HonourableMinister completely disregarded procedure prescribed under the Rules.Mr v. D.Hon urges that impugned order is unsustainable and liable to bequashed and seta
Legal Reasoning
{1} wp 7578.24 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7578 OF 2024Vasantrao Naik Macchi VyavsayaCo-Society, through its Chairman.VersusState of Maharashtra and others.…Mr. V.D. Hon, Senior Advocate h/f. Mr. R.P. Bhumkar, Advocate for petitioner.Mr. V.D. Sapkal, Senior Advocate i/b. Mr. N.B. Jadhav and S.R. Nagargoje, Advocate for respondent No.6Mr. A.S. Shinde, Advocate for respondent Nos. 1 to 5. CORAM : S.G. CHAPALGAONKAR, J. DATE :- 1st AUGUST, 2024. ORDER :-1.The petitioner impugns the order dated 14.3.2024 passed bythe Honourable Minister of Forest, Agriculture and Fisheries Department,in appeal No. 11 of 2023.2.Mr. V. D. Hon, learned Senior Advocate appearing for thepetitioner submits that the petitioner society is registered on 31st August,1989. Respondent No.6 society is registered on 13.1.2016. Afterregistration, respondent No.6 filed Appeal No. 3 of 2019 beforerespondent No.2 - Commissioner of Fisheries at Mumbai, seekingcancellation of registration of the petitioner society, invoking Sections 21and 21-A of the Maharashtra Cooperative Societies Act 1960 (hereinafter {2} wp 7578.24 R.odtreferred to as MCS Act, for brevity). Respondent No.2, after noting thatthe application for cancellation of registration is moved after 28 years bythird party, declined to exercise powers under Section 21 and 21A of theMCS Act, consequently, dismissed the appeal vide order dated14.10.2021. Respondent No.6 society, approached the respondent No.1purportedly in appellate jurisdiction. However, the Honourable Ministerexercised revisional powers under Section 154 of the MCS Act andallowed proceeding. Mr. Hon, learned senior advocate would submit thatthe powers under Section 21A of the MCS Act, can be exercised onlyafter giving notice to the members of the society, however, HonourableMinister completely disregarded procedure prescribed under the Rules.Mr V. D.Hon urges that impugned order is unsustainable and liable to bequashed and setaside.3.Per contra, Mr. Sapkal, learned senior advocate forrespondent No.6 submits that the petitioner society has been registeredby adopting fraudulent means. Section 6 of the MCS Act prescribes theconditions for registration of the society. Members of the society must befrom different families and residents of the area of operation. However,in the present case, large number of members from one and the samefamily are shown as members. Some of them are Government servants,but shown to be fishermen. Earlier, application for registration movedby petitioner was rejected by the competent authority observing thatsociety can not be registered on percolation tank. However, lateron, incollusion with the concerned Officers, registration of the society has beenillegally secured. He would further submit that respondent No.6 societybeing registered for same area, is entitled to challenge the registrationand law laid down by this court in the matter of Nandkumar Dakhore vs. {3} wp 7578.24 R.odtState of Maharashtra ( W.P. No. 8089 of 2021 dated 4.8.2021) has noapplication in the facts of the present case.4.Having considered submissions advanced by learnedadvocates for respective parties and on perusal of the record, apparently,respondent No.6 sought cancellation of registration of petitioner society,which is in existence since 1989. Respondent No.2 was pleased torejected the appeal mainly on the ground that the application wasbelatedly filed without explanation for inordinate delay. Secondly,respondent No.6 has no locus-standi in view of the law laid down by thiscourt in the case of Nandkumar Dakhore (supra). Apparently,respondent No.2 passed such order while dealing appeal under Section21A of the MCS Act. Respondent No.6 had therefore preferred appealagainst said order before Honble Minister under Section 152 of the MCSAct. The proceeding shows that Honourable Minister exercisedrevisional power under Section 154 of MCS Act but ultimately records inoperative part that appeal is allowed. Therefore, it is difficult to gather,as to whether the Honourable Minister exercised appellate jurisdiction assought to be invoked by respondent No.6 or revisional jurisdiction undersection 154 of the MCS Act. Pertinently, there is no whisper as regardssuch discrepancy in the impugned order. Looking to provision underSection 154 of MCS Act revisional power can be exercised only whenorder challenged is not appealable.5.Be that as it may, Section 21A of the MCS Act empowers theRegistrar to direct de-registration of the society. Respondent No.6 hadinvoked jurisdiction of respondent No.2 under section 21-A seeking de-registration or cancellation of the society. Section 21A clearly stipulates {4} wp 7578.24 R.odtthat powers can be exercised only after giving an opportunity of hearingto the Chief Promoter, Committee and the members of the society,proposed to be de-registered. The proviso further clarifies that in casethe number of members of the society is so large that it is not possible toascertain correct addresses of all such members, and it is not possible toserve notice to all such members, a public notice of the proceeding of de-registration will have to be given in prescribed manner.6.In the present case, respondent No.2 declined to exercise hispowers under Section 21A for the reasons stated in his order. However,the Honourable Minister in exercise of revisional or appellate powersunder Section 152 or 154, records that appeal is allowed. From theobservations in the order, it is discernible that the Honourable Ministerhas purportedly exercised powers of the Registrar under Section 21A anddirected de-registration of the society. Pertinently, there are no suchstipulations in the operative part of the order. In that contingency, whenthe Honourable Minister has exercised powers under Section 21A, it wasobligatory on his part to issue notices to all the members and if it was notpractically possible, cause a public notice to be served upon them. Inabsence of such notice, exercise of powers under Section 21A cannot bejustified. If law prescribes certain powers to be exercised in a particularmanner, no authority can exercise such powers without due adherenceto the procedure prescribed. Consequently, the impugned order passedby the Honourable Minister deserves to be quashed and set aside andmatter needs to be remanded back for afresh consideration, inaccordance with law.7.It is made clear that all points including maintainability of
Decision
{5} wp 7578.24 R.odtrevision/appeal before the Minister, the locus-standi of respondent No.6to invoke jurisdiction under Section 21A of the MCS Act, so also, point ofdelay and laches in invoking such jurisdiction are kept open and it wouldbe for Honourable Minister to consider all the aforesaid aspects,alongwith merits of the matter. Hence the following order :-O R D E R[i]The writ petition is allowed;[ii]The impugned order dated 14.3.2024 passed by HonourableMinister in Appeal No. 11 of 2023 is hereby quashed and set aside.[iii]The matter is remitted back to the Honourable Minister toafresh decide proceeding in revision/appeal filed by respondent No.6, inaccordance with law; particularly, keeping in mind the aforesaid legaland factual issues;[iv]Parties shall appear before the Honourable Minister on19.8.2024.[v]The Honourable Minister is requested take up theproceeding from the stage of issuance of notices to all members ofpetitioner society, in tune with the procedure prescribed under Section21A of the MCS Act and rules framed thereunder. [S.G. CHAPALGAONKAR] JUDGE grt/-