{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8537 OF 2010 Mahadeo s/o Haribhau Khose Petitioner Versus State of Maharashtra & others Respondents Mr.V.D.Salunke, advocate for the petitioner. Mr.D.R.Tele, A.G.P. for respondents no.1 to 4. Mr.P.T.Nagargoje, advocate for respondent no.5. CORAM : S.S.SHINDE, J. DATE : 19 th September, 2011 PER COURT: 1 This writ petition is filed challenging the judgment and order passed by the learned State Minister for Co-operation dated 14.06.2010 in Appeal/Revision No.7/2008 and order dated 02.01.2007, passed by the Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai, in Revision No.17/2006. 2 Learned Counsel appearing for the petitioner submits that on 30.06.2003, petitioner had applied for permission to open bank account and to deposit share amount. The application of the petitioner dated 30.06.2003 submitted to the Assistant Registrar, Co-operative Societies, Beed, came to be rejected on the ground that the project i.e. Tandulwadi (Ghat) Minor Irrigation Project is {2} yet to be completed. It is the contention of the petitioner that the proposal of Respondent No.5 i.e. Krantiinha Satish Patil Matsya Vyavasaik Sahakari Sanstha Ltd., Tandulwadi (Ghat), Tq. & District Beed, is sanctioned by the Assistant Registrar, Co- operative Societies (Milk), Beed on 09.09.2005. It is the contention of the petitioner that though Respondent No.5 applied in the month of April 2005 i.e. after application filed by the petitioner, the application of Respondent No.5 was favourably considered and petitioner was told that unless the project is completed, such application for registration cannot be considered. Even on 04.07.2006, the petitioner was told by the concerned authority that construction of the concerned project is in progress and, therefore, his request for registration cannot be considered. It is further submission of the learned Counsel for the petitioner that proposal of Respondent No.5 has been considered within four days without scrutiny of the documents. It is further submitted that the project is completed in the year 2009 and before that, in the year 2005 itself, the application of Respondent No.5 has been granted by the Assistant Registrar, Co-operative Societies (Milk), Beed. It is the specific contention of the Counsel for the petitioner that the Assistant Registrar, Co-operative Societies (Milk), Beed, surreptitiously entertained the application filed by Respondent No.5 in the year 2005, denying the claim of the petitioner for registration of the society, inasmuch as, the application filed for registration by the petitioner came to be {3} rejected in the year 2003 itself. It is further submitted that it is not in dispute that the project is completed in the year 2009. Therefore, according to the Counsel for the petitioner, if the application is to be considered after the project is to be completed, favourable treatment given to Respondent No.5 by allowing his application, is discriminatory and contrary to the relevant rules. The same criteria should have been applied even in the case of Respondent No.5, however, the Assistant Registrar, Co-operative Societies (Milk), Beed, allowed the application filed by Respondent No.5 in the year 2005. It is further submitted that there was no occasion for the petitioner to know about registration of Respondent No.5 and in the year 2009, when the application of the petitioner came to be rejected, he came to know that such application filed by Respondent No.5 came to be allowed/granted in the year 2005. 3 It is further argued that being aggrieved by the order allowing application filed by Respondent No.5, petitioner herein filed Revision before the Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai. It is further contended that the office of the concerned authority should not have registered the Revision filed by the petitioner if Revision was not maintainable before the said authority. However, office of the said authority registered the Revision and not only that but the concerned authority heard the said matter treating it as Revision {4} and decided it adverting to the merits of the matter. Therefore, no fault can be attributed to the petitioner merely because it was mentioned as “Revision” on the application filed before the concerned authority. Same should not have been treated as Revision and it was open for the concerned authority to ask the petitioner to correct the nomenclature of the proceedings as “appeal” instead, “Revision”. However, the concerned authority has proceeded to decide the proceedings on merits and dismissed the same on 02.01.2007. 4 Being aggrieved by the order passed by the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai, the petitioner preferred an appeal under Section 152 of the Maharashtra Co- operative Societies Act, 1960 before the concerned Minister. According to the learned Counsel for the petitioner, the litigant may not be aware as to which remedy is available before which authority/Minister and it is for the concerned forum to suggest the litigant as to whether appeal is maintainable or Revision is maintainable. In the present case, the Minister entertained the proceedings filed by the petitioner as an “appeal”, however, while rejecting the appeal filed by the petitioner, the Minister has observed that Revision against Revision is not maintainable. Therefore, according to the learned Counsel for the petitioner, there is total non application of mind on the part of Deputy Registrar, Co-operative Societies (Fisheries), Mumbai and the concerned {5} Minister. The authority or the Minister are supposed to know under which provisions they are empowered to decide either the appeal or Revision and, therefore, in the instant case, it was for the appellate authority to point out to the petitioner that the appeal is maintainable under Section 152 of the Maharashtra Co-operative Societies Act and, therefore, adjudication on merits treating the proceedings filed by the petitioner as Revision was itself without jurisdiction. Therefore, according to the learned Counsel for the petitioner, the judgment and order passed by the appellate authority and also by the concerned Minister cannot be sustained. 5 Learned Counsel for the petitioner also advanced arguments on merits of the matter. He submits that there is no question of any delay in filing the proceedings before the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai, since the petitioner first time came to know in the year 2009 that the application for registration of Respondent No.5 has been allowed in the year 2005. Therefore, according to the Counsel for the petitioner, on all these grounds, the writ petition deserves to be allowed by setting aside the impugned judgment and order passed by the appellate authority and order passed by the State Minister. 6 Learned Assistant Government Pleader appearing for Respondents No.1 to 4 fairly conceded that the appellate authority and the learned Minister have committed mistake by entertaining {6} Revision and Appeal, respectively. In fact, the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai, was entitled to adjudicate the appeal under Section 152 of the Maharashtra Co- operative Societies Act, 1960 and certainly he was not the revisional authority. He further submits that the learned Minister should have entertained the proceedings as Revision, instead, he treated the proceedings as an appeal, however, in the concluding paragraph, it is observed by him that Revision against Revision is not maintainable. Therefore, according to the learned Assistant Government Pleader, if the matter is remitted back to the appellate authority, he has no objection and any technical objection on the ground of delay will not be raised on their behalf. 7 Learned Counsel appearing for Respondent No.5 submits that Respondent No.5 is ready to contest the appeal on merits and he has no objection to register the appeal and hear it on merits. Learned Counsel appearing for Respondent No.5 submits that the appellate authority may be directed to hear the matter on merits. However, he submits that all the contentions on merits to be left open to be adjudicated before the appellate authority. 8 I have given due consideration to the rival submissions. I feel it appropriate not to touch merits of the matter since I am convinced that the matter needs to be considered afresh {7} by the Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai. 9 Though the petitioner has filed Revision before the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai, as a Revision, the concerned authority should have suggested or should have corrected the mistake committed by the petitioner by treating the said proceedings as an appeal. The appellate authority is only empowered to decide the appeal under Section 152 of the Maharashtra Co-operative Societies Act. The judgment and order passed by the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai, thereby rejecting the proceedings filed by the petitioner was certainly without jurisdiction. In short, the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai, has no power to entertain the Revision under Section 154 of the Maharashtra Co- operative Societies Act, 1960. He is only empowered to entertain the appeal. The concerned authority should have asked the petitioner to correct the nomenclature and instead Revision, the proceedings should have been treated as appeal and the appellate authority should have proceeded to decide the said appeal on merits. Therefore, the judgment and order passed by the concerned authority cannot be sustained in law. The concerned authority has no jurisdiction to entertain the Revision under Section 154 of the Maharashtra Co-operative Societies Act. This position is not disputed by the learned Counsel appearing for {8} respective parties. 10 The application under Section 9 of the Maharashtra Co-operative Societies Act, for registration of the society filed by Respondent No.5 was entertained by the Assistant Registrar, Co- operative Societies (Milk), Beed and, therefore, aggrieved by said registration, appropriate remedy for the petitioner was available under Section 152 of the Maharashtra Co-operative Societies Act before the Deputy Registrar, Co-operative Societies (Fisheries), Mumbai. Therefore, the concerned appellate authority should have entertained the said proceedings as an appeal. However, in the instant proceedings, he has treated the said proceedings as Revision and passed the impugned judgment and order. Having been said so that the concerned appellate authority was not empowered to decide the Revision, the judgment and order rendered by the said authority is non est in the eyes of law. When this position was brought to the notice of the learned Minister by the petitioner, the learned Minister should have decided the said proceedings holding that the Revision was not maintainable before the concerned authority and concerned authority should not have exercised power under Section 154 of the Maharashtra Co- operative Societies Act, since those powers are not available to the concerned authority. Instead of doing so, the learned Minister has adjudicated the matter on merits and strangely observed in the concluding part of the order that Revision against Revision is not {9} maintainable. 11 For the reasons aforesaid, I am of the considered view that the judgment and order passed by the appellate authority and also by the learned Minister cannot be sustained in law. Therefore, both the impugned judgments and orders i.e. order passed by the learned State Minister for Co-operation dated 14.06.2010 in Appeal/Revision No.7/2008 and order dated 02.01.2007, passed by the Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai, in Revision No.17/2006, are quashed and set aside. Revision No.17/2006, which was filed by the petitioner herein before the Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai, should be treated as an appeal under Section 152 of the Maharashtra Co- operative Societies Act. The said proceedings are restored to its original file. The concerned authority i.e. Deputy Registrar, Co- operative Societies (Fisheries), Maharashtra State, Mumbai, shall treat it as an appeal under Section 152 of the Maharashtra Co- operative Societies Act and decide the said appeal afresh after hearing the respective parties on merits and after calling necessary record and proceedings from concerned Departments. It is also needless to mention that the Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai, should not entertain or raise plea as regards delay. Since the parties are litigating for more than two years, the appellate authority i.e. {10} Deputy Registrar, Co-operative Societies (Fisheries), Maharashtra State, Mumbai, shall dispose of the appeal, as expeditiously as possible and preferably within four months from the date of receipt of the order passed by this Court. 12 It is needless to mention that this Court has not expressed any opinion on the merits of the matter and it is left to the parties to the said proceedings to agitate all the points, which are available to them in law and also place on record the relevant documents. 13 For the aforesaid reasons, Writ Petition is allowed and stands disposed of. S.S.SHINDE JUDGE adb/wp853710