Rajendra Bhaskarrao Kharate & Ors. v. The Assistant Registrar & Ors.

Mr.P.N. Joshi for Petitioner. Mr.Tushar Sonawane for Respondent Nos.3 and 5. Mr.S.D. Rayrikar, AGP, for Resp. Nos.1, 6 and 9. CORAM: SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J. SMT.NISHITA MHATRE, J DATED: OCTOBER 20, 2008 OCTOBER 20, 2008 OCTOBER 20, 2008 P.C.: P.C.: P.C.: . The petition challenges the order passed by the Minister of State for Cooperation in revision application No.100 of 2008. By this order, the petitioner’s revision application has been rejected. It has been held that since the petitioners had not executed a bond as stipulated under Section 73(1AB), they were deemed to have vacated their office. On a perusal of the order it appears that the revisional authority has not appreciated the fact that the reply sent by the petitioners to the show cause notice and other relevant documents were not placed before the : 2 : Federal Society and, therefore, there was no meaningful and effective consultation with the Federal society. The record and proceedings of the case have been brought to this Court and it indicates that the reply or the say of the petitioner was not brought to the notice of the Federal Society as the Assistant Registrar did not send the reply of the petitioners to it.

2. A show cause notice was issued to the petitioners on

31.1.2007 proposing the appointment of an Administrator for the respondent No.7 Society for various acts and omissions of the petitioners including the fact that a bond had not been submitted by the petitioners in accordance with Section 73(1AB) of the M.C.S. Act.

3. It is argued on behalf of the petitioner that in view of the judgment of a learned Single Judge of this Court in the case Shalikram Shivram Khobragade & Ors. v/s. Divisional Joint Registrar, Cooperative Societies, Nagpur & Ors., 1998(2) Bom.C.R. 525, 1998(2) Bom.C.R. 525, there must be a 1998(2) Bom.C.R. 525, proper and effective consultation with the Federal society before any decision is taken to appoint an Administrator for the Primary Society. In para 12, it has been held thus: "12. ... As pointed out earlier, consultation is not an empty formality and a ritual. It has : 3 : to be real and meaningful. It has to be real, full and effective and not an empty formality or a ritual. Consultation would mean that the person who is sought to be consulted is provided the material based on which order is to be passed in order to enable the authority responsible to pass the order after considering the advice as given and sufficient opportunity must be given to such person to tender the advice. In the instant case, admittedly, the show cause notice was issued on 13-2-1997. Copy of the show cause notice has been purportedly sent to the Federal Society. There is nothing on record to show that the Federal Society, in fact, has received the said notice. Even assuming that the said notice was received, what is apparent is that the petitioners had filed their reply on 28-12-1997. There is nothing on record to show that copy of the reply filed by the petitioners to the show cause notice was made available to the Federal Society. The order was passed on 10-3-1997. Therefore, even if it is held that copy of the said show cause notice was sent to the Federal Society, it cannot be said that there was real, meaningful and effective consultation inasmuch as the reply given by the petitioners was not made available to the Federal Society. In the light of the aforesaid discussion, the order dated 110-3-1997 has necessarily to be quashed and set aside. Once the order dated 10-3-1997 is set aside consequently, the order dated 17-7-1997 of the Appellate Authority has also to be quashed and set aside."

4. I am in respectful agreement with these observations of the learned Judge. A similar view was taken by the Division Bench of this court in an earlier Kerbaji Maroti Rao Shinde v/s State of decision: Kerbaji Maroti Rao Shinde v/s State of Kerbaji Maroti Rao Shinde v/s State of Maharashtra & ors., reported in 1988 Mh.L.J. 157. Maharashtra & ors., reported in 1988 Mh.L.J. 157. Maharashtra & ors., reported in 1988 Mh.L.J. 157.

5. The respondent has relied on the judgment of the learned Single Judge of this Court dated 6.7.2006 in Writ Petition NO.501 of 2005 where the learned Judge has : 4 : held that if there is a failure of the Committee to submit bonds within the time stipulated in section 73(1AB), they would be deemed to be removed as members of the committee.

6. In my opinion, once there is no effective consultation with a Federal society, section 73(1AB) cannot come into play as there must be an order passed u/s 78 before it is decided that a particular member of the Managing Committee has vacated office. Although there is a deeming fiction under section 73(1AB), there must be a further order u/s 78. Such an order can be passed only after effective consultation with the Federal Society. The show cause notice in the present case was issued not only for the default by the petitioners under Section 73(1AB), but for several other acts and omissions. The consultation in the present case was a mere formality since the petitioner’s reply was not sent and therefore the Federal Society had no material before it to consider whether the petitioners had any explanation to offer for the alleged defaults.

7. In this view of the matter, the petition is allowed and the matter remanded to the Assistant Registrar, Cooperative Societies. The administrator who has been appointed and has taken charge will continue till the petitioners obtain favourable orders from the : 5 : Assistant Registrar.