Bombay High Court
Degaon Backward Class Co-Op. Hou. Soc. ... vs The State Of Maha. Thr. Ministry Of Co ... on 3 May, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:22483
29.868.23 wp.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 868 OF 2023
WITH
WRIT PETITION NO. 869 OF 2023
Degaon Backwad Class Co. op.
Hou. Soc. Ltd. Thr. Chairman
Mahadeo Pandurang Pawar
Address: Mouje Basveshwarnagar,
Degaon, Lamaan Tanda,
Dist: Solapur. .....Petitioner
Vs.
1. The State of Maharashtra
Through its Ministry of Co-operation
and Textiles (represented through
its Secretary) Mantralaya, Mumbai.
2. The Divisional Joint Registrar,
C.S., Pune Division, Pune.
Address: Sakhar Sankul,
Shivajinagar, Pune - 411 005
3. The Deputy Registrar, C.S.
Solapur City, Solapur.
Address: 45/2, Shrikhande
Bungalow Near Naval Petrol
Pump, Solapur.
4. The Liquidator,
Degaon Backward Class
Co-operative Housing Society
Ltd., Degaon
1/8
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Address: Mouje Basveshwarnagar,
Degaon, Lamaan Tanda,
District: Solapur. .....Respondents
Mr. Prasad P. Kulkarni a/w Mr. V. H. Narvekar for the petitioner
Mr. P. V. Nelson Rajan AGP for respondent nos. 1 to 3
CORAM : GAURI GODSE, J.
DATE : 3rd MAY 2024
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith. Learned AGP waives
service for respondent nos. 1 to 3.
2. Heard learned counsel for the petitioner and learned AGP for
respondent nos. 1 to 3. Respondent no. 4 is the Liquidator. Office
remark indicates that respondent no. 4 is served, however, none
appears for respondent no. 4. Considering the controversy involved in
the petitions, the petitions are taken up for final disposal forthwith.
3. Learned counsel for the petitioner submits that Writ Petition No.
869 of 2023 arises out dismissal of a revision application filed to
challenge the interim order of liquidation dated 21 st October 2015. He
submits that Writ Petition No. 868 of 2023 arises out of dismissal of the
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revision application filed by the petitioner-society challenging the
purported final order of liquidation dated 15 th December 2015. Learned
counsel for the petitioner submitted that final proceedings of liquidation
were never conducted and the petitioner was never served with final
order dated 15th December 2015. However, since the petitioner-society
was informed that final liquidation order was passed on 15 th December
2015, the petitioner had made necessary application before
respondent no. 3. He submits that by letter dated 14 th March 2022, the
petitioner was informed that final order of liquidation was not traceable
in the record. However, by way of precaution, separate revision
application was filed to challenge the final adjudication purportedly
made on 15th December 2015. He submits that both revision
applications are dismissed. Hence, the present petitions are filed.
4. Learned counsel for the petitioner submits that it is mandatory to
give hearing to the society before any interim order or final order of
liquidation is passed. In support of his submissions, he relies upon the
Judgment of this Court in the case of Chandrapur Zilla Sahakari Krushi
and Gramin Bahuudeshiya Development Bank Ltd Vs. State of
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Maharashtra and others.1 He therefore submits that the petitioner was
entitled to an opportunity of hearing and also file necessary reply
alongwith required documents. Respondent no. 3 ought to have
conducted necessary inquiry before passing interim order dated 21 st
December 2015 under Section 102(1)(c) of The Maharashtra
Cooperative Societies Act, 1960 ('MCS Act'). Learned counsel for the
petitioner further submits that the final order purportedly passed on
15th December 2015 is not available. Even in the affidavit-in-reply filed
in the present petitions, copy of final order dated 15 th December 2015
is not produced on record. He therefore submits that impugned orders
issued by respondent no. 3 without conducting necessary inquiry, and
without giving an opportunity of hearing to the petitioner, are illegally
passed by ignoring the legal principles settled in the aforesaid
Judgment.
5. Learned AGP submits that since the petitioner-society failed to
produce necessary documents, interim order dated 21 st October 2015
was confirmed after holding necessary inquiry. He submits that final
order of liquidation is passed on 15 th December 2015, however, he is
1 [2004(1) Mh.L.J. 232]
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unable to point out whether final adjudication was made as required
under Section 102 of the MCS Act.
6. I have considered the submissions. Perused the papers. Perusal
of order dated 21st October 2015 indicates that it is an interim order
appointing Liquidator in terms of Section 102(1)(c) of the MCS Act.
The legal principle with regard to issuing interim order and conducting
final proceedings in terms of sub-section (2) of Section 102 of MCS Act
is settled by this Court in the decision of Chandrapur Zilla Sahakari
Krushi and Gramin Bahuudeshiya Development Bank Ltd. This Court
has held that though there is no specific provision for granting hearing
before the interim order is passed, this Court has interpreted the
provision of Section 102. This Court held that the authority was not
empowered and justified in passing the impugned ex-parte order
without hearing the society. Thus, in view of legal principles settled in
the aforesaid decision, the impugned orders could not have been
passed without giving an opportunity of hearing to the society.
7. Learned AGP who supports the impugned orders is unable to
point out whether show cause notice dated 29 th September 2015
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referred to in the interim order dated 21 st October 2015 was served
upon the society. Thus, perusal of record indicates that the interim
order dated 21st October 2015 was passed without service of show
cause notice upon the society and without giving an opportunity of
hearing to the society. So far as the final order purportedly passed on
15th December 2015 is concerned, copy of the order is not placed on
record even before this Court. Even copy of show cause notice
referred to in the order dated 21 st October 2015 is not placed on
record. Hence, there is substance in the arguments made by the
learned counsel for the petitioner that both impugned orders are in
breach of principles of natural justice. In view of the settled legal
principles in the decision of Chandrapur Zilla Sahakari Krushi and
Gramin Bahuudeshiya Development Bank Ltd, both petitions deserve
to be allowed. However, respondent no. 3 would be at liberty to issue
fresh show cause notice, if found necessary. If any show cause notice
is issued, same should be served upon the petitioner-society and date
of hearing should be intimated to the society.
8. For the reasons stated above, the petitions are allowed by
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passing following order:
ORDER
(i) Writ Petition No. 868 of 2023 is allowed in terms of prayer clause
(a) which reads as under:
"(a) This Hon'ble Court that be pleased to call for the records
and proceedings pertaining to Revision Application No. 243
of 2022 from the office of the Respondent No.2 and records
and proceedings pertaining to the purported final order of
liquidation dated 15.12.2015 from the office of the
Respondent No.3 and after going through the same, this
Hon'ble Court be pleased to quash and set aside the
Impugned Order dated 02.09.2022 passed by the
Respondent No. 2 in Revision Application No. 243 of 2022 as
also the purported final Order of liquidation dated 15.12.2015
passed by the Respondent No. 3".
(ii) Writ Petition No. 869 of 2023 is allowed in terms of prayer
clause (a) which reads as under:
"(a) This Hon'ble Court that be pleased to call for the records
and proceedings pertaining to Revision Application No. 242
of 2022 from the office of the Respondent No.2 and records
and proceedings pertaining to the purported interim order of
liquidation dated 21.10.2015 from the office of the
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Respondent No.3 and after going through the same, this
Hon'ble Court be pleased to quash and set aside the
Impugned Order dated 02.09.2022 passed by the
Respondent No. 2 in Revision Application No. 242 of 2022 as
also the interim order of liquidation dated 21.10.2015 passed
by the Respondent No. 3."
(iii) Respondent no. 3 is at liberty to issue fresh show cause notice to
the society, if initiation of proceedings under Section 102 is found
necessary. If any such show cause notice is issued, the same shall be
served upon the petitioner-society and date of hearing shall be
intimated to the petitioner-society.
8. Writ petitions are disposed of in above terms.
[GAURI GODSE, J.]
Signed by: Iresh S. Mashal
Designation: PS To Honourable Judge
Date: 17/05/2024 13:43:06
