Sangamner Taluka Sahakari Dudh ... vs The State Of Maharashtra Through ...
2023 Latest Caselaw 10272 Bom

2023:BHC-AUG:21569-DB

                                                    1                       WP / 6976 / 2023



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                        WRIT PETITION NO. 6976 OF 2023

              1] Sangamner Taluka Sahakari Dudh Utpadak
                 Va Prakriya Sangh Maryadit, Sangamner
                 Ahmednagar Through its Managing Director,
                 Dr. Sujit Ashok Khillari
                 Age : 48 years, Occu : Service,
                 R/o Rajhans Doodh Sangh Vasahat,
                 Ghulewadi, Sangamner, Tq. Sangamner,
                 Dist. Ahmednagar.

              2] Nirzarheshwar Sahakari Dudh Utpadak
                 Sanstha Maryadit at village Kokangaon,
                 Tq. Sangamner, Dist. Ahmednagar
                 Through its Chairman
                 Keshav Kachru Shinde,
                 R/o. Kokangaon, Tq. Sangamner,
                 Dist. Ahmednagar.

              3] Ashok Kisan Bhosale
                 Age 47 years, Occ. Agril.
                 R/o. Kokangaon, Tq. Sangamner,
                 Dist. Ahmednagar.                                        ... Petitioners

                 VERSUS

              1] The State of Maharashtra
                 Through its Secretary
                 Department of Cooperation and Textile
                 Mantralaya, Mumbai-32.

              2] The Principal Secretary,
                 Department of Agricultural and Dairy,
                 Mantralaya, Mumbai-32.

              3] The Commissioner,
                 Dairy Development Mantralaya,
                 Mumbai-32.

              4] The Joint Registrar,
                 Co-Operative Societies (Dairy)
                 At Worli Dairy Campus,
                 Worli, Mumbai.




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                                       2                       WP / 6976 / 2023


5] The Divisional Deputy Registrar,
   Cooperative Society (Dairy),
   Nashik Division, Nashik.

6] The Assistant Registrar,
   Co-operative Societies (Dairy),
   M.I.D.C. Ahmednagar.

7] Subhash s/o Malhari Aher
   Age 69 years, Occ. Agriculture,
   R/o. Village Ghargaon, Tq. Sangamner,
   District Ahmednagar.

8] The Hon'ble Minister
   For Dairy and Animal Husbandry,
   Maharashtra State, Mantralaya,
   Mumbai.                                               ... Respondents

                                        ...
         Advocate for petitioners : Mr. R.N. Dhorde, Senior Advocate
                  i/by Shri V.R. Dhorde a/w Mr. P.S. Dighe
         Incharge GP for the respondents 1 to 6 and 8 : Mr. D.R. Kale
            Advocate for the respondent no. 7 : Mr. S.S. Thombre
                                        ...

                        CORAM             : MANGESH S. PATIL &
                                            SHAILESH P. BRAHME, JJ.

                        RESERVED ON   : 26 SEPTEMBER 2023
                        PRONOUNCED ON : 05 OCTOBER 2023

JUDGMENT (MANGESH S. PATIL, J.) :

Heard. Rule. Rule is made returnable forthwith. Learned

Incharge Government Pleader waives service for respondents no. 1 to

6 and 8. Mr. S.S. Thombre waives service for respondent no. 7. At the

joint request of the parties, the matter is heard finally at the stage of

admission.

2. The petitioner no. 1 is a milk society registered for

Sangamner taluka under the provisions of the Maharashtra Co-

3 WP / 6976 / 2023

operative Societies Act, 1960 (hereinafter "the Act"). By resorting to

Article 226 of the Constitution of India the petitioners are challenging

nomination of respondent no. 7 on the Managing Committee of

petitioner no. 1 made by the Government by resorting to section 73

AAA (2), fifth proviso.

3. The learned Senior advocate Mr. Dhorde for the petitioners

would submit that the election for constitution of the managing

committee of the society was held in accordance with the provisions of

the Act in the year 2022 for a period of five years and 17 directors were

elected. He would submit that nomination of the respondent no. 7 by

resorting to the fifth proviso of sub-section 2 of section 73AAA is not

legally sustainable.

4. He would submit that under that enabling clause, only a

person having requisite experience relating to the work of the society

and possessing such qualification as may be specified by the

government by way of an order published in the official gazette can be

nominated. He would submit that the impugned order of nomination

does not demonstrate as to how he was fitting in that eligibility criteria.

He would submit that even otherwise, the respondent no. 7 was not

eligible to be appointed being disqualified under section 73CA which

provides for disqualification of the members of the managing

committee and inter alia provides that no person is eligible for being

4 WP / 6976 / 2023

elected or nominated as member of the committee if he is a defaulter of

any society.

5. He would point out that on the date on which the

respondent no. 7 was nominated he was a defaulter of a credit co-

operative society by name Mulganga Gramin Bigar Sheti Sahakari

Patsanstha Maryadit and adverts our attention to a certificate issued by

the manager of that credit society dated 26.05.2023 wherein it has

been expressly certified that as on 26.05.2023, the respondent no. 7

was in arrears of loan to the tune of Rs.3,15,360/-. He would submit

that the petitioner no. 1 had raised specific objection with the

respondent no. 5 who is the Divisional Deputy Registrar of Nasik region

pointing out that the respondent no. 7 was disqualified under of section

73CA, and still no cognizance was taken.

6. Mr. Dhorde would then submit that the respondent no. 7

was nominated after the turbulance in the politics in the State and the

change in the government whereafter the learned Minister holding the

portfolio of Animal Husbandry by written communication dated

05.12.2022 expressly recommended the respondent no. 7 for being

nominated on the Managing Committee of the petitioner no. 1 society.

He would advert our attention to a copy of such recommendation dated

05.12.2022 (Exhibit - K). He would submit that since the respondent

no. 7 is the staunch supporter of the learned Minister, he was

5 WP / 6976 / 2023

recommended to be nominated and the authorities have obliged the

learned Minister without undertaking any objective scrutiny of his

eligibility to be nominated under the fifth proviso to sub-section 2 of

section 73AAA and ignoring the disqualification criterion provided for by

section 73CA. He would, therefore, submit that the nomination besides

being contrary to the provisions of law, is actuated by political interest

and be quashed and set aside.

7. The learned Incharge Government Pleader by referring to

the affidavits in reply filed by the respondent no. 5 on behalf of the

respondents 2, 4 and 5 - Chandrashekhar S/o Madhavrao Bari

supports the nomination of the respondent no. 7. He would submit that

by resorting to the enabling provision contained in the fifth proviso to

sub-section (2) of section 73AAA of the Act, he has been nominated.

Such appointment is subject to the provisions of section 73CA. It is

after the order of nomination when the compliance was sought for that

the petitioner no. 1 informed about this disqualification of the

respondent no. 7 under section 73CA and in turn he (respondent no. 5

- Divisional Joint Registrar) by communication dated 09.06.2023

addressed to the respondent no. 4 - Joint Registrar, Co-operative

Societies (Dairy), Mumbai had informed about the alleged

disqualification of the respondent no. 7 under section 73CA and

solicited directions / guidance. Pursuant thereto, even the state

6 WP / 6976 / 2023

government solicited a report from the respondent no. 4. In turn, a

report from the respondent no. 6 - Assistant Registrar, Co-operative

Societies (Dairy), Ahmednagar was solicited. By communication dated

30.06.2023, the respondent no. 6 reported that there was no

outstanding against the respondent no. 7 in respect of any dues of the

Sahakarmaharshi Bhausaheb Thorat Amrutvahini Sahakari Bank Ltd.,

Ghulewadi and its dues were cleared by him in February 2021. It was

also informed that even Mulganga Gramin Bigar Sheti Sahakari

Patsanstha Maryadit, Chandnapuri certified that as on 17.06.2023 the

respondent no. 7 was not in defualt.

8. Learned Incharge Government Pleader would submit that

as per the government order dated 14.07.2017 issued pursuant to the

fifth proviso to sub-section (2) of section 73AAA, the respondent no. 7

possesses requisite educational qualification of matriculation (SSC).

He would, therefore, submit that the nomination of the respondent no. 7

is strictly in accordance with law and cannot be questioned.

9. The learned advocate for the respondent no. 7

Mr. Thombre obviously supports the nomination. He would submit that

it is after due scrutiny it was found that the respondent no. 7 was not a

defaulter of either of the two co-operative societies as is mentioned in

the affidavit in reply filed on behalf of the respondents 2, 4 and 5. He

would submit that since the respondent no. 7 has been nominated

7 WP / 6976 / 2023

resorting to the fifth proviso to sub-section (2) of section 73AAA,

though he is a member of the managing committee, such nominated

members are required to possess a distinct status and be excluded for

the purpose of counting the total number of members of the committee

specified in the first proviso to sub-section (1). Such nominated

members have no right to vote in the election of the society and are

also not eligible to be elected as office bearers of the committee. He

would, therefore, submit that since such nominated members are over

and above the statutory strength prescribed for the composition of the

managing committee, the provisions of section 73CA providing for

disqualification of committee and its members may not be applicable to

such nominated members.

10. We have carefully considered the rival submissions and

perused the papers.

11. At the outset, it is necessary to note that though in the

prayer clause, the petitioners have put up a challenge to the proviso to

sub-section (2) of section 73AAA, the learned senior advocate

Mr. Dhorde expressly submitted that the petitioners are not pressing for

prayer clause (B).

12. So far as the statutory provisions are concerned, fifth

proviso of sub-section (2) of section 73AAA reads as under:-

8 WP / 6976 / 2023

"Provided also that, in respect of society, excluding the Housing Society, having assistance of the Government in the form of share capital, loan, guarantee, grant, the Government land or any other form whether cash or kind, the committee shall also include following two members nominated by the Government, namely:-

(i) one Government Officer not below the rank of the Assistant Registrar of Co-operative Societies, and

(ii) one person having such requisite experience relating to the work of the society and such qualifications, as may be specified by the Government, by an order published in the Official Gazette: "

13. Since simultaneously, the petitioners are also resorting to

section 73CA to demonstrate that the respondent no. 7 was also

disqualified, the relevant provision also needs to be looked into and

reads as under:-

73CA. Disqualification of committee and its members

(1) Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being member of a committee, no person shall be eligible for being appointed, nominated, elected, co-opted, or, for being a member of a committee, if he --

(i) is a defaulter of any society;

Explanation - For the purpose of this clause, the term "defaulter" includes --

(a) in the case of a primary agricultural credit society, a member who defaults the repayment of the crop loan on the due date;

(b) in the case of term lending society, a member who default the payment of any instalment of the loan granted to him;

                        (c)                     ...





                                     9                          WP / 6976 / 2023

(d) in the case of non-agricultural credit societies, a member who defaults the payment of any instalment of the loan granted;

(e) in the case of housing societies, a member who defaults the payment of dues to the society within three months from the date of service of notice in writing served by post under certificate of posting demanding the payment of dues;

14. Having noticed the provisions, let us turn to the facts. It is

apparent that by virtue of fifth proviso, the state government possesses

a power to appoint two members on the managing committee of the

society. One could be a government officer not below the rank of the

Assistant Registrar of the Co-operative Societies and one person

having such requisite experience relating to the work of the society and

such qualification as may be specified by the government by an order

published in the official gazette. As far as the latter qualification is

concerned, in the affidavit in reply, it has been specifically mentioned

that the relevant order was published on 14.03.2017 (Exhibit R-3)

providing inter alia for the qualifications for being nominated under that

provision as S.S.C. or matriculation. This fact has not been

controverted in the rejoinder. Consequently, as far as the educational

qualification is concerned, the respondent no. 7 apparently possesses

the qualification.

15. However, simultaneously, it is also imperative that such a

person to be nominated should possess requisite experience relating to

the work of the society. The affidavit in reply and the additional

10 WP / 6976 / 2023

affidavit in reply filed on behalf of the respondents 2, 4 and 5

conspicuously omit to address this aspect. When the statutory

provision provides for experience and qualification both, the impugned

order of nomination is absolutely silent and does not mention as to how

the decision to nominate the respondent no. 7 was taken particularly in

respect of the requisite experience criterion. Pertinently, the

respondent no. 7 himself has not come forward by filing any affidavit in

reply.

16. It is a matter of record that one Mr. Janardhan Mhatarba

Pa. Aher by communication dated 05.12.2022 addressed to the learned

Minister of Revenue and Animal Husbandry had recommended the

respondent no. 7 to be nominated, whereupon by a specific noting in

his hand and under the signature and stamp of the learned Minister, it

was directed that he be nominated. Such endorsement clearly appears

to be the own handwriting of the learned Minister and with his

signature. If such is the state-of-affairs, whether the respondent no. 7

has been nominated on a recommendation of the learned Minister

holding the relevant portfolio, which fact has not been controverted in

the affidavits in reply, the petitioners' allegations stand duly

substantiated wherein it is being alleged that the respondent no. 7 has

been nominated by taking aid of the relevant provision but unmindful of

the requisite experience criteria.

11 WP / 6976 / 2023

17. Again, the stand of the petitioners that even the provision

of section 73CA regulates the members who have been nominated by

resorting to the fifth proviso to sub-section (2) of section 73AAA has

been specifically admitted by the respondents 2, 4 and 5 in the

affidavits in reply. Independently, the provision of section 73CA (supra)

ex facie demonstrate that the disqualification of the members who are

appointed, elected, co-opted is equally applicable to a member who is

nominated. The use of the word 'nominated' makes it abundantly clear

that even this section 73CA would be applicable to the persons who

are nominated by the government resorting to fifth proviso to sub-

section (2) of section 73AAA.

18. Though it is being pointed out that the respondent no. 6 in

a report submitted to the respondent no. 5 informed about the

respondent no. 7 being not a defaulter of either of the two co-operative

societies, the stand is clearly a convenient one. When section 73CA

speaks about the disqualification of a member who is a defaulter of any

society, such default qua nominated member will have to be examined

as on the date on which the impugned order nominating the

respondent no. 7 was passed. Even according to the stand being

taken by the respondent - authorities in the affidavits in reply, the

respondent no. 7 was nominated on 15.05.2023 and the certificate of

Mulganga co-operative society which forms the basis of the report

12 WP / 6976 / 2023

submitted by the respondent no. 6 to the respondent no. 5 mentions

that as on the date of that report, he was not a defaulter of the society.

It is clearly a whitewash. The fact that the petitioner together with a

certificate of the selfsame society had approached the respondent

no. 4 expressly mentioning that as on 26.05.2023, the respondent no. 7

was a defaulter of the society to the tune of Rs.3,15,360/- has not been

expressly denied in the affidavits in reply and the respondent no. 7 has

also not controverted this fact by filing any affidavit in reply. His being

not a defaulter on a future date post his nomination is not relevant. As

on the date he was nominated, he was clearly a defaulter of Mulganga

Gramin Bigar Sheti Sahakari Patsanstha Maryadit and by virtue of

section 73CA, he could not have been legally nominated by resorting to

fifth proviso to sub-section (2) of section 73AAA.

19. Though some arguments were advanced by Mr. Dhorde to

demonstrate that the provision of section 73AAA(2) fifth proviso was

not available to be invoked since the petitioner society had not taken

any benefit or aid from the government, in view of the specific wordings

of the fifth proviso which can be resorted to in respect of the society

having availed assistance of the government in the form of share

capital, loan, guarantee, grant, the government land or any other form

whether cash or kind, we are not in agreement with the learned senior

advocate.

13 WP / 6976 / 2023

20. Admittedly, the central government scheme providing for

supplemental protein which scheme has been sought to be

implemented through the state government and which, by its order

dated 29.10.2013, has granted approval to setting up of paraphernalia

in the petitioners' society to the tune of Rs.600/-, though 75% of the

funds were being provided by the Central government and the

remaining 25% is to be shared by the petitioner no. 1 society. The

state government is the implementing agency. In our considered view,

taking into consideration the object of providing for this prerogative of

making nomination on the managing committee reserved with the

government, the purpose and object would be defeated if the state

government is said to be not entitled to resort to this provision. In other

words, when the petitioner no. 1 society has been admitted to a

scheme for a particular project of the central government being

implemented through the state government, it would fall in the category

where it can certainly be said that it is having the assistance of the

government in kind which can be interpreted ejusdem generis with the

words share capital, loan, guarantee, grant, the government land or in

any other form in cash or kind. Therefore, we are not in agreement

with Mr. Dhorde that the fifth proviso of sub-section (2) of section

73AAA is not applicable to the petitioner no. 1 society.

                                     14                         WP / 6976 / 2023


21.            In the circumstances, nomination of the respondent             no. 7

being contrary to the provision of fifth proviso to sub-section (2) of

section 73AAA as well as section 73CA of the Act besides being

actuated by political reasons, is clearly illegal and arbitrary and liable to

be quashed and set aside.

22. The writ petition is allowed.

23. It is declared that the appointment of the respondent no. 7

on the managing committee of the petitioner no. 1 society by

letter/order dated 19.05.2023 and 15.05.2023 is illegal and is quashed

and set aside.

24. Rule is made absolute in the above terms.

  [ SHAILESH P. BRAHME ]                        [ MANGESH S. PATIL ]
         JUDGE                                        JUDGE

arp/