Arun Yashwant Kulkarni vs The State Of Maharashtra Through ...
2021 Latest Caselaw 3028 Bom

Arti V.                                                           3-WPST-96919-2020.doc

Khatate                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by Arti V. Khatate
Date: 2021.02.16
                                       CIVIL APPELLATE JURISDICTION
20:20:04 +0530

                                  WRIT PETITION (STAMP) NO.96919 OF 2020


                     ARUN YASHWANT KULKARNI                     )...PETITIONER


                           V/s.


                     1) THE STATE OF MAHARASHTRA        )
                                                        )
                     2) THE COMMISSIONER OF COOPERATION )
                        AND REGISTRAR OF COOPERATIVE    )
                        SOCIETIES, MS, PUNE             )
                                                        )
                     3) THE MAHARASHTRA STATE           )
                        CO-OPERATIVE ELECTION AUTHORITY )...RESPONDENTS


                     Mr.Satish B. Talekar a/w. Ms.Madhavi Ayyapan i/b. Talekar and
                     Associates, Advocate for the Petitioner.


                     Mr.A.A.Kumbhakoni, A.G. a/w. Mr.P.P.Kakade, Government Pleader
                     a/w. Mr.Akshay Shinde, "B" Panel Counsel and Mr.A.A.Alaspurkar
                     for the Respondent.


                     Mr.Deelip Patil Bankar - Chief Standing Counsel for Respondent
                     No.3 - S.C.E.A.



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                   CORAM         :   R.D.DHANUKA &
                                     V. G. BISHT, JJ.

            RESERVED ON   :          2nd FEBRUARY 2021
            PRONOUNCED ON :          16th FEBRUARY 2021


JUDGMENT : (PER : V. G. BISHT, J.)


1           Rule. Rule made returnable forthwith. By consent of

parties, heard finally at the stage of admission.

2 By this writ petition under Article 226 of the

Constitution of India, the petitioner has approached this Court

with following prayers :

" PRAYERS A. To hold and declare that proviso to Section 73AAA (3) and proviso to Section 73(CB)(15) of the Maharashtra Co-operative Societies Act, 1960 as inserted by the Maharashtra Ordinance No.XII of 2020 (Exhibit "K") is ultra-vires Articles 14, 19(1)

(c), 243-ZJ and 243ZK of the Constitution of India;

B. To direct the respondents to appoint administrators or Committee of Administrators to

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manage the affairs of all such cooperative societies in Maharashtra terms of which have expired, by issuing a writ of mandamus or any other appropriate writ, order or direction, as the case may be;

C. To quash the impugned order dated 17.06.2020 issued by the Under-Secretary, Cooperation, Marketing and Textiles Department, Mantralaya, Mumbai-32 (Exhibit "J"), by issuing a writ of certiorari or any other appropriate writ, order or direction, as the case may be.

G. To hold and declare that proviso to Section 73AAA(3) and proviso to Section 73CB(15) of the Maharashtra Cooperative Societies Act, 1960 as inserted by the Maharashtra Ordinance No.XII of 2020 (Exhibit "N") is ultra-vires Articles 14, 19(1)

(c), 243-ZJ and 243-ZK of the Constitution of India."

3 The petitioner claims to be a member of Balgawade

Vividh Karyakari Sahakari (Vikas) Seva Society, Balgawade,

Talukar Tasgaon, District Sangli. The said Vividh Karyakari

Sahakari (Vikas) Seva Society, Balgawade is affiliated to Sangli

District Central Co-operative Bank, Sangli. It is the case of

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petitioner that he has been actively involved in social service since

1972. According to him there are about 35,000 Cooperative

Societies including Cooperative Sugar Factories (SSKs),

Cooperative Ginning Mills, District Central Cooperative Banks

(DCCBs) and multipurpose Cooperative Credit Societies at village

level in the State of Maharashtra.

4 The elections of Managing Committees of the Co-

operative Societies including SSKs, DCCBs, Primary Agricultural

Cooperative Societies at village level including 22 District Central

Cooperative Banks were due by the end of January 2020. The

State of Maharashtra in its Department of Cooperation, Marketing

and Textiles issued two orders on 27th January 2020 (Exh. C) and

31st January 2020 (Exh. D) postponing elections of Managing

Committees of all such Cooperative Societies which were due for

elections in exercise of powers under Section 157 of the

Maharashtra Co-operative Societies Act, 1960 (hereinafter

referred to as "the said Act").

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5           According to the petitioner, the Government Orders

dated 27th January 2020 and 31st January 2020 were challenged

as the same were contrary to the spirit of Articles 243-ZJ and 243-

ZK and also on the ground of those orders being violative of

fundamental rights guaranteed under Article 19(1)(c) and at the

same time ultra-vires Article 14 of the Constitution of India. This

Court (Aurangabad Bench) vide order dated 11 th March 2020

quashed and set aside the said orders passed by the respondent

no.1 holding them to be illegal, arbitrary and ultra-vires the

constitutional provisions embodied in Articles 243-ZJ and 243-ZK

of the Constitution of India as well as Sections 73CC and 157 of

the said Act.

6 Meanwhile, the Government introduced a Bill (Exh. F)

on 2nd March 2020 in the State Legislature so as to amend Section

73CC to enable postponement of the elections of the Managing

Committees of Co-operative Societies in the State of Maharashtra

including the District Central Co-operative Banks, Primary

Agricultural Credit Societies and Co-operative Sugar Factories.

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However, none of the grounds or exigencies mentioned in the

Statement of Objects and Reasons such as scarcity, drought, flood,

fire or any other natural calamity were available on 2 nd March

2020. As such, there was no occasion to introduce a Bill to amend

Section 73CC as none of the reasons mentioned in the Statement

of Objects and Reasons appended to the Bill were available. The

Maharashtra Act No.XIV of 2020 (Exh. G) amending Section 73-

CC of the Act came to be passed in both the Houses of the State

Legislature whereas the Act received assent of the Governor and at

the same time was published in the Maharashtra Government

Gazzette on 18th March 2020.

7 The petitioner further contends that meanwhile, the

Public Health Department, Government of Maharashtra, issued

two Notifications under the Epidemic Diseases Act, 1897 on 13 th

March 2020 (Exh. H) and 14 th March 2020 (Exh. I) prescribing

certain guidelines so as to curb and prevent an outbreak of

coronavirus (Covid-19) and the spread thereof. The Government

of India on its part also issued Notification under the Epidemic

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Diseases Act, 1897 as well as the Disaster Management Act, 2005

declaring national disaster due to an outbreak of coronavirus on

24th March 2020.

8 Once national disaster was declared on 24th March

2020, the petitioner alleges, Government found it difficult to hold

elections within three months from 31st March 2020 due to an

outbreak of coronavirus. Therefore, the Government issued one

more Order (Exh. J) on 17th June 2020 for postponing the

elections of all Co-operative Societies in the State for a period of

three months from 17th June 2020.

9 The State Legislature accordingly amended Section 73-

AAA and Section 73CB of the Act and the Hon'ble Governor of

Maharashtra promulgated an Ordinance (Exh. K) which enabled

not only the postponing of the elections of the Committees of all

such societies but to continue the existing Members of the

Committees till new Committees were duly constituted, however

on a condition that the election of Committees of such Societies

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shall be conducted (a) within six months from the date of

commencement of the said amendment Ordinance; or (b) where

the period within which such elections should have been

conducted was extended by the State Government by general or

special order, then within six months from the date on which such

extended period expires.

10 According to the petitioner, when there is specific

provision to appoint an Administrator on the ground that the

Authority or body as provided by the Legislature of the State i.e.

the State Co-operative Election Authority has failed to conduct

elections, it was obligatory on the part of the State to appoint an

Administrator rather than continuing the existing members of the

Committee till the new Committee was duly constituted.

Therefore, the decision to continue the existing Members of the

Committee till new Committee is duly constituted by amending

Section 73AAA vide Ordinance No.XII of 2020 (Exh. K) is taken

with oblique motives and is ultra-vires Articles 19(1)(c), 243-ZL,

243-ZK and 243-ZJ.

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11          The legality and validity of the order dated 17 th June

2020 issued by the Under-Secretary Co-operation, Marketing and

Textiles Department, Mantralaya (Exh. J) and Maharashtra

Ordinance No.XII of 2020 dated 10th July 2020 (Exh. K) and

Maharashtra Act No.XXVII of 2020 dated 12 th October 2020

promulgated by the Hon'ble Governor of Maharashtra is impugned

by the petitioner in this petition.

12 By way of affidavit-in-reply respondent no.1 raised

following contentions :-

(a) Writ petition under Article 226 of the Constitution of India is

maintainable either for the purpose of enforcing a statutory right

or legal right qua the petitioner, which according to the petitioner

is breached. Therefore, there must be a judicially enforceable

right available for enforcement on the basis of which writ

jurisdiction is invoked. The reliefs prayed for must be one to

enforce a legal right.

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(b) The petitioner has miserably failed to show as to how either

the issuance of Order dated 17th June 2020 or the promulgation of

Ordinance dated 10th July 2020 has affected either any statutory

or legal right of the petitioner. The decision, which is taken in the

larger interest of the public, in view of the prevalent Pandemic

situation in the entire country, is not available for challenge at the

behest of the petitioner. In short, the petitioner has no locus

standi to file the present petition and therefore the present

petition filed by the petitioner is not at all maintainable and thus

deserves to be dismissed on this ground alone.

(c) The burden is upon the petitioner while challenging the

Ordinance promulgated to show that there has been clear

transgression of Constitutional principles. The grounds on which

the Ordinance can be challenged are well settled in law and the

petitioner fails to make out any of these grounds that are

permissible in law for challenging the validity of such an

Ordinance or such a statutory amendment.

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(d) The petitioner has not challenged the constitutional validity

of the provisions of Section 73CC of the Act, which empowers the

State Government with the power, authority and jurisdiction of

postponement of the elections in the contingencies mentioned

therein.

(e) Due to the Pandemic it would be impossible to hold and

conduct elections of various Co-operative Societies in the State

and further to curb the spread of the virus, the State Government

had first issued reasoned order (Exh. AR2) on 18 th March 2020 by

invoking aforesaid power conferred in it under Section 73CC of

the Act thereby postponing the elections which were due, initially

by three months. The petitioner has not bothered to even disclose

this order dated 18th March 2020 to the Court much less challenge

the validity and/or correctness of the aforesaid first order dated

18th March 2020. Having accepted the order dated 18 th March

2020 the petitioner is now estopped from challenging the order

dated 17th June 2020.

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(f)   Considering the present scenario, it is       not possible to

conduct elections of Co-operative Societies atleast for a period of

three months from 17th June 2020, a vaccum was bound to be

created in the administration of these co-operative societies once

their statutory term expires. In view of this, it became absolutely

necessary to make interim arrangement to look after the

administration of such co-operative societies till the time elections

are held. His Excellency, the Governor of Maharashtra was

satisfied that circumstances existed which rendered it necessary

for him to take immediate action for amending the said Act and

an Ordinance has been promulgated dated 10th July 2020.

(g) In view of the peculiar situation at hand, bringing out the

aforesaid Ordinance and thereby carrying out the aforesaid

amendment in the said Act, it was absolutely necessary to take

care of the void that was being created in the administration of

various co-operative societies, whose term was to expire, in the

light of impossibility of holding of their elections before expiry of

their term, as decided by the State Government.

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(h) Considering all the above facts and circumstances, the

present petition is devoid of any merits and the same deserves to

be dismissed.

13 Mr.Talekar, learned counsel for the petitioner, at the

outset, invited our attention to the pleadings pointing out that the

petitioner is an active member of Vividh Karyakari Sahakari

(Vikas) Seva Society, Balgawade, Talukar Tasgaon, District Sangli.

and therefore has right to contest election of Co-operative

Societies. The learned counsel heavily criticized the decision of

respondent to continue the existing members of the committee

even after expiry of their tenure. As the decision is not only

illegal, arbitrary and taken in colourable exercise of power but

also politically motivated.

14 The learned counsel then submitted that the insertion

of proviso in Section 73-AAA(3) and proviso in Section 73CB(15)

of the Act, 1960, by Maharashtra Ordinance No.XII of 2020 are

ultra-vires Articles 19(1)(c), 243-ZJ and 243-ZK. This Ordinance

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is nothing but a legislative over ruling of the judgment given in

the case of Ishwar and Others vs. The State Of Maharashtra and

Others1

15 The learned counsel would submit that newly added

provision to Section 73AAA is not only contrary to the provision of

Section 77A of the Act of 1960 but renders the same meaningless.

According to him Section 77A of the Act read with Article 243-ZL

provides adequate mechanism to deal with a situation where there

is failure to hold election by appointing an administrator.

16 In support of his submissions, learned counsel placed

reliance on (i) State Bank of India vs. S.N.Goyal2 (ii) Director of

Settlements, A.P. and Others vs. M.R.Apparao and Another 3 (iii)

Municipal Corporation of Delhi vs. Gurnam Kaur 4 and (iv) Union

of India vs. State of Maharashtra and Others5.

1    2020 SCC Online Bom 402
2    (2008) 8 SCC 92
3    (2002) 4 SCC 638

4    (1989) 1 SCC 101
5    (2020) 4 SCC 76

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17              Per contra, Mr.Kumbhkoni, learned Advocate General

appearing        for    respondent-State   raised   twofold   preliminary

objections viz. (i) absence of cause of action and (ii) no right or

locus standi to challenge the promulgation of Ordinance dated

10th July 2020 or for that matter Maharashtra Act No.XXVII of

2020 dated 12th October 2020.

18 Elaborating further, the learned Advocate General

submitted that the present petition is not a public interest

litigation but a writ petition and therefore the petitioner must

make out a case of violation of his personal rights because of non-

compliance of State obligations. The petitioner has miserably

failed to demonstrate violation of his personal rights or any cause

of action to file this writ petition. To buttress his submission, the

learned Advocate General placed reliance on the judgment in case

of Kusum Ingots & Alloys Ltd. vs. Union of India and Another6.

19 It is submitted that the legal right that can be enforced

ought to be the right of the petitioner himself, who has

6 (2004) 6 SCC 254

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complained of infraction of such right. There are no material facts

clarifying how the amended provisions have affected either any

statutory or legal rights of the petitioner. This being so,

constitutional validity of a statute or any provision thereof cannot

be decided in vacuum or abstract. In short, according to the

learned Advocate General, the petitioner has no locus standi to file

the present petition and thus deserves to be dismissed on these

grounds alone.

20 The learned Advocate General has also placed reliance

on the judgments in case of State of Bihar vs. Rai Bahadur Hurdu

Roy Motilal Jute Mills and Another7 and Ayyaubkhan Noorkhan

Pathan vs. State of Maharashtra and Others8.

21 We intuitively feel that the learned Advocate General is

right in his reading of pleadings of the petitioner. His contention

that absence of cause of action and locus standi has debilitating

effect on the petitioner's cause and the petition deserves to be

rejected at the very threshold, could not be scoffed out of 7 (1960) 2 SCR 331 8 (2013) 4 SCC 465

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significance. The learned Advocate General makes an eminent

sense when he argues so. We qualify this with reasons.

22 What needs examination is the whole gamut of

pleadings put forth by the petitioner. It would be instructive to

know whether in the light of pleadings, preliminary objections

raised and aired by the learned Advocate General exist or not.

CAUSE OF ACTION

23 In Kusum Ingots & Alloys Ltd. (supra) the Hon'ble

Apex Court has held as under :

"Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would

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be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily."

24 Compendiously the expression "cause of action" means

every fact which it would be necessary for the petitioner to prove,

if traversed, in order to support his right to the judgment of the

Court. What has to be seen is whether or not a meaningful reading

of the petition discloses a cause of action. For the limited purpose

of determining the question whether the petition is to be wiped

out or not for want of cause of action, the averments in the

petition are only to be looked into. It has to be culled out from a

conjoint reading of all the paragraphs of the petition.

25 A careful and guarded reading of pleadings would

show that the petitioner is aggrieved of the order passed by the

State of Maharashtra postponing the elections of the Co-operative

Societies for a period of three months from 17 th June 2020 and the

Ordinance No.XII of 2020 continuing the term of the Members of

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the Managing Committee of the Co-operative Societies whose

tenure has already expired.

26 We are unable to discern and decipher as to how either

the issuance of order dated 17 th June 2020 or the promulgation of

Ordinance dated 10th July 2020 has affected either any statutory

or legal right of the petitioner. There are no clear and specific

pleadings. If at all passing of a legislation has given a cause of

action, as petitioner claims in the present petition, then it ought to

have been demonstrated diligently that because of the

implementation of the same the petitioner has suffered civil or

harmful consequences. Quintessentially petitioner has failed to

evoke and evince those civil or evil consequences.

27 The facts pleaded in the writ petition must have a

nexus on the basis whereof a prayer can be granted. Passing of a

legislation by itself in our opinion does not confer any such right

to file a writ petition unless a cause of action arises therefor.

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28         The petitioner must have and necessarily pleaded vis-

a-vis prayers made therein which at a first glance with all certainty

would have reflected seemingly all pervasive cause of action

leading to a decisive determination of issues in order to give any

kind of relief. The reading of the present petition as a whole does

not give an impression that the grievances have been projected

and couched in a significant way so as to discern a real and

genuine so also definite cause of action. It seems the petitioner

has all left it to the Court to read in between the lines and take

upon itself and embark upon an enquiry whether indeed there

was an infraction of legal rights of the petitioner or not. Certainly

this exercise cannot be undertaken in vacuum.

29 We are emboldened and fortified in taking aforesaid

view in the light of enunciation of Hon'ble Apex Court in State of

Bihar (supra) in paragraph 7 which reads thus :

"In cases where the vires of statutory provisions are challenged on constitutional grounds, it is essential that the material facts should first be clarified and ascertained with a view to determine whether the

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impugned statutory provisions are attracted; if they are, the constitutional challenge to their validity must be examined and decided. If, however, the facts admitted or proved do not attract the impugned provisions there is no occasion to decide the issue about the vires of the said provisions. Any decision on the said question would in such a case be purely academic. Courts are and should be reluctant to decide constitutional points merely as matters of academic importance."

30 What this leads to, it should need no stressing that there should be a sanguine, real and genuine, so also definite cause of action, which we are unable to locate and perceive in the present petition.

LOCUS STANDI OF PETITIONER

31 This brings us to adjudicate whether the petitioner has

locus to maintain the writ petition.

32 There is no doubt regarding the legal proposition that

the rights under Article 226 of the Constitution of India can be

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invoked only by an aggrieved person except in the case where the

writ prayed is for habeas corpus or quo warranto. Another

exception in the general rule is the filing of a writ petition in

public interest. The existence of the legal right of the petitioner

which is alleged to have been violated is the foundation for

invoking jurisdiction of the High Court under Article 226 of the

Constitution of India.

33 In Jasbhai Motibhai Desai vs. Roshan Kumar Haji

Bashir Ahmed9 the Hon'ble Apex Court at paragraph 13 held as

under :

"13 .......The expression "aggrieved person" denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition.

At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and

9 (1976) 1 Supreme Court Cases 671

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the nature of the prejudice or injury suffered by him. English courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person"........."

34 Similarly, in Ayaaubkhan Noorkhan Pathan (supra)

the Hon'ble Apex Court at paragraph 9 held as under :

"9 ....Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is

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implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court........"

35 In nutshell and in view of the above, it is no idle

whataboutery to point out that a person who raises a grievance

must show how he has suffered legal injury. A person who suffers

from legal injury can only challenge the act or omission.

36 In the instant petition we do not require much

prescience to realize that neither pleadings nor prayers specifically

and categorically show infraction of petitioner's legal right and its

enforcement thereto. The petition is tellingly silent on this

material aspect. There is abysmal failure on the part of the

petitioner to exhibit existence of legal grievance which needs to be

appreciated and allayed by invoking the jurisdiction under Article

226 of the Constitution of India.

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37          Thus, from the above, it is evident that petitioner has

no legal peg for a justiciable claim to hang on. Therefore, he is

not a "person aggrieved" and has no locus standi to challenge the

constitutional validity of impugned Ordinances and Order.

38 The enduring conclusion from the record is, first, that

the petitioner lacks cause of action and, second, that the petitioner

has no locus standi. In view of this conclusion, it is not necessary

for us to consider the objections raised by the learned counsel for

the petitioner against the validity of the impugned Ordinances and

Orders on the ground that they contravene Article 14, 19(1)(c),

243-ZJ and 243-ZK of the Constitution of India.

39 The result is that the writ petition fails and stands

dismissed. Rule is accordingly discharged. No order as to costs.

      (V. G. BISHT, J.)             (R. D. DHANUKA, J.)




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