WP8645 OF 09.sxw v. Proposed Anandibai Nandekar Vividh Karyakari

Mr.P.D. Dalvi, for the Petitioner Mr. Rahul P. Walvekar, for respondent No.1. Mr R. M. Patel, AGP for the Respondent State. CORAM: R.V. MORE, J. DATED: 17th August, 2010 P.C.

Rule. Rule made returnable forthwith by consent of learned counsel.

Heard Mr. Dalvi, learned counsel for the petitioner, Mr. Rahul Walvekar, for respondent no.1 and Mr. Patne, AGP for respondent State.

The above petition challenges the order passed by the Hon’ble Minister of the State for Co-operation, Marketing, Textile u/s 154 of the Maharashtra Co-Operative Societies Act, 1960 (for short called as “the said Act”). By the said order, the registration of the respondent No.1 Society is granted u/s 4 r/w section 9 of the 2 WP8645 OF 09.sxw said Act.

The registration of Co-Operative Societies, is governed by section 4 and section 9 of the said Act and the relevant policy of the Government as laid down in the Government resolution dated

7.2.2001. Under this policy, Vividh Karyakari Sahakari Society in a revenue village can be registered provided the turnover of the existing Vikas Karyakari Society is minimum 50 lacs of rupees and the turnover of the proposed society also should be minimum 50 lacks of rupees. The Hon’ble Minister on the basis of this policy and on individual merits of the cases, granted registration of the respondent No.1 Society as stated above.

Mr. Dalvi, learned counsel for the petitioner submitted that while granting registration to the Respondent No.1 Society, Hon’ble Minister ignored /not considered the Government Policy contained in a circular issued by the Commissioner of Co-operation, on 5th March,2007. He submitted that the said circular prohibit registration of new Vikas Karyakari Society. Mr. Dalvi, also pointed out that initially first respondent preferred an application for registration before the Assistant Registrar and this application came to be rejected relying on the guidelines given in the said circular dated 5.3.2007. In some cases the Revision is directly before Hon’ble Minister, bypassing the remedy of appeal u/s 152 of the Act and in some cases after availing remedy u/s 152, Revision 3 WP8645 OF 09.sxw u/s 154 is filed. He submitted that the revision u/s 154 without exhausting remedy under section 152 is not maintainable.

Mr. Walvekar,, learned counsel for the respondent No.1 on the contrary submits that in some cases proposed society constrained to approach the Hon’ble Minister as the circular dated

5.3.2007, was issued by the Commissioner of Co-Operation and Ex- Officio Registrar of the Co-operative Societies and in the teeth of this circular, Appellate Authority viz., the Divisional Joint Registrar would not have granted registration. Mr. Walvekar, further submits that the society can be registered if the same is economically viable and its registration has no adverse effect on development of co-operation movement. He further submits that the relevant policy of the Government is laid down in the Government resolution dated 7.2.2001. He also submitted that Circular dated 5.3.2007, cannot be said as policy directive of the Government. Thus, the Hon’ble Minister rightly considered the Government resolution dated 7.2.2001, and granted registration to the proposed society.

Mr. Patne, learned AGP, submitted as to stand of the Government. However, I find the stand of the Government is as vague as possible.

After hearing, learned counsel for the respective parties and after going through the impugned order, along with the affidavit 4 WP8645 OF 09.sxw of the respective parties and also directives, I am of the considered view that the matters are required to be remanded back to the Hon’ble Minister for decision afresh on the respondent No.1’s proposal for registration. The perusal of the impugned order reveals that the Hon’ble Minister has proceeded on the basis of Government Resolution dated 7.2.2001. The circular dated

5.3.2007, is not even referred in the impugned order. In my opinion, the Hon’ble Minister should have considered the said circular of 2007 especially when the registration authority viz Assistant Registrar, rejected respondent’s proposal on the basis of of circular dated 5.3.2007. In some of the cases, the Hon’ble Minister for co-operation has entertained revision applications, even though same have been filed bypassing the remedy of appeal u/s 152 of the said Act. The Hon’ble Minister has not given any reason in the impugned order as to why said revisions are entertained.

It is now settled law that when the statutory functionary makes an order based on certain grounds, it’s validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons, in the shape of affidavit or otherwise. A reference can be made to the the decision of Constitutional Bench of Apex Court, in Mohinder Singh Gill -vs- Chief Election Commissioner, 1978 1 SCC405. This decision is clearly applicable to the present facts and circumstances of the case. In the facts and circumstances, I dispose of the petition by passing 5 WP8645 OF 09.sxw following order. ORDER I) The impugned order dated 26.8.2009, passed by the Minister of State Co-operation, granting registration of the respondent No.1 society, is hereby quashed and set aside and the matter is remanded back to the Minister for deciding respondent Society’s Revision afresh. II) Hon’ble Minister shall decide respondent No.1’s revision as expeditiously as possible and preferably within three months from the date of receipt of this order, independently on its own merits and after giving opportunity of hearing to both sides. III) The observations made above are prima facie in nature and all the points and contentions raised by both parties are expressly kept open.

(R. V. MORE, J.)