Bombay High Court
Proposed Abasaheb Sarode Vividh ... vs Kalaskarwadi Vividh Karyakari Seva ... on 30 August, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:34948-DB
TAUSEEF Tauseef 04-WP.3712.2017-J.doc
LAIQUEE
FAROOQUI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
TAUSEEF LAIQUEE CIVIL APPELLATE JURISDICTION
FAROOQUI
Date: 2024.08.31
10:20:55 +0530
WRIT PETITION NO.3712 OF 2017
1. Kalaskarwadi Vividh Karyakari
Seva Sahakari Sanstha Maryadit
Kalaskarwadi, Tandali, Taluka Shirur,
District Pune,
Through its Directors.
2. Shrasgaon Kata Vividh Karyakari
Sahakari Sanstha Maryadit
Shirasgaon Kata, Taluka Shirur,
District Pune,
Through its Directors ...Petitioners
Versus
1. The State of Maharashtra
Through the Hon'ble Minister
for Cooperation, Marketing & Textile,
Mantralaya, Mumbai.
2. The Commissioner for Cooperation &
Registrar for Cooperative Societies,
State of Maharashtra, having its Office
at Sakhar Sankul, Shivaji Nagar,
Pune - 411 005.
3. The District Deputy Registrar,
Cooperative Societies, Pune Rural,
Having its office at 5, B.J. Road,
Maharashtra Rajya Sahakari Sangh,
Building, Pune 411 001.
4. The Assistant Registrar,
Cooperative Societies, Shirur,
Taluka Shirur, District Pune. ...Respondents
WITH
CIVIL APPLICATION NO.957 OF 2017
IN
WRIT PETITION NO.3712 OF 2017
1 of 41
::: Uploaded on - 31/08/2024 ::: Downloaded on - 27/09/2024 22:10:56 :::
Tauseef 04-WP.3712.2017-J.doc
Proposed Kalbhairavnath Vividh Karyakari
Seva Sahakari Sanstha Maryadeet,
Tardobachiwadi, Taluka Shirur,
District Pune
Through its Chief Promoter
Kantilal Yashwant Kardile ...Applicant
(Intervener)
IN THE MATTER BETWEEN:-
1. Kalaskarwadi Vividh Karyakari
Seva Sahakari Sanstha Maryadit
Kalaskarwadi, Tandali, Taluka Shirur,
District Pune,
Through its Directors
2. Shrasgaon Kata Vividh Karyakari
Sahakari Sanstha Maryadit
Shirasgaon Kata, Taluka Shirur,
District Pune,
Through its Directors ...Petitioners
Versus
1. The State of Maharashtra
Through the Hon'ble Minister
for Cooperation, Marketing & Textile,
Mantralaya, Mumbai.
2. The Commissioner for Cooperation &
Registrar for Cooperative Societies,
State of Maharashtra, having its Office
at Sakhar Sankul, Shivaji Nagar,
Pune - 411 005.
3. The District Deputy Registrar,
Cooperative Societies, Pune Rural,
Having its office at 5, B.J. Road,
Maharashtra Rajya Sahakari Sangh,
Building, Pune 411 001.
4. The Assistant Registrar,
Cooperative Societies, Shirur,
Taluka Shirur, District Pune. ...Respondents
2 of 41
::: Uploaded on - 31/08/2024 ::: Downloaded on - 27/09/2024 22:10:56 :::
Tauseef 04-WP.3712.2017-J.doc
WITH
CIVIL APPLICATION NO.958 OF 2017
IN
WRIT PETITION NO.3712 OF 2017
Proposed Abasaheb Sarode Vividh Karyakari
Seva Sahakari Sanstha Maryadeet,
Saradwadi, Taluka Shirur, District Pune
Through its Chief Promoter
Dattatraya Machhindra Sarode ...Applicant
(Intervener)
IN THE MATTER BETWEEN:-
1. Kalaskarwadi Vividh Karyakari
Seva Sahakari Sanstha Maryadit
Kalaskarwadi, Tandali, Taluka Shirur,
District Pune,
Through its Directors
2. Shrasgaon Kata Vividh Karyakari
Sahakari Sanstha Maryadit
Shirasgaon Kata, Taluka Shirur,
District Pune,
Through its Directors ...Petitioners
Versus
1. The State of Maharashtra
Through the Hon'ble Minister
for Cooperation, Marketing & Textile,
Mantralaya, Mumbai.
2. The Commissioner for Cooperation &
Registrar for Cooperative Societies,
State of Maharashtra, having its Office
at Sakhar Sankul, Shivaji Nagar,
Pune - 411 005.
3. The District Deputy Registrar,
Cooperative Societies, Pune Rural,
Having its office at 5, B.J. Road,
Maharashtra Rajya Sahakari Sangh,
Building, Pune 411 001.
3 of 41
::: Uploaded on - 31/08/2024 ::: Downloaded on - 27/09/2024 22:10:56 :::
Tauseef 04-WP.3712.2017-J.doc
4. The Assistant Registrar,
Cooperative Societies, Shirur,
Taluka Shirur, District Pune. ...Respondents
WITH
CIVIL APPLICATION NO.959 OF 2017
IN
WRIT PETITION NO.3712 OF 2017
Proposed Mesaimata Vividh Karyakari
Seva Sahakari Sanstha Maryadeet,
Kardelwadi, Taluka Shirur, District Pune
Through its Chief Promoter
Yuvraj Paraji Kardile
Age 53 years, Occupation - Agriculturist
Residing at Kardilewadi, Taluka Shirur,
District Pune. ...Applicant
(Intervener)
IN THE MATTER BETWEEN:-
1. Kalaskarwadi Vividh Karyakari
Seva Sahakari Sanstha Maryadit
Kalaskarwadi, Tandali, Taluka Shirur,
District Pune,
Through its Directors
2. Shrasgaon Kata Vividh Karyakari
Sahakari Sanstha Maryadit
Shirasgaon Kata, Taluka Shirur,
District Pune,
Through its Directors ...Petitioners
Versus
1. The State of Maharashtra
Through the Hon'ble Minister
for Cooperation, Marketing & Textile,
Mantralaya, Mumbai.
2. The Commissioner for Cooperation &
Registrar for Cooperative Societies,
State of Maharashtra, having its Office
at Sakhar Sankul, Shivaji Nagar,
Pune - 411 005.
4 of 41
::: Uploaded on - 31/08/2024 ::: Downloaded on - 27/09/2024 22:10:56 :::
Tauseef 04-WP.3712.2017-J.doc
3. The District Deputy Registrar,
Cooperative Societies, Pune Rural,
Having its office at 5, B.J. Road,
Maharashtra Rajya Sahakari Sangh,
Building, Pune 411 001.
4. The Assistant Registrar,
Cooperative Societies, Shirur,
Taluka Shirur, District Pune. ...Respondents
WITH
WRIT PETITION NO.4943 OF 2017
1. Vijay Namdev Kusekar
Adult, Indian Inhabitant,
Occupation Farmer,
R/o. At Post Village Andhalgaon,
Taluka Shirur, District Pune
2. Diliprao Mohanrao Mokashi
Adult, Indian Inhabitant,
Occupation Farmer,
R/o. At Post Village Inamgaon
Taluka Shirur, District Pune ...Petitioners
Versus
1. The State of Maharashtra
Through the Secretary,
Ministry of Cooperation, Irrigation & Textile,
Government of Maharashtra,
Mantralaya, Mumbai - 400 032.
2. Minister for Cooperation,
Irrigation & Textile,
Government of Maharashtra,
Mantralaya, Mumbai - 400 032.
3. Regional Joint Director,
Cooperative Societies, Pune Division,
Pune.
4. District Deputy Registrar,
Cooperative Societies, Pune Rural.
5 of 41
::: Uploaded on - 31/08/2024 ::: Downloaded on - 27/09/2024 22:10:56 :::
Tauseef 04-WP.3712.2017-J.doc
5. Assistant Registrar,
Cooperative Societies, Shirur, Pune.
6. Commissioner of Cooperation and
Registrar, Co-operative Societies,
Maharashtra, Pune. ...Respondents
WITH
WRIT PETITION NO.13990 OF 2023
1. The Dighanchi Vividh Karyakari
Seva Sahakari Sanstha Maryadit
Dighanchi, Tal. Atpadi, Dist. Sangli,
Through its Chairman,
Hanmantrao Dhondisaheb Deshmukh
Occupation Service,
R/at: A/P Dighanchi Taluka Atpadi,
District Sangli.
2. Siddhanath Vividh Karyakari
Seva Sahakari Sanstha Maryadit
Dighanchi, Tal. Atpadi, Dist. Sangli,
Through its Chairman,
Avinash Sadashiv More,
Dighanchi, Taluka Atpadi,
District Sangli. ...Petitioners
Versus
1. The State of Maharashtra
Through the Hon'ble Minister,
of Cooperation, Marketing & Textile,
Mantralaya, Mumbai - 400 032.
2. The Commissioner of Co-operation
And Registered of Co-operative Societies,
having office at Kolhapur.
3. The District Deputy Co-operative Societies,
District Sangli.
4. Assistant Registrar,
Cooperative Societies,
Atpadi, District Sangli
having its office at Atpadi, Sangli.
6 of 41
::: Uploaded on - 31/08/2024 ::: Downloaded on - 27/09/2024 22:10:56 :::
Tauseef 04-WP.3712.2017-J.doc
5. Proposed Pant Shetkari Vikas
Seva Society Ltd., Dighanchi,
Tal. Atpadi, District Sangli
6. Proposed Goyaba Vikas
Seva Society Ltd., Dighanchi,
Tal. Atpadi, District Sangli
7. Proposed Baliraja Vikas
Seva Society Ltd., Dighanchi,
Tal. Atpadi, District Sangli
8. Proposed Manganga Vikas
Seva Society Ltd., Dighanchi,
Tal. Atpadi, District Sangli ...Respondents
__________
Mr. S. S. Kanetkar a/w. Mr. Yash Dewal for Petitioners in
WP/3712/2017.
Mr. Sagar A. Rane for Petitioners in WP/4943/2017.
Mr. Nilesh Wable a/w. Adv. Rutuja Khatmode i/b. Mr. Umesh
Mankapure for Petitioners in WP/13990/2023.
Mr. N. C. Walimbe a/w. Ms. Kavita N. Solunke, AGP for Respondent-
State.
Mr. Sandesh D. Patil a/w. Mr. Chintan Shah and Mr. Krishnakant
Deshmukh for Respondent No.5.
Mr. Ramanand Salunke, Under Secretary, Legal & Mr. Rahul Shinde,
Desk Officer present in the Court.
__________
CORAM : A. S. CHANDURKAR &
JITENDRA JAIN, JJ.
Date on which the arguments concluded : 9th AUGUST 2024
Date on which the Judgment is delivered: 30th AUGUST 2024
JUDGMENT (Per Jitendra Jain, J.) :
-
1. Rule. Since, the pleadings are completed, by consent of the
parties, all three petitions are heard finally.
7 of 41
Tauseef 04-WP.3712.2017-J.doc
2. These three writ petitions mounts a common challenge to the
Government Corrigendum No.SSV-911/Case no.1047/2-dated 14 th
February 2017 issued by Respondent No.1- Ministry of Cooperation,
Marketing & Textile. Since the issues raised in all the petitions are
common, same is disposed of by common order.
3. Petitioners are registered Co-operative Societies in various
villages who are aggrieved by the impugned corrigendum. There are
three Civil Applications filed in Writ Petition No.3712 of 2017 who are
seeking to intervene in the present lis to oppose the Petitioner and in
support of the impugned corrigendum.
4. Petitioners seek to challenge the authority of Respondent No.1
to issue impugned corrigendum dated 14th February 2017 to the
Government Resolution dated 23rd September 2013, whereby in clause
(1) of the Government Resolution dated 23 rd September 2013, which
states that there should be "only one" Primary Agricultural Credit
Cooperative Society (PACCS) in one Revenue Village is now sought to
be replaced by following clauses 1, 1A and 1B which is impugned in
present petitions and reads as under:-
"1. As far as possible, there should be single Primary Agricultural
Co-operative Credit Society in a single revenue village. However,
registration of more than one such societies can be permitted in a
single revenue village where there is a scope therefore, after
complying the other criteria related to financial capacity.
8 of 41
Tauseef 04-WP.3712.2017-J.doc
1A. The proposed primary agricultural cooperative credit society
should accumulate minimum share capital amounting to Rs.5.00
lakhs before the registration of the society.
1B. The society is required to commence at least one of its business
within a period of one year from the date of its registration."
[emphasis supplied]
Original Marathi version of corrigendum dated 14 th February
2017 is as under :-
jkT;kr uohu izkFkfed d`"kh ir iqjoBk
lgdkjh laLFkk uksan.kh dj.ks o dk;Zjr
laLFkkps l{kehdj.k dj.ksckcr-
egkjk"V 'kklu
lgdkj] i.ku o oL=ks?kksx foHkkx
'kklu 'kq/nhiz=d dz- llsok 911@iz-dz- 1047@2 l
ea=ky;¼foLrkj½ eqacbZ& 400032
fnukad&14 Qscqokjh 2017
okpk& 1- 'kklu fu.kZ; dz- llsok& 911@iz-dz- 1047@2&l] fn- 23-09-2013
2- lgdkj vk;qDr o fuca/kd] lgdkjh laLFkk] egkjk"Vª jkT;- iq.ks ;kaps
fn- 20-09-2016 ps i=-
izLrkouk&
jkT;kr uohu izkFkfed d`"kh iriqjoBk laLFkkaph ukasn.kh dj.ks o dk;Zjr laLFkkps l{kehdj.k
dj.;kckcr fn- 23 lIVascj] 2013 jksth 'kklu fuxZfer dj.;kr vkyk vkgs- lnj 'kkklu
fu.kZ;krhy fud"k dz- 1 o 3 fopkjkr ?ksrk ,dk eglqyh xkokr laLFkk vfLrRokr vlY;kl o
R;kp eglqyh xkokr uohu izkFkfed d`"kh iriqjoBk lgdkjh laLFkspk izLrko nk[ky >kY;kl o
'kklu fu.kZ;kr ueqn dsY;kizek.ks laHkkO; d`"kh o d`"kh iqjd iriqjoBk rlsp tks[khe laiRrhps
HkkaMoy'kkgh izek.k ;kph iqrZrk gksr vlY;kl v'kk osGh R;kp eglqyh xkokr vfLRkRokr
vlysY;k laLFks O;frjhDr uohu fu;ksthr laLFksph ukasn.kh djkoh fdaok dls ;kckcr ekxZnZ 'kZu
feG.;kph lgdkj vk;qDr o fuca/kd ;kauh 'kklukl fouarh dsyh vkgs-
lanHkZ- dz- 1 e/khy 'kklu fu.kZ;kZP;k vuqa"kxkus fu;ksftr izkFkfed d`"kh iriqjoBk lgdkjh
laLFkkaP;k uksan.khckcr lgk;d fuca/kd] ftYgk mifuca/kd o foHkkxh; lgfuca/kd] lgdkjh
laLFkk ;kauh fnysY;k fu.kZ;kfo:/n eksB;k la[;sus iqufj{k.k vtZ 'kklukl izkIr >kys vkgsr- v'kk
izLrkokaph xq.koRrsoj Nkuuh dsyh vlrk vusd fu;ksftr laLFkk laanHkZ dz-1 e/khy 'kklu fu.kZ;krhy
fud"k dz-2 e/khy fud"kkph iqrZrk djhr vlY;kps fun'kZukl vkys vkgs-
mijksDr oLrqfLFkrh fopkjkr ?ksrk lanHkZ dz- 1 e/khy 'kklu fu.kZ;krhy fud"k dz-1 e/;s
lq/kkj.kk dj.ks vko';d vlY;kph 'kklukph [kk=h >kY;keqGs ;k fud"kkr lq/kkj.kk dj.;kph ckc
'kklukP;k fopkjk/khu gksrh-
'kklu 'kq/nhi=
lanHkZ dz- 1 e/khy 'kklu fu.kZ;krhy fud"k dz- 1 ,soth [kkyhyizek.ks okpkos-
1½ ,dk eglqyh xkokr 'kD;rks ,dp izkFkfed d`"kh iriqjoBk lgdkjh laLFkk vlkoh- rFkkfi]
vFkZ{kersps vU; fud"k fopkjkr ?ksmu T;k xkokr ,dkis{kk laLFkkaph ukans .kh dj.;kl oko vkgs] v'kk
xkokr ,dkis{kk tkLr laLFkkaph uksan.kh djrk ;sbZy-
1v½ fu;ksftr izkFkfed d`"kh ir iqjoBk lgdkjh laLFksus laLFksP;k uksan.khiwohZ fdeku #- 5 yk[k
HkkaxHkkMoy tek dj.ks vko';d vkgs-
1c½ fu;ksftr laLFksph uksna .kh >kY;kaurj ,d o"kkZP;k dkyko/khr laLFksus fdeku ,d O;olkp
lq: dj.ks vko';d jkghy-
9 of 41
Tauseef 04-WP.3712.2017-J.doc
Submissions of Petitioners in Writ Petition No.4943 of 2017:-
5. Petitioner represented by Shri. S. Rane, learned counsel
submits that the impugned corrigendum dated 14th February 2017 is
patently arbitrary and violates Article 14 of the Constitution of India,
since there is abrupt change in policy without any rational. Petitioner
further submitted that the impugned corrigendum is issued merely on
the basis of a letter addressed by the Commissioner of Cooperation and
same is not based on recommendation of any expert committee and,
therefore, it suffers from non-application of mind. Petitioner further
submitted that the impugned corrigendum has amended only clause (1)
without amending other clauses of Government Resolution dated 23 rd
September 2013, which would lead to patent absurdity. It is further
submitted that under the garb of "Corrigendum" substantive change has
been made in the existing policy which permitted registration of only
one PACCS in one revenue village. It is further submitted that the
impugned corrigendum has been issued to regularise 47 PACCS in
different villages in Shirur by giving retrospective effect and the
impugned corrigendum is issued for political reason and in violation of
model code of conduct which was in force in view of the ensuing
elections to zilla parishad and panchayat samiti. Petitioner further
submitted that the changes sought to be made by way of impugned
10 of 41
Tauseef 04-WP.3712.2017-J.doc
corrigendum does not fall within the meaning of the term
"Corrigendum". Petitioner further submitted that the decision of this
Court in Writ Petition Nos.1747 of 2013 and 1164 of 2017 interpreting
clause (1) of Government Resolution dated 23 rd September 2013 having
attained finality, the impugned corrigendum runs foul of the law laid
down therein. Petitioner further relied upon the decision in the case of
Shikshak Bharti Vs. State of Maharashtra 1 and Ashwin Prafulla
Pimpalwar & Ors. Vs. State of Maharashtra & Ors. 2, in support of its
submissions and prayed for setting aside of the impugned corrigendum
dated 14th February 2017.
Submissions of the Petitioners in Writ Petition No.3712 of
2017:-
6. The learned counsel Mr. S. S. Kanetkar for the Petitioners in
Writ Petition No.3712 of 2017 adopted the arguments of the Petitioners
in Writ Petition No.4943 of 2017 and further submitted that the
impugned corrigendum is contrary to the Rule 9 read with Second
Schedule to the Maharashtra Government Rules of Business, 1975
which requires proposals involving change in policy to be brought
before the Council of Ministers and same having not been done the
corrigendum is bad in law. In support of the said submissions,
Petitioner relied upon the decision of the Supreme Court in the case of
1 2018 SCC OnLine Bom 241
2 1992 (2) BOMCR 280
11 of 41
Tauseef 04-WP.3712.2017-J.doc
MRF Limited Vs. Manohar Parrikar & Ors3.
7. Petitioners represented by Mr. Wable in Writ Petition
No.13990 of 2023 adopted the arguments made by the Petitioners in
the above two petitions and prayed for similar prayer of quashing the
impugned corrigendum dated 14th February 2017.
Submissions on behalf of Respondent No.5 in Writ Petition
No.13990 of 2023:-
8. Respondent No.5 represented by Mr. S. Patil learned counsel
in Writ Petition No.13990 of 2023 submits that the proposed society, is
affected by the challenge made to the impugned corrigendum since they
have been granted registration on 7th July 2023 and, therefore are
opposing the petition on various grounds. Respondent No.5 submits
that putting a blanket bar on the registration of new societies in a
particular village would be in violation of Article 19(1)(c) and Article
14 of the Constitution of India. Respondent No.5 further submitted that
it is nobody's case that the authority issuing the corrigendum had no
power to issue the same and once it is admitted that the State has
power to issue such a corrigendum, it cannot be said that the impugned
corrigendum was a colourable exercise of power. Respondent No.5
further submitted that the impugned corrigendum was issued after
following due process of law and after obtaining the approval of the
3 2010 (11) SCC 374
12 of 41
Tauseef 04-WP.3712.2017-J.doc
Governor under Article 166 of the Constitution of India. Respondent
No.5 further submitted that there is no malice in law as proposed to be
canvassed by Petitioners, since in none of the petitions, it is contended
as to or for whose benefit, the corrigendum was issued. Respondent
No.5 submitted that there is no case made out for challenge to the
impugned corrigendum since none of the grounds laid down by the
decision of the Supreme Court in the case of State of Tamil Nadu Vs. P.
Krishnamurthy4 is satisfied in the present case. Respondent No.5
further submitted that this Court should not entertain the present
petition, since it would amount to entering the arena of policy decision
taken by the State and same is not permissible. Respondent No.5
further submitted that there is no rectification in the Government
Resolution dated 23rd September 2013 by the impugned corrigendum,
but only replacement of the phrase "only one". Respondent No.5
further submits that allowing the petition would amount to surfacing
new illegal order because by setting aside illegal order another illegality
would come into existence. Respondent No.5 further submitted that
consequences of striking down the corrigendum would be severe since
during the interregnum period, many societies have been formed and
transactions of loans and deposits have taken place, which would now
be irreversible if the impugned corrigendum is quashed as prayed for by
the Petitioner. Respondent No.5, therefore, prayed for dismissal of the
4 2006 (4) SCC 517
13 of 41
Tauseef 04-WP.3712.2017-J.doc
petition. Respondent No.5 has relied upon the following decisions in
support of its submissions :-
(i) "K. C. Gajapati Narayan Deo Vs. State of Orissa5,
(ii) Maharashtra State Board of HSC & Anr. Vs. Paritosh
Bhupeshkumar Sheth6,
(iii) Pune Municipal Corporation Vs. Promoters & Builders
Association7,
(iv) Maharaja Chintamani Sarannath Shahdeo Vs. Bihar8,
(v) Nildhwaj Motiramji Kamble Vs. State of Maharashtra9,
(vi) State of U.P. Vs. Hirendrapal Singh & Ors.10,
(vii) Gajapati Narayan Deo Vs. State of Orissa11,
(viii)P. V. George & Anr. Vs. State of Kerala & Ors.12"
Submissions of Respondent-State:-
9. Respondent-State represented by Mr. Walimbe, Additional
Government Pleader vehemently opposed the petition. Respondent-
State submitted that the impugned corrigendum is made applicable
prospectively and not retrospectively and all the pending proposals for
registration of societies will be examined on the basis of norms laid
down by the Government Resolution dated 23 rd September 2013 and
impugned corrigendum thereto dated 14 th February 2017. Respondent-
5 (1953) 2 SCC 178
6 (1984) 4 SCC 27
7 (2004) 10 SCC 769
8 (1999) 8 SCC 16
9 (2022) 2 AIR Bom R 288
10 (2011) 5 SCC 305
11 (1953) 2 SCC 178
12 (2007) 3 SCC 557
14 of 41
Tauseef 04-WP.3712.2017-J.doc
State further submitted that even the new society has to comply with
norm No.2 of Government Resolution dated 23rd September 2013 which
provides for quantum of business done in the preceding year by the
proposed society as one of the condition for being eligible for
registration. Respondent-State further submitted that the corrigendum
is issued to removed contradiction between norm Nos.1 and 3 of
Government Resolution dated 23 rd September 2013 and, therefore,
Respondent-State is justified in clarifying the inconsistency/
contradiction by way of the present corrigendum dated 14 th February
2017. In the Affidavit-in-reply of Dr. Sudin Gaikwad affirmed on 15 th
April 2017 and filed in Writ Petition No.3712 of 2017, Respondent-State
prayed for discontinuance of the interim relief granted by this Court on
6th April 2017, which restrained Respondent-State and its officers to
process any application for registration based on the impugned
corrigendum. With regard to the Rules of Business, Respondent-State
submitted that there is no financial implication arising out of the
corrigendum and, therefore, the Minister In-charge of Co-operative
Department had the authority to take such policy decision without
referring to the Council of Ministers. Respondent-State further, by way
of Affidavit of one Mr. Santosh Patil affirmed on 7 th August 2024 and
filed in Writ Petition No.13990 of 2023 contended that the approval of
Council of Ministers for such decision is not required on a reading of
15 of 41
Tauseef 04-WP.3712.2017-J.doc
Rule 4 of the Rules of Business read with Schedule-I and Serial No.23
which deals with Co-operation, Marketing and Textile Department.
Respondent-State relied upon the decision of this Court in the case of
Ganeshrao Deshmukh Vs. Dev Vyankatesh Singh13, in support of this
submission. The Respondent-State also in the said affidavit referred to
the suggestions received from General Administration Department,
which department had suggested Respondents to issue "addendum"
instead of "corrigendum" and based on this suggestion, Respondent-
State in the said affidavit have stated that they will be issuing such
"addendum" instead of "corrigendum". Respondent-State also filed
letter dated 15th April 2024 issued by Sangram Dubal, Officer from
Cooperation Department and addressed to Additional Government
Pleader on the basis of which the aforesaid submissions were made.
Respondent-State, therefore, submitted that the corrigendum has been
correctly issued by following due process of law and to clarify the
Government Resolution dated 23rd September 2013 and, therefore, all
the three petitions should be dismissed.
10. We have heard learned counsel for Petitioners and the
Respondents and with their assistance we have perused the documents
which were brought to our notice. We have also perused the written
submissions filed by Petitioners in Writ Petition No.4943 of 2017 and
13 AIR 1972 Bom 369
16 of 41
Tauseef 04-WP.3712.2017-J.doc
Respondent No.5 in Writ Petition No.13990 of 2023. By an order dated
7th September 2023, Petitioner in Writ Petition No.13999 of 2023 was
granted leave to amend to join proposed Cooperative Societies who had
filed intervention application being Civil Application Nos.957 of 2017,
958 of 2017 and 959 of 2017. Pursuant to this order, petition was
amended and Proposed Cooperative Societies were added as party
Respondent Nos.5 to 8. There is an office note dated 27 th October 2023,
wherein it is stated that Affidavit of service is filed on 29 th September
2023 and that notice sent to Respondent Nos.5 to 8 (the Proposed
Cooperative Societies) through RPAD with tracking report is filed.
However, it appears that Respondent Nos.6, 7 and 8 inspite of the
service have chosen not to appear when this matter was taken up for
hearing.
Analysis and conclusion:-
11. Following issues arises for our consideration:
(i) Issue No.1:- Whether the impugned corrigendum dated 14 th
February 2017 seeking to amend Government Resolution dated
23rd September 2013 can at all be considered as "Corrigendum".
(ii) Issue No.2:- Whether Respondent-State has followed the procedure
prescribed as per Article 166 of the Constitution of India read with
the Maharashtra Rules of Business, 1975 for issuing the impugned
corrigendum.
17 of 41
Tauseef 04-WP.3712.2017-J.doc
(iii) Issue No.3:- Whether the impugned corrigendum is invalid for any
other reasons ?
(iv) Issue No.4:- If answer to Issue No.2 is in affirmative then whether
the impugned corrigendum dated 14 th February 2017 is prospective
or retrospective.
(v) Issue No.5:- If the impugned corrigendum is held to be
unconstitutional then what would be the consequences / fall out of
decisions taken during the period 14 th February 2017 till the date
of present judgment ?
"Issue No.1:- Whether the impugned corrigendum dated 14 th
February 2017 seeking to amend Government Resolution
dated 23rd September 2013 can at all be considered as
Corrigendum."
12. Before we proceed to adjudicate upon Issue No.1, it would be
worthwhile to narrate the background facts leading to the impugned
corrigendum.
13. Respondent-State is entrusted with regulating the
registrations of PACCS. On 7th February 2001, Respondent-State issued
a Government Resolution for regulating the registration of PACCS and
Condition No.3 of the said Government Resolution read as under:-
"In a village as far as possible there should be only one Society.
Even if there is a demand for another Society, there should be
18 of 41
Tauseef 04-WP.3712.2017-J.doc
business of 50 lakhs for each Society. In a village even if there are
more than two Societies, the Gat Secretary, however, should be
only one"
[emphasis supplied]
14. The aforesaid Government Resolution dated 7th February 2001
contemplated that as far as possible, there should be only one society in
revenue village.
15. The Government of India on 5 th August 2004 constituted a
committee headed by renowned economist Shri. A. Vaidyanathan for
suggesting action plan for reviving Rural Cooperative Credit
Institutions. The said Committee gave a detail report on 4 th February
2005 to the Government of India dealing with all the issues relating to
Rural Cooperative Credit Institutions and it was also suggested that the
report of this Committee be implemented by States. In the backdrop of
this report and development, Respondent-State issued Government
Resolution dated 3rd December 2011 by which a decision to stop new
registration of PACCS was taken till a policy decision is taken in respect
of the registration of new PACCS, to divide and amalgamate the existing
PACCS which are financially not viable or sound, cancellation of PACCS
which are required to be liquidated, etc. was under consideration of the
Respondent-State.
19 of 41
Tauseef 04-WP.3712.2017-J.doc
16. On 23rd September 2013, Respondent-State after deliberation
and considering various recommendations from various stakeholders
issued a Government Resolution laying down new conditions/
parameters for the registration of new PACCS. It is important to
reproduce relevant conditions which reads thus:-
"1) There should be only one Primary Agricultural Credit Co-
operative Society in one Revenue Village.
2) Estimated loan disbursal of the proposed Primary Agricultural
Credit Co- operative Society should be as follows in the financial
year preceding the year in which application is made for
registration of the Society in terms of the crop loan rate fixed by
the District Central Co-operative Bank:-
Western Maharashtra and North Maharashtra (Khandesh) -Rs.1.5 Crore.
Konkan, Marathawada and Vidarbha -Rs.1.0 Crore.
Villages in the tribal areas of the State -Rs. 50 Lacs
3) In villages, where there is no independent existing Primary
Agricultural Credit Co-operative Society, when the new Primary
Agricultural Co-operative Society is proposed to be registered there,
the villagers who are members of the existing Primary Agricultural
Credit Co-operative Society in the neighbouring village, such
Primary Agricultural Credit Co-operative Society is bound to
comply with the condition laid down in Point No. 2 above in
respect of credit supply stated hereinabove. If due to the
establishment of a new Primary Agricultural Credit Co-operative
Society in an independent revenue village, the existing Primary
Agricultural Credit Co-operative Society is in danger of the facing
the Negative Net Worth, or their CRAR is likely to fall below 4%,
then in such new revenue village, there be would be no registration
of the new Primary Agricultural Credit Co-operative Society.
4) ....
5) ....
6) Following would be the policy in the State in respect of Primary
Agricultural Credit Co-operative Societies which are currently
functioning but which are financially unsound and whose Negative
Net Worth and CRAR is less than 4%,:-
a) The Primary Agricultural Credit Co-operative Societies which
20 of 41
Tauseef 04-WP.3712.2017-J.doc
can be amalgamated with the nearest Societies, such Primary
Agricultural Credit Co-operative Societies may be amalgamated
with the nearest Societies.
b) Those Primary Agricultural Credit Co-operative Societies which
are capable of being made financially sound, such Societies shall
make their Financial Empowerment Action Plan for the next three
years i.e (Year 2014-15 to 2016-17) and submit it to the concerned
Registrar upto 31.03.2014."
[emphasis supplied]
Original Marathi version of Government Resolution dated 23 rd
September 2013 is as under :-
jkT;kr uohu izkFkfed d`"kh ir iqjoBk
lgdkjh laLFkk uksan.kh dj.ks o dk;Zjr
laLFkkps l{kehdj.k dj.ksckcr-
egkjk"V 'kklu
lgdkj] i.ku o oL=ks?kksx foHkkx
'kklu 'kq/nhiz=d dz- llsok 911@iz-dz- 1047@2 l
ea=ky;¼foLrkj½ eqacbZ& 400032
fnukad&23 lIVsacj] 2013
okpk& 1- 'kklu fu.kZ; dzekad- llsok&102000@iz-dz- 570@2&l] fn- 23-Qsczqokjh]2001
2- lgdkj vk;qDr o fuca/kd] lgdkjh laLFkk] ;kaps ifji=d dz- vFkZ@vjk@fodkl@
ukiwi@oSlferh&07 fn- 5@3@2017-
3- 'kklu fu.kZ; dzekadk lhlhvkj&1411@iz-dz- 1028@2&l] fn- 3 fMlsacj] 2011-
4- lgdkj vk;qDr o fuca/kd] lgdkjh laLFkk iq.ks ;kaps i= fn- 6@2@2013-
izLrkouk&
----------------------------------------------------------
'kklu fu.kZ;&
jkT;kr uO;kus izkFkfed d`"kh iriqjoBk laaLFkkaph ukasn.kh dj.;klkBh [kkyhyizek.ks lq/kkfjr
fud"k fuf'pr dj.;kr ;sr vkgs-
1½ ,dk eglqyh xkokr ,dp izkFkfed lgdkjh laLFkk vlkoh-
2½ ukaasn.khlkBh izLrko nk[ky >kysY;k yxriqohZP;k vkfFkZd o"kkZrhy ftYgk e/;oRkhZ lgdkjh
cWdkauh fuf'pr dsysY;k ihd dtZ njkuqlkj fu;ksftr izkFkfed d`"kh iriqjoBk lgdkjh laLFkspk
laHkkO; d`f"k o d`f"kiqjd iriqjoBk [kkyhyizek.ks vko';d vkgs-
if'pe egkjk"Vª o mRrj egkjk"Vª ¼[kkuns'klg½&&&&&& :i;s 1-5 dksVh
dksd.k] o ejkBokMk o fonHkZ &&&&&&&& :i;s 1-0 dksVh
jkT;krhy vkfnoklh Hkkxkrhy xkos &&&&&&&&&&& :i;s 50 yk[k
3½ T;k Lora= eglqyh xkokr l/;k Loar= d`"kh iriqjoBk lgdkjh laLFkk vfLrRokr ukgh v'kk
xkoke;s uO;kus izkFkfed d`"kh iriqjoBk laLFksph uksan.kh djrkuk v'kk xkokrhy lHkkln l/;k
'kstkjP;k T;k xkokrhy izkFkfed d`"kh iriqjoBk lgdkjh laLFks'kh layXu vkgsr v'kk laLFksus ns[khy
ojhy eqnk dz-2 e/;s ueqn dsY;kizek.ks iriqjoB;kaps fud"k iw.kZ dj.ks ca/kudkjd jkghy- rlsp
Loar= eglqyh xkokr uohu izkFkfed d`"kh iriqjoBk lgdkjh laLFkk Lfkkiu dsY;keqGs vfLrRokr
vlysY;k laLFksps uDr ewY; m.ks gksr vlsy fdaok vfLrRokr vlysY;k laLFksP;k tks[khe laiRrhps
HkkaMoyk'kh izek.k ¼CRAR½ 4% is{kk fdaok deh gksr vlsy rj ufou eglqyh xkokr uO;kus
izkFkfed d`"kh iriqjoBk lgdkjh laLFkk ukans .kh djrk ;s.kkj ukgh-
21 of 41
Tauseef 04-WP.3712.2017-J.doc
4½ uO;kus ukasn.kh gks.kkj;k izkFkfed d`"kh iriqjOkBk lgdkjh laLFksPkh lHkkln la[;k ¼[kkrsnkj
lHkkln½ fdeku 75 ,o<h vlkoh-
5½ fu;ksftr izkFkfed d`"kh iriqjoBk lgdkjh laLFksP;k izLrkokph Nkuuh dj.;klkBh o izLrkokph
vkfFkZd l{kerk rikl.;klkBh [kkyhyizek.ks lferh jkghy%&
1- vIIkj vk;qDr o fo'ks"k fuca/kd] lgdkjh laLFkk] egkjk"V jkT;] iq.ks v/;{k
2- lacaf/kr ftyg;kps ftYgk mifuca/kd] lgdkjh laLFkk lnL;
3- lacaf/kr ftYgk fo'ks"k ys[kkifj{kd] lgdkjh laLFkk lnL;
4- Lkacaf/kr rkyqD;kps mi@lgk;d fuca/kd] lgdkjh laLFkk lnL;
5- mi fuca/kd] lgdkjh laLFkk ¼vFkZ½ eq[;ky;] iq.ks lnL;
6½ jkT;kr l/;k dk;Zjr vlysY;k ijarq vFkZ{ke ulysY;k T;k laLFksps uDr ewY; m.ks vkgs
¼Negative Net worth½ o tks[khe laiRrhps HkkaMoyk'kh izek.k ¼CRAR½4% is{kk deh vkgs
v'kk izkFkfed d`"kh iriqjoBk lgdkjh laLFkkackcr [kkyhyizek.ks /kksj.k jkfgy%&
v½ T;k izkFkfed d`"kh iriqjoBk lgdkjh laLFkkaps uthdP;k laLFksr foyhuhdj.k dj.ks
'kD; vkgs v'kk izkFkfed d`"kh iriqjoBk lgdkjh laLFkkaps uthdP;k laLFksr
foyhuhdj.k dj.;kr ;kos-
c½ T;k laLFkkaps vkfFkZd l{kehdj.k 'kD; vkgs v'kk laLFkkauh iq<hy rhu o"kkZPkk ¼lu
2014&15 rs lu 2016&17½ vkfFkZd l{kehdj.kkpk d`rh dk;Zdze r;kj d:u
lacaf/kr fuca/kdkuk fnukad 31@3@2014 i;Zr lknj djkok-
17. Respondent-State, therefore, made a conscious departure
from the language used in Condition No.1 of Government Resolution
dated 23rd September 2013 as compared to the language used in
Condition No.3 of Government Resolution dated 7 th February 2001
which corresponds to Condition No.1 of Government Resolution dated
23rd September 2013. Condition No.3 of the Government Resolution
dated 7th February 2001 provided that in a revenue village "as far as
possible", there should be only one society, whereas Condition No.1 of
Government Resolution dated 23rd September 2013 did not contain the
said phrase but on the contrary specifically provided that "only one"
society is to be registered in one revenue village. The change in the
policy from "as far as possible" to "only one" was taken in the backdrop
of the situation arising in the State of Maharashtra, where more than
22 of 41
Tauseef 04-WP.3712.2017-J.doc
5,000 PACCS were found to be financially unviable.
18. Condition No.1 of Government Resolution dated 23 rd
September 2013, which provided that there should be only one Primary
Agricultural Credit Cooperative Society in one revenue village came up
for consideration before this Court in Vijay Kusekar Vs. State of
Maharashtra and Ors. in Writ Petition No.1164 of 2017 and was held to
be mandatory. This Court rejecting the contention of State that
Condition No.1 of 2013 Government Resolution is directory observed
that Respondents are not correct in contending that Condition No.3 of
Government Resolution dated 23 rd September 2013 and Condition No.1
are to be read disjunctive. The relevant observations of the said
judgment in Writ Petition No.1164 of 2017 are reproduced herein:-
"19 Condition No.1 of the said GR dated 23/09/2013 would have to be
read to mean that there could be only one Society or PACCS in one
revenue village and therefore the said condition would have to be held to
be mandatory.
20 In so far as the Respondents are concerned, it was the submission
of the learned counsel that the second part of Condition No.3 of the said
GR dated 23/09/2013 is indicative of the fact that the said Condition
No.1 is directory. It was the submission of the learned counsel for the
Respondents that in terms of the second part of the said Condition No.3
what is required to be seen whilst registering the second PACCS is its
financial viability and if the second PACCS satisfies the requirements
stipulated in the second part of Condition No.3, then it could be
registered.
In my view, the said submission of the Respondents is based on a
misreading of the said Condition No.3. The Respondents want to read the
two parts of the said Condition No.3 disjunctively. In fact the said
Condition No.3 has to be read as a whole. The second part of the said
Condition No.3 flows from the first part, whereas the first part of the
Condition No.3 provides for the existing PACCS in the neighbouring
village to comply with Condition No.3 in the matter of estimated loan
disbursal. The second part provides that if on the registration of a PACCS
23 of 41
Tauseef 04-WP.3712.2017-J.doc
in an independent revenue village, the existing PACCS in the
neighbouring village is in danger of facing negative network or the CRAR
is likely to fall below 4%, then in such new revenue village, such new
PACCS should not be registered. If the second part is read disjunctively
from the first part, as urged by the learned counsel for the Respondents,
it would lead to an anomalous situation wherein the second Society can
be registered in spite of the stipulations or conditions provided in the said
GR dated 23/09/2013 being not satisfied or met.
21 In fact as rightly contended by the learned Senior Counsel Shri DJ
Khambatta appearing on behalf of the Petitioners that the said Condition
No.3 in so far as it ensures financial viability even of a PACCS in the
neighbouring village, is indicative of the fact that Condition No.1 has to
be construed strictly in respect of registering another PACCS in the same
revenue village, and therefore no second Society can be registered in the
same revenue village.
22 The Respondents rely on the Government Corrigendum dated
14/02/2017 to contend that the said Corrigendum clarifies the position
in so far as the registration of the second Society in the same revenue
village is concerned. In my view, the said Corrigendum dated
14/02/2017 does not further the case of the Respondents in so far as the
registration of a second Society or PACCS in the same revenue village is
concerned. The said Corrigendum has been issued purportedly on the
ground that there was a confusion in the authorities in so far as
Condition Nos.1 and 3 of the said GR dated 23/09/2013 is concerned,
and it is to remove the said confusion that the said Corrigendum has
been issued. By the said Corrigendum dated 14/02/2017 what has been
done is substituting Condition No.1 by Clause (1) of the said
Corrigendum and adding Clauses 1A and 1B to the said GR dated
23/09/2013. It is required to be noted that the said Corrigendum has
been issued during the pendency of the above Writ Petition and the
companion Writ Petitions. The impugned order is therefore not passed on
the basis of the said Corrigendum. By substituting Condition No.1 of the
said GR dated 23/09/2013 by Clause (1) of the Corrigendum and adding
Clauses 1A and 1B, a new condition has been incorporated in the said GR
dated 23/09/2013. Hence the Corrigendum is not by way of a
clarification but it substitutes the original Condition No.1 in the said GR
dated 23/09/2013 by a new condition. Implicit in the fact of issuing the
said Corrigendum is the fact that the State Government was also
interpreting Condition No.1 of the said GR dated 23/09/2013 to be a
mandatory condition, and it is therefore to remove the impediment in
registering the second PACCS, that the State Government has thought it
fit to substitute the said Condition No.1 by a new condition which is
Clause (1) of the said Corrigendum. Since the Corrigendum substantially
amends the GR dated 23/09/2013, the same would only have a
prospective effect and cannot be pressed into service to justify the
impugned order which directs the registration of a second PACCS.
The Corrigendum has to be looked at from one more perspective.
The background to the issuance of the said GR dated 23/09/2013 was
the situation as prevailing on 30/03/2013 when the State Government
found that out of 21,318 PACCS, 5498 PACCS were ineligible to get any
24 of 41
Tauseef 04-WP.3712.2017-J.doc
financial help or assistance as per the Vaidyanathan Committee's
recommendations. Hence the State Government was very much
concerned as regards the financial viability of a large number of PACCS
in the State. It is in the said background that the policy as contained in
the said GR dated 23/09/2013 was formulated. If Condition No.1 is said
to be clarified by clause (1) of the Corrigendum, it would lead to an
incongruous situation wherein in spite of the State Government coming
to a conclusion that some remedial measures are required to be taken to
maintain the financial health of the PACCS which it has done so by the
GR dated 23/09/2013, but contrary thereto the Corrigendum would have
the effect of the said GR providing for the registration of a second PACCS.
The same would therefore be a contradiction of sorts.
This Court whilst adjudicating the above Writ Petition has not gone
into the legality or validity of the said Corrigendum dated 14/02/2017,
however has tested the case of the Respondents based on the said
Corrigendum. Hence the legality and validity of the Corrigendum is kept
open for being urged in appropriate proceedings, and the contentions of
the parties in that regard are also kept open."
19. In our view, the changes sought to be made by impugned
corrigendum dated 14th February 2017 cannot by any stretch of
imagination be treated to fall within the ambit and scope of
"corrigendum". Corrigendum is issued for rectifying some mistakes or
errors which are obvious and which have crept in the main document.
If one examines the changes sought to be made by the impugned
corrigendum and in the light of what has been held by this Court in
Writ petition No.1164 of 2017 which is reproduced above, in our view,
there is substitution of Condition No.1 of Government Resolution dated
23rd September 2013 with a totally new condition and eligibility by the
impugned corrigendum. When a new condition/eligibility is sought to
be replaced by an old condition/eligibility, one cannot say that such a
change would fall within the ambit and scope of "corrigendum" to
clarify the errors crept in the main document which in the instant case
25 of 41
Tauseef 04-WP.3712.2017-J.doc
is Government Resolution dated 23rd September 2013.
20. The basis of issuing the impugned corrigendum is
representation received from Cooperative Commissioner and Registrar
of Cooperative Societies vide letter dated 20 th September 2016, wherein
these authorities have expressed their view that there is inconsistency in
Condition Nos.1 and 3 of Government Resolution dated 23 rd September
2013 and these authorities sought guidance, whether newly proposed
society can be registered in the same revenue village, where PACCS is
already existing if the proposed society complies with the other
conditions. Respondent-State on the basis of such views expressed
came to the conclusion that there is inconsistency between Condition
Nos.1 and 3 of Government Resolution dated 23 rd September 2013 and
sought to issue the impugned corrigendum by which they not only
replaced the phrase "only one" with the phrase "as far as possible" but
also added new conditions being the proposed PACCS should deposit
Rs.5,00,000/- and the proposed PACCS should commence alteast one of
its business within a period of one year from the date of its registration.
In our view, prescribing new eligibility/conditions by way of impugned
communication which is styled as "corrigendum" cannot be treated to
mean that Respondent-State is proposing to rectify the error crept in the
Government Resolution dated 23rd September 2013.
26 of 41
Tauseef 04-WP.3712.2017-J.doc
21. In our view, a corrigendum can be issued only to correct a
typographical error or omission therein. The dictionary meaning of the
word "corrigendum" means things have to be corrected. It means there
must be an error and there is a necessity to amend and rectify it. Under
the garb of corrigendum, a Government Resolution cannot be altered
and/or changed but that is what appears to have been done in the
instant case. In order to alter or modify a Government Resolution the
procedure adopted in issuing of the original Government Resolution has
to be gone through. A modification is an alteration or change which
may characterise in quantitative change as either increase or decrease.
In the instant case, by virtue of replacement of clause (1) of 2013
Government Resolution by the corrigendum, what is sought to be done
is to introduce a new parameters or criteria for prescribing the eligibility
for registration of new PACCS. The corrigendum also departs from
having "only one" PACCS to "as far as possible" to have one PACCS,
which means by corrigendum more than one PACCS is sought to be
permitted subject to fulfillment of the new conditions / parameters
sought to be introduced by way of the impugned corrigendum. The
Supreme Court in State of Rajasthan Vs. J. K. Udaipur Udyog Limited 14
observed that the use of word "corrigendum" indicates the intention of
correction and to rectify that what the State thought has been
erroneously done. In the instant case as observed by us above, certainly
14 2004 7 SCC 673
27 of 41
Tauseef 04-WP.3712.2017-J.doc
replacement of condition (1) by way of impugned corrigendum in the
Government Resolution dated 23rd September 2013 cannot be
considered as correction of any error, but it is a substantive change in
the policy conditions which is sought to be introduced under the garb of
corrigendum. Therefore, in our view, the changes sought to be
introduced in the alleged corrigendum cannot be upheld by way of
introduction of a corrigendum to the Government Resolution dated 23 rd
September 2013 and, therefore, cannot be considered as "corrigendum".
"Issue No.2:- Whether Respondent-State has followed the
procedure prescribed as per Article 166 of the Constitution of India
read with the Maharashtra Rules of Business, 1975 for issuing the
impugned corrigendum."
22. We now propose to deliberate Issue No.2 as to whether the
prescribed procedure has been followed for issuing the impugned
corrigendum.
23. Article 166(3) of the Constitution of India provides that the
Governor shall make rules for the more convenient transaction of the
business of the Government of the State, and for the allocation among
Ministers of the said business insofar as it is not business with respect to
which the Governor is by or under this Constitution is required to act in
his discretion.
24. Pursuant to above Article 166, on 26th June 1975 the
Maharashtra Government Rules of Business ("Rules of Business") came
28 of 41
Tauseef 04-WP.3712.2017-J.doc
to be framed by the Governor of Maharashtra. Rule 4 of the said Rules
of Business prescribes that the business of the Government shall be
transacted in the Departments specified in the First Schedule and shall
be classified and distributed between those departments as laid done
therein. Entry 23 of the First Schedule to the said Rules of Business
specifies "Cooperation and Textile Department". First Schedule
describes various departments of the Government who shall transact the
business. For example, Home Department, Finance Department,
Planning Department etc. In our view, Rule 4 of the Rules of Business
only specifies the compartmentalisation of various business of the
Government into various departments and nothing further. Therefore,
contention of Respondent-State justifying the issue of corrigendum by
Minister of Co-operation by placing reliance on Rule 4 read with First
Schedule is to be rejected. Rule 4 does not empower any Ministry to
issue the corrigendum with respect to the department of which the
Minister is the head. Therefore, the procedure adopted by Respondent-
State to issue the corrigendum by the Ministry of Cooperation by
placing reliance on Rule 4 is misconceived.
25. Rule 9 of the Rules of Business prescribes that all cases
referred to in the Second Schedule shall be brought before the Council
either by the Governor or the Chief Minister or the Minister-in-charge
with the consent of the Chief Minister. Second Schedule to the Rules of
29 of 41
Tauseef 04-WP.3712.2017-J.doc
Business provides for various proposals which are required to be
brought before Council of Minster. Entry 19 of the Second Schedule
refers to "proposals involving any important change of policy or
practice." We have already observed above, that what is sought to be
introduced by way of corrigendum is prescribing new eligibility criteria
for registration of PACCS. We have already observed that the changes
sought to be made are substantial changes to the Government
Resolution dated 23rd September 2013. Therefore, in our view, the
impugned corrigendum could not have been issued without following
the procedure prescribed in Rule 9 of Rules of Business. Though we
have already held that in any case such changes cannot be made by way
of corrigendum Respondent-State in their affidavit have admitted that
the changes sought to be made by way of impugned corrigendum is not
required to be referred to the Council of Minster, which means that this
issue was never referred to the Council of Minister. In our view as
observed hereinabove, the changes sought to be made by way of
impugned corrigendum was required to be brought before the Council
of Ministers and having not done that clearly there is breach of Rule 9
which is mandatory. Therefore, Petitioners are justified in contending
that the impugned corrigendum having been introduced without
following the procedure prescribed by Rule 9 of Rules of Business, same
is required to be quashed and set aside.
30 of 41
Tauseef 04-WP.3712.2017-J.doc
26. The Petitioners are justified in placing reliance on the decision
of the Supreme Court in the case of MRF Limited (supra), wherein it is
held that the decision of the State Government have to be in conformity
with the mandate of Articles 154 and 166 Constitution of India as also
the Rules framed thereunder as otherwise such decisions would not be a
Government decision and will be a nullity. The Supreme Court further
observed that if the Council of Ministers or the Chief Minister has not
been a party to a decision taken by individual Minister, that decision
cannot be the decision of the State Government and it would be non-est
and ab-initio void. The Supreme Court further observed that Rules of
Business framed under the provisions of Article 166(3) of the
Constitution of India are mandatory and must be strictly adhered. Any
decision by the Government in breach of these Rules will be a nullity in
the eye of law. In the instant case before us admittedly Rule 9 of the
Rules of Business has been violated and, therefore, the impugned
corrigendum dated 14th February 2017 is required to be set aside
following ratio of the decision of the Supreme Court in the case of MRF
Limited (supra).
27. Respondent-State in its affidavit dated 7th August 2024 has
admitted that General Administration Department have suggested
issuance of "addendum" instead of "corrigendum" and the Respondent-
State will be issuing such an addendum. By this, Respondent-State
31 of 41
Tauseef 04-WP.3712.2017-J.doc
have admitted that the changes sought to be made were wrongly sought
to be introduced by way of corrigendum. Therefore, even on this
admission, the impugned corrigendum dated 14th February 2017 is
required to be set aside.
28. The reliance placed by Respondent-State in the case of
Ganeshrao Deshmukh (supra) is misconceived. Respondent-State have
relied on the observation "it is not disputed that under the Rules of
Business framed under the Constitution of India, the State Government
means in practice the Minister-in-charge of the department concerned"
in support of its impugned action. In our view, this decision is not
applicable since it was rendered on 27th July 1971 which is prior to the
1975 Rules of Business which we are concerned. Therefore, the 1975
Rules of Business were not for consideration before the High Court in
the said decision. Furthermore, it was on the basis of undisputed
position therein that the said issue came to be rendered which is not the
case before us. Therefore, on facts and in law, the decision relied upon
by Respondent-State in the case of Ganeshrao Deshmukh (supra) is not
applicable to the instant case.
29. Respondent-State has sought to justify the corrigendum by
stating that it was to remove contradiction in Condition Nos.1 and 3 of
Government Resolution dated 23rd September 2013. In our view, the
32 of 41
Tauseef 04-WP.3712.2017-J.doc
whole basis of there being any contradiction in Condition Nos.1 and 3
of the Government Resolution dated 23 rd September 2013 is itself
misconceived. Condition No.1 of 2013 Government Resolution expressly
states that there should be a one PACCS within a single revenue village,
whereas Condition No.3 dealt with a situation where by virtue of
registration of a PACCS in a revenue village where there is none-
existing, the effect of the said registration on PACCS of the
neighbouring village has to be considered. Therefore, Condition Nos.1
and 3 both operate in different areas, Condition No.3 is to judge the
effect of a neighbouring PACCS when a new PACCS is sought to be
registered in a village where none-exists. Therefore, the whole basis of
there being any inconsistency in Condition Nos.1 and 3 of Government
Resolution dated 23rd September 2013 is fallacious and consequently
the corrigendum issued dated 14th February 2017 on such erroneous
basis is required to be quashed and set aside.
Issue No.3:- Whether the impugned corrigendum is invalid for any
other reasons ?
30. It is also important to note that the impugned corrigendum
results in creation of an inconsistent position. Respondent-State in their
affidavit have submitted that Condition No.2 of Government Resolution
dated 23rd September 2013 has to be complied with by the new PACCS.
Condition No.2 provides for quantum of business done in the
33 of 41
Tauseef 04-WP.3712.2017-J.doc
immediately preceding financial year by PACCS of the amount specified
therein. In the impugned corrigendum, a condition is prescribed that
the new PACCS is required to commence atleast one of its business
within a period of one year from the date of its registration. If that be
so, then we fail to understand how Condition No.2 of Government
Resolution dated 23rd September 2013 prescribing quantum of business
to be done in preceding year can be satisfied by a new PACCS as per the
impugned corrigendum. Therefore, even on this count, the impugned
corrigendum seems to have been issued without considering these
relevant aspects and is required to be quashed and set aside.
31. One more reason for quashing the impugned corrigendum is
that on 11th January 2017, the State Election Commission announced
election dates for Zilla Parishad and Panchayat. The election programme
was scheduled from 1st February 2017 and on 28th February 2017, the
result of election would have to be announced. During this period, i.e.,
from 11th January 2017 till announcement of result, i.e., 28 th February
2017, Model Code of Conduct was effective and as per the guidelines
laid down by the Election Commission of India for enforcement of
Model Code of Conduct, it was imperative on the part of the Ministry in-
charge not to have issued such corrigendum which according to us was
an important and substantive policy decision which was sought to be
enforced by the impugned corrigendum. Looking at the spirit of Model
34 of 41
Tauseef 04-WP.3712.2017-J.doc
Code of Conduct, the Ministry in-charge could not have taken an
important policy decision moreso in letter and spirit of such Model Code
of Conduct and even on this count, in our view, the impugned
corrigendum is required to be quashed and set aside.
Issue No.4:- If answer to Issue No.2 is in affirmative then what
would be whether the impugned corrigendum dated 14 th February
2017 is prospective or retrospective.
32. Since we are of the opinion that the impugned corrigendum is
required to be set aside, Issue No.4 on whether the corrigendum is
prospective or retrospective is not required to be adjudicated even
though Respondent-State in their affidavit have accepted that same is
prospective and this Court in Writ Petition No.1164 of 2017 have also
held same to be prospective.
Issue No.5:- If the impugned corrigendum is held to be
unconstitutional then what would be the consequences / fall out of
decisions taken during the period 14th February 2017 till the date
of present judgment ?
33. Now we come to the fall out of our decision above in the light
of the contention raised by Respondent No.5 in Writ Petition No.13990
of 2023. In this context it is relevant to re-produce orders passed by the
Co-ordinate Benches of this Court in the three petitions which are
subject matter before us.
35 of 41
Tauseef 04-WP.3712.2017-J.doc
34. On 6th April 2017, this Court in Writ Petition No.3712 of 2017
(Coram : Shantanu S. Kemkar and B. P. Colabawalla, JJ.) granted
interim order in terms of prayer clause (d) and the said interim order
continued from time to time. Prayer clause (d) reads as under:-
"(d) Pending hearing and final disposal of the present Writ Petition,
the Respondent Nos.2, 3 and 4 be directed not to consider any
application or grant registration of any new Society on the basis of
said impugned Corrigendum No.SS.911/CN1047/2S dated 14th
February 2017, being Exhibit "G" to this Writ Petition."
The effect of the above interim order was Respondent-State,
the Commissioner for Cooperation and Registrar for Co-operative
Societies, the District Deputy Registrar Co-operative Societies and the
Assistant Registrar Co-operative Societies were directed not to consider
any application or grant registration to any new Society on the basis of
impugned corrigendum dated 14th February 2017.
35. On 3rd May 2017, this Court in Writ Petition Nos.4943 of 2017
and 3712 of 2017 (Coram : Shantanu S. Kemkar and A. M. Badar, JJ.)
modified the interim order by observing that the process of registration
of the new Primary Cooperative Society may go on however, no final
decision regarding registration shall be taken by the competent
authority till the next date of hearing. The said order also continued
from time to time.
36 of 41
Tauseef 04-WP.3712.2017-J.doc
36. On 8th December 2020, this Court (Coram: S. J. Kathawalla
and Riyaz I. Chagla, JJ.) in Writ Petition (Stamp) No.94596 of 2020
passed following order:-
"1. The grievance of the Petitioners in the above Writ Petition is
that though the Petitioners have applied for registration of the
Society in the year 2015, the Respondents have declined to register
the same in view of the Order passed by this Court dated 3 rd May,
2017 in Writ Petition No.4943 of 2017, which reads thus:
"Parties through their counsel. Having considered the statement
made by the learned counsel for the parties in regard to
continuation of interim order, we modify the interim order to the
extent that the process of registration of the New Primary Co-op.
Society may go on, however, no final decision regarding
registration shall be taken by the Competent Authority till the next
date of hearing.
As agreed, list the matter on 8th June 2017."
2. The said order is limited to the parties to the said Writ Petition
and is not a blanket order directing the Respondents not to take
final decision regarding registration of any society. In view thereof,
the said order dated 3rd may, 2017 should not preclude the
Respondents from registering the Petitioner-Society if all the other
requirements are complied with by the Petitioners. In view thereof,
we pass the following order:
(i) The Order dated 26th July, 2019 passed by Respondent No.2 is
set aisde.
(ii) The Respondents are directed to forthwith process and decide
the Petitioners' proposals seeking registration as Credit Resource
Societies under the provisions of the Maharashtra Co-operative
Societies Act, 1960.
(iii) The above Writ Petition is accordingly disposed off.
3. This order will be digitally signed by the PA/PS of this Court. All
concerned will act on production by fax or email of a digitally
signed copy of this order."
37. We have held the impugned corrigendum dated 14th February
2017 as unconstitutional. However, during interregnum, the
Respondent-State and its authorities have granted registrations to
PACCS on the basis of the impugned corrigendum and on the basis of
37 of 41
Tauseef 04-WP.3712.2017-J.doc
the order dated 8th December 2020 passed in Writ Petition (St.)
No.94596 of 2020 wherein it was observed by Co-ordinate Bench that
the restraint order dated 3rd May 2017 passed in Writ Petition No.4943
of 2017 is not a blanket order restraining the Respondents not to take
final decision regarding registration of any society but the restrained
order passed is limited to the parties to the Writ Petition No.4943 of
2017.
38. The natural corollary of our holding the impugned
corrigendum as unconstitutional would be that all PACCS that had
made the applications for registration on the basis of the impugned
corrigendum and the Respondent-State and its authorities have granted
the registrations on that basis would have to be held as non-est and
registrations would have to be cancelled. However, during the period
14th February 2017 till today, the fact remains that the registrations have
been granted on the basis of the impugned corrigendum and such
PACCS have started conducting the business of receiving deposits and
lending in respective villages. If on the basis of this order, the
registrations of such PACCS have to be cancelled then the multiplier
economic consequences would be disastrous. We say so because over a
period of 7 years from 2017 till 2024, these PACCS have conducted
their activities on the basis of registrations granted by relying upon the
impugned corrigendum and order dated 8th December 2020. There
38 of 41
Tauseef 04-WP.3712.2017-J.doc
would be severe economic crisis if these PACCS are now required to be
wound up or closed down. Many depositors would lose their money
leading to economic crisis of already fragile rural cooperative
institutions. The ill-effects of such cancellation of registrations would be
far-reaching then one can think of to the extent that it may also lead to
deaths of various people. As a Writ Court, we have to keep in mind the
equity jurisdiction conferred under Article 226 of the Constitution of
India. The Court, when faced with such type of situation, has to balance
the competing rights. The Court should make an attempt to ensure that
atleast future economic crisis if possible, can be avoided as a
consequence of an illegal act. Therefore, keeping in mind the balance
between the illegal acts and the consequences of economic crisis
ensuing in future on account of no fault of PACCS, we are of the view
that registrations granted on the basis of the impugned corrigendum
dated 14th February 2017 and on the basis of the order dated 8 th
December 2020 passed in Writ Petition (St.) No.94596 of 2020 will not
be affected or cancelled by reason of our holding the impugned
corrigendum as bad-in-law. We make it clear that only those PACCS
who have been registered on the basis of the impugned corrigendum
during the period 14th February 2017 till the date of this order will be
saved. It goes without saying that from the date of this order, no further
registrations would be granted on the basis of the impugned
39 of 41
Tauseef 04-WP.3712.2017-J.doc
corrigendum since we have struck down the same.
39. We are guided in our above approach by the decision of the
Supreme Court in the case of P. V. George & Ors. Vs. State of Kerala &
Ors.15, and for the sake of convenience, we reproduce paragraph 14 of
the said decision.
"14. For the views we propose to take, it is not necessary for us to
consider all the decisions relied upon by Mr Rajan. The legal position
as regards the applicability of doctrine of prospective overruling is no
longer res integra. This Court in exercise of its jurisdiction under
Article 32 or Article 142 of the Constitution of India may declare a law
to have a prospective effect. The Division Bench of the High Court may
be correct in opining that having regard to the decision of this Court in
Golak Nath v. State of Punjab the power of overruling is vested only in
this Court and that too in constitutional matters, but the High Courts
in exercise of their jurisdiction under Article 226 of the Constitution of
India, even without applying the doctrine of prospective overruling,
indisputably may grant a limited relief in exercise of their equity
jurisdiction."
40. We have not given any finding with respect to other
submissions made by the parties since, according to us, the writ
petitions are being decided on the primary issue of validity of the
impugned corrigendum.
41. In view of above, we pass the following order :-
ORDER
(i) The impugned corrigendum dated 14 th February 2017 is
unconstitutional and same is quashed and set aside.
15 (2007) 3 SCC 557
40 of 41
Tauseef 04-WP.3712.2017-J.doc
(ii) The registrations granted to PACCS during the period
from 14th February 2017 till today would not be
cancelled only on account of this judgment.
42. Rule is made absolute in above terms with no order as to
costs.
[JITENDRA JAIN, J.] [A. S. CHANDURKAR, J.]
41 of 41
