2002(2) ALL MR 876
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.D. UPASANI, J.

Nanasaheb Namdeo Nirmal Vs.The State Of Maharashtra & Anr.

Writ Petition No.3363 of 1992

18th October, 2001

Petitioner Counsel: Shri. A. E. AHER, Shri. R. N. DHORDE
Respondent Counsel: Shri. A. B. BAJPAI

(A) Maharashtra Co-operative Societies Act (1960), S.9(3) - Scope - Proposal to register cooperative milk society - Permission to open Bank account and collect milk granted by Asstt. Registrar to proposed society - However, registration refused - Prior personal hearing not given - Refusal at behest of Dy. Registrar - Abdication of powers and non-application of mind by Asstt. Registrar - Refusal illegal.

Constitution of India, Art.14.

In the instant case proposed Co-operative Milk Society had applied for registration under the Act. The Asstt. Registrar had granted permission to the society to open the bank account, to collect the milk and all formalities with respect to the registration of the proposed society were completed. Allowing the proposed society to open bank account and to collect the milk are important steps for granting registration. In fact, these steps are prelude to the subsequent registration. When everything was done in compliance with the directions given by the Asstt. Registrar from time to time and when all preparation for getting the society registered was done in all respect, the Asstt. Registrar refused to grant registration to the petitioner society. The least that the Asstt. Registrar could have done, in all fairness, was to give personal hearing to the petitioner, which, in fact was incumbent upon him to do. But that was not done. This was absolutely unfair on his part. The order refusing registration is, therefore, vitiated on this count alone. [Para 5]

Considering the gap between the date of initial intimation and the repeated piecemeal directions given by the Respondent Asstt. Registrar each time asking the petitioner to comply with some more formalities from time to time, it seemed that the proposal for registration of the petitioner society was kept purposely pending for a long time to favour some other society which was granted registration immediately. [Para 5]

From the order of the Asstt. Registrar refusing registration it is apparent that there was direction from the Deputy Registrar, Cooperative Societies (Milk), with his remark that "the registration to the petitioner society should be refused". Certainly this must have influenced the Asstt. Registrar while he passed the impugned order. Certainly he abdicated his statutory function and acted at the behest of the Deputy Registrar. The directions and remark of the Deputy Registrar acted as an impediment and actually influenced the mind of the Assistant Registrar who passed the impugned order. Thus the order refusing registration was vitiated since the Asstt. Registrar had not applied his mind independently while refusing to grant registration to the petitioner's proposed society. [Para 7]

(B) Maharashtra Co-operative Societies Act (1960), Ss.9(3), 150 - Asstt. Registrar - Has no power to review his own order - Only power of review is under S.150. (Para 7)

(C) Maharashtra Co-operative Societies Act (1960), S.9(3) - Order refusing registration to proposed society - Vitiated by not giving personal hearing, abdication of power and non-application of mind - Writ petition against - Cannot be rejected on ground of availability of alternative remedy when no purpose would be served thereby, when impugned order was passed at behest of appellate authority.

Constitution of India, Art.226. (Para 8)

Cases Cited:
Shri. Hanuman Dudh Utpadak Sahakari Sanstha Ltd. Vs. State of Maharashtra, 1990 C.T.J.115 [Para 3]
Kumbhargaon Vividh Karyakari Sahakari Seva Society Ltd. Vs. Assistant Registrar, Cooperative Societies, 1993 Mh.L.J.178 [Para 6]
Deorao Vithoba Kale Vs. Divisional Joint Registrar, Cooperative Societies, Nagpur, 1982 Mh.L.J.543 [Para 7]


JUDGMENT

JUDGMENT :- This writ petition is filed by the petitioner, being aggrieved by the order dated 14th October 1986 passed by the respondent No.2 - Assistant Registrar, Cooperative Societies (Milk), Ahmednagar, whereby the Respondent No.2 refused the registration to the proposed Bajrangbali Cooperative Milk Society Ltd. at village Pimpri-Nirmal, Tq. Shrirampur, District Ahmednagar.

2. Few facts, which are relevant for the purpose of deciding this writ petition, can be briefly stated as follows :

The petitioner is a resident of village Pimpri-Nirmal, Tq. Shrirampur, District Ahmednagar. The village has a population of about 6000. The petitioner has stated that in the said village, there were many milk producers who were supplying milk to the society which was outside the village, due to which hardship was being caused to the said milk producers. As the milk was being supplied to the said Society, which was not in the very same village, there was also no tendency or initiative to increase the milk production. The villagers, therefore, felt that they should have society in their own village. Therefore, it was decided by a group of villagers to form a milk producers' society in the year 1983. Accordingly, a meeting was convened in or around September 1983. Thereafter on 10.10.1983, a proposal was sent to the Assistant Registrar, Cooperative Societies (Milk), Ahmednagar - the Respondent No.2 herein for getting the said society registered. Respondent No.2 demanded compliance of certain formalities and certain documents were accordingly demanded by him. This compliance was done on 24.10.1983. However, there was no reply for a very long time form the Respondent No.2. Thereafter on 12.06.1984, Respondent No.2 granted permission to the petitioner's proposed society viz. Bajrangbali Cooperative Milk Society Ltd. to open a bank account with Ahmednagar District Central Cooperative Bank Ltd., Branch at Babhleshwar, which is a nearby village. The contention of the petition is that though such a permission to open the bank account was granted by the Respondent No.2, there was no such intimation to the concerned bank. There was further correspondence between the petitioner and Respondent No.2 and thereafter petitioner themselves took necessary order from the office of the Respondent No.2 and opened the bank account on 05.10.1984. All this was explained by the petitioner society to the Respondent No.2 and there was further correspondence about the compliance of some more formalities which came to be completed by the petitioner. Much time was consumed in all this process. Thereafter permission to collect the milk was granted by the Respondent No.2 on 25.01.1985. Thereafter again the Respondent No.2 informed the petitioner that some further compliance was required to be done for registering the society. This was intimated to the petitioner by Respondent No.2 vide his letter dated 30.04.1985. This compliance was also done by the petitioner. Again some formalities remained to be done, which were pointed out by the Respondent No.2. This also was done, but again some more time was lost in this process.

It is the contention of the petitioner that thereafter there was no communication from the office of the Respondent No.2 and that suddenly to the shock and surprise of the petitioner, an intimation dated 14.10.1986 was received by the petitioner which stated that having regard to the geographical condition of village Pimpri Nirmal and as per the directions of the Deputy Registrar, Cooperative Societies (Milk), Nasik Division, Nasik and as per the guidelines of the Government Resolutions dated 04.08.1986 and 14.08.1986, the registration to the proposed Bajrangbali Cooperative Milk Society Ltd., was refused. It is this intimation dated 14.10.1986, which is being assailed by the petitioner in the present writ petition.

3. Mr. Aher, advocate appearing for the petitioner, made three contentions before me to substantiate his argument that the impugned order dated 14.10.1986 passed by the Respondent No.2, whereby the registration to the petitioner's proposed society came to be refused is mala fide, bad in law and thus is required to be quashed.

It is submitted firstly by Mr. Aher that since before passing of the impugned order the petitioner was not heard, the principles of natural justice were totally violated. According to him, this was an order which had adversely affected the petitioner and, therefore, it was incumbent upon the respondent no.2 to give personal hearing to the petitioner before passing the impugned order. To buttress his argument, Mr. Aher relied upon the decision of this Court in the case of Shri. Hanuman Dudh Utpadak Sahakari Sanstha Ltd. and another Vs. State of Maharashtra and others, reported in 1990 C.T.J.115.

Strongly relying upon the said decision (supra), Mr. Aher vehemently argued that when orders were passed under sections 4 to 10, 152 & 154 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as "the Act") and if such orders are passed without complying the principles of natural justice, which adversely affect the parties and when allegations are made that there was unwarranted interference, ministerial favouritism and arbitrary exercise of executive power, then such orders, if they are passed without following the procedure under the Act and Rules made thereunder, are to be set aside.

Mr. Aher further submitted that the impugned order is passed under Section 9(3) of the said Act, that it was an order which adversely affected the interests of the petitioner, that it was passed without hearing the petitioner and hence it should be quashed and set aside as being violative of principles of natural justice.

4. Mr. Bajpai, Assistant Government Pleader appearing for the respondents, tried to argue that Section 9 of the said Act does not contemplate personal hearing and that the order was correctly passed by the Respondent No.2.

5. I have heard Mr. Aher, advocate appearing for the petitioner and Mr. Bajpai, A.G.P. appearing for the Respondents. I have also gone through the decision of this Court cited (supra) by Mr. Aher. In the said decision, this court has deprecated the practice of unwarranted executive interference and the manner of passing ex parte orders without giving hearing to the party against whom adverse order is to be passed. This decision in no uncertain terms states that the orders made without complying the principles of natural justice and which adversely affect the concerned party have to be quashed and set aside, especially when allegations concerning unwarranted interference, ministerial favouritism and arbitrary exercise of executive power are made by a party who is adversely affected by such order.

In the present case at hand, admittedly no hearing was given to the petitioner before the impugned order came to be passed. If one goes through the chronology of events, it will be revealed that the petitioner was granted permission to open the bank account, to collect the milk and all formalities with respect to the registration of the proposed society were completed. Allowing the proposed society to open bank account and to collect the milk are important steps for granting registration. In fact, these steps are prelude to the subsequent registration. When everything was done in compliance with the directions given by the Respondent No.2 from time to time and when all preparation for getting the society registered was done in all respect the impugned intimation dated 14.10.1986 indeed came as a bolt from the screw for the petitioner. The least that the Respondent No.2 could have done, in all fairness, was to give personal hearing to the petitioner, which, in fact was incumbent upon the Respondent No.2 to do. But that was no done. This was absolutely unfair on the part of the Respondent No.2. The impugned order is, therefore, vitiated on this count alone.

Petitioner's further contention is that their proposal for registration of the society was kept purposely pending for a long time to favour some other society which was granted registration immediately.

Considering the gap between the date of initial intimation which is dated 12th June 1984 and the repeated piecemeal directions given by the Respondent No.2, each time asking the petitioner to comply with some more formalities from time to time, I find substance in the averments of Mr. Aher.

6. Third submission made by Mr. Aher, advocate appearing for the petitioner was that the Respondent No.2 has not applied his mind independently while refusing to grant registration to the petitioner's proposed society. Mr. Aher pointed out from the impugned order that while rejecting the proposal of the petitioner-society, the impugned letter states that permission is refused as per the directions of Deputy Registrar, Cooperative Societies (Milk), Nasik Division, Nasik and as per his remark, the Respondent No.2 was refusing registration to the petitioner society. To substantiate his argument, Mr. Aher relied upon the decision of this Court in the case of Kumbhargaon Vividh Karyakari Sahakari Seva Society Ltd. Vs. Assistant Registrar, Cooperative Societies & others, reported in 1993 Mh.L.J.178.

I have gone through the decision cited (supra). In the said case, a proposed multi-purpose cooperative society applied for registration to the Assistant Registrar to whom the power had been delegated for registration under Section 9 of the said Act. The Deputy Secretary, Cooperation and Textile Department of the State Government informed the Deputy Registrar, Cooperative Societies by letter that the State Government had granted permission for registration of the proposed Society, but that hearing should be given to all existing cooperative societies in the area, after which the granting of registration to the proposed society should be considered. The Deputy Registrar conveyed the gist of the letter issued by the Deputy Secretary to the Assistant Registrar, who thereafter, following the order of the Government granted registration to the proposed society. This was challenged by the existing multi-purpose cooperative society and while allowing the writ petition, this was observed by the Court:

"........... It is trite law that an officer of State, who has been invested with administrative/quasi-judicial functions, has to discharge them independently, on the basis of the material placed on record and after giving an opportunity for hearing to the parties likely to be affected by his order. It was obvious that the Government's "order" was one of the factors which influence the Assistant Registrar's order granting registration. The Assistant Registrar abdicated his statutory function and acted at the behest of the Government as if he was obliged to follow a directive issued by the Government....."

7. In the present case at hand also, it is very obvious from the impugned order dated 14.10.1986 that there was a direction from the Deputy Registrar, Cooperative Societies (Milk), Nasik Division, Nasik, with his remark that "the registration to the petitioner society should be refused". This is very much reflected in the first para of the impugned intimation. Certainly this must have influenced the Respondent No.2 while he passed the impugned order. Respondent No.2 certainly abdicated his statutory function and acted at the behest of the Deputy Registrar. It has to be said that the directions and remark of the Deputy Registrar acted as an impediment and actually influenced the mind of the Assistant Registrar - Respondent No.2, who passed the impugned order. Thus, the third contention of Mr. Aher also has much force in it.

The fourth submission of Mr. Aher was that the Assistant Registrar has no power to review his own order. He submitted that having passed the earlier order of granting permission to collect the milk and open bank account to the petitioner, the Respondent No.2 could not review his order and hence the impugned order is bad on that count also and, therefore, it be quashed and set aside.

I find much substance in this argument also of Mr. Aher. Inasmuch as, indeed the Assistant Registrar has got no power to review his own order. The only power of review under the Maharashtra Cooperative Societies Act, 1960 is to be found in Section 150. Reference can be usefully made on this point to the decision of Division Bench of this Court in the case of Deorao Vithoba Kale Vs. Divisional Joint Registrar, Cooperative Societies, Nagpur and others, reported in 1982 Mh.L.J.543. In this case, the Assistant Registrar, Cooperative Societies, Sub-Division, Pusad, District Yavatmal, had passed an order cancelling his earlier order of appointment of the petitioner Deorao Vithoba Kale as a member of the Managing Committee of Umarkhed Block Cooperative Purchase and Sale Society Limited, Umarkhed. While impugning the said order, various submissions were made by the petitioner and one of the submissions was that the Assistant Registrar had no power to review his own order. The said contention was upheld. In the present case at hand also, it has to be held that the Respondent No.2 had no power to review his own order. Thus, on this count also, the submission made by Mr. Aher holds water.

8. Mr. Bajpai, the Assistant Government Pleader appearing for the Respondents tried to argue meekly that there was an alternate remedy of filing an appeal under Section 152 of the said Act and in view of this, writ petition is not maintainable. It is not possible to agree with the submission of Mr. Bajpai. Inasmuch as that, it is quite obvious that no purpose would be served in driving the petitioner to the appellate forum when the impugned order was passed as per the "directions and remark" of the Deputy Registrar, Cooperative Societies (Milk), Nasik Division, Nasik. Reference can be usefully made once again to the decision of this Court in the case of Kumbhargaon Vividh Karyakari Sahakari Seva Society Ltd. Vs. Assistant Registrar, Cooperative Societies & others, (supra). In this decision also, same contention was raised by the A.G.P. which was dispelled by the Court pointing out the futility of approaching the appellate forum and how under such circumstances, remedy of writ petition was available to the aggrieved party.

9. In view of the aforesaid discussion, I have no hesitation in coming to the conclusion that the impugned order dated 14.10.1986 passed by the Respondent No.2 is violative of the principles of natural justice, bad in law and hence not sustainable. The same, therefore, will have to be quashed and set aside.

10. Hence the following order.

(i) Impugned order dated 14.10.1986 passed by the Respondent No.2 is quashed and set aside.

(ii) Since the petitioner as such is operating as per the protection given by this Court on 24.10.1986, it would be better in the interest of justice, if the parties are sent back to the Respondent No.2 and the Respondent No.2 then should give personal hearing to the petitioner and decide the matter afresh strictly in accordance with law and in the light of the observations made in this judgment.

(iii) Parties to appear before the Respondent No.2 on 5th November, 2001.

(iv) Rule is made absolute in above terms with no order as to costs.

Rule made absolute.