1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4731 of 2009 Date of decision:28/7/2010 For approval and signature HON'BLE MR. JUSTICE R.K.DESHPANDE 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/4731-09wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4731 OF 2009 Sow.Damayanti w/o Ashok Makone, Age 48 yrs., Occ. Household, r/o Karajgaon, Tq.Newasa, Dist.Ahmednagar. ...PETITIONER VERSUS 1. Assistant Registrar, Cooperative Societies, Newasa, Tq. Newasa, Dist. Ahmednagar. 2. Shri Mahavir Gramin Bigar Sheti Sahakari Path Sanstha Ltd., Sonai, Tq.Newasa, Dist. Ahmednagar, Through it's Administrator. 3. The Special Recovery officer, Shri Mahavir Gramin Bigar Sheti Sahakari Path Sanstha Ltd., Sonai, Tq. Newasa, Dist. Ahmednagar. ...RESPONDENTS ... Mr.P.S.Pawar, Adv.,for the petitioner. Mr. T.S.Lodhe, AGP for respondent State/No.1. Mr.A.B.Kale, Adv., for respondent nos. 2 & 3. ... CORAM: R.K.DESHPANDE, J. DATE :28/7/2010 *** 3 ORAL JUDGMENT: 1. This writ petition challenges certificate of recovery dt.2.4.2009, issued by the Assistant Registrar, Cooperative Societies, Newasa, under Section 101 of the Maharashtra Cooperative Societies Act, 1960. The amount covered by the certificate is Rs.2,01,839/-. Notice in this matter was issued on 22nd July, 2009. 2. In response to it, Shri A.B.Kale, learned Counsel, appears for respondent nos. 2 and 3 whereas, learned T.S.Lodhe, learned A.G.P., appears for respondent no.1. Learned Counsel for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule made returnable forthwith. Heard by the consent of the parties finally. 3. The ground of challenge to the certificate issued under Section 101 of the Cooperative Societies Act is that the petitioner had not received the notice and that no reasons are recorded while issuing the certificate. Hence, there is violation of the mandatory provisions of Rule 86 of the Rules framed under the Cooperative Societies Act. 4 4. Shri A.B.Kale, learned Counsel appearing for the respondents, submits that there is alternate and efficacious remedy available under Section 154 of the Cooperative Societies Act, to file revision before the Divisional Joint Registrar and hence, the petition is liable to be dismissed on that short ground. He submits that if revision is to be preferred then the petitioner will have to deposit 50 per cent amount covered by the certificate before the Divisional Joint Registrar in terms of sub- section (2A) of Section 154 of the said Act. 5. In view of the fact that the reasons are not recorded as required by Rule 86F of the Rules, the matter will have to be remanded back to the Assistant Registrar for deciding the proceedings afresh. This factual position not being in dispute, it is not necessary to relegate the petitioner to the remedy of filing revision before the Divisional Joint Registrar. However, the petitioner shall deposit 50 per cent of the amount covered by the certificate i.e. an amount of Rs.1,00,000/- (Rs.one lac) before the Assistant Registrar, Cooperative Societies, Newasa, as a condition precedent for participating in the proceedings under Section 101 of the Maharashtra Cooperative Societies Act, 1960. 5 6. In view of above, following order is passed: (a) This Writ Petition is allowed. (b) The certificate dt.2.4.2009, passed by respondent no.1, Assistant Registrar, Cooperative Societies, Newasa, is hereby quashed and set aside. (c) The matter is remitted back to the said authority for decision afresh in accordance with law. (d) The petitioner shall appear before respondent no.1 on 23rd August, 2010 and shall deposit on that day an amount of Rs.1,00,000/- ( Rs.one lac). (e) The Assistant Registrar shall keep the said amount in a fixed deposit in a Nationalized Bank and the same shall be subject to the outcome of the proceedings under Section 101 of the Maharashtra Cooperative Societies Act. (f) The petitioner shall be permitted by the Assistant Registrar to file its reply and also file all such applications as are permissible in law, including the application for supply of necessary documents and accounts and upon giving opportunity of hearing to the petitioner, 6 respondent no.1 shall pass order in accordance with law. (g) On 23rd of August, 2010, respondent nos. 2 and 3 shall supply copies of relevant accounts and documents to the petitioner and petitioner shall thereafter file his reply within a period of one month. Thereafter, the Assistant Registrar shall conclude the proceedings and pass order within a period of six months from 23rd August, 2010. (h) Rule is made absolute in aforesaid terms. No order as to costs. (R.K.DESHPANDE) JUDGE ... agp/4731-09wp