Bombay High Court
Jay Malhar Sahakari Dudh Utpadak ... vs The Divisional Deputy Registrar ... on 25 October, 2021
Bench: A. K. Menon
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6828 OF 2021
WRIT PETITION (ST) NO.3556 OF 2021
WRIT PETITION (ST) NO.3557 OF 2021
WRIT PETITION (ST) NO.3558 OF 2021
WRIT PETITION (ST) NO.3497 OF 2021
WRIT PETITION (ST) NO.3559 OF 2021
WRIT PETITION (ST) NO.3561 OF 2021
WRIT PETITION (ST) NO.3562 OF 2021
Jay Malhar Sahakari Dudh Utpadak
Sanstha Mydt.
At-Nanoli, Post-Kamshet Tal.Maval,
Dist-Pune through its Chairman
Mr. Vilas Dattu Dhumal. ... Petitioner
Vs.
The Divisional Deputy Registrar,
Co-op. Societies (Dairy) and Ors. ... Respondents
WITH
WRIT PETITION NO.4537 OF 2021
WRIT PETITION NO.6852 OF 2021
WRIT PETITION NO.6856 OF 2021
WRIT PETITION NO.6853 OF 2021
WRIT PETITION NO.6855 OF 2021
WRIT PETITION NO.6829 OF 2021
WRIT PETITION NO.6831 OF 2021
WRIT PETITION NO.6832 OF 2021
WRIT PETITION NO.6833 OF 2021
WRIT PETITION NO.6834 OF 2021
1/32
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WRIT PETITION NO.6835 OF 2021
WRIT PETITION NO.6836 OF 2021
WRIT PETITION NO.6838 OF 2021
WRIT PETITION NO. 6839 OF 2021
WRIT PETITION NO.6840 OF 2021
WRIT PETITION NO.6843 OF 2021
WRIT PETITION NO.6841 OF 2021
WRIT PETITION NO.6851 OF 2021
WRIT PETITION NO.6842 OF 2021
WRIT PETITION NO.6854 OF 2021
WRIT PETITION NO.6844 OF 2021
Shivshankar Sahakari Dudh Utpadak
Sanstha Maryadit ... Petitioner
Vs.
The Joint Registrar,
Co-op. Societies (Dairy In-Charge) and Ors. ... Respondents
WITH
WRIT PETITION NO.6845 OF 2021
WRIT PETITION NO.6847 OF 2021
WRIT PETITION (ST) NO.4163 OF 2021
WRIT PETITION NO.6849 OF 2021
WRIT PETITION NO.6850 OF 2021
Hanuman Sahakari Dudh Utpadak ... Petitioners
Sanstha and Ors.
Vs.
The Joint Registrar,
Co-op. Societies (Dairy In-Charge) and Ors. ... Respondents
2/32
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Mr. Y. S. Jahagirdar, Sr. Advocate, i/b. Mr. V. H. Narvekar for the
petitioner in WP/6828/2021.
Mr. Surel Shah i/b. Mr. V. H. Narvekar in all other petitions for all other
petitioners.
Mr. Surel Shah i/b. Mr. V. H. Narvekar for the petitioner in
WP/6825/2021, 3497, 3556, 3557, 3558, 3559, 3561, 3562/2021.
Mr. V. H. Narvekar for the petitioner in all other Writ Petitions.
Mr. S. D. Rayrikar, AGP in WP/4537/2021.
Mr. A.P. Vanarse, AGP, for the State in WP/6855/2021.
Mr. Aadesh M. Patil i/b. Mr. M. B. Patil for Respondent - Federal Society
in all Writ Petitions.
Mr. Akshay Kapadia for Respondent No. 4 in all Writ Petitions except
WP/6828/2021.
Mr. Prashant Naik i/b. Mr. S. R. Waghmare for Respondent nos. 3 to 10
in WP/6828/2021.
CORAM : A. K. MENON, J.
DATED : 25TH OCTOBER, 2021.
P.C. :
1. This common order disposes all the above Writ Petitions. They
can broadly be divided into groups. The first set of Writ Petitions
are for brevity sake described as the "Jay Malhar Group." It
consists of 8 petitions where the affected contesting respondents
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are respondent nos.3 to 10 named Lok Mangal, Sahyadri, Ganesh,
Sharad, Kapila and Shriram, all of which are Co-operative
Societies engaged at the material time in the dairy business. The
next group of 21 Writ Petitions are filed by Shivshankar Sahkari
Dudh Utpadak Sanstha Maryadit. This is described for brevity
sake as a "Shivshankar Group". The third group of 5 Writ
petitions are filed by Hanuman Sahkari Dudh Utpadak Sanstha
Maryadit, for brevity sake referred to as the "Hanuman Group".
The factual aspects in these matters all being similar they are
clubbed together and were circulated for hearing. At the hearing
of these petitions, all concerned agreed that the petitions could be
disposed finally. Accordingly, they are all admitted. Rule is issued.
Rule is made returnable forthwith and the matters are taken up
forthwith for final hearing.
2. The challenges in each of these group of petitions contain minor
differences but effectively in the Jay Malhar Group, the petitioner
challenges the letter dated 21st December, 2020 issued by the
Divisional Deputy Registrar of Co-operative Societies (Dairy)
Pune Division directing respondent no.2 Sangh being the Pune
Zilha Sahkari Dudh Utpadak Sangh Maryadit to restore
membership of respondent nos.3 to 10 all of which were milk
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producing societies as aforesaid. The petitioner in this case is a
primary Dairy Co-operative Society, a body corporate.
Respondent no.2 is in the business of production of sale of milk
and other allied products. Respondent nos.3 to 10 are primary
dairy societies and there is no dispute that all of them are subject
to the writ jurisdiction of the court.
3. As and by way of factual background it may be mentioned that
the respondent nos.3 to 10 were entitled to membership of
respondent no.2 which is the federal society in view of their
business of production and supply of milk and the disputes are
said to have arisen. At the material time upon respondent nos.3 to
10 having failed to supply milk and comply with the bye-laws of
respondent no.2, despite having become members thereof they
have been ordered to be wound up. The petitioner is a member of
the Sangh as well and is said to be in the business of regularly
supplying milk to the said Sangh during the period 2014-15 to
2019-2020.
4. The respondent no.2 had found that the respondent nos.3 to 10
had not supplied the requisite quantities of milk and had failed to
function in accordance with the Act and file annual returns. The
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Assistant Registrar of Co-operative Societies after following due
process, had passed orders of liquidation and cancellation of
registration of these respondent nos.3 to 10. These orders were
passed on different dates between 30 th March, 2013 and 15th
March, 2019. A chart containing the respective dates of
liquidation and cancellation of membership tendered across the
bar is reproduced below;
CHART IN WRIT PETITION NO.6828 OF 2021
Sr. Name of the Respondent Date of Final Membership
No. Societies Liquidation Cancellation
1. Lokmangal 03.08.2004 25.08.2004
(Respondent No.3)
2. Sahyadri 19.09.2017 26.09.2017
(Respondent No.4)
3. Ganesh 19.09.2017 26.09.2017
(Respondent No.5)
4. Sadguru Samartha 01.11.2013 24.12.2013
(Respondent No.6)
5. Sharad 19.09.2017 22.06.2009
(Respondent No.7)
6. Priyadarshani Mahila 01.11.2013 24.12.2013
(Respondent No.8)
7. Kapila 19.09.2017 26.09.2017
(Respondent No.9)
8. Shriram 08.05.2019 22.06.2009
(Respondent No.10)
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. WP No. Name of the Date of Final Registration Membership
Respondent Liquidation Cancellation Cancellation
Society
1. 4537/2021 Shivanjali 22.12.2016 28.12.2016
2. 6852/2021 Bapdev 03.05.2016 29.06.2016
3. 6856/2021 Ranubai 22.12.2016 29.06.2018 28.12.2016
Mahila
4. 6853/2021 Bhairavnath 22.12.2016 Not a
Shinde member
Vasuli
5. 6829/2021 Shri 27.12.2019 29.12.2019
Kalbhairavn-
ath Shendurli
6. 6855/2021 Hanuman 26.10.2018 30.10.2018
Devoshi
7. 6831/2021 Bhairavnath 26.10.2018 30.10.2018
Ghotvadi
8. 6832/2021 Shree Sant 29.06.2017 30.06.2017
Dyaneshwar
9. 6833/2021 Vahagaon 18.06.2018 21.09.2018 Not a
member
10. 6834/2021 Indrayani 29.06.2017 Not a
member
11. 6835/2021 Sou. 26.10.2018 30.10.2018
Shantabai
Dhandre
12. 6836/2021 Vetaleshwar 12.03.2019 21.09.2018 22.03.2019
13. 6838/2021 Sant Eknath 03.05.2016 Not a
member
14. 6839/2021 Shree Sai 31.10.2017 29.06.2018 29.11.2017
15. 6840/2021 Mahadevi 22.12.2016 29.06.2018 28.12.2016
16. 6843/2021 Gavalibaba 17.10.2016 29.06.2018 29.11.2016
17. 6841/2021 Sant Sena 26.10.2018 30.10.2018
18. 6851/2021 Hanuman 26.10.2018 30.10.2018
Kalmodi
19. 6842/2021 Shree 29.06.2017 29.06.2018 30.06.2017
Bhairavnath
Kranti
Mahila
20. 6854/2021 Chainchmai 29.06.2017 29.06.2018 28.12.2018
Mahila
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21. 6844/2021 Mhatoba 03.05.2016 29.06.2016
Sr. WP No. Name of the Date of Final Membership
No. Respondent Liquidation Cancellation
No.3 Society
1. 6845/2021 Swami 24.09.2019 26.11.2019
Samartha
2. 6847 /2021 Mahilavikas 24.01.2020 24.02.2020
Mahila
3. St. No. 4163 / 2021 Malubai 08.05.2019 29.12.2019
4. 6849/2021 Trimurti 05.11.2019 26.11.2019
5. 6850/2021 Vadeshwar 27.12.2019 29.12.2019
5. The core issue that arises in these petitions is the entitlement of
the societies to take part in elections which were initially
Scheduled to be held in June 2020 but were postponed from time
to time. Presently the elections are scheduled to be held in the
forthcoming week and the process said to have begun on 31 st
August, 2021. By virtue of their liquidation and subsequent
cessation of membership, it is the petitioners case that respondent
nos.3 to 10 were not entitled to participate in the elections.
However, to the shock and surprise of the petitioners, by orders
dated 4th December, 2020 or thereabout the Joint Registrar of Co-
operative Societies, in Revision Applications no.38 to 45 of 2020
set aside the liquidation orders without notice to the liquidator or
the Sangh. The challenge is to the suo-moto restitution of
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membership initiated by the respondent no.1 apparently to please
the respondent nos. 3 to 10 societies, who are stated to enjoy
political patronage of some nature.
6. Mr. Jahagirdar, the learned Senior Advocate appearing in support
of the petitioner has contended that the Sangh respondent no.1 is
the Registrar of Federal Society i.e. the respondent no.2 which
acquires jurisdiction under Section 22(2) and 23(2) of the
Maharashtra Co-operative Societies Act to decide the question of
membership and/or deemed membership. However, in the
present case, without any application from the respondents, the
respondent no.1 has suo moto exercise this jurisdiction and had
restored the membership and set aside the orders of liquidation.
7. In the normal course, unless the order of liquidation was set aside
after hearing all concerned, this could not have been done.
However, in the present case, the directions restoring membership
and setting aside of the liquidation, was passed on or about 21 st
December, 2020. They were served upon the Sangh on or about
the same date and the petitioner is said to have learnt of the same
on 23rd December, 2020 when the Chairman of the Sangh had
called an Annual General Meeting and revealed that the Executive
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Director had informed him that respondent no.1 had issued the
impugned directions. The petitioner has claimed that it has the
necessary locus to present this petition as a vigilant member of the
Sangh and therefore there is no occasion to dispute the petitioners
entitlement to approach this court.
8. It is contended by Mr. Jahagirdar that a party aggrieved by
directions in the ordinary course, may file an appeal, even when it
is not a party to the original party but there is petitioner being a
third party has ought to file this writ petition and unless
appropriate relief is granted, the gross illegality committed by the
first respondent would be perpetuated. The rules of natural
justice have been denied to the parties in question and the
petitioner is an active member of the respondent no.2 Sangh has
been now empowered by resolution to challenge the directions
issued by the respondent no.1. References were made to the fact
that the whole process of restoration of membership and setting
aside orders of liquidation was initiated with the sole purpose of
enabling participation in the forthcoming elections. The
respondent nos.3 to 10 have no interest in supplying milk in fact
they are not supplying milk and have not been supplying milk for
a long time.
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9. Mr. Jahagirdar therefore submits that rule issued be made
absolute and the impugned order dated 21 st December, 2020 be
set aside and the applications dated 9 th December, 2020 referred
by the respondent nos.3 to 10 be dismissed. Mr. Jahagirdar
submitted that the orders passed are in gross violation of law.
Inviting my attention to Chapter X of the MCS Act is submitted
that the process of liquidation is dealt with in detail in Sections
102 to 109 and in the present case the respondent nos.3 to 10
were required to file an appeal against the order of winding up as
contemplated in Section 104 but this has been given a go-by. No
appeal has been filed and the respondents concerned have
proceeded to file revision applications and that too only on 20 th
November, 2020. The Revisions Applications were heard on 25 th
November, 2020 exparte and closed for orders. Thereafter orders
were passed without notice to the liquidator.
10. Inviting my attention to the impugned orders, dated 1 st
December, 2020 at Exhibit J Collectively and the impugned order
at Exhibit 'K' dated 21st December, 2020, Mr. Jahagirdar
submitted that these orders are unsustainable, in view of the
breach of express provisions of law, failure to give an opportunity
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of being heard, thus, leading to violation of rules of natural justice
and there being no challenge by way of an appeal. He therefore
submitted that the petitioners are entitled to challenge these
orders specially since the petitioners are from the same area as
that of respondent nos.3 to 10 and has been regularly taking part
in the business and management of the Sangh by supplying milk
throughout the period 2014-15 to 2019-20. The petitioners also
secured a B Audit Class for the years 2018-19 and as such fully
entitled to the reliefs sought in these petitions. Finally he
submitted that the collection of milk from these respondents had
stopped long ago. The order dated 21 st December, was completely
without jurisdiction and deserves to be set aside.
11. Mr. Naik, the learned counsel appearing for respondent
nos.3 to 10 opposed the petition firstly by contending that the
petitioner had no locus to file the present petition. In fact,
according to him, the order of liquidation and cessation of
membership itself was passed without notice to the respondent.
The respondents had no knowledge of the same and the orders
were passed in violation of principles of natural justice. He
therefore submitted that the orders passed in the revision are
sustainable in view of the fact that they had no knowledge of the
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orders upon being passed. No appeal could have been filed
within time and therefore the revision applications, invoking the
revisionary powers was the only alternative. He submitted that the
Registrar was fully empowered to decide the issue in question by
virtue of his powers under Section 11 of the MCS Act and
whether or not respondents had suffered a disqualification or not
would have been decided by the registrar. The fact remains that
in the instant case, the order passed was akin to a suo moto order
and within five days of the revision applications being made. The
haste in passing the orders is thus prima facie obvious. Mr. Naik
however sought to assure the court that there is no attempt at
prejudging the issue and the respondent concerned had already
been supplying milk and continued to supply milk.
12. Mr. Naik further submitted that the main orders have not
been challenged and only the consequential orders have been
challenged and therefore he submits that there is no occasion to
entertain this petition. Firstly for want of locus, secondly by reason
that the main orders are still not challenged in the present
petition, however, he fairly admits that a separate set of petitions
are said to have been filed challenging those orders.
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13. Mr Naik placed reliance on the decisions of the Supreme
Court in the case of O.P. Chaudhry v/s. Rehabilitation Ministry
Employees' Co-operative House Building Society and others 1 in
support of his contention that in the case of expulsion of a
member, the expulsion notice and the resolutions passed by the
society having been set aside, the membership would
automatically be restored in the original seniority and assigning
seniority from a subsequent date was not sustainable. Once an
order of expulsion was set aside, it has no existence in the eyes of
law and cannot be taken notice of for depriving the petitioner of
his original seniority. Relying upon this aspect, Mr. Naik sought
to submit that in present case, once the order of liquidation and
the cancellation of membership have been set aside by the
impugned order, the membership revives and the respondent
were entitled to exercise all their rights as members.
14. Mr. Naik then relied on decision of a Division Bench of this
court in the case of Chandrapur Zilla Sahakari Krushi and
Gramin Bahuudeshiya Development Bank Ltd. v/s. State of
Maharashtra & others2 in support of his contention that the
registrar was not empowered to pass the impugned order exparte
1 (2003) 10 SCC 170
2 2003 AIR Bom. 502
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even at an interim stage and without hearing the society and
without considering the consequences that may face the society
by virtue of such interim order.
15. According to Mr. Naik, the respondent nos.3 to 10 were
primary societies were taken into liquidation pursuant to an
order under Section 102 and the liquidator is appointed between
the years 2004 and 2009. The order of liquidation resulted in de-
registration of the societies under Section 21-A of the Act but both
the interim order and the final order of liquidation were not
served upon the respondents. These were, thus, exparte orders
without hearing the societies and the orders of liquidation are yet
to be served upon respondent nos.3 to 10. It is in these
circumstances that in November 2020, the respondent nos.3 to 10
filed revisions application before the Joint Registrar challenging
the orders of liquidation and cancellation of registration.
16. No appeal was filed since proviso to Section 104 provides
that no appeal shall lie against an order issued under Section
102(1) (i) to (iii). Thus, according to Mr. Naik the revision was
competent and an appropriate order was passed. Even otherwise
he submits that on 4th December, 2020, the orders of liquidation
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were set aside by the Joint Registrar in view of the fact that they
were exparte and without hearing the respondents nos.3 to 10
and in violation of the principles of the natural justice. On 9 th
December, 2020 respondent nos.3 to 10 had applied for
restoration of membership which was then allowed. A
consequential order was passed by respondent no.1 issuing
directions to the 2nd respondent to continue the membership of
respondent nos.3 to 10 in the Sangh. He therefore contended that
an appeal not being maintainable, by virtue of an order being
passed under Section 102(1)(c)(ii) revision was in the alternative
and that right has been exercised.
17. Mr. Naik further submitted that the petitions are not
maintainable since the petitioner is a mere interloper and is not
entitled to maintain the petition reverting to the basic challenge of
want of locus standi. Mr. Naik further submitted that the
petitioners only interest is to deprive respondent nos.3 to 10 from
participating in the ensuing elections and that the petitioner will
be directed to file an election dispute. Mr. Naik therefore called
for dismissal of these petitions on the aforesaid grounds.
18. In the second set of matters forming part of the Shivshankar
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Group in Writ Petitions no.6852, 3497, 3556, 3557, 3558, 3559,
3561 and 3562 Mr. Shah in support of the petitions adopted all
the submissions made by Mr. Jahagirdar in support of the first set
of petitions. He submitted that impugned orders are dated 18 th
January, 2021. It sets aside the interim and final orders of
liquidation dated 17th October, 2016 and 22nd December, 2016
respectively of the third respondent society. These orders were
passed by respondent no.2 Assistant Registrar of Co-operative
Societies in exercise of powers under Section 102 of the MCS Act.
The petitioners are primary dairy co-operative societies and have
been functioning as such. They have been engaged in the
business of supply of milk and have been granted membership in
view thereof. The petitioner is an active member of the Sangh
since 1985 and secured a 'B' Audit Class for the years 2018-19.
The petitioner has been regularly supplying milk for the period
2015-16 to 2019-20 and during April 2020 to December 2020.
He has relied upon the certification of quantity supplied.
19. As far as the contesting respondent is concerned, Mr. Shah
submitted that the respondent no.3 did not supply milk since
August 2015 and a final order of liquidation has been passed in
terms of the bye-laws and as such it is dis-entitled to continue as
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a member. It is now seeking to participate in elections, despite
cancellation of such membership not because the respondent has
been regularly supplying milk but only with a view to participate
in the said election. He submitted that no audit has been carried
out of the said respondents and they are in breach of the
provisions of Section 102(1) and (2) and (4). Furthermore, he
submits that only an appeal was maintainable and not a revision
as contemplated under Section 154. The respondent has misused
the provisions pertaining to the revisionary powers of the State
Government and the Registrar and not ought to be permitted to
read the benefits thereof. He therefore sought setting aside of the
impugned order. Even upon the final order being set aside, the
interim orders would revive and the interim orders could have
been passed and not require any notice to be given to the
respondent society. Moreover, he submits that the impugned
order has been passed by a person who was holding charge and
was not clothed with the jurisdiction to pass the order. He
therefore submitted that for the reasons aforesaid the impugned
orders are liable to be set aside and the petition is liable to be
allowed. He submitted that the very same arguments be taken as
his submissions in the other matters in the group.
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20. In the third group of petitions involved in the Hanuman
Sahakari Dudh Utpadak Sanstha which is respondent no.3,
represented by Mr. Kapadia. The petitioner is represented by Mr.
Narvekar. Even in that case, final orders of liquidation were
passed in or around 26th October, 2018 since the third respondent
society had failed to supply the requisite quantity of milk. The
liquidation order resulted in the cancellation of membership of
the 3rd respondent on 30th October, 2018. Respondent no.3
meanwhile in albeit to participate in the elections had along with
other respondents against whom orders of liquidation had been
passed while revisions applications in December 2020 and in or
about 9th December 2020, the respondents filed applications for
condonation of delay. The Joint Registrar (Dairy) Incharge set
aside the orders of liquidation on 18th January, 2021 and the 3rd
respondent then applied to the Assistant Registrar of Co-operative
Societies seeking directions against the Sangh to permit supply of
milk. Applications came to be filed challenging the aforesaid
order of 18th January 2021. He therefore submitted that the
impugned order be set aside.
21. Mr. Kapadia, however, appearing on behalf of respondent
no.3 and respondent no.4 in some cases oppose the application on
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the basis of want of locus. He submitted that there was no locus
for petitioners to approach this court as they were not persons
aggrieved and the applications for setting aside orders for
liquidation was justified. The filing of the revision application
was the only route available to it and on 9 th December, 2020 such
revision applications were filed. On a query from the court, Mr.
Kapadia fairly submitted that the orders for liquidation were
passed sometime in October 2018 and no steps were taken to file
an appeal at the relevant time. According to him, for want of
knowledge for about 3 to 6 months, the respondent no.3 had no
knowledge of these orders being passed in this respect.
22. On a query from the court as to whether there were any
reasons that had been specified for not having filed appeal within
time, Mr. Kapadia fairly submitted that he has no instructions on
that aspect. However, he persisted in his submission that the
petitions were bad for want of locus. In a separate and distinct
submission, Mr. Kapadia canvassed the point that in the present
set of matters, the liquidator was also made a party and hence the
question of notice not being issued to the liquidator at the time of
setting aside the order of liquidation is not an issue that can be
agitated by the petitioner.
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23. Inviting my attention to the affidavit on behalf of
respondent no.3 dated 3rd October, 2021 Mr. Kapadia submitted
that the writ petition is required to be dismissed in view of the
preliminary objection to maintainability of the writ petition. The
petitioner is from a different Gram Panchayat Kudeburduk
whereas the respondent society was from a different Gram
Panchayat. Thus, the respondents being permitted to participate in
the election could not affect the petitioner. The challenge is said
to be malicious as a result of political rivalry and ill motivated.
Apart from the issue of locus, the respondent no.3 could not
supply milk for a particular period and it is now supplying milk
and is willing to continue to supply milk and therefore is entitled
to membership of the Sangh. It is contended that the Sangh has
issued a notice by following due process of law under Section
26(2)(B) It is contended that the petitioners claim of the notice
being in violation of the bye-laws is incorrect and that reason is
not sustainable. The impugned order though passed by a person
in charge, the order is valid and powers identical to the
appropriate authority could have been issued. The respondent
no.3 was even otherwise entitled to be brought out of liquidation
and there was no merit in the contention that the order passed
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was exparte and without notice to liquidator.
24. According to Mr. Kapadia notice of liquidator would have
served no purpose since the liquidator was never informed of his
appointment. This is once again a contentious aspect which
involved disputed questions of fact and cannot be gone into in this
writ petition. However, the submission on behalf of the 3 rd
respondent is to the effect that the petitioner has essentially no
locus and cannot seek any relief in this petition. For these reasons,
Mr. Kapadia submits that the petition be rejected.
25. On behalf of the petitioners, their submissions have been
reiterated. The 1st respondents are represented by the learned
Additional Government Pleaders Mr. Rayrikar and Mr. Vanarse
who have relied upon affidavits filed in Writ Petition no.29 of
2021 of one Sunil Uttareshwar Shirapurkar. In which it is
contended that he is duly empowered to oppose the admission of
the petition that he had given the directions to respondent no.2
Sangh regarding continuation of membership of respondent nos.3
to 10 in Writ Petition no.6828 of 2021 that these are
administrative directions for continuation of membership and he
has generally denied allegations that the impugned orders are
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without jurisdiction unwarranted or malafide.
26. In Writ Petition No.6828 of 2021 respondent no.2 Federal
Society, the Sangh has also filed an affidavit of Dr. Vivek
Hinudrao Shirsagar in which it is stated that the respondent nos.3
to 10 have been ordered to be wound up between 2013 and
2019. That the challenge to these orders of liquidation has only
surfaced after the election programme of the first phase of the
Sangh has been declared and when resolutions regarding the
representative of the member society was called for. These
revision applications bearing nos.38 to 45 of 2020 were filed only
on 25th November, 2020 and on 4 th December, 2020, the Joint
Registrar passed common orders in all these applications
quashing exparte the interim and final orders of liquidation of
these societies. This he submits is passed without any objection
being called from the Sangh or the Liquidator, thus, without
notice to the concerned parties.
27. The deponent has stated that upon removal of the names of
the respondents by the Federal Society from its members registers,
the share subscription amounts of the societies were transferred
to the 'Share Anamat' and hence these subscriptions are presently
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not with the Federal society. Once it is transferred to the Anamat
account, the liquidator of the societies would take charge.
Furthermore, it is stated on oath that the respondent nos.3 to 10
were not supplying the requisite quantity of milk and that failed
to comply with the bye-laws including bye-law 7.1 and thus
stands qualified. That the respondents concerned should have
first approach the Federal Society for grant of fresh membership
which could have been considered on the basis of the applications
in each case. However, that has not been done and the daily report
of milk supply maintained by the society evidencing the fact that
the respondent no.3 to 10 have not supplied any milk to the
Federation. This is an aspect which I find has not been denied by
the respondent nos.3 to 10 in the Jay Malhar Group. Thus the
affidavit dated 23rd February, 2021 filed on behalf of Federation
assumes significance.
28. That apart in the other three sets of matters, I have already
made reference to the affidavit of Sanjay Khandu Gopale dated 3 rd
October, 2021 and Mr. Kapadia has placed reliance upon
identical affidavits seen to be filed in Writ Petition no.4537 of
2021 in the Shivshankar Group by one Abhinath Shantaram
Shende, Chairman of the respondent no.3. They are worded
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identically and affirmed on the same date. Likewise in the Writ
Petition no.6852 of 2021 pertaining to the Shivshankar Group the
affidavit of respondent no.3 is of one Sanjay Jeejaram Konkane,
Chairman of respondent no.3, once again identically worded and
affirmed on the same date. Thus, having dealt with the
contentions in the affidavits, in the case of Writ Petition no.6851
of 2021 and canvassed by Mr. Kapadia, there is no occasion to
once again deal with these multiple affidavits which are identical
in their content.
29. Having heard the learned counsel for all the parties, I
propose to initially deal with the issue of locus which has been
raised as the principal defence and as a preliminary point of
opposition. On the aspect of locus standi, the Supreme Court has
shifted from the strict interpretation regarding locus standi,
reference being had to the case of Jasbhai Motibhai Desai v/s.
Roshan Kumar3 in which the Supreme Court observed that there
were roughly three categories of persons way away locus standi,
(i) being a person aggrieved, (ii) a stranger and (iii) a busy body
or a meddlesome interloper. The respondents in these present
petitions seek to persuade me to hold that the present petitioners
3 (1976) 1 SCC 671
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are mere interlopers. However, the four judge bench of the
Supreme Court in Jasbhai Motibhai Desai (supra) held that a
person belonging to the third category that is an interloper can
easily be distinguishable and such a person interferes in things
which do not concerned him as he masquerades as a crusader of
justice and that the High Court should do well to reject such
petitions of busybodies at the threshold.
30. In a more recent judgment, the Supreme Court in the case
of Chairman Railway Board v/s. Chandrima Das 4 observed that
albeit in the era of Public Interest Litigation that the court in its
various judgments has given new meaning to the concept of locus
standi, reference being had to the judgment in People's Union for
Democratic Rights v/s. Union of India5 wherein it was laid down
that a public interest litigation could be initiated not only be filing
formal petitions but even sending letters and telegrams was to
provide easy access to the court. Likewise in Bangalore Medical
Trust v/s. B.S. Muddappa6.
31. Thus in these cases, although the present set of petitions are
not PILs, the tendency is to adopt a wider approach on the aspect
4 2002 SCC 465
5 (1983) 3 SCC 235
6 (1991) 5 SCC 54
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of locus standi and that is relevant. In the present case, the
petitioner is certainly one concerned with the cooperative
movement and in the area of dairy development being a
cooperative society supplying milk and as set out by the
petitioners in the lead petition and I find no justification in
holding the petitioners to be interlopers. A Division Bench of this
court, in the case of Prashant s/o of Amrutrao Tayde v/s. Minister
for Co-operation and Textile & Ors. 7 has held that the appellants
therein were members of a primary agricultural credit society
which was a member of respondent no.3 bank and were
associated with a cooperative movement and were interested in
the administration of co-operative societies and hence the writ
petition was found to be maintainable. Likewise in M.S Jayaraj
v/s. Commissioner of Excise Kerala and others, the Supreme Court
has considered the shift in view on the aspect of locus standi as
aforesaid and the concept of locus standi has been expanding.
32. In the present case, there is no reason why the petitioners
should be prevented from assailing the impugned orders at the
threshold. On a connected front, it would be apposite to mention
that the interim orders appointing liquidator may have been
7 (2012) 3 All. MR. 337
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passed exparte without notice to the societies concerned. The
objection raised by Mr. Kapadia is that no notice of those hearings
were given but the interim orders of winding up does not warrant
a pre-decisional hearing as contemplated in Section 102. In
Section 102, if the registrar is of an opinion that the society ought
to be wound up, he may issue an interim order. Whether an
opportunity of being heard was to be given at that stage, has been
considered in the case of Gadchiroli Zilla Sahakari Krushi and
Grahmin Bahuudeshiya Development Bank Ltd. & anr. v/s. State
of Maharashtra & Ors.8 whereunder it was held that Section 102
(1) and (2) interim order of winding up did not call for pre-
decisional hearing before passing an interim order of winding
up. Thus, the contention that rules of natural justice were
violated in the first instance when the order of winding up was
passed, is not a sustainable ground to question the petitioners'
right to impugn the orders in these petitions.
33. For these reasons, the issue of locus standi and the
preliminary objection on violation of rules of natural justice while
passing the interim orders must be rejected. This brings me to
consider the scheme of the Act and Chapter XX in this behalf
8 (2003) 4 All. M.R. 283
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clearly holds that the Registrar after holding an enquiry or on
receipt of an application made upon resolution of a society can
call or of its motion may in cases where the society has ceased
working or ceased to comply with conditions as to registration
and management under the Co-operative Societies Act, the
Registrar may pass an order of winding up.
34. Section 103 provides for appointment of liquidators at the
stage after passing an interim order or a final order. Upon such
interim order being issued, the officers of the society are required
to hand over to the liquidator custody and control of all property.
In the facts of the present case, the record does not indicate the
process that has been followed but all have admitted that an
order of liquidation has been passed. There is a controversy as to
whether the liquidator took charge or whether the liquidator
informed the societies but suffice it to say that the contentions of
the applicants that they are still producing milk and supplying
milk has not been made out. Indeed this could not have been
done if an order of liquidation had been passed.
35. Section 104 of the Act clearly provides for an appeal against
an order of winding up which is to be filed within two months
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from the date of issuance of the order. There may be substance in
the contention of the respondents that no appeal will lie by virtue
of the proviso of Section 104(1), however, even in that case, on
merits, I am of the view that there was no occasion to file a
revision after a long gap has been demonstrated in the present
case. In any event, Section 105(2) provides that the liquidator
will not have a right to vote on behalf of the society in liquidation
and thus there is no question of of any prejudice being caused to
the respondents if the liquidator continues as such in the process
of winding up. Likewise the order of restoration of membership
is also unsustainable. The argument on behalf of the respondents
in particular by Mr. Kapadia that in the case of expulsion upon
setting aside the order, membership is automatically restored
cannot be countenanced in the present set of facts. Nothing has
been shown by the respondents concerned to establish that they
continued to supply milk and are qualified to be members of the
society. These once again allude to disputed questions of fact
which cannot be gone into in a writ petition.
36. This leaves us with question whether these orders can now
be sustained. In an interim order passed on 18 th January, 2021,
the court has directed the respondents to point out under what
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authority of law consequential orders restoring membership was
passed by the first respondent. Leave was granted to file replies
on this aspect as well however, none of the affidavits filed on
behalf of the contesting respondents have made an effort to
indicate under what authority these orders of restoration of
membership came to be passed and how they were justifiable if at
all. In these circumstances, I am of the view that the petitioners
are bound to succeed and hence I pass the following order;
(i) In Writ Petition no. 6828 of 2021 the order dated 21 st
December, 2020 and in all connected writ petitions the
orders dated 4th December, 2020, orders dated 5th March,
2020 and 18th January, 2021 are quashed and set aside.
The directions contained in those orders are also quashed
and set aside.
(ii) The applications for continuance of membership in the
case of the respondent are rendered ineffective and
unsustainable unless and until orders of liquidation is set
aside in the usual course and in accordance with the law.
(iii) All applications that are pending will have now have
to be considered in the light of the judgment in this group
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of matters.
(iv) Rule is made absolute in the above terms.
(v) All petitions are disposed.
(vi) No orders as to costs.
(A. K. MENON, J.)
Digitally
signed by
SANDHYA
SANDHYA BHAGU
BHAGU WADHWA
WADHWA Date:
2021.10.26
13:33:21
+0530
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