Bombay High Court
Nahidatai Mujahid Sheikh And Ors vs Nashik Jilha Mahila Sahakari Bank Ltd. ... on 9 October, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:40048-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8465 OF 2024
1. Nahidtai Mujahid Sheikh ]
2. Madhubalatai Rameshsheth Bhore ]
3. Kokila Madan Wagh ]
4. Pushpalatatai Vijayrao Udawant ]
5. Shobhatai Pandurang Bodke ]
6. Shashikalatai Murlidhar Bhavar ]
7. Sarojtai Raosaheb Dhumne ]
8. Muktabai Bhagwani Rayte ]
9. Premlatatai Arun Junnare ]
10. Shobhatai Harish Sonawane ]
11. Sampada Nivrutti Savkar ]
12. Chandar Parsharam Padavi ]
Petitioner No.1 - Chairman and ]
Petitioner Nos.2 to 12 - Directors of ]
Nashik Zilla Mahila Sahakari Bank Ltd. ] .. Petitioners
Versus
1. Nashik Zilla Mahila Sahakari Bank Ltd., Nashik ]
2. The Commissioner and Registrar of ]
Co-operative Societies, Pune ]
3. Archana Saindhane, Assistant Registrar, ]
Co-operative Societies, Igatpuri, Nashik ]
4. District Deputy Registrar, ]
Co-operative Societies, Nashik ]
5. State of Maharashtra, ]
Through Department of Co-operation ] .. Respondents
Mr. Pramod N. Joshi, Advocate for the Petitioners.
Mr. Abhishek Patil Bankar with Mr. Nilesh Khaakikar, Advocates for
Respondent Nos.1 and 3.
Mr. N.C. Walimbe, Additional Government Pleader with Mr. Aditya R.
Deolekar, Assistant Government Pleader for Respondent Nos.2, 4 and 5.
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 9TH OCTOBER 2024.
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ORAL JUDGMENT : { Per A.S. Chandurkar, J. }
1. Rule. Rule made returnable forthwith and heard learned counsel for
the parties.
2. The petitioners who are elected members of the Managing
Committee of the Nashik Zilla Mahila Sahakari Bank Limited, Nashik -
respondent no.1 have challenged the order dated 31 st May 2024 passed by
the Commissioner and Registrar of Co-operative Societies - 2 nd respondent
under the provisions of Section 77(A) of the Maharashtra Co-operative
Societies Act, 1960 (for short, "Act of 1960") by virtue of which an
Authorized Officer has been appointed for a period of six months. The
principal ground of challenge as raised is that without complying with the
mandatory requirements of Section 77(A) of the Act of 1960 thereby
failing to record any satisfaction for dispensing with issuance of notice to
the members of the Managing Committee, the Authorized Officer has been
appointed.
3. Facts in brief are that the Managing Committee of the respondent
no.1-Bank comprises of 15 elected members. There are 8 nominated
members on the Managing Committee. The tenure of the Managing
Committee is for a period of five years from 2023 to 2028. According to
the petitioners, 8 members of the Managing Committee tendered their
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resignations on 12th April 2024. In the meeting of the Managing
Committee held on 25th April 2024, the resignations of only 2 Managing
Committee members were accepted. The resignations of the other 6
Managing Committee members were not accepted by assigning reasons.
Since the petitioners apprehended that an Administrator was likely to be
appointed in view of such resignations, they made a representation to the
Commissioner of Co-operation on 29th May 2024. Notwithstanding
aforesaid, the Authorized Officer came to be appointed on 31 st May 2024
by the Additional Registrar (Administration), Co-operative Societies, M.S.,
Pune. Being aggrieved, the petitioners have challenged the said order.
4. Mr. Pramod Joshi, the learned counsel for the petitioners inter alia
submitted that the impugned order appointing the Authorized Officer has
been passed without complying with the provisions of Section 77(A)(1)
and the provisos thereto. Under the said provisions, before passing an
order under Section 77A(1) of the Act of 1960, the Registrar is required to
publish a notice on the Notice Board so as to invite objections and
suggestions on the order proposed to be passed and thereafter consider
the objections and suggestions received within the specified period. The
requirement of publishing such notice could be dispensed with in a case
where the Registrar was satisfied that immediate action was required to be
taken or that it was not reasonably practical to publish such notice. He
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submitted that in the present case, no such notice was published inviting
objections and suggestions to the proposed order. Hence, it was necessary
for the Registrar to indicate the manner in which satisfaction was recorded
that immediate action was required or that it was reasonably not practical
to publish such notice. There was no material on record to justify the
dispensing with publication of such notice. Placing reliance on the
decisions in B.S. Potey Vs. B.A. Joshi, District Deputy Registrar, (1982) 84
BOMLR 363; Swapnil s/o. Sunil Likhar Vs. The District Deputy Registrar,
Co-operative Societies, Nagpur and Ors. (Writ Petition No.4442 of 2017,
decided on 17th July 2018 at Nagpur Bench); Hariram s/o. Atmaram
Warkhade and Ors. Vs. State of Maharashtra, through Department of Co-
operation and Ors. (Writ Petition No.4084 of 2018, decided on 1 st August
2018 at Nagpur Bench); and Vinayak Ukharam Chavhan Vs. Divisional
Joint Registrar, Co-operative Societies, Aurangabad and Ors. (Writ Petition
No.521 of 2023, decided on 3rd August 2023 at Aurangabad Bench) it was
submitted that considering the settled legal position it was clear that in
absence of such satisfaction being recorded, the exercise of power under
the second proviso of Section 77(A)(1) could not have been exercised.
Hence, it was prayed that the impugned order be set aside.
5. Mr. N.C. Walimbe, learned Additional Government Pleader for
respondent nos.2, 4 and 5 at the outset raised an objection to the
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tenability of the writ petition on the ground that an alternate and
efficacious remedy of appeal under Section 152(1) of the Act of 1960 was
available. Without exhausting that remedy, the petitioners had approached
this Court. Without prejudice to the aforesaid, it was submitted that in
view of the vacuum created in the Managing Committee of the respondent
no.1-Bank in view of resignations of 8 members out of 15, it was clear that
majority of the members had resigned. Since deposits of about 33,568
members to the extent of Rs.123 crores were with the Bank, it was found
necessary to act under the second proviso to Section 77(A)(1) of the Act of
1960. Hence, without issuing any notice as required under the first proviso
of the said provision, the Authorized Officer came to be appointed. Since
the Registrar was empowered to dispense with issuance of such notice, the
said power has been exercised in the interest of depositors. There was no
case made out to entertain the writ petition and exercise discretion in
favour of the petitioners.
. Mr. Abhishek Patil Bankar, learned counsel appearing for respondent
nos.1 and 3 supported the stand taken by the learned Additional
Government Pleader.
6. We have heard the learned counsel for the parties at length and we
have also perused the documents on record. The impugned order dated
31st May 2024 passed by the Additional Registrar (Administration), Co-
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operative Societies, M.S., Pune under the provisions of Section 77(A) of
the Act of 1960 records that out of 15 elected Directors of the Managing
Committee, 8 Directors had resigned and the strength was reduced to 7.
There was absence of quorum for conducting further proceedings. After
referring to the provisions of Section 77(A)(1) of the Act of 1960, the
order appointing the Authorized Officer came to be issued. The provisions
of Section 77(A)(1) empowers the Registrar to either suo-motu or on an
application of any officer or member of the society appoint a committee to
manage the affairs of the society till a new committee enters office. By the
first proviso, it is necessary for the Registrar to publish a notice on the
Notice Board inviting objections and suggestions with respect to the
proposed order within a period specified in the notice and thereafter
consider the objections and suggestions received. The requirement of
publishing such notice can be dispensed with subject to the Registrar being
satisfied that immediate action was required to be taken or that it was not
reasonably practical to publish such notice. It goes without saying that in a
case where the Registrar deems that it is not necessary to publish such
notice, the order passed under Section 77(A)(1) of the Act of 1960 ought
to reflect due application of mind by indicating the reason as to why the
stage of publication of such notice has been dispensed with. In the
impugned order, there is no such satisfaction recorded that the Additional
Registrar (Administration), Co-operative Societies, M.S., Pune thought it
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necessary to dispense with such requirement. The decisions in B.S. Potey
(supra), Swapnil s/o. Sunil Likhar (supra), Hariram s/o. Atmaram
Warkhade and Ors. (supra) and Vinayak Ukharam Chavhan (supra) have
considered this aspect and held that the order passed under Section 77(A)
(1) ought to disclose due application of mind to this requirement when
the same is dispensed with.
7. The learned Additional Government Pleader by referring to the
affidavit-in-reply sought to justify the appointment of the Authorized
Officer without publishing the notice and inviting objections under Section
77(A)(1) first proviso of the Act of 1960. It is well settled that the reasons
that are missing in the impugned order cannot be supplied by way of an
affidavit in the proceedings raising a challenge to that order. For this
reason, it would not be permissible for the learned Additional Government
Pleader to support the impugned order by referring to extraneous material
that does not form part of the order.
8. Since we find that the Additional Registrar (Administration), Co-
operative Societies, M.S., Pune failed to comply with the mandatory
statutory provisions as well as the law laid down by this Court and as
there are no disputed questions of fact arising for consideration, the
submission that an alternate remedy is available to the petitioners cannot
be a reason not to entertain the writ petition. We are satisfied that a case
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has been made out for this Court to exercise discretion under Article 226
of the Constitution of India since the irregularity going to the root of the
matter is evident on record.
9. Hence, for aforesaid reasons, the writ petition is allowed in terms of
prayer clause (c), which reads as under :-
"(c) This Hon'ble Court, in the interest of justice, be
pleased to issue an appropriate writ / order quashing
and setting aside the order dated 31.05.2024 passed
by the respondent no.2 to be illegal, void and is
without jurisdiction and is therefore liable to be
quashed and set aside."
10. It would however be open for the respondent no.2 to exercise
jurisdiction under Section 77(A) of the Act of 1960 in accordance with law
if the situation so warrants. It is clarified that the reliefs sought in prayer
clauses (a) and (b) of the writ petition are kept open for being urged in an
appropriate case.
11. Rule is made absolute in aforesaid terms with no order as to costs.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
Digitally
SNEHA SNEHA
ABHAY 4-WP-8465-2024-Judgment.doc
ABHAY DIXIT
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Date:
DIXIT 2024.10.09
18:32:35
+0530
