bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1160 OF 2008 PETITION NO. 1160 OF 2008 PETITION NO. 1160 OF 2008 Malegaon Sah. Sakhar Karkhana Ltd. ... Petitioner v/s Shri Vinaysingh D. Dhawan (Patil) & ors.... Respondents Mr.A.V.Anturkar i/by M/s.J.Shekhar & Co. for the petitioner. Mr.G.S.Godbole i/by A.M.Kulkarni for respondent No.1. Mr.A.A.Kumbhakoni, Associate Advocate General with Mr. N.S.Masurkar, Govt. Pleader for respondent Nos.3 to 5. CORAM: CORAM: CORAM: J.N.PATEL AND J.N.PATEL AND J.N.PATEL AND SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: DATED: DATED: 5TH MARCH, 2008. 5TH MARCH, 2008. 5TH MARCH, 2008. P.C. P.C. P.C.: 1. Heard. 2. This matter can be disposed of at the stage of admission itself. 3. The petitioner has impugned the order dated 28.1.2008 passed by the Hon’ble Minister for Co-operation thereby determining the outer loan raising limit of the petitioner Karkhana to be Rs.2005.91 lacs. 2 4. The main contention of the petitioner is that the competent authority in the matter of determining the outer loan raising limit is the Registrar of Co-operative Societies as provided under Rule 35 of the Maharashtra Co-operative Societies Rules, 1961 and that in the present case the Hon’ble Minister has passed the impugned order without specifying the justification for accepting the assessment done by the auditor and by ignoring the calculations made by the Commissioner for Sugar who is the Registrar for the said purpose. 5. It is specifically contended that the Hon’be Minister has not taken into consideration the explanation to sub-rule (1) of Rule 35 which specifically excludes borrowing or granting credit facilities on the pledge of agricultural produce or other goods, specified in that behalf by the Registrar, by general or special order, a sum equal to the amount borrowed by such society or class of societies, on the security of agricultural produce or other goods of such society and of its members. It is the contention of the learned counsel for the petitioner that the sugar which is end product of the petitioner karkhana has been pledged to the banks in order to draw loans to meet the payments of sugar-cane growers and workers of the karkhana. As the process of disposing of the end 3 product i.e. sugar takes some time and sugar-cane growers and workers’ dues are required to be paid within the statutory period of 15 days and, therefore, the amount of Rs.4356.11 lacs ought to have been excluded from its consideration. 6. The learned counsel appearing for the respondent No.1 who moved the Hon’ble Minister in revision, submits that there are various facets to claim such a exclusion which was not the case of the petitioner before the Hon’ble Minister and it is for the first time canvassed before this Court. It is submitted that the Hon’ble Minister was justified in accepting the auditor’s report as the basis for coming to a decision and on the face of the record, the order passed by the Commissioner of Sugar who is the Registrar, and which is the competent authority under Rule 35, cannot be accepted as even the figures quoted by the karkhana relating to their borrowing capacity includes the figure of insecured loan, grant of loan from Bank of Baroda and deposit and, therefore, the decision of the Hon’ble Minister cannot be faulted with. The learned Associate Advocate General who appears in the matter on behalf of the respondent State submits that the view taken by the Hon’ble Minister cannot be said to be erroneous. 4 7. In our opinion, the Hon’ble Minister has passed the impugned order without taking into consideration Explanation to sub-rule (1) of Rule 35 of the Maharashtra Cooperative Societies Rules as nothing is reflected in the impugned order on this aspect. Therefore, in the facts and circumstances of the case, the matter requires to be remitted back to the Hon’ble Minister to re-hear the parties on the issues and take a fresh decision. 8. The learned counsel for the petitioner makes a statement that till the Hon’ble Minister takes a decision in the matter, the petitioner karkhana would not proceed to make any further borrowings. We accept this statement. 9. We, therefore, quash and set aside the impugned order. 10. Parties are directed to appear before the Hon’ble Minister on 11.3.2008 at 11.00 hrs. for seeking appropriate date of hearing. 11. We expect the Hon’ble Minister to take a decision in the matter within a period of eight weeks from the date of appearance of the parties and will highly 5 appreciate if the Hon’ble Minister passes a speaking order in the matter. 12. Needless to say that, all the issues and contentions raised in the matter are kept open and parties are at liberty to raise the issues before the Hon’ble Minister and the Hon’ble Minister shall deal with the matter in accordance with law without restricting himself to the observations made by this Court in the context of Rule 35 of the Maharashtra Co-operative Societies Rules, 1961. 13. With these directions, the petition stands disposed of. Parties to act on the authenticated copy of this order. (J.N. (J.N. (J.N. PATEL, J.) PATEL, J.) PATEL, J.) (SMT.NISHITA (SMT.NISHITA (SMT.NISHITA MHATRE, J.) MHATRE, J.) MHATRE, J.)