Bombay High Court
Jagdish Lahu Badhe And Others vs The State Of Maharashtra Through ... on 30 August, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 WP / 8066 / 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8066 OF 2022
WITH
CIVIL APPLICATION NO.11860 OF 2022
IN
WRIT PETITION NO.8066 OF 2022
1. Jagdish Lahu Badhe
Age : 56 years, Occu: Agriculture
R/o. Sawda, Tq. Raver
District Jalgaon
2. Dr. Sanjeev Krushnarao Patil
Age : 64 years, Occu: Agri. and
Medical Practitioner
R/o. Anchalgaon, Tq. Bhadgaon
District Jalgaon.
3. Pralhad Narayan Patil
Age : 60 years, Occu: Agriculture
R/o. Nery Digar, Tq. Jamner
District Jalgaon
4. Hemraj Khushal Choudhari
Age: 56 years, Occu: Agriculture
R/o. Faijpur, Tq. Yawal,
District Jalgaon
5. Mrs. Shamal Atul Zambre
Age: 40 years, Occu: Household
R/o. Varangaon, Tq. Bhusawal
District Jalgaon.
6. Sau. Mandatai Eknathrao Khadse
Age: 62 years, Occu: Household
R/o. Kothli, Tq. Muktainagar
District Jalgaon
7. Madhukar Ramchandra Rane
Age: 63 years, Occu: Agriculture
R/o. Bodwad, District Jalgaon
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8. Shravan Sada Brahme
Age: 59 years, Occu: Agriculture
R/o. Amalner, Tq. Amalner
District Jalgaon
9. Vasant Jivram More
Age: 70 years, Occu: Agriculture
R/o. Parola, Tq. Parola,
District Jalgaon
10. Pramod Pandurang Patil
Age: 52 years, Occu: Agriculture
R/o. Bhamre, Tq. Chalisgaon
District Jalgaon
11. Sou. Sunita Rajendra Patil
Age: 46 years, Occu: Household
R/o. Umarkhed, Tq. Chalisgaon
District Jalgaon
12. Ashok Pralhad Patil
Age : 67 years, Occu: Agriculture
R/o. Bhatkhede, Tq. Erandol,
District Jalgaon
13. Ashok Dagdu Houdhari
Age : 70 years, Occu: Agriculture
R/o. Chahardi, Tq. Chopda
District Jalgaon ... Petitioners
VERSUS
1. The State of Maharashtra
through Deputy Secretary for
Agriculture, Animal Husbandry
Dairy Development and
Fisheries Department
Mantralaya, Mumbai
2. The Commissioner,
for Agriculture, Animal Husbandry
Dairy Development and
Fisheries Department
Worli, Mumbai
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3. The Joint Registrar,
Co-operative Societies (Dairy)
Worli, Mumbai
4. The Divisional Deputy Registrar
Co-operative Societies (Dairy)
Nashik Division, Nashik
5. The Assistant Registrar,
Co-operative Societies (Dairy)
Jalgaon, District Jalgaon
6. Shri Eknath Sambhaji Shinde
Age : Major, Occu: Social work
Chief Minister of State of
Maharashtra, Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai 32. .. [ Deleted ]
(Respondent no. 6 deleted as per
Court's order dated 01.08.2022)
6. Mangesh Ramesh Chavan
Age : major, Occ: Agriculture
R/o. Chalisgaon, Tq. Chalisgaon
District Jalgaon
7. Chandrakant Nimbaji Patil,
Age : major, Occu: Agriculture
R/o. Muktainagar, Tq. Muktainagar
District Jalgaon
8. Chandrakant Baliram Sonwane
Age: major, Occu: Agriculture
R/o. Chopda, Tq. Chopda
District Jalgaon
9. Ajay Eknath Bhole
Age: major, Occ: Agriculture
R/o. Bhusawal, Tq. Bhusawal
District Jalgaon
10. Amol Chimanrao Patil,
Age : major, Occu: Agriculture
R/o Parola, Tq. Parola
District Jalgaon
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11. Arvind Bhagwan Deshmukh
Age: major, Occ: Agriculture
R/o. Jamner, Tq. Jamner
District Jalgaon
12. Rajendra Wadilal Rathod
Age: major, Occu: Agriculture
R/o. Chalisgaon, Tq. Chalisgaon
District Jalgaon
13. Ashok Namdeo Fandelkar
Age: major, Occ: Agriculture
R/o. Bodhwad, Tq. Bodhwad
District Jalgaon
14. Gajanan Pundlik Patil
Age : major, Occ: Agriculture
R/o. Dharangaon, Tq. Bhusawal
District Jalgaon
15. Amol Panditrao Shinde
Age: major, Occu: Agriculture
R/o. Pachora, Tq. Pachora
Dist. Jalgaon. ... Respondents
...
Advocate for the petitioners : Mr. V.D. Hon, Sr. Advocate
i/b. Mr. A.V. Hon, Advocate
GP for the respondent - State : Mr. D.R. Kale
Advocate for the respondents no. 6 to 15 : Mr. D.B. Thoke
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 26 AUGUST 2022
PRONOUNCED ON : 30 AUGUST 2022
JUDGMENT (MANGESH S. PATIL, J.) :
Rule. Rule is made returnable forthwith. Learned
Government Pleader waives notice for respondents nos. 1 to 5 and
learned advocate Mr. Thoke waives notice for the respondents nos. 6
5 WP / 8066 / 2022
to 15. By consent of the parties, the matter is heard finally at the stage
of admission.
2. By way of this petition under Article 226 and 227 of the
Constitution of India, the petitioners are impugning the order dated
29-07-2022, of the respondent no. 4 - who is Divisional Deputy
Registrar (hereinafter 'DDR') of Co-operative Societies, in purported
exercise of the powers under section 77A of the Maharashtra Co-
operative Societies Act, 1960 (hereinafter the 'Act').
3. The petitioners are the elected managing committee
members of the Jalgaon Zilla Dudh Utpadak Sangh Ltd. registered
under the Act, for a period 2015-2020. Their term was to expire during
the COVID-19 pandemic. The elections of all the co-operative
societies in the State were postponed from time to time and lastly till
30-09-2022 by a Government decision. It is the case of the petitioners
that their society also prepared a provisional voters' list as per the
directions of the authorities giving full particulars as is required by the
Maharashtra Co-operative Societies (Election to Committee) Rules,
2014 (hereinafter 'the Rules'). Necessary election expenses were also
deposited. It is their allegation that because of the change in the
Government where a new coalition has taken over at the State level,
with an ulterior motive and mala fide, the new Government took a
decision to remove the petitioners who belong to a political party now in
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the opposition. It is also alleged that on the directions of the Chief
Minister dated 28 July 2022, the respondent no. 4 - DDR has obliged
by passing the order under challenge.
4. The learned senior Advocate Mr. Hon would argue that ex
facie the quasi judicial power has been exercised on the instructions of
the Hon'ble Chief Minister. No independent enquiry was held. Giving a
complete go-bye to the principles of natural justice all of a sudden, the
impugned order was passed. On the previous day i.e. 28 July 2022,
the Deputy Secretary to the State Government specifically informed in
writing to the respondents no. 3 who is the Joint Registrar of the
Co-operative Societies and the respondent no. 4 - DDR wherein it was
expressly informed that they should take appropriate steps for
dissolution of the petitioners' managing committee by invoking the
powers under section 77A (f)(ii) of the Act. It was specifically
mentioned that a new managing committee be constituted as per
directions of the Hon'ble Chief Minister comprising of 11 new members
who are respondents nos. 6 to 15 herein. This very communication
clearly demonstrates that the respondent no. 4 - DDR had not acted
independently but has acted at the behest of the Hon'ble Chief
Minister, in flagrant violation of the powers supposed to be exercised
by him. The fact situation is similar to the one that was before the
Supreme Court in the matter of Chandrika Jha Vs. State of Bihar and
Ors.; (1984) 2 SCC 41, which thereafter was followed in the matter of
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Manohar Lal (Dead) by LRs Vs. Ugrasen (Dead) by LRs. and Ors;
(2010) 11 SCC 557. Though the order is purportedly passed by the
respondent no. 4 - DDR under the purported exercise of the powers
under section 77A, the authority which is acting behind the curtains is
none other than the Hon'ble Chief Minister. There is absolutely dearth
of evidence to demonstrate that the respondent no. 4 - DDR had
independently undertaken any scrutiny of material and has taken some
objective decision as is expected of the authority competent to exercise
quasi judicial power.
5. He would point out that in response to the directions
coming from the State Government by the communication dated 28
July 2022, on the same day, the respondent no. 4 - DDR had
responded by a communication of even date elaborately expressing his
strong opinion as to how in the facts and circumstances, he could not
exercise the powers under section 77A of the Act since it was not
applicable. Still, he obliged his masters and on the very next day i.e.
29 July 2022 he passed order under challenge once again basing his
decision on the basis of the communication coming from the
Government. There is no objective reasoning, giving all the particulars
other than the directions of the Hon'ble Chief Minister to demonstrate
as to what prompted the respondent no. 4 - DDR to pass the impugned
order even when on the earlier date he was of strong opinion that the
circumstances did not permit him to exercise that power.
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6. Mr. Hon would also point out that all the steps for
conducting the elections were taken, expenses were deposited, even
the election programme was declared on 27 June 2022 (Exhibit H) and
still a bold decision de hors the provisions of law was taken.
7. Lastly, Mr. Hon would also point out that the sinister design
of the Government is explicit from the fact that the respondent no. 4 -
DDR was not only called upon to dissolve the petitioners - managing
committee but even in the same communication indicated the names of
the respondents nos. 6 to 15 to be made members of the new
administrative committee even when section 77A of the Act only
expects such administrative committee / board to be consisting of only
3 members to be appointed. He would, therefore, submit that the
order is absolutely illegal and be quashed and set aside.
8. Learned Government Pleader would support the order. He
would submit that the respondent no. 4 - DDR has exercised his quasi
judicial power and the order is capable of challenge by way of an
appeal under section 152 of the Act. In view of such alternate and
efficacious remedy of a statutory appeal, the writ petition is not
maintainable. Lastly, he would endeavour to point out that pursuant to
gross mis-management, drastic step was required to be taken by
respondent no. 4 - DDR which he has. He would submit that though
the term of the petitioners' managing committee had expired, it is only
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because of the unprecedented events, pursuant to the decision of the
State Government, elections were postponed from time to time. They
were not supposed to take any policy decision, still, they continued to
function as if they were regularly elected managing committee which
necessitated passing of the order under challenge and there is no
illegality.
9. Mr. Thoke appearing for the respondents nos. 6 to 15
supported the arguments of the learned AGP and further reiterated that
policy decisions were being taken by the petitioners' managing
committee during extended tenure and it was imperative for the
respondent no. 4 - DDR to take the drastic action.
10. The relevant portion of section 77A of the Act reads thus,
"77A. Appointment of member of committee, new
committee, authorised officers, where there is failure to
elect member, to constitute committee or where committee
does not enter upon office, etc.
(1) Where the Registrar is satisfied that,--
(1-a) a provisional committee has failed to make necessary
arrangements for holding election for the constitution of the first
committee, before the expiry of its term as specified in sub-
section (1A) of section 73;
(a) at the first constitution of the committee of any society there
is a failure to elect all or any of the members of the committee;
(b) the term of the committee of any society or of any of its
members has expired or for any other reason election is held
and there is a failure to elect all or any of the members required
to fill the vacancies;
(b-1) there is a stalemate in the constitution or committee has
ceased to function and vacuum is created in the management;
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(c) any committee is prevented from entering upon office;
(d) a new committee has failed to enter upon office on the date
on which the term of office of the existing committee expired; or
(e) deleted
(f) where more than one group of persons in a society is
claiming to be elected as the committee members and
proceedings in respect thereof have been filed in the Co-
operative Court ;]
The Registrar may, either suo-motu or on the application of any
officer or member of the society, by order appoint--
(i) any member or members of the society to be the member or
members of the committee to fill the vacancies;
(ii) a committee, consisting of not more than three members of
the society, or one or more authorised officers, who need not be
members of the society, to manage the affairs of the society till a
new committee enters upon office:
Provided that, before making such order, the Registrar shall
publish a notice on the notice board at the head office of the
society, inviting objections and suggestions with respect to the
proposed order within a period specified in the notice and
consider all objections and suggestions received by him within
that period :
Provided further that, it shall not be necessary to publish such
notice in any case where Registrar is satisfied that immediate
action is required to be taken or that it is not reasonable
practical to publish such notice:
Provided also that, if no member or members of the society are
willing to work on such committee, it shall be lawful for the
Registrar, to appoint one or more authorised officers, not being
a member of the society, as he may deem fit, to look after affairs
of the society."
A bare look at the provision indicates that the Registrar has
been conferred with certain powers on being satisfied of existence of
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the circumstances indicated by various clauses and in the event of
occurrence of a contingency.
11. Pertinently, forming an opinion that none of the
circumstances indicated in any of these clauses existed in respect of
the petitioners' managing committee, the respondent no. 4 - DDR by
his communication dated 28 July 2022 (Exhibit A) had pointedly invited
attention of the Government that there were absolutely no
circumstances to take any decision under that provision and there was
every possibility of the order being challenged. If on the previous day,
he was of such a strong view, one cannot comprehend, at least there is
nothing on record to objectively demonstrate, as to what thereafter had
prompted him to pass the impugned order on the very next day. The
selfsame authority exercising the quasi judicial power has come out
with two different views on successive days which is indeed eye-
catching and creates a reasonable doubt as to his being independent.
12. In view of such peculiar state of affairs, it is as clear as
day-light and can be easily demonstrated that the respondent no. 4 -
DDR was acting at the behest of the Government. He has been fair
enough to indicate this in so many words in the preface to the order.
Even in the reference column, he has inter alia referred to the
communication received from the State on the previous day. It is,
therefore, well nigh clear that none of the circumstances existed which
12 WP / 8066 / 2022
could have enabled the respondent no. 4 - DDR to pass the impugned
order under section 77A of the Act about which he had undertaken any
enquiry.
13. We are, therefore, of the firm view that the respondent
no. 4 - DDR has passed the impugned order not only in the absence of
any ground or by resorting to any enquiry by following the principles of
natural justice but even has passed it mala fide with an ulterior motive
to oblige the Government.
14. The brazenness with which the things have happened are
also mind boggling. Even when the power vested with the respondent
no. 4 - DDR to appoint an administrative board comprising of three
members, apart from the State Government had called upon him to
appoint a board of 11 members i.e. respondents nos. 6 to 15 without
leaving any option for him to appoint someone else. The names were
also coming from the State Government as to who should be the
members of the administrative board. If the things are as serious as
this, we have no option but to take a strong view that the respondent
no. 4 - DDR exercised the jurisdiction not independently but at the
instance of the State Government.
15. This is what had happened in the matter before the
Supreme Court in the case of Chandrika Jha (supra). It was a matter
under Bihar and Orissa Co-operative Societies Act, 1935 wherein a
13 WP / 8066 / 2022
similar power was vested with the Registrar to constitute the first board
of a co-operative society for a specified period. The Hon'ble Chief
Minister who was not competent had directed the Registrar to extend
the period from time to time. It was held that neither the Hon'ble Chief
Minister nor the Hon'ble Minister for Co-operation had the powers to
arrogate the statutory functions of the Registrar under the bye-laws
framed under that Act. The following observations are worth noticing :
"12. We fail to appreciate the propriety of the Chief Minister
passing orders for extending the term of the first board of
directors. Under the Cabinet system of Government, the Chief
Minister occupies a position of pre-eminence and he virtually
carries on the governance of the State. The Chief Minister may
call for any information which is available to the Minister-in-charge
of any department and may issue necessary directions for
carrying on the general administration of the State Government.
Presumably, the Chief Minister dealt with the question as if it were
an executive function of the State Government and thereby
clearly exceeded his powers in usurping the statutory functions of
the Registrar under bye-law 29 in extending the term of the first
Board of Directors from time to time. The executive power of the
State vested in the Governor under Article 154 (1) connotes the
residual or governmental functions that remain after the legislative
and judicial functions are taken away. The executive power
includes acts necessary for the carrying on or supervision of the
general administration of the State including both a decision as to
action and the carrying out of the decision. Some of the functions
exercised under "executive powers" may include powers such as
the supervisory jurisdiction of the State Government under
Section 65-A of the Act. The Executive cannot, however, go
against the provisions of the Constitution or of any law.
13. The action of the then Chief Minister cannot also be
supported by the terms of Section 65-A of the Act which
essentially confers revisional power on the State Government.
There was no proceeding pending before the Registrar in relation
to any of the matters specified in Section 65-A of the Act nor had
the Registrar passed any order in respect thereto. In the absence
of any such proceeding or such order, there was no occasion for
the State Government to invoke its powers under Section 65-A of
the Act. In our opinion, the State Government cannot for itself
14 WP / 8066 / 2022
exercise the statutory functions of the Registrar under the Act or
the Rules.
14. Neither the Chief Minister nor the Minister for Cooperation
or Industries had the power to arrogate to himself the statutory
functions of the Registrar under bye-law 29. The act of the then
Chief Minister in extending the term of the Committee of
Management from time to time was not within his power. Such
action was violative of the provisions of the Rules and the bye-
laws framed thereunder. The Act as amended from time to time
was enacted for the purpose of making the cooperative societies
broad-based and democratizing the institution rather than to allow
them to be monopolized by a few persons. The action of the Chief
Minister meant the very negation of the beneficial measures
contemplated by the Act."
The observations are apposite to the fact situation of the
matter in hand.
16. In the matter of Joint Action Committee of Air Line Pilots'
Association of India (Alpai) and others Vs. Director General of Civil
Aviation and others; (2011) 5 SCC 435, it has been observed that even
a superior authority cannot interfere with the functioning of the statutory
authority. The authority who has been vested with the powers to
exercise the discretion alone can pass an order and the senior official
cannot provide any guideline or direction to the authority. In the matter
of Manohar Lal (supra), it has been summarized that no higher
authority or an appellate or revisional authority can exercise the power
of the statutory authority.
17. In somewhat similar set of fact situation, the learned Single
Judge of this Court in the matter of Kumbhargaon Vividh Karyakari
Sahakari Seva Society Ltd. V. Assistant Registrar, Co-operative
15 WP / 8066 / 2022
Societies and Ors.; 1993 Mh.L.J. 178 by referring to similar facts and
circumstances made certain observations in paragraph no. 8 which
according to us squarely apply to the matter in hand:
"8. Even a bare perusal of the impugned order of the Assistant
Registrar shows that it is vitiated by considerations other than
germane. Not only has the Registrar pointedly referred to the letter
dated 5th June, 1992, issued to him by the Deputy Secretary of the
Government of Maharashtra, and the letter dated 24th June, 1992,
addressed to him by the Deputy Registrar, but he has also
reproduced the gist of the contents of the said letters in the
preamble to his order. As if this was not sufficient, in the body of the
order also, he has reproduced the arguments addressed on behalf
of the fourth respondent, one of which was that the Government had
already granted permission, for registration. The coup de grace is in
the operative order, which it is worthwhile to reproduce. The
operative order reads :
"Upon consideration of all the aforesaid facts, and, following the
order of the Government, the proposed Sadguru Multi-purpose,
Co-operative Society, Shendewadi, Kumbhargaon, Taluka
Patan, Dist. Satara, is hereby granted registration."
It is obvious that the Government's "order" was one of the factors
which influenced the Assistant Registrar in arriving at his impugned
order. I am, therefore, of the view that the Assistant Registrar has, in
passing the impugned order, abdicated his statutory functions and
acted at the behest of the Government, as if he was obliged to follow
a directive issued by the Government. That such is not the situation
in law has been pointedly made clear by a judgment of brother
Tipnis, J., dated 3rd November, 1992 in Writ Petition No. 4495 of
1992 in the case of Shri Gajanan Sahakari Dudh Vyavasayeek
Sansthan Maryadeet v. State of Maharashtra and others. The
learned Judge, following the Division Bench judgment referred to
hereinbefore, has pointed out that the Assistant Registrar is required
to decide the matter by completely ignoring any order issued to him
in his behalf by the Government."
As indicated herein-above, even in the matter in hand, in
the preface to the impugned order not only there reference to the
communications received by the respondent no. 4 - DDR from the
State Government but also that of directions of the Hon'ble Chief
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Minister and that in view of such directions that he was passing the
order. It is, therefore, amply clear that the respondent no. 4 - DDR has
passed the impugned order at the instance of the State Government
and not by reaching some objective conclusions independently. This is
not the manner in which a quasi judicial authority is expected to
function. The foundation and even the motive for passing the
impugned order compels us to quash and set aside the impugned
order.
18. As far as the arguments of the learned Government
Pleader regarding availability of a remedy of statutory appeal under
section 152 of the Act is concerned, pertinently, the appeal would lie to
the State Government itself. When the impugned order has been
passed on the instructions of the State, expecting the petitioners to
resort to such statutory appeal would be an exercise in futility. When
the appellate authority itself is calling upon the respondent no. 4 - DDR
to pass the impugned order, availability of such statutory remedy can
be said to be superfluous.
19. As a last resort, the learned Government Pleader tried to
point out that though the directions were issued when the portfolio of
Agriculture, Dairy Development, Animal Husbandry and Fisheries
Department was with the Hon'ble Chief Minister, now the portfolio has
been assigned to some other Hon'ble Minister who can decide the
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appeal independent of the directions issued by the State Government
at the instance of the Hon'ble Chief Minister.
20. We are afraid, the submission is completely hollow. If the
Hon'ble Minister is a member of the Cabinet formed by the Hon'ble
Chief Minister, one need not say anything more. In the peculiar facts
and circumstances of the matter obtaining in the hand, the argument
regarding availability of the statutory remedy is not available to the
Government.
21. The petition is allowed.
22. The impugned order is quashed and set aside.
23. Pending Civil Application is disposed of.
24. Rule is made absolute in the above terms.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
AFTER PRONOUNCEMENT OF THE JUDGMENT:
25. After pronouncement of the order, the learned Government
Pleader submits that the impugned order was passed about a month
back and has even been acted upon. The charge has been taken over.
He, therefore, requests for staying operation of the judgment and order
18 WP / 8066 / 2022
for a reasonable time to enable the State to approach the Supreme
Court.
26. Learned Senior advocate Mr. Hon for the petitioners
submits that the tenure of the existing committee expires by
30.09.2022. The new board is taking policy decision and even allotting
contract for a period of 1 year.
27. Mr. Thoke who appears for respondents nos.6 to 15 denies
the fact and contends that the transport contract which was to expire by
31 August 2022 is being extended.
28. Considering the nature of the dispute and the grounds
mentioned in this order for setting aside the order under challenge, we
are not inclined to stay operation of the order. The request of the
learned Government Pleader is rejected.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
