(1) WP. 634.1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.634 OF 1993 1. Shantilal Alichand Sankhalecha, Deepak, Anandnagar Cooperative Housing Society Ltd., Gulmohar Road, Savedi, Ahmednagar 2. Abhay Dharamchand Khabia Mitra-Prem, Bunglow No.1, Gulmohar Road, Savedi, Ahmednagar 3. M.A. Jahagirdar, Zendi Gate, Ahmednagar 4. Kantilal Prithviraj Bafna Darshan, Savedi, Ahmednagar 5. Shaikh Khwaja Shaikh Nazimuddin, Zendi Gate, Ahmednagar .. PETITIONERS VERSUS 1. The State of Maharashtra (Copy to be served on the Government Pleader, High Court Bench at Aurangabad) 2. The Assistant Registrar, Co-operative Societies, Ahmednagar, Dist. Ahmednagar 3. The District Deputy Registrar Co-operative Societies, Ahmednagar, Dist. Ahmednagar 4. The Divisional Joint Registrar, Co-operative Societies, Nasik Division, Nasik 5. Ahmednagar Merchants' Co-operative Bank Limited, Market Yard, Ahmednagar (2) WP. 634.1993 Notice to be served on the Manager 6. Hemraj Mohanlal Bora residing at Buva Bangal Chowky, Near Vasant Talkies, Ahmednagar 7. The Registrar, Co-operative Societies, State of Maharashtra, Pune .. RESPONDENTS ... Mr. R.L. Kute, Advocate h/f. Mr. R.N. Dhorde, Advcoate for the Petitioner Mr. D.R. Korade, AGP for the respondent nos.1 to 4-State Mr. V.D. Hon, Advocate for the respondent no.5 ... CORAM : V.R. KINGAONKAR, J. DATED : 5TH AUGUST, 2010 & 6TH AUGUST, 2010 ORAL JUDGMENT:- 1. By this Petition, petitioners are challenging the judgment and order dated 11.3.1991 rendered by respondent no.4-Divisional Joint Registrar, Co-operative Societies, Nasik Division, Nasik in the exercise of revisional jurisdiction under section 154 of the Maharashtra Co-operative Societies Act, 1960. By that judgment and order, the (3) WP. 634.1993 learned Divisional Joint Registrar partly allowed the revisional application and set aside the order dated 9.5.1989 rendered by the District Joint Registrar, Co-operative Societies, Ahmednagar. The Divisional Joint Registrar, Nasik Division, however, directed the District Joint Registrar to duly consider the claims of those applicants who were found to be eligible for admission as members of the respondent- bank who have complied with the requirements to get membership. 2. The litigation has got a checkered history. Initially, bunch of persons named in a list were said to have consolidatedly deposited amount of Rs. 42,723/- in the Allahabad Bank in the account of the respondent no.1-Bank towards the share capital. It appears that those 423 persons, who were named in the list, did not file separate applications and that they did not separately seek membership of the respondent no.1-Bank by making separate payment alongwith such applications. The membership was not, however, granted to them. Hence they were aggrieved. (4) WP. 634.1993 The petitioners had filed Writ Petition no. 2973 of 1987. On 15.7.1987, the Hon'ble Division Bench directed the Deputy Registrar of Co-operative Societies to enquire into the matter and to pass appropriate orders. Instead of conducting any separate enquiry as such, the Deputy Registrar submitted his report to the High Court. In other words, the Deputy Registrar left the work of scrutiny and decision regarding eligibility of the members, to be done by the High Court. The petitioners again filed Writ Petition no. 2906 of 1988 which came to be decided by a Division Bench of this Court. On 30.11.1988 the Hon'ble Division Bench directed that the Registrar, Co-operative Societies or such Officer to whom the Registrar may delegate the duty in that behalf, shall dispose of the complaints made by the petitioners prior to 15.2.1989 at the latest by a reasoned decision. It appears that, thereafter, the petitioners filed complaint which was treated as appeal under section 23(2) of the Maharashtra Co- operative Societies Act and was decided by the learned District Deputy Registrar who was authorised (5) WP. 634.1993 by the Registrar to execute the work. By order dated 9.5.1989 the District Deputy Registrar of Co- operative Societies, Ahmednagar, directed that appeal filed by 288 appellants named in schedule "B" was allowed and they were to be deemed as members of the respondent no.1-Co-operative bank. The applications of 103 applicants named in schedule "C" were however, rejected. They were given liberty to produce relevant record regarding complaints for eligibility to become members and, thereafter, their cases were to be considered for allowing open membership to them. This order dated 9.5.1989 was challenged by the respondent no.1 Bank vide revision application no. 26 of 1989. The Divisional Joint Registrar, Co- operative Societies, allowed the revision application of respondent no.1-bank. The District Deputy Registrar was directed to allow membership applications of those applicants who have duly complied with the requirements to obtain open membership. 3. The petitioners' case is that the impugned (6) WP. 634.1993 judgment and order dated 11.3.1991 is illegal and improper. They allege that the learned Divisional Joint Registrar of Co-operative Societies of Nasik Division had no jurisdiction to entertain the revision application. They would submit further that the order rendered by the District Deputy Registrar of Co-operative Societies, Ahmednagar became final in view of the subsequent provision contained in section 23(3) of the Maharashtra Co-opeartive Societies Act, 1960 (for short "The M.C.S. Act"). They would submit that they have been purposefully denied membership of the respondent no.1-Bank notwithstanding the fact that their eligibility to get open membership as available under section 22 of the M.C.S. Act is proved. Consequently, they urge to set aside the impugned judgment rendered by the Divisional Joint Registrar of Nasik Division and to restore the judgment and order rendered by the District Deputy Registrar, Ahmednagar. 4. Mr. Kute h/f. Mr. Dhorde, appearing for the petitioners chiefly raised three points: (7) WP. 634.1993 i) The learned Divisional Joint Registrar of Nasik Division would not have entertained the revision application in view of the fact that powers available to the District Deputy Registrar of the Co- operative Societies have been equated with the powers of the Registrar under the M.C.S. Act in view of the Government resolution dated 7.8.1993; ii) The order rendered by the District Deputy Registrar became final in view of section 23(3) of the M.C.S. Act, and, therefore, was not open for challenge by way of any revision as such; iii) The petitioners have been discriminated by respondent no.1-Bank while rejecting their due claims for membership though some other ineligible persons were allowed to become members. As against this, Mr. Hon, learned counsel for the respondent no.1-Bank would submit that the entire rejection is outcome of the vendetta nurtured by the petitioner no.2 Abhay Khabia, whose father was the Manager of the respondent no.1-Bank and was sacked from service. (8) WP. 634.1993 5. It is contended by Mr. Hon that it was the petitioner no.2 who consolidatedly deposited the amount of the share capital of the persons named in the list in the Allahabad Bank account of the respondent no.1 bank because the account number was known to his father and that on basis of such ploy he wanted induction of 423 members at one stretch and en-block. 6. Before I proceed to consider the arguments raised by the petitioners, let it be noted that opem membership is available to the eligible persons subject to condition that requirements of section 22 of the M.C.S. Act are duly complied with. Section 23 which deals with subject of open membership reads as follows:- "23. Open Membership (1) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of this Act and its by-laws. (1A) Where a society refuse to accept the application from an eligible person for (9) WP. 634.1993 admission as a member, or the payment made by him in respect of membership, such person may tender an application in such form as may be prescribed together with payment in respect of membership, if any, to the Registrar, who shall forward the application and the amount, if any so paid, to the society concerned within thirty days from the date of receipt of such application and the amount; and thereupon if the society fails to communicate any decision to the applicant within sixty days from the date of receipt of such application and the amount by the society, the applicant shall be deemed to have become a member of such society. If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties. (2) Any person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar. Every such appeal, as far as possible, be disposed of by the Registrar within a period of three months from the date of its receipt: Provided that, where such appeal is not (10) WP. 634.1993 so disposed of within the said period of three months, the Registrar shall record the reasons for the delay. (3) The decision of the Registrar in appeal, shall be final and the Registrar shall communicate his decision to the parties within fifteen days from the date thereof. (4) Without prejudice to the foregoing provisions of this section, in the case of agro-processing societies or any other society for which a definite zone or an area of operation is allotted by the State Government or the Registrar, it shall be obligatory on the part of such society to admit, on an application made to it, every eligible person from that zone or the area of operation, as the case may be, as a meber of such society, unless such person is already registered as a member of any other such society, in the same zone or the area of operation." Perusal of sub-section (2) of section 23 would make it amply clear that any person aggrieved by the decision of the Society, refusing him admission to its membership, has right to prefer an appeal to the (11) WP. 634.1993 Registrar. The wordings of sub-section 3 shows that decision of the Registrar in such appeal is required to be treated as final on the question. 7. Though, sub-section 3 of section 23 declares that decision of Registrar in such appeal would be final yet it does not mean that the revisional jurisdiction is taken away in such a matter. Section 154 of the M.C.S. Act provides for revisional powers which the State Government or Registrar may exercise. It is well settled that the revisional powers are, in fact, the supervisory powers. In other words, the Registrar has authority to exercise the revisional jurisdiction as and when any order rendered by the subordinate authority is found to be patently illegal or arbitrary or capricious. It is pertinent to notice that the revisional jurisdiction can be exercised suo-motu by the state Government or the Registrar in an appropriate case. The orders passed by the Additional Registrar or Joint Registrar may be challenged before the State Government by way of revision and other orders may be challenged before the Registrar if they are passed by other subordinate (12) WP. 634.1993 Officers. The revisional jurisdiction also can be invoked on basis of application filed by the aggrieved person. In the present case, the order was passed by District Deputy Registrar, Ahmednagar, whereby the petitioners were allowed to become members of the respondent no.1-Bank. It is but natural that this order could be challenged before the Divisional Joint Registrar in view of hierarchical position as enumerated in section 154(2) of the M.C.S. Act. What is contended by learned counsel for the petitioner is that due to assignment of powers conferred under section 3 of the M.C.S. Act, under the Government resolution dated 7.8.1993 the powers of the District Deputy Registrar of the Co-operative Societies in that district are equated with the powers of the Registrar under the Act and the Rules. 8. I have perused the Government resolution dated 7.8.1994. It is manifestly clear that there is a specific delegation of powers only in respect of certain provisions of the M.C.S. Act. The powers (13) WP. 634.1993 which are delegated to the District Deputy Registrar are only in respect of certain provisions which do not include the powers of appeal under section 23(2) of the M.C.S. Act. 9. Faced with the above difficulty, learned Advocate for the petitioners relied on certain observations in Rupchand V. State of Punjab AIR 1963 SC 1503. The Apex Court held that the Officer on whom the powers are conferred, if would exercise such powers, which are required to be exercised by the higher Officer, then it would not be open to the higher Officer to entertain appeal or revision against such order. The pointed issue involved in the said case was thus:- " Whether the order which was rendered by the Officer having the powers under section 42 of the East Punjab Holdings (Consolidation of Holdings and Prevention of Fragmentation) Act, 1948 could be open to challenge by the authority having equal powers. As stated earlier, the fact situation in the present case is quite different. The delegation of powers to the District Deputy Registrar under the (14) WP. 634.1993 Government resolution is restricted to certain provisions of the M.C.S. Act. It is conspicuous that revisional powers under section 154 of the M.C.S. Act are not conferred on the District Deputy Registrar. In this view of the matter, with due respect, the ratio in Rupchand (supra) is not applicable to the fact situation of the present case. 10. It appears from the record that amount of membership fees was consolidatedly deposited by the petitioner no.2 in the bank account. The petitioners could have been admitted as members only after compliance of section 22 of the M.C.S. Act. The revisional authority, did not take away the petitioners' right to seek membership. The revisional authority held that the applications of the petitioners and other applicants shall be duly scrutinized and if they are found eligible within the provisions of section 22 of the M.C.S. Act then they may be granted membership. It is not the case that the petitioners are outrightly denied the membership vide the impugned order. There is no reason as to why they should not comply with the directions and (15) WP. 634.1993 seek membership if they are eligible. The impugned order does not show any material to infer any oblique intention of the revisional authority i.e. the Divisional Joint Registrar. The contention of the petitioner that revisional jurisdiction could not have been invoked by the learned Divisional Joint Registrar is un-acceptable. 11. Considering the foregoing reasons, I do not find any substance in the Petition. Hence, it is dismissed. Rule stands discharged. No costs. Sd/- [V.R. KINGAONKAR, J.] arp