2003(1) ALL MR 401
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
H.L. GOKHALE AND N.N. MHATRE, JJ.
Shri Mahalaxmi Sahakari Doodh Vyavasayik Maryadit & Ors. Vs. Kolhapur Zilla Doodh Utpadak Sangh Ltd. Kolhapur & Ors.
Writ Petition No.1773 of 2002,Civil Application No.446 of 2002,Writ Petition No.5575 of 2001
18th November, 2002
Petitioner Counsel: Mr. V. A. THORAT, Mr. AMIT B. BORKAR,Mr. Y. S. JAHAGIRDAR, Mr. A. A. KUMBHAKONI , Mr. R. S. DATAR
Respondent Counsel: Mr. S. G. ANEY, Mr. NITIN JAMDAR , Mr. NAVNATH PATIL,Mr. M. L. PATIL, Mr. Y. D. MULANI, Mr. TEJPAL INGALE, Mr. M. L. PATIL,Mr. Y. D. MULANI,Mr. S. G. ANEY,Mr. NITIN JAMDAR , Mr. NAVNATH PATIL
(A) Maharashtra Co-operative Societies Act (1960), Ss.144A(2)(c), 144T - Election Petition - Filing of - Election of specified societies - Breach of rules - Same can be called in question after declaration of election results by means of Election Petition before Tribunal.
The Rules framed for election of specified societies are a complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election". If there is any breach of the rules, the same can be called in question after the declaration by means of an election petition before the Tribunal. However, as far as the validity of the winding up of the societies is concerned, that will have to wait till the decision of the Joint Registrar. Under Section 144-T of the Act, there is a provision of filing an election petition within a period of 2 months from the date of declaration of the election result with a proviso, which permits a relaxation on the ground of sufficient cause. In the event, any person aggrieved by the election result filed an election petition, it would be open to him/her to apply that the votes of the Petitioners segregated under the orders of this Court be preserved initially till the decision of the Joint Registrar on the appeals and then if necessary till the decision on that election petition. The Collector is directed to preserve the votes for a period of 2 months from today. He will preserve them further and take appropriate steps in accordance with the directions of the Election Tribunal if received within this period of 2 months. [Para 46]
(B) Maharashtra Co-operative Societies Act (1960), Ss.154, 144A(2)(c) - Election to Federal District Co-operative Society - Revisionary Powers of State Government - Exercise of - Minister of State exercising his quasi-judicial powers from his residence without there being proper record in Mantralaya - Held, quasi-judicial functioning must be conducted from place of office of Minister - Citizens must know what is the distribution of business amongst Ministers and Ministers of State in advance.
Constitution of India, Art.166.
In the present case the sporadic manner in which the business of the government was distributed between the Cabinet Minister and the Minister of State is most disturbing. The Cabinet Minister had conferred certain powers on the Minister of State. Thereafter they were withdrawn. Then they were conferred once again and then a particular district was withdrawn therefrom within a span of a few days. Apparently, there is no explanation for all this except the politics or conflict between the two. Similarly the manner in which the Minister of State exercised his quasi-judicial powers from his residence without there being proper record in Mantralaya is equally disturbing. We deprecate both these practices. Citizens must know what is the distribution of business amongst the Ministers and Ministers of State in advance and that business and particularly the quasi-judicial functioning must be conducted from the place of office of the Minister. [Para 47]
S.P. Chengalvaraya Vs. Jagannath, (1994) 1 SCC 1 [Para 20]
Sheikh Mohamed Fatemohamed Vs. Raisuddin Azimuddin Katil, 2000(3) ALL MR 456=2001(1) Mh.L.J. 850 [Para 27]
E.P. Royappa Vs. State of Tamil Nadu, (1974) 4 SCC 3 [Para 29]
Barium Chemicals Ltd. Vs. Company Law Board, AIR 1967 SC 295 [Para 29]
Tara Chand Khatri Vs. Municipal Corporation of Delhi, (1977) 1 SCC 472 [Para 29]
State of U.P. Vs. Brahma Datt Sharma, (1987) 2 SCC 179 [Para 30]
Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association Ltd., (1992) 3 SCC 1 [Para 32,44]
S.S.J.S. Sahakari Dugdha Utpadak Sanstha Vs. State of Maharashtra, 2001(4) ALL MR 863 (S.C.)=(2001) 8 SCC 509 33 [Para 46]
Ram Swaroop Vs. S.N. Maira, (1999) 1 SCC 738 [Para 36]
H. L. GOKHALE, J. :- Writ Petition No.1773 of 2001 is filed in the names of 103 co-operative societies dealing in milk. The dispute in this petition is with respect to their right to vote and participate in the election to the Respondent No.1 which is the Federal District Co-operative Society dealing in milk for the district of Kolhapur. The Respondent No.1 is a Specified Co-operative Society within the definition of that concept under section 144A(2)(c) of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the said Act"). The Petitioners claim to be the primary co-operative societies registered under that Act and claim to be members of the Respondent No.1. The Respondent No.2 is the Collector of Kolhapur and as per the provisions of the said Act he has to conduct the elections to the Board of Directors of the 1st Respondent Society. The Respondent No.3 is one Mr. Hasan Mushrif, Minister of State for Dairy Development, State of Maharashtra, against whom certain allegations are made in this petition with respect to his role in this election. The Respondent No.4 is another primary milk co-operative society functioning in the district of Kolhapur and the Respondent No.5 is its chairman. The Respondents Nos.4 and 5 are objecting to the right of the Petitioners to vote on the ground that they do not supply necessary minimum litres of milk and against whom orders of liquidation have been passed by the Appropriate Authority, thereby disentitling them from exercising this right. The Respondent No.6 is the State of Maharashtra.
The Board of Directors of the Respondent No.1 consists of 18 elected Directors who are to be elected from amongst the primary village level dairy societies who are the members of Respondent No.1. There are some such 2200 primary societies in the district of Kolhapur. The Respondent No.1 sells milk and its products in the trade name of "GOKUL" and its annual turnover is said to be in the range of Rs.380 crores. It is supposed to be one of the biggest milk cooperative functioning in India. The election to the Respondent No.1 Society is governed under section 73G of the said Act since it is a specified society. The elections to the specified co-operative societies are governed under the Maharashtra Specified Co-operative Societies (Elections to Committee) Rules, 1971. The term of the Board of Directors is for a period of 5 years and the controversy in this matter is with respect to the election which took place in March 2002.
3. In view of the financial strength of the Respondent No.1 Federal Society, there is naturally a keen competition to control it. It is not disputed by the counsel for the rival parties that much of political power depends upon the control of such Federal Societies. As of now, the Democratic Front led by Indian National Congress (I) and the Nationalist Congress Party is in power in the State of Maharashtra and there are allegations that both these parties are trying to gain control of this Respondent No.1 Society. The Petitioners allege that Respondent No.4 Society and its chairman Respondent No.5 have lodged complaints against the Petitioners at the instance of the Nationalist Congress Party which is trying to gain control over Respondent No.1 Society. The Respondent No.3, Minister of State for Dairy Development belongs to the Nationalist Congress party. The Respondents Nos.4 and 5 deny these allegations and Respondent No.3 also denies that he has taken any politically motivated action. As against that, Respondents Nos.4 and 5 allege that the Petitioners are supporting the panel of Congress (I) and are supported by Mr. Anandrao Devkate who is the Cabinet Minister of Dairy Development and who belongs to the Congress (I) Party. It is also not disputed that the relations between Respondent No.3 - Minister of State and his Cabinet Minister Mr. Devkate are strained.
4. It is material to note that much prior to the filing of this petition, the Respondents Nos.4 and 5 have been consistently making allegations of large scale corruption against the Directors of the 1st Respondent Federal Society. It is their case that corrupt practices were indulged at the cost of the milk producers and the primary societies who got lesser price to that extent. It is the case of the Respondents Nos.4 and 5 that they made complaints to the State Government based on the serious objections in the audit report. The State Government ordered an inspection under section 89A of the said Act and the officers concerned submitted the inspection report amongst others holding the then Directors of the Respondents No.1 guilty of serious financial irregularities to the extent of Rs.43 crores. The Deputy Registrar of Co-operative Societies, in -charge of dairies of the Pune Division, issued a show cause notice on 13th August 2001 under section 78 of the said Act as to why the Board of Directors should not be superseded and an administrator be not appointed. After holding the necessary inquiry, he held the Directors guilty of almost all the charges, but dropped the show cause notice by his order dated 3rd November 2001. He took the view that it would be proper to take action under section 83 of the said Act for the financial loss instead of the supersession and accordingly issued a notice for determination of the loss. The Respondents Nos.4 and 5 filed a petition to challenge the withdrawal of the notice under section 78, but withdrew the petition and filed an appeal before the Joint Registrar. The Respondent No.1 Society filed a revision before the Cabinet Minister Mr. Devkate and challenged the findings of guilt recorded by the Deputy Registrar. The Cabinet Minister by his order dated 4th December 2001 granted a stay of those findings and of the notice under section 83. The Joint Registrar also dismissed the appeal filed by the Respondents Nos.4 and 5. The Respondents Nos.4 and 5 therefore filed Writ Petition No.650 of 2002 which was admitted on 11th March 2002 and the hearing thereof was expedited.
5. In the meanwhile, it so happened that in the beginning of January 2002, the Income Tax Department raided the residences of all the Directors of Respondent No.1 as well as the offices of Respondent No.1. Reportedly, unexplained gold and cash worth crores of rupees were found and many of the Directors were said to be having a large number of bank accounts. The Income Tax Department was reported to have taken statements of more than 150 persons and further actions are in the process. These raids were widely reported in the newspapers. There were allegations of improper arrangement for transport of milk and purchase of a milk powder plant at a price of nearly Rs.8 crores when in fact it was of Rs.3.5 crores. The allegations are denied by the Petitioners and the Respondent No.1. After the raids, on 9th January 2002 the Cabinet Minister vacated the stay granted by him, but restored it once again on 15th January 2002. The Respondents Nos.4 and 5 applied for joining in that revision application, but that was dismissed by the Minister on 16th April 2002 and the Respondents Nos.4 and 5 have filed a petition challenging that order bearing Writ Petition (Stamp) No.19242 of 2002.
6. It has been placed on record that as far as the registration of primary milk societies is concerned, it is governed under State Government Resolution dated 4th January 2000. It makes it a condition of registration for a primary milk co-operative society that the society will be permitted registration provided its collection of milk per day is at least 50 litres for a period of 2 months. It was reported that a large number of bogus societies had been registered though their collection of milk was less than 50 litres. As far as the Pune Division is concerned (of which District Kolhapur is a part) a meeting was held way back on 6th September 2001 under the chairmanship of the Regional Deputy Registrar of Co-operative Societies (Milk) wherein the Assistant Registrars of the Co-operative Societies (in-charge of milk) of all the districts in that Division remained present. It was resolved that those societies, which did not have the necessary collection of 50 litres per day, be taken in liquidation, if necessary. That was Resolution No.2 passed in that meeting. As per that Resolution, the Assistant Registrar, Kolhapur sought the information for the year 2000-2001 from the Respondent No.1. On receiving the necessary information, notices were issued to the concerned societies. In some cases, interim orders of liquidation were passed whereas in some cases after hearing the societies including their advocates, final orders of liquidation came to be passed in November/December 2001.
7. In the meanwhile, on 3rd August 2001 the Respondent No.2 Collector issued the programme for preparation of voters list for the ensuing election of Respondent No.1. The Respondents Nos.4 and 5 filed their objections contending that those societies against whom interim or final orders of liquidation were passed should be deleted from the voters list. On the objections being rejected, the Respondents Nos.4 and 5 filed Writ Petition No.5575 of 2001 in this Court. The Division Bench of the then Chief Justice Shri. B.P. Singh and Dr. Chandrachud partly allowed the writ petition by its order dated 26th November 2001. The Division Bench noted that in respect of some 38 such societies, final orders of liquidation had been passed, whereas against some others interim orders had been passed. The Division Bench in its order took an overview of sections 102 to 105 of the said Act and held that those societies in respect of which only interim orders of liquidation were passed can exercise their right of vote, but those against whom final orders were passed shall not have the right to vote "unless they have not been served with a copy of the final order ordering liquidation or they have obtained interim order in appeal staying the order of liquidation passed by the Registrar". The Court directed the State Government to examine the record in respect of each of the 38 societies and only after satisfying that the orders of liquidation had been served on them and that they had not obtained any interim order from the Appellate Authority, their names may be deleted from the final voters list. The Court also made it clear that in the case of those societies, who may obtain any interim orders from the Appellate Authority before the date of poll, the order passed will be respected by the State Government. The Respondents Nos.4 and 5 carried this matter in an SLP to the Apex Court in SLP (Civil) No.21445 of 2001. The Apex Court by its order dated 10th January 2002 declined to interfere. The Apex Court held that from the conspectus of the provisions of the Act, it was clear that the moment the final order of liquidation was passed, then the members would vacate their offices and would not be entitled to vote. The Court however clarified that this will not be limited only to the 38 societies as mentioned in the High Court's order.
8. The Respondent No.1 Federal Society thereafter took out a civil application being Civil Application No.446 of 2002 in the disposed off Writ Petition No.5575 of 2001. This civil application stated in paragraph 5 thereof that the societies, against whom final orders of liquidation had been passed, had filed appeals against such orders of Assistant Registrar to the Joint Registrar, Co-operative Societies (Dairy) and the Joint Registrar had passed stay orders on these appeals. The civil application expressed the fear that there could be orders passed by the Minister of State in revision against those orders of Joint Registrar. Prayer (b) of this civil application therefore sought a direction to disclose such orders. That prayer was directed against the Minister of State and the Collector. It was also prayed that if any such orders are passed, they may not be acted upon. The civil application was filed on 8th March 2002 and moved on that day itself. The Division Bench, which heard the matter and to which one of us was a party (Smt. Mhatre, J.), observed in the first part of the order that there was a letter dated 8th March 2002 issued by the Collector of Kolhapur wherein it was stated that no stay order had been received from the Minister of State for Dairy Development. That being the position, the Court noted that apprehension expressed by the Applicants appeared to be not borne out from the record. However, on the same day at 5 p.m., the counsel for the Applicants mentioned the civil application once again by filing affidavit of their advocate on record that he had received an oral communication that the Minister of State had passed orders granting stay of the orders of the Joint Registrar. The voting was scheduled on 13th March 2002. The civil application was moved on behalf of some 125 societies. The Court therefore directed the Collector to permit these 125 societies to participate in the elections and vote. The Court however directed that their votes be kept in a separate sealed cover.
9. The Respondents Nos.4 and 5 filed an SLP against this order being SLP (Civil) No.6264 of 2002. When this SLP was moved on 14th March 2002, the Apex Court passed the order to list the matter on due date while observing that counting of the votes would be subject to the further orders which may be passed. Thereafter, the Respondents Nos.4 and 5 filed an affidavit stating that they would like to canvass the points raised in the SLP in the High Court and did not press it. Accordingly, an order was passed on I.A. No.2 of 2002 taken out in the said SLP (Civil) No.6264 of 2002 as follows :-
"On the application of learned counsel for the Petitioners, the special leave petition is dismissed as withdrawn."
10. Thereafter this Writ Petition No.1773 of 2002 is filed on 13th March 2002, i.e. after the voting was over. As stated earlier, the petition has been filed by some 103 primary societies. It is prayed therein that the Respondent No.3 - Minister of State be restrained from exercising any statutory authority in respect of the primary milk societies in District Kolhapur and that the Collector be directed to take into consideration and count the votes cast by all the Petitioners. It also prayed that the orders passed by the 3rd Respondent be quashed and set aside and their operation be stayed by interim order. When this petition was heard initially, the Division Bench by its order passed on 22nd April 2002 stayed the counting process and directed that the counting shall not take place without prior permission of the court. The orders passed by the Minister of State were however not stayed.
11. The Respondents Nos.4 and 5 challenged this order by filing SLP (Civil) No.918 of 2002. The Apex Court vide its order dated 13th September 2002 vacated the said interim order staying the counting of votes granted by the High Court. Thereafter by its order dated 17th April 2002 in Writ Petition No.1773 of 2002 (on Civil Application No.1957 of 2002), the Division Bench of this Court directed the Collector to complete the counting of all the votes cast in the election. That order was challenged by Respondents Nos.4 and 5 in Civil Appeal No.6090 of 2002. By its order dated 20th September 2002, the Apex Court clarified as follows :-
"It is true that in order dated 13-9-2002, no mention has been made about the disputed votes, but earlier order dated 10-1-2002 passed in SLP (Civil) No.21445 of 2001 is categorical and clear and therefore those 103 votes could not be counted to be valid votes until the High Court finally decides as to whether there has been a valid liquidation order in respect of those societies and comes to a conclusion one way or the other."
Thereafter the Apex Court directed as follows :-
"The question whether the minister had the jurisdiction or not and whether in fact he had passed any order or not and the legality of the same is now pending consideration before the High Court. It would not be proper for us at this stage to examine the correctness of the submission of Mr. Lalit and express any opinion thereon. Following our earlier order dated 10th January 2002 passed in SLP (C) No.21445/2001, we therefore modify the impugned order of the High Court dated 17-9-2002 and direct that the counting be made excluding the disputed votes which have been kept in a sealed cover. The result thus declared will be subject to the final decision in the writ petition and it would be open to the High Court to modulate the relief depending upon the conclusion to be arrived at in the pending writ petition. The High Court would be well in disposing of the pending writ petition at an early date."
12. It is material to note that consequent upon all these orders, the counting of the votes (excluding 103 disputed votes) was effected. In the Board of 18 Directors the panel supported by the Petitioners won 17 seats and only one seat which was meant for women was won by one Smt. Meenakshi Arun Sonalkar who does not claim to belong to either of the two panels. The 17 candidates supported by the Petitioners have won with a large margin and these 103 votes will not make any difference in their election except that the margin of victory will probably increase. Smt. Sonalkar has however won by a very small margin of 15 votes and her election will certainly be affected if these 103 votes are counted since she was not supported by them.
13. In the meanwhile, another writ petition bearing Writ Petition No.3101 of 2002 had been filed by one Shri Malikarjun Doodh Vyavasayik Sanstha. The prayer in this petition was to take over the management of the district society (Respondent No.1 herein). That petition as well as Writ Petition No.650 of 2002 were directed to be heard with Writ Petition No.1773 of 2002 by another Division Bench and were assigned to this Court by the Hon'ble Chief Justice. Thereafter when these matters reached before this Bench, as far as Writ Petition No.3101 of 2002 is concerned, it was noted that the prayers in that petition were for a period until the election was over. Inasmuch as the election had already been held, this petition had become infructuous. Accordingly, after hearing the learned counsel appearing for the Petitioners, an order was passed on 24th October 2002 disposing of that petition as rendered infructuous.
14. As far as Writ Petition No.650 of 2002 is concerned, which is filed by Respondent Nos.4 and 5 herein, Mr. Patil, learned counsel appearing for the Petitioners, submitted that as per the averments in Writ Petition No.650 of 2002, if the petition succeeds, then the concerned Directors would not be eligible to recontest for one term and therefore the decision on that petition will have the bearing on the composition of the committee even subsequent to the election. This submission was contested by Mr. Jahagirdar, learned counsel appearing for the Federal Society. It was therefore noted that for this very purpose, Writ Petition No.650 of 2002 was directed to be placed along with Writ Petition No.1773 of 2002 under an order passed by another Division Bench. We were however informed that some of the Respondents in Writ Petition No.650 of 2002 had not been served and the Federal Society wanted time to file reply. As against that, Writ Petition No.1773 of 2002 had to be heard early as directed by the Apex Court. Therefore after hearing the counsel for all the parties, this Division Bench by its order dated 24th October 2002 directed Writ Petition No.650 of 2002 to be delinked and to be heard separately.
15. As far as Writ Petition No.1773 of 2002 is concerned, the above referred Smt. Meenakshi Sonalkar took out Civil Application No.2096 of 2002 therein seeking to be joined in the writ petition as a Respondent. She submitted that she was elected from a reserved seat meant for a woman member. It was her submission that any order which will be passed in the writ petition, will vitally affect her interest. Her application to join the petition was opposed by Mr. Thorat, learned counsel appearing for the Petitioners in Writ Petition No.1773 of 2002, who submitted that the Applicant had nothing to do with the liquidation of the Petitioner Societies. We however noted that the Applicant would have something to say as far as the second issue was concerned, namely the direction to count the disputed votes. We therefore passed a separate order on this Civil Application No.2096 of 2002, permitted the Applicant to intervene in the matter as an intervener though not allowing her to be joined as a party Respondent. The Applicant had filed a reply to the main Petition No.1773 of 2002. By our order passed on 24th October 2002, while disposing off the civil application, we recorded that her reply will be considered when the petition is heard and decided. Accordingly, that Civil Application No.2096 of 2002 was disposed off leaving behind Writ Petition No.1773 of 2002 and Civil Application No.446 of 2002 in Writ Petition No.5575 of 2001 to be decided.
Submissions on behalf of the Petitioners and Respondent No.1.
16. On this background, when we turn to the prayers of Writ Petition No.1773 of 2002, we find that prayer (a) is to issue a direction to the 3rd Respondent - Minister of State to restrain him by way of a permanent injunction from exercising any statutory authority in respect of any of the primary milk societies functioning at the village level in Kolhapur District. From the other prayers, prayers (b) to (d) are prayers for final relief. Prayer (b) seeks a direction that the votes of the Petitioners in the election of March 2002 be counted. Prayer (c) seeks an order to the Collector, i.e. he should ignore the orders of the Minister of State produced before him. As far as this prayer is concerned, Mr. Thorat fairly states that it no longer survives. Then remains prayer (d) which seeks to quash and set aside the orders passed by the 3rd Respondent - Minister of State.
17. Mr. Thorat, learned counsel appearing for the Petitioners, submitted that the actions of liquidation are taken against the Petitioner societies only because they did not succumb to the pressure exerted by the Minister of State. He submitted that notices were issued to a large number of co-operative societies and those societies, which succumbed to the pressure of the Minister, succeeded in getting those notices dropped. This was with a view to pressurise them to vote in favour of the panel put up by the Nationalist Congress Party, to which the Minister of State belonged. It was submitted that the orders passed by the Assistant Registrar were under the dictate of the Minister of State. The Minister of State also hails from the same district and therefore he wanted to have control over the Federal Society. Mr. Thorat criticised the orders passed by the Assistant Registrar for being mechanical and disclosing no application of mind.
18. Mr. Thorat also challenged the bonafides of Respondents Nos.4 and 5 and contended that Respondent No.4 Society was merely acting as a front for the Respondent No.3 - Minister of State. In his view, Respondent No.4 Society had no locus to file the revisions against the orders of the Joint Registrar which stayed the order passed by the Assistant Registrar. Whether a primary society was functioning or not or whether it was collecting the minimum litres of milk or not was a matter between the primary society and the Federal Society and the Co-operation Department. The Respondent No.4 Society had no locus.
19. We specifically asked Mr. Thorat as to whether the Petitioners were challenging the order passed by the Assistant Registrar, and he accepted that there was no specific challenge to that order in the petition. He however submitted that section 102 of the said Act could not have been invoked in the present case. Section 102(1)(c)(iv) provides that the Registrar may wind up a society if the society has not complied with the condition as to registration and management in this Act or the Rules or the Bye-laws. In his submission, at the highest action could have been taken against the directors for the dereliction on their part under section 78 of the Act, but this section could not have been invoked. He referred to the order passed by the Joint Registrar wherein the Joint Registrar has referred to the material supplied by the Federal Society which stated that the primary society concerned was collecting the requisite quantity of milk. Mr. Thorat submitted that winding up of a society will have a serious implication on the village economy and this political fight should not be permitted to affect the livelihood of ordinary village people.
20. In this connection, it is material to note that the final list of voters was published on 31st October 2001 and thereafter the election program was declared. Initially, the voting was to be held on 14th January 2002, but later on the entire program was rescheduled and the date of voting was shifted to 13th March 2002. The orders passed by the Assistant Registrar winding up primary societies have been passed between 25th October 2001 and December 2001. As against that, the Joint Registrar exercising the appellate powers under section 104 of the Act has granted stay of these orders sometimes between 5th January 2002 and 8th March 2002. The Minister of State has granted stay of the order of the Joint Registrar by two sets of orders, firstly on 17th January 2002 and then on 21st February 2002. They were however produced before the Collector only on 11th March 2002 and that is how when this fact was later on brought to the notice of the Division Bench, which heard Civil Application No.446 of 2002, the Division Bench by an order passed on that day permitted the Petitioners to vote, but at the same time directed that those votes be kept separately in a sealed cover. It is another matter that subsequently counting has also taken place excluding these votes and the panel supported by the Petitioners has won 17 out of 18 seats with good margin. Mr. Thorat criticised the tactics on the part of the Respondent No.4 in remaining silent until 11th March 2002 though Respondents Nos.4 and 5 had an order in their favour passed much earlier. He submitted that this amounts to almost a fraud being played on the court and for that ground alone the order passed by the Minister of State ought to be vitiated. In support of this proposition, he relied upon a judgment of the Apex Court in the case of S.P.Chengalvaraya Vs. Jagannath reported in (1994) 1 SCC page 1.
21. Out of the two sets of orders passed by the Minister of State, according to Mr. Thorat, the orders passed on 21st February 2002 were clearly without jurisdiction. The orders were passed by the Minister of State under section 154 of the said Act exercising revisionary powers of the State Government. He submitted that under the rules of business of the State Government framed under Article 166 of the Constitution, initially the Minister of State did have the power to hear and decide the revisions. A necessary notification was existing in favour of the Minister of State issued on 3rd February 2000 whereunder under Item No.3 of Appendix-B of that notification, the appeals etc. concerning the village level co-operative societies would lie to the Minister of State of Dairy Development. This power was withdrawn on 24th January 2002. It was again restored on 21st February 2002, but by another notification it was restricted to districts other than Kolhapur District. Mr. Thorat drew our attention to the documents which are annexed to the petition and submitted that from 24th January 2002 the Minister of State had no jurisdiction to hear the revisions concerning Kolhapur District and hence the orders which were passed on 21st February 2002 were bad.
22. The next submission of Mr. Thorat was that apart from the fact as to whether the Minister had the power or not, the manner in which the revisions were heard was shocking to say the least. The revision applications were not filed in the Mantralaya and were not entered in any of the records maintained by the Dairy Development Department. They were entertained directly at the residence of the Minister. Thereafter though interim orders were passed by the Minister, no notices have been issued to the Petitioners, who were Respondents in those revisions and despite caveats being filed by them. None of these stay orders have been transformed into the orders of the Government as per the rules of business. Besides, the entire original record of the revision applications and the stay orders was produced in court by the Personal Assistant to the Minister of State from his residence. That apart, a large number of orders are reportedly passed by the Minister on a single day dealing with separate facts in each matter, and this was something improbable. Mr. Thorat therefore submitted that this clearly points to a nexus between Respondent No.3 - Minister of State and Respondents Nos.4 & 5. He therefore presses for an adverse inference against the Minister of State. He draws support from the affidavit of one Mr. Parab, an officer of the State Government, which is filed in this matter pointing out as to how the record is normally maintained in these matters in Mantralaya. For these reasons, he submits that it is just and necessary that the orders passed by the Minister of State in revision be set aside and the orders of the Joint Registrar be permitted to operate leading to the counting of votes of the Petitioners and permitting the functioning of the Petitioner Societies against whom presently the orders of liquidation were operative.
23. Mr. Jahagirdar, learned counsel appearing for the Respondent No.1 Federal Society, defended the action in filing the civil application in the disposed of petition. He submitted that the same was necessary to protect the interest of the members. The Collector refused to give the copies of the orders passed by the Minister although applications were made and therefore the civil application had become necessary. He criticised the conduct of Respondents Nos.4 and 5 in not making the orders of the Minister of State available earlier and not even disclosing them before the Division Bench on 11th March 2001. He submitted that it was just and necessary that the orders passed by the Minister of State be set aside and the votes be counted.
Submissions on behalf of the Minister of State :
24. Mr. Aney, learned Senior Counsel appearing for Respondent No.3 - Minister of State, submitted that though the orders passed by the Minister of State were under challenge, they were orders passed by him in his capacity as a quasi-judicial authority. He, therefore, submitted that the orders would speak for themselves and he would not address the Court in defence of the contents of the orders. However, as far as the allegation of malafides is concerned, Mr. Aney submitted that it was more of a case of the pot calling the kettle black. First of all, he submitted that the Petition had almost outlived its life inasmuch as 17 out of 18 seats on the Board of Directors were won by the panel supported by the Petitioners, although their votes were excluded. Inclusion of the votes of the Petitioners will only increase the margin of victory but not change the result as far as these 17 Directors are concerned. The Petition was being argued with vehemence, principally because of the political rivalry and the support of the Cabinet Minister which the Petitioners have. Mr. Aney drew our attention to the fact that the Government Notification with respect to the distribution of business of work was issued by the Cabinet Minister, it was available to the Petitioners and on its basis the Minister of State was being attacked. But although much ado was being made about the lack of power, or the procedural irregularities, the Petition would not say anything about the serious allegations of financial irregularities which were made against the erstwhile Board of Directors. Mr. Aney submitted that the group supported by the Petitioners had already won the elections. Yet the Petition was being argued with vehemence with a view to malign Minister of State so that the attention is diverted from the financial irregularities of the then Directors of Respondent No.1.
25. With respect to the allegation that the Petitioners were picked up for liquidation since they belonged to the rival group, Mr. Aney pointed out that it has clearly come on record that way back in September 2001, the officers of the Co-operation Department had decided to take action of liquidation against non-functioning milk co-operatives. That decision clearly stated that those societies which do not collect and supply 50 litres of milk will have to be wound up. That decision was completely at the level of the officers and in consonance with the State policy to encourage the true co-operative movement and to weed out the non-functioning units. As far as the district of Kolhapur is concerned, out of some 2200 primary Milk Societies, though notices were issued to 650 Societies, they were ultimately processed only against some 250. Mr. Aney submitted that this large number of Societies is not something which the Minister of State could have pressurized.
26. With respect to the submission that the orders passed by the Minister on 21st February 2002 were passed on a date when he did not have the jurisdiction to decide the revisions, Mr. Aney drew our attention to the communication from the department itself which pointed out that the second notification dated 21st February 2002 was received by the department in the evening of 22nd February 2002. 23rd and 24th February 2002 were holidays and the Minister could get a copy of the same only on 25th February 2002. He submitted that in the kind of political rivalry, it is quite possible that this notification must have been ante-dated, knowing fully well that the Minister of State had passed the orders in revision. Besides, this notification did not state that it was issued in consultation with the Hon'ble Chief Minister and therefore it was not valid. The orders of 21st February 2002, therefore, could not be faulted for having been passed when the Minister of State allegedly had no jurisdiction to pass them. Mr. Aney maintained that the Minister did have the jurisdiction to pass the orders on 17th January 2002 as well as on 21st February 2002 when he passed those orders.
27. With respect to the submission that the orders were not issued in proper form and were not issued in the name of the Governor etc., Mr. Aney drew our attention to various orders passed by different Ministers including the Cabinet Minister Mr. Deokate while exercising quasi judicial powers. They were also not in any particular from and in the name of the Governor. He submitted that as far as the appeals decided in exercise of quasi judicial powers are concerned, they could not be termed as the business of Government under Article 166(3) of the Constitution of India and in that behalf, relied upon a judgment of the Full Bench of this Court in the case of Sheikh Mohamed Fatemohamed Vs. Raisuddin Azimuddin Katil & Ors. reported in 2001(1) Maharashtra Law Journal page 850 : [2000(3) ALL MR 456].
28. With respect to the submission that the Minister of State had exercised his revisional jurisdiction at his residence and the revision petitions were not received in Mantralaya, Mr. Aney submitted that as far as the functioning of the Ministers is concerned, there was no restriction thereon under any rules and it was not impermissible for them to function from any place outside Mantralaya. With respect to the irregularities in not registering the revision applications in any proper register and not issuing notices thereafter etc., Mr. Aney submitted that, that was partly because of the lack of co-operation from the departmental staff which was under the control of the Cabinet Minister.
29. With respect to the allegation of malafides, Mr. Aney submitted that there was no material on record to conclude that the Minister of State had pressurized the Petitioner Societies or that he had put up Respondent No.4 to take all these causes against the Petitioners. He further submitted that there was no material on record to that effect and the Court should not rush to draw any such inference. As observed by the Apex Court in paragraph 92 of its judgment in the case of E.P.Royappa Vs. State of Tamil Nadu & Anr., reported in (1974) 4 SCC page 3 : "The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. ..... The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the order of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy". He also drew attention to the observations of the Apex Court in paragraphs 56 and 57 in the case of Barium Chemicals Ltd. & Anr. Vs. Company Law Board & Ors. reported in AIR 1967 SC page 295, which are also to a similar effect and those in paragraph 29 in the case of Tara Chand Khatri Vs. Municipal Corporation of Delhi & Ors. reported in (1977) 1 SCC page 472. Mr. Aney submitted that this was not a case of any personal gain for Respondent No.3 that he must act with any bias. It was alleged that he had put up a panel for the elections of this federal society. This was countered by filing a reply wherein Respondent No.3 stated that his party did have a panel but the party had many senior Leaders in the district including Cabinet Ministers and it could not be said that it was a panel put up by Respondent No.3. Mr. Aney, therefore, submitted that these allegations were unfounded and the Court will be within it powers to reject them.
Submissions on behalf of Respondent Nos.4 and 5 :
30. Mr. Patil, learned Counsel appearing for Respondent Nos.4 and 5 defended the actions on the part of Respondent Nos.4 and 5 and also the orders passed by the Minister of State. At the outset, with respect to his locus, he submitted that his client, i.e. Respondent No.5, Chairman of the Respondent No.4 Society, was spearheading the agitation against malpractices in the Respondent No.1 Federal Society. It is because of complaints lodged by his client and others that inspection was directed against the 1st Respondent Society and thereafter the inquiries under sections 78 and 83. He submitted that because of a particular group cornering the power, vested interests have come together and that has led to serious financial irregularities. A large number of primary societies were in fact paper societies and were not even collecting 50 litres of milk a day, and the Federal Society is controlled on the strength of such votes affecting the interest of primary societies like the Respondent No.4, which society therefore had a locus in the question concerning the winding up of the non-functioning societies. The orders passed by the Assistant Registrar ordering their winding up were correct and therefore the Respondents Nos.4 and 5 had moved the Collector to have their names deleted from the voters list. Since that request was not acceded, his clients were constrained to file Writ Petition No.5575 of 2001. He therefore submitted that in view of the orders passed in Writ Petition No.5575 of 2001 by this Court as well as the Apex Court, the societies which were wound up had suffered a civil death and nobody could vote on their behalf. Civil Application No.446 of 2002 moved by Respondent No.1 herein in Writ Petition No.5575 of 2001 was totally misconceived and was untenable inasmuch as it was moved in a disposed of petition. Besides, the Respondent No.1 Federal Society could not have moved this Court to protect the primary societies against which orders of liquidation have been passed. This itself was malafide and motivated with a view to continue the control of the particular group in the Federal Society. That apart, Mr. Patil submitted that Writ Petition No.5575 of 2001 was disposed of and the civil application was not maintainable with respect to a subsequent event. He relied upon para 10 of the judgment of the Apex Court in the case of State of U.P. Vs. Brahma Datt Sharma reported in (1987) 2 SCC 179 in this behalf, where the Apex Court held that miscellaneous application filed in an already decided petition to revive the proceedings in respect of the subsequent events after a long laps of time (2 years) was not maintainable. The Apex Court held that if this principle was not followed, the finality of the proceedings would cease to have any meaning.
31. Mr. Patil then drew our attention to the fact that although the petitions were filed in the names of co-operative societies, those societies were already wound up. The office bearers of the societies knew that they could not represent the societies after passing of the winding up orders. Therefore, when they filed appeals to the Joint Registrar against the orders of winding up passed by the Assistant Registrar, all those appeals were filed in the individual names of the concerned office bearers and not in the name of the society and that was permissible. He drew our attention to the fact that out of 103 Petitioners, final orders of winding up were passed by the Assistant Registrar in 102 cases and liquidator had already been appointed who was asked to take charge. As far as the present Petitioners are concerned, all the vakalatnamas bear rubber stamps of the Petitioner Society and :
A. The V.Ps on behalf of Petitioner Nos.2 to 31, 34, 37, 44, 79 (Total Nos.34) are signed by persons who have not stated who they are.
B. The V.Ps on behalf of Petitioner Nos.32, 62 to 64, 67 to 76, 84 to 87, 91, 93 to 103 (Total Nos.30) are signed by delegates.
C. The V.Ps on behalf of Petitioner Nos.36, 38, 39, 42, 43, 45, 46, 66, 80 and 89 (Total Nos.10) are signed by members.
D. The V.Ps on behalf of Petitioner Nos.35, 40, 41, 47, 48, 50, 51, 53, 55, 57 to 60, 65, 77, 78, 81, 82, 82, 88, 90 and 92 (Total Nos.23) are signed by Chairman.
E. The V.P. on behalf of Petitioner No.67 is signed by Secretary.
Mr. Patil submitted that once the society was wound up and the liquidator was in charge, the affairs of the society rested with the liquidator. He alone could file proceedings in the name of the society. The petition therefore filed in the names of these societies was not maintainable.
32. Mr. Patil submitted that the interim stay granted by the Joint Registrar would only mean that further steps in the winding up would stand stayed. It cannot amount to either revival of the society or reinstatement of the officers of the Managing Committee of the respective societies. They cannot therefore exercise the right to vote until the initial order of winding up is set aside. With respect to the effect of an interim order of stay, he relied upon the following observations in para 10 of the judgment of the Apex Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association Ltd. reported in (1992) 3 SCC page 1.
"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."
33. Last but not the least, Mr. Patil submitted that the correct remedy for the Petitioners was to file an election petition if they are aggrieved by not permitting them to vote and its consequence. As far as this aspect is concerned, he relied upon the judgment of the Apex Court in the case of S.S.J.S. Sahakari Dugdha Utpadak Sanstha Vs. State of Maharashtra reported in (2001) 8 SCC 509 : [2001(4) ALL MR 863 (S.C.)]. As observed by the Apex Court in para 12 of that judgment, Mr. Patil submitted that the election has already been held and once the result of the election is declared, it would be open to the aggrieved party to challenge the election of the returned candidate by means of an election petition before the Election Tribunal, but not through a writ petition.
34. Mr. Patil submitted that the supply of 50 litres of milk was a condition of registration under the Government Resolution of 4th January 2000. Inasmuch as the same was not followed, the Assistant Registrar was within his powers to proceed under section 102(1)(c)(iv) of the Act. He had collected the data from the Respondent No.1 Federal Society. Thereafter he heard the Representatives of the Petitioners including their advocates. Thereafter only he had passed the orders of winding up. That order was stayed by the Joint Registrar by relying upon a subsequent certificate issued by the Respondent No.1 Society. This was impermissible. The Minister of State was therefore right in granting stay of the orders passed by the Joint Registrar and the order cannot be faulted in any manner on merits. The Minister was entitled to, duty bound and had rightly granted stay of the orders passed by the Joint Registrar and there is no reason to interfere therewith.
Submissions on behalf of State Government.
35. Mr. Mulani, learned Assistant Government Pleader, placed before the court the orders passed by the Assistant Registrar, the revision applications filed to the Minister which contained the orders passed by the Joint Registrar and the orders passed by the Minister. Mr. Mulani defended the orders passed by the Assistant Registrar by submitting that under the government decision of 6th September 2001, certain time bound program was contemplated and accordingly action was taken to wind up the non-functioning societies.
Submissions on behalf of the Intervener.
36. Mr. Ingale, learned counsel appearing for the Intervener - Meenakshi Sonalkar, submitted that the election was already over, votes were counted and the results were declared. From the panel supported by the Petitioners, 17 candidates were elected in a Board of 18 members. He represented alone woman member who got elected inspite of opposition of the Petitioners. In his view, the Petitioner Societies could not be permitted to vote since they were rightly wound up as they were non-functioning. If they were aggrieved, they ought to file election petition. All this litigation has been the result of the Collector not acting immediately on the representation of Respondent No.4 that so many societies had been wound up and they ought not to be permitted to vote. If the Collector was to take steps at the relevant time, all further actions would have been avoided. In any case, these votes have now been removed and the result has been declared. That should not be interfered through a writ petition. He submitted that his client is a necessary party and in an election petition she would be certainly joined and will have a right of defence. As of now, she will be unseated if this petition was allowed and as held by the Apex Court though in another context in the case of Ram Swaroop Vs. S.N. Maira reported in (1999) 1 SCC 738, rights once conferred cannot be taken away as a consequence of litigation between other parties without impleading the affected person.
37. Having heard the counsel for all the parties, what emerges is a different scenario than what it was when the petition was initially filed. The Petitioners were keen to vote in the election to the 1st Respondent Federal Society and from what is narrated above, all concerned had a keen interest in gaining control of the 1st Respondent Society. The Assistant Registrar had passed orders of winding up against the Petitioners and they had obtained the stay of those orders by filing an appeal to the Joint Registrar. The Respondents Nos.4 and 5, who have been spearheading the agitation against the alleged malpractices in the functioning of the Respondent No.1 Society, had moved the Minister of State and he had granted stay of the orders passed by the Joint Registrar. After a number of orders passed by another Division Bench and by the Apex Court, the votes cast on behalf of the Petitioners were kept in a sealed cover. Thereafter counting was completed and inspite of votes of the Petitioners having been kept in abeyance, the panel supported by the Petitioners won 17 out of 18 seats in the 1st Respondent Federal Society. The question with respect to the validity of the liquidation of the Petitioner Societies undoubtedly remains and has to be decided at the appropriate level. However, as far as the election to the Board of Directors is concerned, there would not be any difference to the panel supported by the Petitioners by including their votes except that the margin of their victory would in all probability increase. The only person, who would suffer in the event of these votes being counted, is perhaps the intervener Meenakshi Sonalkar. We have allowed her to intervene and we have heard her counsel. It was submitted on her behalf that it would not be proper that an elected candidate should be unseated except by following a due process and which would be by filing an election petition.
38. As far as the Petitioners are concerned, their names were undoubtedly there on the electoral roll, but the right to vote is subject to any disqualification which the voter may incur. Consequence of winding up of a co-operative society would be that nobody will be entitled to vote on its behalf so much so that section 105(2) of the Act declares that even the liquidator shall not have the right to vote on behalf of such society. Therefore, two questions arise for our consideration - (1) Whether the orders of liquidation passed against the Petitioner Societies by the Assistant Registrar are valid and justified ? and (2) What should be the consequence thereof on the election to the 1st Respondent Federal Society?
39. Now as far as the winding up of the Petitioner Societies is concerned, those orders are passed by the Assistant Registrar on the footing that these societies were not complying with the requirement of supplying at least 50 litres of milk which is a condition precedent of registration under the Government Resolution of 4th January 2000. It has come on record that much earlier in September 2001, the government officers had decided to move against such societies and therefore after following the due process of law, the Assistant Registrar has passed the orders of winding up. The Petitioners have tried to contend that these actions were taken at the instance of the Minister of State. It is difficult to accept this submission, particularly when the orders of the Assistant Registrar are in pursuance of the resolution passed in September 2001 by the high officers of the Cooperation Department much before the declaration of election to the 1st Respondent Federal Society.
40. Again if we see the orders of the Assistant Registrar, what we find is that he has collected data from the Respondent No.1 Federal Society itself. As against that, the Joint Registrar seems to have collected the subsequent material from the 1st Respondent. There has also been a controversy as to what should be the correct interpretation of the concerned government resolution and as to whether 50 litres should be assessed at the time of collection by the primary societies or at the time of supply to the Federal Societies. That apart, in either of the two cases whether the concerned society was collecting and/or supplying actually 50 litres and that too on each day is a matter of factual determination. The substantive appeal against the order of the Assistant Registrar is pending in the forum of the Joint Registrar. In our view, that being the first appeal, it would be proper that such authority ought to assess the material on record and then decide in accordance with law as to whether the order passed by the Assistant Registrar was right or wrong.
41. The next forum to which Respondents Nos.4 and 5 have approached is the State Government under section 154 of the Act against the interim order of the Joint Registrar. It is an application for revision against the interim order passed by the Joint Registrar. Besides, as narrated above, there have been serious controversies on two aspects, firstly as to whether the Minister of State had the power to pass the orders which he passed in revision and secondly as to whether the manner in which he passed them was proper. On the other hand, a serious challenge has been raised to the authority of the persons who have filed this petition in the name of these 103 societies. They knew that they had no authority to proceed in the names of the societies and therefore the appeals against the original order of winding up to the Joint Registrar were filed in the names of individual members. However, strangely enough while filing the writ petition, it has been filed in the names of the societies. It could of course be said that this filing is on the strength of the stay granted by the Joint Registrar. However, it is also with the knowledge that the Minister of State has granted a further stay of the order of the Joint Registrar and that is sought to be challenged. This being the position, the Resopondents Nos.4 and 5 have raised a serious doubt about the maintainability of this petition itself. It is another matter that the filing of the petition in the name of societies is sought to be defended on the basis of the resolutions of erstwhile directors of the primary societies filed at the last moment.
42. As far as the question as to whether the Minister of State had the power when he passed the second group of orders in revision on 21st February 2002, he has explained it by pointing out that the order withdrawing his authority had not reached him at the relevant time. He is supported in that behalf by a communication from the government officer. It has been contended on his behalf that the order withdrawing his authority must have been issued purposely by back-dating it. The notification is not issued with the approval of the Chief Minister, but by the Cabinet Minister himself. As against that, it is alleged against the Minister of State that he has functioned with utter impropriety and malafides. He entertained those revision applications at his residence and no notices have been issued thereafter to the affected societies though he passed interim orders. Both sides have alleged a political rivalry and as far as Respondents Nos.4 and 5 are concerned, they have alleged a serious financial irregularity on the part of the earlier management of Respondent No.1 and another petition bearing Writ Petition No.650 of 2002 filed by them concerning this issue is pending in this court. On this background, Mr. Patil, learned counsel appearing for Respondents Nos.4 and 5, has emphasised with authority that the stay granted by the Appellate Authority cannot revive the status quo ante, namely the position prior to the liquidation of the societies.
43. As noted earlier, according to the Petitioners themselves, the powers of the Minister of State to hear the revisions were withdrawn way back in February 2002 and the authority was vested with the Cabinet Minister. If that was so, we fail to see as to why the Petitioners did not approach the Cabinet Minister to get the interim stay vacated. It has been specifically canvassed by the Counsel for the Minister of State that the order withdrawing his revisional authority might have been back-dated. Again, the manner in which the authority was given to him thereafter withdrawn and then again restored and then curtailed as far as the district of Kolhapur is concerned leaves one wondering as to how this functioning is for a convenient transaction of the business of the Government under Article 166(3) of the Constitution of India. At the same time, the manner in which the Minister of State proceeded to function from his residence and passed orders on the revision applications without them being registered in Mantralaya, is equally shocking. The Ministers concerned are discharging the responsibilities on behalf of the State and that too the quasi judicial responsibility. Whether it is the notification of distribution of business issued by the Cabinet Minister or whether it is the actual exercise of the quasi judicial power by the Minister of State, both indicate a complete disregard of the responsibility which is cast on them. A separate register was created for entering the revisions filed by Respondent Nos.4 and 5 and it was maintained at the residence of the Minister. On a single day, a large number of orders are supposed to have been passed on merits. This is undoubtedly disturbing to say the least and smacks of high handedness on the part of the Minister of State.
44. The right of the Petitioners to vote depends upon the question as to whether these Societies have been validly liquidated or not and this question has to be decided in the proper forum in appeal before the Joint Registrar. In the scenario narrated earlier, it would not be advisable to keep these revision proceedings pending any longer, though status quo as of now will have to be continued, since it has been so operating since January/February 2002 after the orders of the Minister of State. The orders of the Minister of State were objected principally because he granted stay and the Petitioners feared that their panel will be defeated. Now their panel having won, it would be better that the appeals before the Joint Registrar are heard on merits finally rather than deciding the validity of the orders passed by the Minister of State in revision, or the interim orders passed by the Joint Registrar. There have been allegations when the Minister of State exercised the power earlier and there will be again allegations if the Cabinet Minister now exercises the powers of revision. Besides, what is supposed to be pending before the Government is a revision against an interim order. Mr. Patil, learned Counsel appearing for Respondent Nos.4 and 5, has emphasized the dicta of the Apex Court in the case of Shree Chamundi Mopeds (supra) that an order of stay cannot restore the status quo ante. That apart, it is just and necessary that the first Appellate Authority, which has the jurisdiction to go into the facts, ought to decide on facts as well as on law as to whether the order of the Assistant Registrar liquidating the societies was right or wrong. The Apex Court, in its order dated 10th January 2002, has observed that in respect of those societies where final orders of liquidation have been passed the members thereto will not be entitled to vote in the elections. In the subsequent order dated 20th September 2002, there is a reference to this order and this position has been reiterated with a rider that this will be so until the High Court decides as to whether there had been a valid liquidation or not. In that very order, however, the Apex Court has observed that it would be open to the High Court to modulate the reliefs depending upon the conclusions to be arrived in the pending Writ Petition.
45. In the light of what is stated above, we are of the view that the status quo, as of now, ought to be continued under the orders of this court until the hearing and disposal of the appeals filed by the Petitioners before the Joint Registrar and those appeals ought to be heard and decided on merits at the earliest. This is in the interest of all the contesting parties. There is no use maintaining the revisions before the Minister of State for the reasons which have been stated earlier. In the circumstances, we quash the revision proceedings filed by Respondent Nos.4 and 5 before the Minister of State while maintaining the status quo as of now, namely, as existing after the order passed by the Minister of State in January/February 2002 (which means stay of interim order of the Joint Registrar) and which has been running since then. The office will return the papers of the revision applications and the orders passed by the Minister of State and those by the Assistant Registrar to the Government Pleader for returning them to the office of the Secretary of Dairy Development Department and the Assistant Registrar. The appeals filed by the Petitioners are pending before the Joint Registrar. The Appellate Authority will give a full opportunity to the parties to place their material before him and thereafter decide in accordance with law as to whether the order passed by the Assistant Registrar winding up the Petitioner Societies is valid or not. The officer will endeavour to hear and decide the appeals preferably within 3 months from receipt of a copy of this order.
46. As far as the exclusion of the Petitioners from voting is concerned, that depends upon a decision as to whether the Societies are validly liquidated or not. As held by the Apex Court in the case of SSJS Sahakari Dugdha Utpadak Sanstha Vs. State of Maharashtra (supra) : "The Rules framed for election of specified societies are a complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election". If there is any breach of the rules, the same can be called in question after the declaration by means of an election petition before the Tribunal. However, as far as the validity of the winding up of the societies is concerned, that will have to wait till the decision of the Joint Registrar. Under Section 144-T of the Act, there is a provision of filing an election petition within a period of 2 months from the date of declaration of the election result with a proviso, which permits a relaxation on the ground of sufficient cause. In the event, any person aggrieved by the election result filed an election petition, it would be open to him/her to apply that the votes of the Petitioners segregated under the orders of this Court be preserved initially till the decision of the Joint Registrar on the appeals and then if necessary till the decision on that election petition. The Collector is directed to preserve the votes for a period of 2 months from today. He will preserve them further and take appropriate steps in accordance with the directions of the Election Tribunal if received within this period of 2 months.
47. Before we part with the matter, we must express our distress at the scenario unfolded in this matter. The sporadic manner in which the business of the government was distributed between the Cabinet Minister and the Minister of State is most disturbing. The Cabinet Minister had conferred certain powers on the Minister of State. Thereafter they were withdrawn. Then they were conferred once again and then a particular district was withdrawn therefrom within a span of a few days. Apparently, there is no explanation for all this except the politics or conflict between the two. Similarly the manner in which the Minister of State exercised his quasi-judicial powers from his residence without there being proper record in Mantralaya is equally disturbing. We deprecate both these practices. Citizens must know what is the distribution of business amongst the Ministers and Ministers of State in advance and that business and particularly the quasi-judicial functioning must be conducted from the place of office of the Minister. We do not want to say anything more since it is a matter of governmental functioning, but we expect the Secretary of Dairy Development Department to bring these observations to the notice of the Chief Secretary and the Hon'ble Chief Minister so that necessary guidelines are issued on both these counts.
(a) The revision proceedings filed by Respondents Nos.4 and 5 before the State Government under Section 154 of the Act are quashed and set aside, though while continuing the status quo as is existing after the orders passed by the Minister of State in January/February 2002 in revision against the interim orders passed by the Joint Registrar.
(b) The Joint Registrar will hear and decide the Appeals on merits and in accordance with law after hearing all concerned preferably within 3 months from the receipt of this order by passing a reasoned order thereon.
(c) The Collector will preserve the segregated votes of the Petitioners for a period of 2 months hereafter unless he receives any order to preserve them any further within this period from the Election Tribunal and will abide by its orders in that behalf.
(d) Writ Petition No.1773 of 2002 as well as Civil Application No.446 of 2002 in Writ Petition No.5575 of 2001 are accordingly disposed of. However, there will be no order as to costs.