1 87 wp 1544.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 1544 OF 2011 Mazgaon Instruments Company. ... Petitioner Versus Sawantwadi Sahakari Udyamnagar Ltd. Mazgaon. ... Respondent ----- Mr. V.B.Rajure for the Petitioner. Mr. Shashank Mangle for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 03 rd October, 2011. ORAL JUDGMENT: 1 On 30 th March, 2011, notice for final disposal at admission stage was issued by this Court. 2 The Petitioner filed a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”). 3 The Respondent is the opponent in the said dispute. The challenge was to the certain resolutions passed by the Respondent – 2 87 wp 1544.11 Society. 4 On 4 th December, 2007, the learned Judge of the Co- operative Court passed an order striking off the evidence of the witness examined by the Petitioner. An application was made by the Petitioner before the Co-operative Court praying for setting aside the said order and for permitting the Petitioner to adduce evidence. By the order dated 1 st February, 2010, the said application was rejected. A revision application under Section 149(9) of the said Act was filed for challenging the said order. The learned Member of the Co-operative Appellate Court relying upon a decision of this Court in the case of Khandesh Urban Cooperative Credit Society Ltd Vs. Ashok Rameshwar Agrawal (2002 MhLR-4-18) held that the revision application was not maintainable. 5 The learned counsel appearing for the Petitioner submitted that the decision relied upon by the Appellate Court is no longer a good law. He submitted that the reference in Sub-Section (9) of 3 87 wp 1544.11 Section 149 of the said Act is not to the nature of the impugned order, but the reference is to the nature of the proceedings in which the order is passed. He submitted that the final order which may be passed in the proceedings in which the order sought to be challenged is passed will be subject to an appeal under Section 97 of the said Act. Hence, a revision application will be maintainable. He submitted that it is not necessary that against the order which is sought to be revised an appeal should lie. He placed reliance on a decision of the Apex Court in the case of Jai Mahavir Co-operative Housing Society Ltd. Vs. Panchal Keshavlal Narbheram and others (1987 (3) Supreme Court Cases 425). 6 The learned counsel appearing for the Respondent relied upon a decision in the case of Khandesh Urban Cooperative Credit Society Ltd (supra). He invited attention of the Court to the language used in various Sections including Sections 94 and 95 of the said Act. He submitted that the judgment of this Court dated 30 th July, 2002 relied upon by the Petitioner is in relation to an interlocutory and 4 87 wp 1544.11 interim order passed by the Co-operative Court. He submitted that in any event, on merits, there is no case. 7 I have given careful consideration to the submissions. In the case of Khandesh Urban Cooperative Credit Society Ltd (supra), in paragraph No.14, this Court quoted Sub-Section (9) of Section 154 of the said Act. In paragraph No.18, this Court observed that unless an interim order is appealable, the same will not become revisable. In the case of M/s. P.S. Chamankar Property Developer Pvt. Ltd Vs. Shri Arjun S. Tupe and others by judgment and order dated 30 th July, 2002, this Court (Coram: D.K.Deshmukh, J) ) observed thus: “2. The revision filed by the petitioners against an order made by the Cooperative Court rejecting an application made by the petitioners before the Cooperative Court for an order of dismissal of a dispute has been dismissed by the Cooperative Court relying on a judgment of this Court dated 22nd April, 2002 in writ petition No.941 of 2002 (Khandesh Urban Cooperative Credit Society Ltd. v/s Ashok R. Agrawal). By my order passed in writ petition No.3619 of 2002 I have already held that the judgment relied on by the Appellate Court does not lay down a good law and that every interim and interlocutory order passed 5 87 wp 1544.11 by the Cooperative Court in a dispute filed under Section 91 is subject to the revisional jurisdiction of the appellate Court. In that view of the matter therefore, the order dated 26 th June, 2002, copy of which is at Exh.-'F' to this petition passed by the appellate Court is set aside. The Appellate Court is directed to hear and dispose off the revision on merits in accordance with law. Rule is made absolute accordingly with no order as to costs.” (underline supplied) Sub-Section (9) of Section 149 of the said Act reads thus: “(9) The Co-operative Appellate Court may call for and examine the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed. If in any case, it appears to the Co-operative Appellate Court that any such decision or order should be modified, annulled or reversed, the Co-operative Appellate Court may pass such order thereon as it may deem just.” Sub-Section (9) confers powers on the Co-operative Appellate Court of calling for the record of any proceedings in which an appeal lies for the purposes of satisfying itself as to the legality and propriety of any decision or the order passed. The Section does not contemplate that against the decision or order sought to be revised, an appeal should lie under Section 97 of the said Act. All that Sub- Section (9) contemplates is that the proceedings in which the decision 6 87 wp 1544.11 or order sought to be revised is passed must be such that an appeal will lie against the final order passed in the proceedings. It will be necessary to make a reference to a decision of the Apex Court in the case of Jai Mahavir Co-operative Housing Society Ltd (supra). The Apex Court was dealing with Sub-Section(9) of Section 150 of the Gujarat Co-operative Societies Act, 1961, which is pari materia with Sub-Section (9) of Section 149 of the said Act. In paragraph No.13, the Apex Curt has observed thus: “13. The High Court in the impugned judgment after considering this decision and the provisions contained in Section 97 came to the conclusion that when a dispute is referred to the Registrar under Section 96 and the Registrar entertains the dispute under Section 96 and ultimately finally disposes it of against the decision on the merits there is an appeal to the Tribunal according to Section 97 which is similar to Section 101 of the present Gujarat Co-operative Societies Act, 1961 and in view of this the learned Judges of the High Court came to the conclusion that under Sub-Section 9 of Section 150 the Tribunal has revisional jurisdiction in a matter an appeal lies to it. Sub-Section (9) of Section 150 reads: "(9) The Tribunal may call for and examine the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed. If in any case, it appears to the Tribunal that any such decision or order should be modified, annulled or reversed, the Tribunal may pass such order 7 87 wp 1544.11 thereon as it may deem just." This confers jurisdiction on the Tribunal to call for and examine the record of any proceeding. The word 'proceeding' here is qualified by the phrase in which an appeal lies to it. It is not disputed that after final disposal of these proceedings i.e. decision of the dispute by the Registrar or by his nominee an appeal will lie to the Tribunal and therefore in the impugned judgment the Division Bench of the Gujarat High Court took the view that the Tribunal has jurisdiction to call for and examine the record of such proceedings. The judgment of the Bombay High Court on which reliance is placed refers to Section 149 sub-section 9 of the Maharashtra Co- operative Societies Act, 1960. It is no doubt true that the phrase 'any proceedings in which an appeal lies to it' is identical in the two statutes i.e. Section 150 sub-section 9 of the Gujarat Co-operative Societies Act and sub-section 9 of Section 149 of the Maharashtra Co-operative Societies, Act, 1960. This language makes it clear that if the proceedings where the final order is appealable then it could not be said that these are the proceedings where an appeal lies to the Tribunal and it is in these proceedings that the jurisdiction has been conferred on the Tribunal to call for the record and examine the matter. In this view of the matter, in our opinion, the view taken by the Division Bench of the Gujarat High Court in the present case appears to be correct and the High Court was right in coming to the conclusion that the Tribunal had jurisdiction to call for and examine the record i.e. exercise revisional jurisdiction.” (underline supplied) 8 Apart from the decision of this Court which holds that the view taken in the case of Khandesh Urban Cooperative Credit Society 8 87 wp 1544.11 Ltd (supra) is no longer a good law, the view taken in the said decision is obviously contrary to what is held by the Apex Court in the case of Jai Mahavir Co-operative Housing Society Ltd (supra). Thus, the view in the case of Khandesh Urban Cooperative Credit Society Ltd (supra) is contrary to the binding precedent in the form of the decision of the Apex Court in the case of Jai Mahavir Co-operative Housing Society Ltd (supra). 9 Therefore, it cannot be said that the order or decision of the Co-operative Court is revisable under Sub-Section (9) of Section 149 of the said Act only if it is appealable. Therefore, the view taken by the Co-operative Appellate Court in the present case that the revision application was not maintainable, is not correct. An appeal is admittedly available against the final order which may be passed in the dispute in which impugned order has been passed. 10 There is always a difference between the powers of the Appeal Court and powers of the Revisional Court. The appeal is 9 87 wp 1544.11 always available as a matter of right. Therefore, though a revision application is maintainable, it is for the Revisional Court to decide whether the power of revision can be exercised in the facts of the case. 11 Hence, I pass the following order: i. The impugned judgment and order dated 30 th June, 2010 is quashed and set aside and the Revision Application No.22 of 2010 is restored to the filed of the Co-operative Appellate Curt ; ii. The Co-operative Appellate Court shall decide the revision application on merits as expeditiously as possible and preferably within a period of three months from the date on which writ of this judgment is received by the said Court ; iii. All contentions of the parties on merits of the revision application are kept open ; and 10 87 wp 1544.11 iv. The petition is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]