Writ Petition Nos.4710 of 2008,Writ Petition No.4641 of 2008

26th November, 2008

Petitioner Counsel: Mr. A. H. PATIL
Respondent Counsel: Shri. D. B. PATEL,Shri. R. L. KHAPRE

Cases Cited:
Satana Central Co-operative and Land Mortgage Bank Ltd. Vs. Puranlal Agarwal, 1969 M.P.L.J. 879 [Para 5,6,10]

JUDGMENT

JUDGMENT :- Writ Petition 4641/2008 is the earlier petition filed under apprehension that Respondent No.2 Divisional Joint Registrar, Co-operative Societies, Amravati would pass adverse orders in Appeal against the Petitioners under Section 78 of Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as MCS Act) superseding the elected board of directors i.e. Petitioners and upholding appointment of Administrator (Respondent No.4) on a co-operative society by name Karanja Nagari Sahakari Pat Sanstha Maryadit i.e. Respondent No.5. Earlier on 19/6/2008 Respondent No.3 District Registrar passed an order under said provision superseding the board of directors and appointing Respondent No.4 as Administrator on said Society. This order came to be challenged in an appeal under Section 152 of MCS Act before Respondent No.2. In Writ Petition this court issued notice on 21/10/2008 and made it returnable on 6/11/2008 but gave liberty to move for interim orders if contingencies arose therefor. Shortly thereafter Writ Petition No.4710/2008 came to be filed complaining that Respondent No.2 passed the orders but, antedated the same to show that it came to be passed on 8/10/2008. By said orders the Appeal filed by Petitioners came to be dismissed and appointment of Respondent No.4 as Administrator on Respondent No.5 society came to be upheld.

2. Only point raised before me is about competency of Respondent No.3 to pass orders in exercise of powers under Section 78 of MCS Act by contending that said statutory powers are delegated to Assistant Registrar of Co-operative Societies at Karanja and Respondent No.3 being his subordinate, in view of express provisions of Section 3-A of said Act cannot and could not have exercised the power to pass final orders under Section 78. It is therefore obvious that challenge in both writ petitions being identical, in view of filing of subsequent Writ Petition No.4710/2008 because of subsequent events, the earlier Writ Petition No.4641/2008 is rendered only of academic importance or rather infructuous. Considering the nature of challenge, Rule made returnable forthwith and petitions are heard finally by consent.

3. The facts relevant for this adjudication are not much in dispute. On 18/12/2005, in general elections the present Petitioners came to be elected on board of directors of Respondent No.5 Society and in their first meeting on 11/1/2006 president came to be elected. Said president resigned on 18/6/2008 and thereafter Petitioner No.1 is elected as President. One member Krushnarao Marotrao Bagde lodged complaint on 30/8/2007 and Hon'ble State Minister for Co-operation, Marketing and Textile by his remarks directed his department to verify it, to take immediate action and submit report within 2 months. Some inquiry was then conducted, and inquiry report was submitted and on 24/12/2007 Assistant Registrar, Co-operative Societies, Karanja issued show cause notice under Section 78(1) of MCS Act. Petitioners submitted their reply and thereafter on 11/2/2008, the District Deputy Registrar, Co-operative Societies, Washim issued memorandum and for administrative convenience additional charge of Karanja taluka with Assistant Registrar of Mangrulpir (an adjacent taluka) Shri. Bhonsale till then was taken away and was placed with Shri. J. M. Ghatole, Co-operative Officer Grade I at Karanja itself. The impugned order dated 19/6/2008 under Section 78(1) of MCS Act is passed by this Co-operative Officer. This order was then questioned in an Appeal under Section 152 before Respondent No.2 Divisional Joint Registrar and said authority granted interim stay to Petitioners on 21/6/2008. He then heard Appeal at length and then Petitioners approached this court in Writ Petition No.4641/2008 with apprehension that Respondent No.2 may not give justice to them. We are not concerned with reasons for this belief of Petitioners as that is not relevant for considering the challenge as raised. Thereafter Petitioners filed Writ Petition No.4710/2008 contending that Respondent No.2 has passed order subsequently but antedated it as 8/10/2008 to avoid challenge in Writ Petition No.4641/2008. Only contention pressed into service is incompetency of Respondent No.3 to exercises jurisdiction under Section 78(1) of MCS Act.

4. I have heard Advocate Shri. A. H. Patil for Petitioners, Advocate Shri. R. L. Khapre with Advocate Shri. V. K. Paliwal for intervenor and learned AGP Shri. Patel for respondents 1 to 4 in both Writ Petitions. Civil Application Nos.8344 & 8345 of 2008 filed by intervener Shri. Krushnarao Marotrao Bagde are allowed and his Advocates are heard in support of impugned orders.

5. Petitioners argue that powers under Section 78(1) are delegated to Assistant Registrar, Co-operative Societies, Karanja and because of statutory scheme in MCS Act, in absence of said delegate the powers need to be exercised by his superior and the powers cannot be permitted to be exercised by his subordinate. Reliance is being placed upon Section 3-A of MCS Act for this purpose. It is argued that powers being already delegated, there cannot be further delegation or sub-delegation thereof to still lower authority by any subordinate officer of the Principal i.e. Registrar here whose powers are delegated to Assistant Registrar. By keeping reliance upon judgment of Division Bench of Hon'ble M.P. High Court in case of Satana Central Co-operative and Land Mortgage Bank Ltd. Vs. Puranlal Agarwal reported at 1969 M.P.L.J. 879, Advocate Shri. Patil submits that officer made in charge cannot exercise such statutory powers delegated to regular officer/authority. Learned AGP as also learned Counsel for intervenor rely upon provisions of Section 3-A itself to state that MCS Act permits immediate subordinate of Assistant Registrar in his office at Karanja to exercise those powers in his absence. It is therefore clear that delegation of powers under Section 78(1) in favour of Assistant Registrar is admitted by all parties and only question is whether in his absence those powers can be exercised by his immediate subordinate officer placed in charge of said post for convenience of administration or then, his immediate higher or superior senior most officer has to exercise those powers. It is also not in dispute that Co-operative Officer Grade I is a rank immediately below or next below the rank of Assistant Registrar.

6. Judgment of Hon'ble M.P. High Court in case of Satana Central Co-operative and Land Mortgage Bank Ltd. Vs. Puranlal Agarwal (supra) considers the provisions of M.P. Co-operative Societies Act (17 of 1961), (hereinafter referred to as M.P. Act). But then the same has been cited to point out difference between person appointed to officiate on higher post and a person who is merely appointed to be in charge of duties of that post. The Hon'ble High Court held that person without being clothed with that rank as in the case of an officiating appointment can only exercise administrative and financial powers vested in the incumbent but not any statutory powers of that post. Petitioner urge that here Respondent No.3 Co-operative Officer Grade I, was merely placed in charge of the post of Assistant Registrar and was not officiating as Assistant Registrar and powers under section 78(1) being statutory one, could not have been exercised by such Grade I officer. Perusal of paragraph 19 of this judgment shows that M.P. government had issued on 1/2/1964 a memorandum which stated that such person placed in charge could exercise administrative or financial powers vested in the full-fledged incumbent but he could not exercise statutory powers derived by such incumbent from Act or Rules. During arguments, Advocate Shri. Patil invited attention to similar clarification issued on 16th August, 1984 which stated that "in-charge" District Deputy Registrar could not exercise the statutory powers as per government clarification dated 14/7/1982 and till the appointment of regular District Deputy Registrar statutory powers should be exercised by Divisional Joint Registrar only. The circular dated 2/11/1984 issued by Commissioner for Co-operation and Registrar, Co-operative Societies for Maharashtra again reiterates that higher authority in those territorial jurisdiction in which society falls should exercise any or all of the powers under MCS Act or MCS Rules 1961 delegated to lower authority if the post of lower authority is vacant on account of transfer, long leave etc. It is therefore apparent that position similar to one considered by Hon'ble M.P. High Court prevailed in Maharashtra also. However, learned AGP as also intervenor have pointed out that subsequently relevant provisions of MCS Act have been amended and Section 3-A has been added and situation therefore needs to be considered in the light of amended provisions and not in the light of these circulars or clarifications issued prior to amendment. It is therefore necessary to find out effect of said amended section in present facts.

7. Said Section 3-A is as under :-

"Temporary Vacancies :- If the Registrar or a person appointed to assist the Registrar is disabled from performing his duties or for any reason vacates his office or leaves his jurisdiction or dies then -

(a) In the case of the Registrar, the Additional or Joint Registrar in the office of the Registrar; and

(b) in the case of a person appointed to assist the Registrar the senior most Officer holding the next higher post in the respective office shall, unless other provision has been made in the behalf, hold temporarily the office of the Registrar or as the case may be, of the person appointed to assist the Registrar in addition to his own office and shall be held to be the Registrar or the person appointed to assist the Registrar under the Act, until the Registrar or the person appointed to assist the Registrar resumes his office or until such time as the successor is duly appointed and takes charge of his appointment."

The appointment of Registrar and his subordinates is dealt with by Section 3 which reads as under :-

"Registrar and his subordinates :- State Government may appoint a person to be the Registrar of Co-operative Societies for the State: and may appoint one or more persons to assist such Registrar with such designations and such local areas or throughout the State, as it may specify in that behalf and may, by general or special order, confer on any such person or persons all or any of the powers of the Registrar under this Act. The person or persons so appointed to assist the Registrar and on whom any powers of the Registrar are conferred shall work under the general guidance, superintendence and control of the Registrar. They shall be subordinate to the Registrar and subordination of such persons amongst themselves shall be such as may be determined by the State Government"."

8. Combined reading of above Sections 3 and 3-A leaves no manner of doubt that Registrar is the highest Officer on executive side insofar as provisions of MCS Act are concerned. The Additional or Joint Registrar are appointed by State Government to assist him and therefore are his subordinates. In case of temporary vacancy in the office of Registrar, his subordinate Additional or Joint Registrar is recognised as Registrar statutorily to avoid any vacuum by virtue of clause (a) of Section 3-A. This statutory arrangement operates automatically and continues till the Registrar resumes his office or till the successor duly appointed assumes the charge. Similarly, in case of person appointed to assist the Registrar same type of arrangement has been made. It is not in dispute that Assistant Registrar is the officer appointed to assist the Registrar and his powers under Section 78(1) are delegated to Assistant Registrar. Respondent No.3 Assistant Registrar is appointed at Taluka or Tahsil level at Karanja - a place of Tahsil headquarter. Such Assistant Registrar is the highest authority in his office establishment i.e. office of Assistant Registrar. Clause (b) of above Section 3-A uses the words "senior most officer" and obviously, he has to be from "respective office" which means the establishment of such Assistant Registrar. This senior most officer therefore is definitely subordinate to the Assistant Registrar. Had he been superior officer above the rank of Assistant Registrar, he would not be on the establishment of Assistant Registrar and in that event, Legislature would not have used these two words viz. "senior most officer" and "in the respective office". Words "next higher post" are used to indicate the post held by such senior most officer in the office of Assistant Registrar. Said words do not indicate a post higher than the post of Assistant Registrar. It is apparent that statute contemplates that temporarily such senior most officer holding next below post is to be treated and recognised as person appointed to assist the Registrar i.e. as Assistant Registrar. The conjoint reading of above clauses (a) and (b) shows that Registrar or the person appointed to assist Registrar holds the highest post in their respective offices and in their temporary absence, senior most person holding next higher post in the hierarchy i.e. immediately below Registrar or Assistant Registrar is recognised either as Registrar or Assistant Registrar.

9. If the words "the next higher post" in said clause (b) are presumed to be signifying the post higher than the post of a person appointed to assist the Registrar i.e. in present case Assistant Registrar, the two words viz. "senior most officer" and "in the respective office" lose their importance. It is admitted position that powers of Registrar under Section 78(1) are delegated to Assistant Registrar for exercising the same within his jurisdiction i.e. Taluka or Tahsil. In the establishment or office of Assistant Registrar, he is highest authority and there is no superior above him in that office. Thus, for area within his jurisdiction, he is supreme. There is no post above him in that office and Petitioners have not pointed out any such post. It also can not be accepted that the person who exercises delegated powers of Registrar in particular area should be subordinate to anybody insofar as his establishment for that purpose is concerned. Thus it appears that during temporary absence of such Assistant Registrar, senior most person working under him in immediately next below cadre has been recognised by virtue of Section 3-A to be officer competent to function as Assistant Registrar. Such subordinate senior most officer therefore can exercise even the statutory powers conferred upon such Assistant Registrar and the ratio of the judgment of Hon'ble M.P. High Court (supra) will not be relevant here at all.

10. It is also to be noted that said Section 3-A itself contemplates and permits other provision or other arrangement to be made in this respect. Thus holding of additional charge by Shri. Bhonsale, Assistant Registrar, Mangrulpir (adjacent Taluka) was other provision made in that behalf. This was not and has not been objected to by the Petitioners. Asking senior most Co-operative Officer Grade-I in the office of Assistant Registrar, Karanja to function in temporary vacancy of Assistant Registrar is within the framework of said Section 3-A and hence there is no merit in objection as raised. In fact such arrangement springs up automatically and no express order in that respect was required. Learned AGP and intervenor are right when they point out that this provision inserted by Maharashtra Amendment Act 20 of 1986 distinguishes above referred M.P. High Court judgment in case of Satna Central Co-operative and Land Mortgage Bank Ltd. Vs. Puranlal Agarwal (supra), and also the circulars or clarifications dated 16th August, 1984, 14/7/1982 and dated 2/11/1984 issued by State of Maharashtra mentioned above. The law as laid down by the Hon'ble M.P. High Court is not relevant in view of express provision to the contrary made in Section 3-A and above referred clarifications/circulars stand nullified due to said Section added subsequently. Respondent No.3 therefore did not lack competence to exercise powers under Section 78(1) of the MCS Act.

11. With the result, I do not find merit in any of the Writ Petitions. Both the Petitions are accordingly dismissed. Rule discharged. No costs.

Petitions dismissed.