1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.836 OF 2009 Machhindra Maschya Vyavsaik Sahakari Sanstha Maryadit, Nimgaon (Mayamba), Tq. Georai, District Beed. Through it’s Chairman Laxman s/o Moti Bade, age 57 years, Occ. Fisherman, r/o Nimgaon, (Mayamba), Tq. Georai, Dist. Beed. Petitioner V E R S U S 1. The State of Maharashtra, through Secretary, Milk, Animal husbandry and Fishery Department, Mantralaya, Mumbai. Copy to be served on Govt. Pleader, High Court of Bombay, Bench at Aurangabad. 2. The Zilla Parishad Water Management and Sewerage Committee, Beed , through its Chairman. 3. The Deputy Engineer, Laghu Pat Bandhare Sub Division, Patoda, Dist. Beed. 2 4. Kanifnath Maschya Vaivsaik Sahakari Sanstha Maryadit, Shirapur, Tq. Shirur, Dist. Beed Through its Chairman. Respondents --- Mr.G.D.Kale, Advocate for the petitioner. Mr. S.K. Kadam, AGP for Respondent No.1. Mr. P.P. More Advocate for Respondent Nos. 2 and 3. Mr. A.B. Girase Advocate h/f Mr. A.B. Karande adv. for R-4. CORAM : S. B. DESHMUKH & K. U . CHANDIWAL, JJ. DATE : 7 th SEPTEMBER, 2010. ORAL JUDGMENT :- ( Per S.B. Deshmukh, J. ) 1. We heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 3. This petition is in fact a conflict of interest amongst two Co-operative Societies, registered under the provisions of Maharashtra Co-operative Societies Act, 1960 (herein after referred to as 'Act of 1960' for short). Every Cooperative 3 Society registered under the provisions of said Act of 1960, is a body corporate as contemplated under section 36 of Act of 1960. All Cooperative societies are being governed by the provisions of section Act of 1960 and Maharashtra Cooperative Societies Rules, 1961. There are several types of societies contemplated under the provisions of the Act. There are various rules for election of the Managing Committee of Societies. Supreme Power of the cooperative society vests with the General Body in view of section 72 of Act of 1960. The day to day management of the society cannot be looked after by the entire general body. Therefore, in view of the Section 73 of said Act, managing committee of the society is empowered to look after day to day affairs of the cooperative society. Approved Bylaws of the cooperative societies can be amended by the approval of Registrar in view of the section 13 of the said Act. Bylaws of a cooperative society does not have a force of law. 4 4. Now let us turn to the grievance of the present petitioner. Petitioner claims that petitioner is a registered Co- operative society, indulged in fishing business. Respondent No.1- is the State of Maharashtra. In the case on hand, we are concerned with the Zilla Parishad, Beed. Zilla Parishad Beed directly is not joined as party-respondent. Zilla Parishad, Water Management and Sewerage Committee is a subordinate Committee of the Zilla Parishad, itself. Said subordinate committee is respondent No.2. Said committee is shouldered with responsibilities of Management and sewerage within the jurisdiction of Zilla Parishad, Beed. Respondent No.3, in the case on hand is a Deputy Engineer, Minor Irrigation, Sub Division, Patoda, within the limits of Zilla Parishad, Beed. Respondent No.4 is a Cooperative society indulge in the business of fishing. Counsel for the petitioner Mr. Kale points out order impugned in this petition page 51, dated 10/16-10-2008. It seems to have been issued by the Deputy Engineer under out ward No. 5 ZPMI/SD/TQ/Patoda/247/2008 dt.10/16.10.2008. It has been pointed out by learned counsel for the petitioner that contract for fishing activity in Titarvani percolation tank and Borgaon (Chakla) Percolation Tank was the subject matter of this order [page 51] dated 10/16-10-2008. From this communication/order, it appears that period of contract of fishing in relation to these two percolation tanks, commences from 1.7.2008 to 30.6.2009, meaning thereby for the period of one year. This order mentions that the respondent No.4, in whose favour this order is passed, to make the payment of amount of rental every years. It further makes mention that if the said amount is not paid before 30th of June, contract will be cancelled without making any correspondence. Year of the contract is mentioned as 2008-2009. Amount of the contract is mentioned as Rs.1,950/-. Counsel for the petitioner points out agreement which is annexed with this order page 54. This agreement seems to have been executed on the same day i.e. 10.10.2008. Grievance is raised by the learned counsel for 6 petitioner that four installments for payment of contract money have been mentioned. Thus, the installments are for different sums and on different dates. Last date of payment of fourth installment is 30.6.2012. Argument of the counsel for the petitioner is that even though contract of the fishing in two percolation tanks was for year, commencing from 1.7.2008 till 30.6.2009, payment of money was spread over for five years i.e. up till 2012, empowering respondent No.4 society to carry out fishing activities for five years, which according to learned counsel, is illegal. 5. Counsel for the petitioner points out [page 24] distance amongst Nimgaon Percolation Tank to Titarwani Percolation Tank as 3.oo kilometers and distance amongst Nimgaon Percolation Tank to Borgaon Percolation Tank around 4.oo kilometers. Counsel for the petitioner submits that, both these tanks i.e. Titarwani and Borgaon Percolation tanks are within the jurisdiction of petitioner-society. To substantiate this contention, counsel for the petitioner took us 7 to by laws [page 22]. Bylaws of respondent No.4 society are also on record which are pointed out to us by learned counsel. They are on page No.32. We have seen copies of both by-laws. There is no serious dispute among the parties in relation to the provisions, by laws of the petitioner and respondent No.4- Society. In fact, the submission of the counsel for the petitioner that both these percolation tanks are within the jurisdiction and area of petitioner-society, is not disputed on behalf of the respondent. 6. Affidavit on behalf of respondent No.3 is seen [page 76]. This affidavit is filed on behalf of respondent Nos. 2 and 3, the authorities who are responsible for grant of fishing contract in favour of the respondent No.4. This affidavit has been affirmed by Mohammad Maqbul Hussain, Deputy Enginner, Minor Irrigation , Sub Division, Patoda, Dist. Beed. In paragraph No.2 of the affidavit, statement is made that present petitioner was under liquidation since 12.12.2005 and petitioner society has been reconstituted on 16.9.2008. We 8 have seen the communication Exh.R-1, [page 83]. This communication is under the signature of Assistant Registrar, Cooperative Societies (Milk), Beed dated 24.9.2008 addressed to Executive Engineer, Minor Irrigation, Zilla Parishad, Beed. It has been specifically mentioned by the competent authority in this communication that petitioner society was under liquidation from 12.12.2005. Two other dates are mentioned as 1.3.2006 and 15.3.2008. Last order passed on 15.3.2008 is by Dy. Registrar, Cooperative Societies, Mumbai. This order is relevant and important also. According to him, by this order final order of liquidation passed against present petitioner has been upset by the Deputy Registrar, Cooperative Societies on 16.9.2008. Argument on behalf of the petitioner is that liquidation i.e. interim order and final orders have been upset by the competent authority on 16.9.2008 and therefore petitioner-society was very well in operation and in existence. Another document is shown to us by counsel appearing for respondent Nos. 2 and 3 [page 86]. Resolution No.56 appears 9 to have been passed by Water Management and Sewerage Committee of Zilla Parishad, Beed. It pertains to grant of contract of fishing as per the list. It is annexed with this resolution which carefully we have seen [page No.90]. At sr. No.128 and 129 we found name of percolation tank Tintarwani and Borgaon. In the last column, name of respondent No.4 - society is mentioned, clarifying that contract for fishing has been given for these two tanks to the respondent No.4, society. 7. Counsel for the petitioner submits that interim order of liquidation under section 102 (1), final order of liquidation under section 102 (2) has been quashed and set aside by the superior officer or authority and therefore petitioner society cannot be said to be under liquidation. 8. We remind contention raised in the affidavit of respondent Nos. 2 and 3, that on the date of issuance of contract i.e. on 16.10.2008 the petitioner society was under liquidation. This statement is seriously disputed by the counsel for the petitioner. He has pointed out order passed by 10 the Deputy Registrar, Cooperative Societies (Fishing), Maharashtra State, Mumbai [page66]. This order appears to have been passed in appeal No. 7/2008 and present petitioner- society was the appellant therein, respondent was the Assistant Registrar Cooperative Society (milk), Beed and others. It is true that this order stays the order passed by Assistant Registrar, Co-operative Society,Beed dated 15.3.2008. Date of this order is 3.4.2008. Final order is also placed on record in appeal No.7/2008. It is at page No.68. This order is passed by the same authority i.e. Deputy Registrar, Cooperative Society on 16.9.2009. Question to be decided by us is status of the present petitioner on the date of contract i.e. on 10.10.2008. Counsel for the petitioner submits that petitioner society was well in operation on 10.10.2008. We have considered the submission of Mr. More learned counsel appearing for respondent Nos. 2 and 3 that society was not in existence on the date of grant of contract. A categorical statement is made in affidavit filed by respondent 11 Nos. 2 and 3 that on the date of grant of contract of fishing, respondent No.4 was the only society who had staked claim for fishing. Principles of merger requires to be considered. It is well settled that order passed by the superior officer is relevant in view of the principles of Merger. Interim order of liquidation was made final by the same authority on 15.3.2008. Thus on 10.10.2008 status of the present society was liquidated society. This order was further challenged and final order passed by the Superior authority Deputy Registrar, Co-operative Societies (Fishing) is dated 16.9.2009. At the cost of repetition, we may notice statement in affidavit of respondent Nos. 2 and 3 page No.79, paragraph No.5 that petitioner society was in liquidation from 12.12.2005 to 16.12.2008. In our opinion, on the date of contract, status of the present petitioner-society cannot be said a Cooperative Society, lawfully in operation. Suffice to notice that argument of counsel for the petitioner pertaining to status of the petitioner cannot be accepted. 12 9. From the affidavit of respondent Nos. 2 and 3, it is clear that petitioner has also approached to Civil Court, by filing Civil Suit. This fact is fairly conceded and pleaded by the petitioner. We are not giving much importance to the argument of the counsel for the petitioner pertaining to jurisdiction or area of the petitioner society. Section 36 is important. Counsel for the petitioner could not point out pleadings that petitioner society reconstituted after passing of the order by Deputy Registrar, Co-operative Society dated 16.9.2009 had passed resolution to file proceeding in this Court. Last is the submission for payment of money within five years, even though contract was for one year. 10. Learned counsel Mr. Girase instructed by Mr. A.B. Karande for respondent No.4 pointed out policy of the State Government which is part of the record. First one is the Government Resolution dated 29.6.1995 [page 41]. We have seen this Government Resolution with the assistance of learned counsel. Period for such contract is around five years. 13 This resolution or policy has been also referred to by the State Government in subsequent Government Resolution dated 15.10.2001 page 47. There, at item No.5 such contracts are mentioned for the period of five years. In our view, it is not possible to accept the submissions advanced on behalf of the petitioner that contract was for the period of one year however agreement came to be entered into by respondent Nos. 2 and 3 for the period of five years illegally. 11. All in all, no case for interference under article 226 of the Constitution of India. Writ Petition stands dismissed. Rule discharged. No costs. Interim relief, if any, stands vacated. (K.U.CHANDIWAL) (S.B.DESHMUKH ) JUDGE JUDGE ... aaa/836.09