persons strictly.
9 On behalf of the State Government an affidavit in reply has ben
filed by Shri Deepak Desai, Deputy Secretary, Co-operation, Marketing and
Textiles Department, Government of Maharashtra. In the said affidavit the
facts antecedent to the filing of the above Petition have been stated. A
reference is made to the 97 th amendment to the Constitution of India and
especially inclusion of the word "Co-operative Societies" in Article 19(1)(c) of
the Constitution of India. It is stated in the said affidavit that the said Article
19(1)(c) of the Constitution of India guarantees to all citizens, the right to
form associations or unions or Co-operative Societies of their choice, subject to
reasonable restrictions imposed by law. The amendment to Article 43B i.e. the
directive principle has also been referred to in the said affidavit. The
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impugned order dated 27/12/2016 passed by the Respondent No.2 herein
directing registration of the Respondent No.6 Society is attributed to the said
constitutional amendment and it is contended that the said registration is in
consonance with the constitutional provisions. It is stated in the said affidavit
that if the registration of the Respondent No.6 Society is read in the context of
Article 19(1)(c) of the Constitution of India, then it is evident that the
impugned order is not contrary to the said GR dated 23/09/2013. It is further
stated that Condition No.1 of the said GR dated 23/09/2013 is directory in
nature in so far as registration of a new PACCS is concerned. It is further
stated in the said affidavit that the said GR does not strictly disallow the
sanction to the registration of additional PACCS, if the conditions mentioned in
the said GR are fulfilled. In the said affidavit a reference is made to the
Government Corrigendum dated 14/02/2017 issued by the said GR dated
23/09/2013 and it is stated that by the said Corrigendum the Government has
clarified the position by removing ambiguities and infirmities if any in the said
GR dated 23/09/2013. By the said Corrigendum the government has clearly
provided that more than one PACCS can be registered in a village, if there is a
potential to do so based on the fulfillment of the financial norms. It is lastly
stated that the Petitioner has made out no case for the grant of any relief and
the Petition may be dismissed.
10 A reference would now be required to be made to the
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Corrigendum dated 14/02/2017 which has been issued by the State
Government pending the above Petitions. In the introductory part of the said
Corrigendum dated 14/02/2017 it is stated that as regards Condition Nos.1
and 3 of the GR dated 23/09/2013, the Commissioner of Cooperation and the
Registrar of Co-operative Society has sought clarification in respect of the
registration of a new Society when there is already a existing Society and when
such a new Society is fulfilling the requisite capital requirements and the
Capital to Risk Adequacy Ratio (CRAR).
It is further stated that the State Government has received lot of
proposals/applications to reconsider the decisions of the Assistant Registrar,
District Deputy Registrar and Regional Joint Director in respect of registration
of new PACCS. It is further stated that the Government is convinced that
improvement has to be made in Condition No.1 of the GR dated 23/09/2013.
The said Corrigendum provides for as under :-
"The following shall be read instead of and in place of
Condition/Point No.1 in the aforesaid G.R. referred at
Sr.No.1 hereinabove :-
1 In one revenue village, as far as possible, there
should be only one Primary Agricultural Credit Co-
operative Society. However, after considering the other
parameters in respect of the economic capacity, if there
is a scope for registering more than one Society in a
village, then more than one Society may be registered
in such a village.
1A) The Proposed Primary Agricultural Credit Co-
operative Society should deposit minimum capital of
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Rs.5 Lakhs prior to its registration.
1B) The Proposed New Primary Agricultural Credit
Co-operative Society shall be obliged to start at least
one new business within one year of its registration.
The above mentioned amendments should be followed
by the concerned authorities strictly.
11 SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE
PETITIONERS SHRI D J KHAMBATTA :-
A] That the order passed by the Revisionary Authority setting aside
the orders passed by the Lower Authorities is in violation of the
Resolution dated 23/09/2013.
B] That the Revisionary Authority has erred in proceeding on the
basis that Condition No.1 is not to be strictly construed and that
the registration of another Society or new Society is permissible
under the said Resolution dated 23/09/2013;
C] That Condition No.1 of the said Resolution is mandatory can be
seen from a reading of Condition No.3 of the said Resolution itself
wherein the State Government has provided a safeguard even in
respect of the existing Society in the neighbouring village.
D] That the Revisionary Authority has mis-interpreted Condition No.3
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of the said Resolution in the matter of directing the registration of
a new Society when the said Condition No.3 provides a safeguard
or precaution to be taken to ensure that the existing Society in the
neighbouring village would not be financially affected.
E] That the reasons mentioned in the affidavit in reply do not find a
place in the order passed by the Revisionary Authority and
therefore the reasons mentioned in the impugned order cannot be
supplemented by the reasons mentioned in the affidavit in reply to
justify the impugned order. Reliance is sought to be placed on the
judgment of the Apex Court reported in AIR 1978 SC 851 in the
matter of Mohinder Singh Gill and another v/s. The Chief
Election Commissioner, New Delhi and others.
F] That the Government Corrigendum dated 14/02/2017 issued to
the said Resolution dated 23/09/2017 is not clarificatory in nature
but in fact a new condition is sought to be introduced in place of
original Condition No.1 of the said Resolution dated 23/09/2013.
The said Corrigendum would operate from 14/02/2017 and not
from an earlier point of time.
G] That the said Corrigendum issued pending the Petitions shows the
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intent behind issuing the same which is to somehow justify the
impugned order, directing the registration of another PACCS in the
same village.
12 SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE
PETITIONERS SHRI P S DANI :-
The learned Senior Counsel appearing for the Writ Petition
No.1251 of 2017 adopted the submissions made by the learned Senior Counsel
Shri D J Khambatta but in addition made the following submissions :-
i] That the manner in which Condition No.1 is couched indicates
that not more than one Society can be registered in a revenue
village
ii] That the said condition is mandatory can also be seen from the
fact that when the State Government wanted more than one
Society to be registered, Condition No.1 was couched in a different
language as can be seen from the GR dated 07/02/2001.
iii] That the background in which the said GR came to be issued is
also indicative of the fact that Condition No.1 has to be construed
as mandatory and not directory.
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iv] That the two parts of Condition No.3 cannot be read disjunctively.
The 2nd part of Condition No.3 is in continuation of the 1 st part,
and both of them provide a safeguard in so far as the Society
already registered in the neighbouring village is concerned.
v] That the impugned order cannot be justified on the touchstone of
the amendment carried out to Article 19(1)(c) of the Constitution
of India pursuant to the 97th Constitutional Amendment as the said
97th Constitutional Amendment has been struck down by the
Division Bench of the Gujarat High Court in the judgment reported
in (2013) 2 GLR 1698 in the matter of Rajendra N Shah v/s.
Union of India
13 SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENT NO.6 SHRI S K SHINDE :-
a] That the Condition No.1 of the said GR dated 23/09/2013 is
directory in the matter of registration of a second society in the
same revenue village and the only aspect which is important is its
financial viability.
b] That the said position has now been cleared by issuance of the
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Government Corrigendum dated 14/02/2017 wherein Condition
No.1 of the said GR dated 23/09/2013 has been replaced by
Condition No.1 in the said Corrigendum.
c] That the financial viability of the new society to be registered in
the same revenue village is the consideration which ought to
weigh with the registering authority, is clear on a reading of the 2 nd
part of Condition No.3 of the said GR dated 23/09/2013 wherein
if the conditions mentioned in the 2 nd part are fulfilled then there
would be no impediment for registration of another society in the
same revenue village.
14 SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENT NO.6 SHRI VIJAY D PATIL:-
I] That the already registered society in the same village having not
taken any objection to the registration of the new society, then it is
not open for the Petitioners who are the members to challenge the
registration of a new society, as it is well settled that a member has
to speak through the society. Reliance is sought to be placed on the
judgment of a Division Bench of this Court reported in 2010(1)
Bom. C.R. 31 in the matter of Girish Mulchand Mehta & Anr v/s.
Mahesh S Mehta & Anr.
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II] That the financial viability of the new society, without affecting the
existing society financially, is the relevant consideration which
ought to weigh with the Registering Authority under the said GR
dated 23/09/2013 and therefore the Revisionary Authority has
rightly allowed the Revision Application filed by the Respondent
No.6 in the instant case.
15 SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE
RESPONDENT/STATE SHRI A Y SAKHARE IN WRIT PETITION
NOS.1 TO 5:-
A] That the registration of the Respondent No.6 Society is attributed
to the amendment which has taken place in Article 19(1)(c) of the
Constitution of India by inclusion of the word "Co-operative
Society".
B] That the ambiguities if any in the said GR dated 23/09/2013 are
now clarified by the issuance of the Government Corrigendum
dated 14/02/2017 wherein Condition No.1 of the said GR dated
23/09/2013 has been substituted and made explicit in so far as
registration of another Society in the same revenue village is
concerned.
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CONSIDERATION :-
16 The issue that is required to be considered first is the issue as to
whether Condition No.1 of the said GR dated 23/09/2013 is to be strictly
construed or is in the nature of a directory condition. In the context of the said
issue, the background in which the said GR dated 23/09/2013 was issued
assumes importance. The regulation of the registration of the PACCS had
engaged the attention of the State Government from time to time. The State
Government by GR dated 07/02/2001 had sought to regulate the registration
of PACCS in a revenue village. Condition No.3 of the said GR dated
07/02/2001 and the manner in which it is worded is relevant for the purposes
of the instant Petition. The same reads thus :-
"In a village as far as possible there should be only one
Society. Even if there is a demand for another Society,
there should be business of 50 lakhs for each Society.
In a village even if there are more than two Societies,
the Gat Secretary, however, should be only one."
(English Translation)
Hence the said GR dated 07/02/2001 postulates that as far as
possible there should be only one Society i.e. PACCS in a revenue village.
17 The State Government after deciding to implement the
recommendations of the Vaidyanathan Committee had issued GR dated
03/12/2011. The State Government by the said GR took a decision to stop
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registration of the PACCS till a policy decision is taken in respect of the
registration of a new PACCS, to divide and amalgamate the existing PACCS, to
amalgamate the PACCS which are not financially viable with the PACCS which
is financially sound, or liquidate and cancel the registration of such PACCS, and
since the policy guidelines for registration of new PACCS was under
consideration of the State Government. Hence the State Government had
stopped the registration of new PACCS till new policy guidelines were framed
by it in that regard.
18 The instant GR dated 23/09/2013 contains the new policy
guidelines framed by the State Government in so far as the registration of
PACCS in a revenue village is concerned. In the introductory part of the said
GR the background facts relating to the acceptance of the recommendations of
the Vaidyanathan Committee, the decision of the State Government to stop the
registration of PACCS are mentioned. The said GR refers to the situation of the
PACCS in the State as on 31/03/2013. It is mentioned in the said GR that out
of 21318 PACCS in the State 5498 PACCS are ineligible to get any financial
help or assistance as per the Vaidyanathan Committee recommendations. It is
further mentioned that monthly expenses of a PACCS on account of salaries of
the employees, rent of the office, stationary, audit fees, election expenses and
allied expenses are approximately Rs.1.5 to Rs.2.5 lakhs per annum. It is
observed that to meet the said expenditure the annual income of the existing
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PACCS should be in the region of Rs.1.5 to Rs.2.5 lakhs per annum. It is
further mentioned in the said GR that taking into consideration the said aspect,
that the State Government was contemplating finalization of the guidelines or
parameters for the regulation and empowerment of the PACCS in the State
Government. Hence reading of the introductory part of the said GR dated
23/09/2013 indicates that the financial health of the PACCS was the principal
consideration with which the GR dated 23/09/2013 was issued by the State
Government. It is in the aforesaid background that the Condition No.1 of the
said GR would have to be read. The said Condition No.1 is once again
reproduced herein under for the sake of ready reference:- (English Translation)
"There should be only one Primary Agricultural Credit
Co-operative Society in one Revenue Village."
19 The State Government has therefore made a conscious departure
from the language used in the GR dated 07/02/2001 to the language used in
the instant GR dated 23/09/2013 whereas Condition No.3 of the said GR dated
07/02/2001 provided that in a revenue village "as far as possible" there
should be only one Society. Condition No.1 of the instant GR dated
23/09/2013 does not contain the words "as far as possible" but specifically
provides in vernacular that only one Society to be registered in one revenue
village. Hence when the State Government was desirous of registering more
than one Society in a revenue village it did so by framing its policy guidelines
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accordingly by GR dated 07/02/2001. The instant GR being issued in the
background of the situation arising out of as 5498 PACCS being found to be
financially unviable and the concern of the State Government to see to it that
PACCS are financially viable, Condition No.1 of the said GR dated 23/09/2013
would have to be read to mean that there could be only Society or PACCS in
one revenue village and therefore the said condition would have to be held to
be mandatory.
20 In so far as the Respondents are concerned, it was the submission
of the learned counsel that the second part of Condition No.3 of the said GR
dated 23/09/2013 is indicative of the fact that the said Condition No.1 is
directory. It was the submission of the learned counsel for the Respondents
that in terms of the second part of the said Condition No.3 what is required to
be seen whilst registering the second PACCS is its financial viability and if the
second PACCS satisfies the requirements stipulated in the second part of
Condition No.3, then it could be registered.
In my view, the said submission of the Respondents is based on a
misreading of the said Condition No.3. The Respondents want to read the two
parts of the said Condition No.3 disjunctively. In fact the said Condition No.3
has to be read as a whole. The second part of the said Condition No.3 flows
from the first part, whereas the first part of the Condition No.3 provides for the
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existing PACCS in the neighbouring village to comply with Condition No.3 in
the matter of estimated loan disbursal. The second part provides that if on the
registration of a PACCS in an independent revenue village, the existing PACCS
in the neighbouring village is in danger of facing negative network or the
CRAR is likely to fall below 4%, then in such new revenue village, such new
PACCS should not be registered. If the second part is read disjunctively from
the first part, as urged by the learned counsel for the Respondents, it would
lead to an anomalous situation wherein the second Society can be registered in
spite of the stipulations or conditions provided in the said GR dated
23/09/2013 being not satisfied or met.
21 In fact as rightly contended by the learned Senior Counsel Shri D J
Khambatta appearing on behalf of the Petitioners that the said Condition No.3
in so far as it ensures financial viability even of a PACCS in the neighbouring
village, is indicative of the fact that Condition No.1 has to be construed strictly
in respect of registering another PACCS in the same revenue village. and
therefore no second Society can be registered in the same revenue village.
22 The Respondents rely on the Government Corrigendum dated
14/02/2017 to contend that the said Corrigendum clarifies the position in so
far as the registration of the second Society in the same revenue village is
concerned. In my view, the said Corrigendum dated 14/02/2017 does not
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further the case of the Respondents in so far as the registration of a second
Society or PACCS in the same revenue village is concerned. The said
Corrigendum has been issued purportedly on the ground that there was a
confusion in the authorities in so far as Condition Nos. 1 and 3 of the said GR
dated 23/09/2013 is concerned, and it is to remove the said confusion that the
said Corrigendum has been issued. By the said Corrigendum dated
14/02/2017 what has been done is substituting Condition No.1 by Clause (1)
of the said Corrigendum and adding Clauses 1A and 1B to the said GR dated
23/09/2013. It is required to be noted that the said Corrigendum has been
issued during the pendency of the above Writ Petition and the companion Writ
Petitions. The impugned order is therefore not passed on the basis of the said
Corrigendum. By substituting Condition No.1 of the said GR dated
23/09/2013 by Clause (1) of the Corrigendum and adding Clauses 1A and 1B,
a new condition has been incorporated in the said GR dated 23/09/2013.
Hence the Corrigendum is not by way of a clarification but it substitutes the
original Condition No.1 in the said GR dated 23/09/2013 by a new condition.
Implicit in the fact of issuing the said Corrigendum is the fact that the State
Government was also interpreting Condition No.1 of the said GR dated
23/09/2013 to be a mandatory condition, and it is therefore to remove the
impediment in registering the second PACCS , that the State Government has
thought it fit to substitute the said Condition No.1 by a new condition which is
Clause (1) of the said Corrigendum. Since the Corrigendum substantially
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amends the GR dated 23/09/2013, the same would only have a prospective
effect and cannot be pressed into service to justify the impugned order which
directs the registration of a second PACCS.
The Corrigendum has to be looked at from one more perspective.
The background to the issuance of the said GR dated 23/09/2013 was the
situation as prevailing on 30/03/2013 when the State Government found that
out of 21,318 PACCS, 5498 PACCS were ineligible to get any financial help or
assistance as per the Vaidyanathan Committee's recommendations. Hence the
State Government was very much concerned as regards the financial viability
of a large number of PACCS in the State. It is in the said background that the
policy as contained in the said GR dated 23/09/2013 was formulated. If
Condition No.1 is said to be clarified by clause (1) of the Corrigendum, it
would lead to an incongruous situation wherein in spite of the State
Government coming to a conclusion that some remedial measures are required
to be taken to maintain the financial health of the PACCS which it has done so
by the GR dated 23/09/2013, but contrary thereto the Corrigendum would
have the effect of the said GR providing for the registration of a second PACCS.
The same would therefore be a contradiction of sorts.
This Court whilst adjudicating the above Writ Petition has not
gone into the legality or validity of the said Corrigendum dated 14/02/2017,
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however has tested the case of the Respondents based on the said
Corrigendum. Hence the legality and validity of the Corrigendum is kept open
for being urged in appropriate proceedings, and the contentions of the parties
in that regard are also kept open.
23 On behalf of the State Government the registration of a second
Society or PACCS in the same revenue village which is directed by the
impugned order is sought to be justified by placing reliance on Article 19(1)(c)
of the Constitution of India, as the said Article now reads after the 97 th
Constitutional Amendment. Reliance is also sought to be placed on Article 43B
which is a directive principle inserted by the said 97 th Constitutional
Amendment. The freedom enshrined in Article 19 now includes the freedom
to form Co-operative Societies as the word "Co-operative Societies" was
incorporated in Article 19(1)(c) by the 97th Constitutional Amendment. The
impugned order is sought to be justified on the ground that it is in conformity
with Article 19(1)(c) of the Constitution of India. In so far as Article 43B is
concerned it reads thus :-
"The State shall endeavour to promote voluntary
formation, autonomous functioning, democratic control
and professional management of cooperative societies."
The case of the State Government based on Article 19(1)(c) of the
Constitution of India would therefore have to be considered. As a consequence
of the 97th Constitutional Amendment the Maharashtra Co-operative Societies
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Act, 1960 has undergone substantial amendments which amendments have
come into force in the year 2013. However, in so far as Section 4 of the said
Act is concerned, which provides for registration of societies, it has not
undergone any change post the 97th Constitutional Amendment, and reads
thus:-
"4. Societies which may be registered
A society, which has as its objects the promotion
of the economic interest or general welfare of its
members, or of the public, in accordance will co-
operative principles, or a society established with the
object of facilitating the operations of any such society,
may be registered under this Act.
Provided that, no society shall be registered if it is
likely to be economically unsound, or the registration of
which may have an adverse effect on development [of
the co-operative movement, or the registration of which
may be contrary to the policy directives which the State
Government may, from time to time, issue.]"
Hence the GR dated 23/09/2013 exemplifies the policy directives
of the State Government as mentioned in the proviso to Section 4 of the said
Act. The background to the issuance of the said GR dated 23/09/2013 has
already been adverted to in the earlier part of the instant judgment. It is well
settled that the freedom under Article 19(1) of the Constitution of India can be
subjected to reasonable restrictions. The conditions mentioned in the said GR
dated 23/09/2013 regulating the registration of the PACCS can therefore be
said to be the reasonable restrictions that the State Government has decided to
impose in the matter of registering another PACCS in the same revenue village.
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Therefore the conditions that are imposed by the said GR dated 23/09/2013 in
fact can be justified on the touchstone of the reasonable restrictions that the
State Government has decided to impose on the registration of a new PACCS.
In my view Article 43B would also not aid the Respondents to
justify the impugned order. The said Article 43B can be said to state as to what
should be the objects of the State Government which is to promote voluntary
formation, autonomous functioning, democratic control and professional
management of cooperative societies. The State Government having done so
by GR dated 23/09/2013 by which a conscious decision is taken to register
only one Society in one revenue village cannot now rely upon Article 43B to
justify the registration of a second Society or PACCS which this Court has come
to a conclusion is in breach of the said GR dated 23/09/2013.
24 The learned Senior Counsel Shri P S Dani appearing on behalf of
the Petitioners has relied upon a Division Bench's judgment of the Gujarat High
Court reported in Rajendra N Shah's case (supra) wherein the Division Bench
has set aside the 97 the Constitutional Amendment on the ground that the
same being not ratified by 3/4th of the State Assemblies in the country. Though
the 97th Constitutional Amendment has been set aside in Rajendra N Shah's
case (supra) by the Gujarat High Court, even proceeding on the basis that it
has come into force the said amendment for the reasons stated herein above
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would not aid the State Government to justify the impugned order. In any
event the reasons mentioned in the affidavit do not find a place in the
impugned order. Having regard to the judgment in Mohinder Singh Gill's case
(supra) the said reasons mentioned in the affidavit therefore cannot be taken
into consideration for deciding the legality of the impugned order.
25 Lastly coming to the locus of the Petitioners in the above Petition.
It is an undisputed position that the Petitioners are the members of the PACCS
which is already in existence in village Andhalgaon. Being members as such
the Petitioners would be vitally concerned with the financial viability of their
PACCS and would therefore be vitally affected by the registration of a new
PACCS, more so, when it is the case of the Petitioners that the members of their
PACCS are shown as the members of the new PACCS which is directed to be
registered by the impugned order. The locus of the persons similarly situated
as the Petitioners i.e. members of a Society to file a Petition to challenge the
registration of another Society has been upheld by a learned Single Judge of
this Court in Writ Petition No.1747 of 2013 in the matter of Nitin Prabhakar
Bankar v/s. The Saptasringi Mahila Vividh Karyakari Seva Sahkari
Sanstha Maryadit, Pimpalgaon (B) and ors. by the judgment and order
dated 04/04/2014.. In any event it cannot be expected of the Societies to file
a Petition to challenge the direction issued by a functionary of the State
Government acting as the Revisionary Authority to register another PACCS in
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the same revenue village, lest they attract the wrath and displeasure of the
State Government. In my view, the judgment of the Division Bench of this
Court in Girish Mulchand Mehta's case (supra) would not aid the
Respondents to contend that the Petitioners have no locus standi. The said
judgment was rendered in the facts of the said case where the Appellants who
were the members of a housing society were seeking to challenge the
resolution passed by the General Body of the Society by which resolution the
Society had resolved to re-develop its property. It is in the said situation that
the Division Bench has held that the Appellants would be bound by the
resolution and that once they have become members of the Society, they have
lost their separate identity and have to speak through the Society. Hence it
would have to be held that the above Petition as filed by the Petitioners above
named is maintainable.
26 Hence to put the matter in perspective the said GR dated
23/09/2013 was issued by the State Government as and by way of a remedial
measure in the aftermath of the acceptance of the recommendations of the
Vaidyanathan Committee, when it was found that out of 21318 PACCS about
5498 PACCS were ineligible to get financial help or assistance as per the
Vaidyanathan Committee's recommendations. Hence the conditions contained
in the said GR for registering a new PACCS in the same revenue village were
framed in the said context. Therefore Condition No.1 of the said GR would
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have to be strictly construed as the same would be in consonance with the
policy of the State Government as contained in the said GR. The Corrigendum
dated 14/02/2017 would not aid the State Government to justify the
impugned order for the reasons stated in the earlier part of the instant
Judgment, that apart the said Corrigendum would also operate prospectively.
27 For the reasons as afore-stated the impugned order dated
27/12/2016 passed by the Revisionary Authority cannot be sustained, it is
accordingly quashed and set aside. However, the following directions are
issued :-
(1) On the impugned order being set aside the registration of the
Respondent No.6 Society would stand set aside.
(2) It would be open for the Respondent No.6 Society to make a fresh
application, if any such application is made the same would be
decided by the authorities in terms of the policy decision of the
State Government.
(3) The challenge to the corrigendum dated 14/02/2017 is kept open
for being raised at the appropriate time, the sequitur to the same
would be that the contentions of the parties are also kept open in
that regard.
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(4) The above Writ Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute with parties to bear their respective
costs.
[R.M.SAVANT, J]
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