1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.8175 of 2009 Bhaichand Hirachand Raisoni Sahakari Multi State Cooperative Credit Society Limited Jalgaon having its registered office at 1, Poonam Chambers, Bank Street, Navi Peth, Jalgaon through its Recovery Officer Vijay s/o. Rupala Bari, Age 33 years, Occ. Service R/o. Jalgaon, District Jalgaon. Petitioner Versus 1. The State of Maharashtra through the Secretary, Cooperative Department, Mantralaya, Mumbai. 2. The Commissioner for Cooperation and the Registrar, Cooperative Societies (Urban Bank) Maharashtra State, Central Building, Pune. Respondents Mr. V.D. Hon, Advocate holding for Mr. A.D. Shinde, Advocate for the petitioner' Mr. P.P. More, AGP for the respondents. 2 CORAM : D.B. BHOSALE R.M. BORDE,JJ.. DATE : 3RD MARCH, 2011. ORAL JUDGMENT [ PER D.B. BHOSALE, J.] :- 1] Rule. Rule made returnable forthwith by consent of learned counsel for the parties. Learned AGP waives notice for the respondents. Heard learned counsel for the parties. 2] This writ petition under 226 and 227 of the Constitution of India, impugns the order dated 12.10.2009, passed by the respondent No.2 – Commissioner of Cooperation and the Registrar of cooperative Societies, Maharashtra State ( For short, “the Commissioner”) rejecting the applications made by the petitioner society, dated 16.7.2009 and 1.8.2009, seeking approval/delegation of power to the Recovery Officer appointed by them, to recover the amounts on the basis of Recovery Certificates issued under Section 101 of the Maharashtra Cooperative Societies Act, 1960 ( for short, “the M.C.S. Act”). 3] The petitioner society was initially registered under the M.C.S. Act. It was then registered under the Multi State Cooperative Societies Act, 2002,( for short, “the Multi State Act”) vide certificate of registration dated 31.8.2007, having the States of Maharashtra and Madhya Pradesh as its area of operation. The petitioner society, before its registration under the Multi State Act, had obtained recovery certificates under Section 101 of the M.C.S. Act. In other words, the certificates under section 101 were issued by the Assistant Registrar, Cooperative societies against few borrowers prior 3 to its registration under the Multi State Act. In view thereof, the petitioner society approached the Commissioner, seeking approval/delegation of powers to the Recovery Officer appointed by them, under Section 156 of the M.C.S. Act. Their applications were, however, rejected vide order dated 12.10.2009, passed by the Commissioner on the ground that the petitioner society, being a Multi State society, the office of the Commissioner cannot delegate the powers under Section 156 of the M.C.S. Act. This order is under challenge in the instant writ petition. 4] Mr. Hon, learned counsel for the petitioners at the outset invited our attention to the judgment of this Court in “ Abhyuday Cooperative Bank Vs. State of Maharashtra” reported in 2009(4) M.L.J. 929 and submitted that since the recovery certificates under section 101 were issued prior to the petitioner's registration under the Multi State Act, the Commissioner can exercise his powers under the provisions of the M.C.S. Act and can appoint a delegate and/or grant approval to the appointment of Recovery Officer, as contemplated under Section 156 of the M.C.S. Act. He further submitted that the authorities under the M.C.S. Act, continued to have jurisdiction to decide matters which were validly filed before them prior to the conversion of the societies registered under the Multi State Act. 5] The question that fell for consideration before this court in Abhyuday Cooperative Bank's case was, “ Whether the Revisional authority has no jurisdiction to entertain and decide the application under Section 154 of the M.C.S. Act, 1960 filed by the society 4 registered under that Act, when the applications under Section 101 and 154 of the M.C.S. Act were filed but was converted into a Multi State cooperative Society during the pendency of the revision whereupon the applicant was registered under the Multi State Cooperative Societies Act, 2002 and its registration under the M.C.S. Act, was cancelled”. After considering all the relevant provisions and various judgments including the judgment of the Division Bench in “Adarsha Ginning and Pressing Factory Vs. State of Maharashtra” 2008(1) Mh.L.J. 300, the learned Single Judge answered the question in the affirmative. In paragraph 10 of the said judgment it is observed that there is nothing in either of the Acts, which expressly bars the jurisdiction of the court upon conversion of the society as a Multi State Cooperative Society. Nor is there anything which leads to that conclusion by necessary intendment. After having examined the provisions contained in these Acts, we find ourselves in agreement with the observations made in the judgment. The provisions of the Act, in fact, indicate that the courts and the authorities under the M.C.S. Act, continued to have jurisdiction to decide matters which were validly filed before them prior to the conversion of the societies registered under the Multi State Act. The provision contained in Section 84 of the Multi State Act, would apply to cases which are to be instituted under the said Act. It does not apply to cases which have already been instituted under the provisions of the M.C.S. Act. Thus, as has been held in “Abhyuday Bank's case” the M.C.S. Act. remain unaffected and would not fall within the ambit of Section 126 of the Multi State Act. It is against this backdrop, in Abhyuday Bank's case, the order passed by the Divisional Joint Registrar holding that he had no power to entertain 5 and decide matters pertaining to any Multi State Society was set aside and the Revision Applications filed under Section 154 of the M.C.S. Act were restored to file with direction to decide the Revisions on merit. 6] In our opinion, the judgment of the Division Bench in “Adarsha Ginning and Pressing Factory's case” relied upon by learned AGP, will not have application to the facts of the present case, for the reasons recorded by the learned Single Judge in para.17 of the “Abhyuday Bank's case” , which reads thus :- “The impugned order was based on a judgment of a Division Bench of this court in the case of “Adarsh Ginning and pressing Factory Vs. State of Maharashtra, 2008(1) Mh.L.J. 300 = 2007(5) ALL MOR 364. the judgment is of no relevance in the facts of the present case. Firstly in that case the bank was earlier registered under the MCS Act and on 9/12/1999 it was registered under the Multi-state Cooperative Societies Act, 1984. The bank instituted the recovery proceedings under section 101 on 14/8/2002 ( paragraph 20 of the judgment). The Multi-State Act of 2002 came into force with effect from 19/8/2002. Under Section 126 of the Act of 2002 the 1984 Act was repealed. Section 126(2) provides a saving clause inter alia in respect of any application made under the 1984 Act. The main issue in the Writ Petitions filed before the Division Bench was as to the validity of the circulars issued by the authorities 6 under the MCS Act. It was contended that the State authorities/authorities under the MCS Act had no jurisdiction to issue directions or circulars in respect of proceedings relating to the Multi-State Act. The question presently under consideration neither fell for consideration of the Division Bench nor was dealt with by the Division Bench even obiter. The society before the Division Bench was registered as a multi-State Cooperative society under the 1984 Act on 9/12/1999 i.e. before it instituted the proceedings under Section 101 of the MCS Act on 9/10/2002.” 7] We are satisfied that the question which we are considering in the present writ petition did not fall for consideration of the Division Bench in “Adarsha Ginning and Pressing Factory's” case. In the circumstances, the order impugned in the present writ petition is set aside. The Commissioner is directed to consider the petitioner's application dated 1/8/2009, seeking approval to the appointment of Recovery Officer and/or delegate powers under Section 156 of the MCS Act, to their officer, afresh, as expeditiously as possible and preferably within six weeks from the date of receipt of this judgment. Rule made absolute in above terms with no orders as to costs. [R.M. BORDE,J] [D.B. BHOSALE,J.] GRT/wp