(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 11561 OF 2010 Prakash s/o. Balchand Solanki, Age : 55 years, Occupation : Business & Director of Ambajogai People's Cooperative Bank Ltd., Branch Beed, Dist. Beed. .. Petitioner. versus 1. State of Maharashtra, through the Secretary, Cooperation & Textile Department, Mantralaya, Mumbai - 32. 2. The Divisional Joint Registrar, Cooperative Societies, Latur, Taluka & Dist. : Latur. 3. Shivaji Bhagvantarao Kute, Age : 38 years, Occupation : Business, R/o. New Mondha, Beed, Taluka & District : Beed. .. Respondents. ....................... (2) Mr. V.D. Salunke, Advocate, for the petitioner. Mrs. V.A. Shinde, Assistant Government Pleader, for respondent nos.1 and 2. Mr. V.D. Sapkal, Advocate, holding for Mr. M.P. Tripathi, Advocate, for respondent no.3 / caveator. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 11TH JANUARY 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. It is admitted position, that while passing orders on an application under Section 146 of the Maharashtra Cooperative Societies Act, 1960, filed by respondent no.3, seeking prosecution of the Directors of the petitioner / Bank, the respondent no.2 / Divisional Joint Registrar has asked the petitioner / Bank to remove seal put on the property of respondent no.3, holding that the act of putting seal is not countenanced by law. (3) 3. According to Mr. V.D. Salunke, learned Counsel appearing for the petitioner, application which was heard by the Divisional Joint Registrar was only about leave to prosecute and there was no other issue involved. No arguments about correctness or otherwise of the act of putting seal were advanced. He states that had the petitioners been given opportunity of hearing, the previous history of filing of a Civil Suit, by the respondent no.3, in that respect, and orders of this Court in favour of the petitioner / Bank, could not have been pointed out. 4. Mr. V.D. Sapkal, learned Counsel appearing for respondent no.3, has tendered affidavit in reply, on record. He has invited attention to various orders passed by this Court in similar matters, to urge that the act of putting seal is found to be unsustainable. He has further stated that even a circular has been issued by the Department itself which prohibits such putting of seal on the premises of respondent no.3. He has urged that by putting seal, possession of the premises has been taken over and the respondent no.3 has been making grievance time and again about it before various authorities. He also states that even if the impugned order may be found to be illegal, as it was passed without hearing parties, still this Court should refrain itself from exercising writ jurisdiction as by exercising writ jurisdiction, the court will be upholding an illegal act of putting seal on the (4) premises of respondent no.3. 5. I find that a distinction will have to be made where an order passed is illegal and such order is passed without giving parties necessary opportunity. Here, perusal of the application moved under Section 146, by the respondent no.3, clearly shows that it was only seeking leave to prosecute the petitioners. The grievance was also about putting seal illegally, but for that, prosecution of the Directors was sought. The authority has refused leave to prosecute, but then in the process, has also validated that act and directed the petitioner to remove the seal. The petitioner was not heard before issuing such direction and the respondent no.3 is not disputing this position, in any way. Because the petitioner was not heard, the orders passed by the Civil Court and by this Court, in the matter, and its relevance is also not gone into by the respondent no.2. The question here is, whether such a direction, therefore, can be said to be within four corners of the proceedings, as filed by respondent no.3 before respondent no.2. 6. In this situation, I find that an opportunity of hearing needs to be given to the petitioner in the matter. However, as the question of correctness of applying seal has not been specifically raised before respondent no.2, it would be appropriate if the (5) respondent no.3 is given leave to move appropriate application before respondent no.2 or competent authority, within a period of two weeks from today. 7. In the result, the petition is allowed. (i) The impugned order dated 11-11-2010, passed by the Divisional Joint Registrar, Cooperative Societies, Latur, is quashed and set aside. (ii) The respondent no.3 is given leave to move appropriate application before respondent no.2 or other competent authority, within a period of two weeks from today. The respondent no.3 shall give advance copy of such application to the petitioner / Bank. The petitioner / Bank shall file its reply thereto within a further period of one week, and such authority shall proceed to hear parties, in accordance with law and take decision about correctness or otherwise of the Bank, of applying seal and taking over possession of the premises of respondent no.3. (iii) The question, whether respondent no.2 has got jurisdiction under the Maharashtra Cooperative Societies Act, 1960, to take cognizance of such grievance, is kept open for its consideration. (6) (iv) Needless to mention, that the observations made by this Court are only for the purposes of considering rival contentions canvassed before it and shall not influence consideration of the issue by the respondent no.2 or competent authority, in any way. 8. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp11561