1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4966 OF 2009 Abhiman s/o Pandurang Adsul, Age : 48 years, Occ.Agriculture And Chairman Vividh Karyakari Seva Sahakari Society Ltd., Itkur, Tq. Kallam, Dist. Osmanabad ..PETITIONER VERSUS 1. The State of Maharashtra Through Secretary Co-operation Department, Mantralaya, Mumbai-32 2. The District Deputy Registrar Co-operative Societies, Osmanabad, Tq. & Dist. Osmanabad 3. The Assistant Registrar Co-operative Societies, Kallamb, Dist. Osmanabad 4. Balaji s/o Arunrao Bavale Age : 27 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad Proposed Chairman of the Administrative Committee to be Appointed as per the directions of State Government dated 18.07.2009 5. Vividh Karyekari Seva Sahakari Society Ltd., Itkur, Tq. Kallamb Dist. Osmanabad 2 6. Balaji s/o Arun Bawale, Age : 29 years, occ.Agriculture r/o Itkur, Tq. Kallamb, Dist. Osmanabad 7. Satish s/o Sahebrao Gaikwad, Age : 35 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 8. Arjun s/o Mahadeo Jadhav, Age : 40 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 9. Vishwambar s/o Narayan Gade, Age : 48 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 10. Gundurao s/o Pandurang Gambir, Age : 35 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 11. Sadashiv s/o Manohar Fartade, Age : 40 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 12. Ramesh s/o Kisan Gambhire, Age : 38 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 13. Bhagwat s/o Gangadhar Gambhire, Age : 49 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad 14. Shridhar s/o Uttam Adsul, Age : 40 years, occ.Agriculture, r/o Itkur, Tq. Kallamb, Dist. Osmanabad ..RESPONDENTS Mr V.D. Salunke, Advocate for the petitioner; Mr V.H. Dighe, A.G.P. for respondents no.1 to 3; 3 Mr S.S. Thombre, Advocate for Mr S.S. Bhise for respondent no.4; Mr V.P. Kadam, Advocate for respondents no.7, 8, 9, 10, 12, 13 and 14. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ (Date of reserving the judgment : 12.10.2009 Date of pronouncing the judgment : 16.10.2009) JUDGMENT [ PER P.V.HARDAS , J ] 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. This petition initially came to be filed on 27.7.2009 praying for issuance of a writ of certiorari for quashing the impugned order dated 18.7.2009 issued by the Secretary, Co-operation, Marketing & Textile Department, Mantralaya, Mumbai. The petitioner also prayed for issuance of writ of mandamus directing respondents no.2 & 3 to hold elections of respondent no.5 Vividh Karyakari Seva Sahakari Society Ltd., Itkur, Taluka Kallamb, Dist. Osmanabad immediately and till then continue Administrator and 4 not to appoint administrative committee of the members. When the petition was listed before the Court on 30.7.2009, the petitioner sought oral leave to amend the petition for incorporating challenge to the subsequent order dated 29.7.2009 and also for joining the Committee members excepting the Chairman who was already joined as party to the petition, as respondents to the petition. This Court accordingly by its order dated 30.7.2009 granted leave to the petitioner to amend the petition for incorporating a challenge to the order dated 29.7.2009 and for joining the other members of the Committee. The amendment accordingly came to be allowed. Thereafter when the petition was listed before the Court on 13.8.2009 this Court issued notice to the respondents. All the respondents have been duly served and are accordingly represented by the respective Counsel. 3. Such of the facts as are necessary for the decision of this petition may briefly be stated thus :- The petitioner claims to be a member of the respondent no. 5 Vividh Karyakari Seva Sahakari Society Ltd., Itkur, Tq. Kallamb, Dist. Osmanabad, which is a society registered under section 9 of the Maharashtra Co-operative Societies Act, 1960. The petitioiner claims to have been elected as Chairman of the society in the 5 elections which were held on 18.1.2002. As term of the Committee expired, the society passed a resolution on 16.11.2006 and requested respondent no.6 Assistant Registrar, Co-operative Societies, Kallamb to hold the elections of the society. However, the Assistant Registrar, Co-operative Societies, Kallamb passed an order under section 78 on 14.5.2008 and appointed an Administrator of the society on the ground that no steps had been taken by the society for holding elections. The petitioner accordingly filed an appeal to the Divisional Joint Registrar, Co-operative Societies, challenging the order passed by the Assistant Registrar, Co-operative Societies, dated 14.5.2008. The Divisional Joint Registrar, Co-operative Societies refused to grant stay to the impugned order and accordingly passed an order dated 29.5.2008. The petitioner being aggrieved by the order of the Divisional Joint Registrar dated 29.5.2008 filed revision before the Minister against the order of the Divisional Joint Registrar, Co-operative Societies. According to the petitioner a stay came to be granted on 4.6.2008. The present respondents being aggrieved by the grant of stay filed Writ Petition No.3737 of 2008 against the order of the Minister. The aforesaid writ petition filed by the respondents came to be dismissed by this Court and this Court directed the respondents to hold elections though the substantive appeal was pending before the Divisional Joint Registrar, Co-operative Societies. In 6 the meanwhile the appeal which was pending before the Divisional Joint Registrar, Co-operative Societies came to be decided by judgment and order dated 24.2.2009 and the Divisional Joint Registrar dismissed the appeal and directed the Assistant Registrar, Co-operative Societies, Kallamb to hold the elections of the society within a period of three weeks. The Assistant Registrar, Co-operative societies appointed P.T. Todkar, Inspector, District Central Co-operative Bank, Osmanabad, Branch-Osmanabad as Administrator in the respondent no.5 society. According to the petitioner he took charge of the society immediately and since then was working as the Administrator. According to the petitioner the fourth respondent using his political clout approached the Department of Co- operation and at his behest an order dated 18.7.2009 came to be passed by the Secretary of the Co-operation Department directing the Deputy Registrar, Co-operative Societies, Osmanabad to appoint a Committee of 10 persons under the Chairmanship of respondent no.4. The aforesaid order is the impugned order. As pointed out by us above, before the petition could be listed before the Court, the subsequent order dated 29.7.2009 came to be passed by the Assistant Registrar, Co-operative Societies, Kallamb, Dist. Osmanabad appointing the aforesaid committee of 10 persons, who came to be joined as respondents to the petition by virtue of the leave granted by this Court on 30.7.2009. 7 4. On notice of this petition being issued to the respondents, the respondents have filed their affidavit in reply. In the affidavit in reply on behalf of respondents no.2 & 3 it is stated that pursuant to the order passed by the Assistant Registrar, Co- operative Societies appointing the administrative committee on the respondent no.5 society, the committee has taken charge on 29.7.2009. It is also stated that the Government has issued notification under section 73 (1) (B) of the act and has postponed the election of the co-operative societies until the process of election of the Legislative Assembly is over. It is also stated that the order impugned in the present petition has been passed under section 78 of the Act and the petitioner, therefore, has alternate efficacious remedy under section 152 of the act. Affidavit in reply has also been filed on behalf of respondent no.4 and respondents no.8, 9 and 14. The respondents in their affidavits in reply have also raised similar challenges to the maintainability of the writ petition on the ground of existence of an alternate remedy. 5. Shri Thombre, learned Counsel for respondent no.4 has relied upon the decision of the learned Single Judge of this Court in Swarnarekha Shrikant Patil & ors. vs. State of Maharashtra & ors., 2006 (3) Bom.C.R. 693, to urge before 8 us that an alternate remedy was available and in the event the petitioner does not avail the alternate remedy, the petitioner be directed to avail the alternate remedy. The learned Single Judge of this Court has held that the petition could be entertained in spite of not availing the alternate remedy if the matter relates to the enforcement of fundamental rights or there is violation of principles of natural justice or the orders were passed without jurisdiction or where the vires of an enactment was challenged. In the said case the learned Single Judge found that the notice which was issued by the Registrar under section 78 (1) was not without jurisdiction and the matter also did not pertain to the fundamental rights and, therefore, the learned Single Judge directed the petitioner therein to avail the alternate remedy available to the petitioner in law. Similar argument was advanced by the learned A.G.P. on behalf of respondents no.1, 2 and 3. Shri V.D. Salunke, learned Counsel for the petitioner has urged before us that the alternate remedy available to the petitioner, as is contended by the respondents under section 152 of the Maharashtra Co-operative societies Act, would be an illusory remedy as the impugned order has been passed pursuant to the directions issued by the Secretary, Co-operation, Marketing and Textile Department, Mantralaya, Mumbai. The remedy of appeal would be before the Registrar and the Registrar, in no case was likely to grant any interim relief to the petitioner particularly since 9 the order had been issued by the Government. It is also stated before us that in the light of the provisions of section 78 of the Maharashtra Co-operative Societies Act, the impugned order is an order which is ex facie illegal being without jurisdiction and contrary to section 78 of the Maharashtra Co-operative Societies Act. 6. The impugned order which is dated 29.7.2009 in the preface states that the aforesaid order is being issued on the basis of the directives issued by the Secretary, Government of Maharashtra, Department of Co-operation, Marketing and Textiles, Mantralaya, Mumbai. The aforesaid order is an order passed under section 78 (1) (a) of the Maharashtra Co-operative Societies Act. In that light of the matter, therefore, we find considerable merit in the submissions of Shri V.D. Salunke, learned Counsel for the petitioner that the remedy of appeal for challenging the aforesaid order would be an illusory remedy. We, therefore, cannot non-suit the petitioner and relegate him to avail the alternate remedy in law. In that light of the matter, therefore, we have entertained the petition and proceed to decide the petition on merits. 7. In order to appreciate the rival contentions advanced before us by the learned Counsel for the parties, it would be useful to 10 refer to the provisions of section 78 (1) (a) :- "78. Power of removal of committee or member, thereof (1) If, in the opinion of the Registrar, the committee of any society or any member of such committee makes default, or is negligent in the performance of the duties imposed on it or him by this Act or the rules or the bye-laws, or commits any act which is prejudicial to the interests of the society or its members, or wilfully disobeys directions issued by the State Government, or by the Registrar for the purposes of securing proper implementation of co- operative policy and development programme approved or undertaken by the State Government or is otherwise not discharging its or his functions properly and diligently or where a situation has arisen in which the committee or any member of such committee refused or has ceased to discharge its or his functions and the business of the society has or is likely to come to a stand-still or where any member of such committee stands disqualified by or under this Act for being a member, the Registrar may, after giving the committee or the member, as the case may be, an opportunity of stating its or his objections, if any, within 15 days from the date of receipt of notice and after 11 consultation with the federal society to which the society is affiliated, by order - (a) (i) remove the committee, and (ii) appoint a committee consisting of three or more members (who shall not be the members of the committees so removed) of the society in its place, or appoint one or more Administrators who need not be the members of the society, but who shall not be the members of the committee so removed, to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, be extended by a further period not exceeding three months so, however, that the total period does not exceed nine months in the aggregate. : Provided that, the Registrar shall have the power to change the committee or any member thereof or the Administrator or Administrators appointed under paragraph (ii) at his discretion even before the expiry of the period specified in the order made under this sub-section." Presently we are concerned with section 78 (1) (a) (ii). The aforesaid provision deals with the exercise of power of appointing a committee consisting of three or more members or to appoint 12 one or more Administrators to manage the affairs of the society for a period not exceeding six months, which period may be extended at the discretion of the Registrar by a further period not exceeding three months. Thus, the committee or the Administrator or Administrators could be appointed maximum for a period of nine months and not beyond that. The proviso to the aforesaid provision confers power on the Registrar to change the constitution of the committee or any member or the administrator or the administrators appointed under section 78 (1) (a) (ii) at his discretion even before the expiry of the period specified in the said provision. Thus, the proviso at best confers the power on the Registrar to be exercised at his discretion of changing the constitution of the Committee or some members or the Administrator or the Administrators even before the expiry of the said term. However, the mandate of section 78 (1) (a) is that the committee or the administrator/administrators can only function for a period of nine months and not beyond the aforesaid period. 8. In the present case, the administrator on the society came to be appointed on 14.5.2008 and the present committee came to be appointed by the impugned order dated 29.7.2009. Thus, the committee has been appointed after the expiry of the period of nine months from the date of the order by which the Administrator had been appointed. Shri Thombre, learned 13 Counsel for respondent no.4 has urged before us that the period of nine months would be counted from the date on which the administrator has taken charge. Without entering into the controversy as to whether the period of nine months which is contemplated under section 78 (1) (a) is to commence from the date the Administrator takes charge or whether the period of nine months would commence from the date of appointment of the Administrator, we find that the period of more than nine months had elapsed since the date of appointment of Administrator/taking charge by the Administrator and consequently an order appointing the committee by the impugned order dated 29.7.2009 is wholly unsustainable in law. The respondents do not possess the power of appointing an administrative committee under section 78 (1) (a) after period of nine months of the appointment of the administrator. In that light of the matter, the orders impugned in the present petition are ex facie beyond the jurisdiction and powers of the respondent authorities to appoint the administrative committee. 9. Shri Thombre, learned Counsel for respondent no.4 next submitted that though the petitioner had amended the petition, there is no amendment to the prayer clause for striking down the impugned order dated 29.7.2009. Shri V.D. Salunke, learned Counsel for the petitioner has submitted before us that pursuant 14 to the leave granted by this Court on 30.7.2009, the petitioner amended the petition raising challenge to the legality of the impugned order dated 29.7.2009 and has also joined the remaining members of the administrative committee appointed under the impugned order. However, inadvertently the prayer clause of the petition remained to be amended for striking down the impugned order dated 29.7.2009. It is also urged before us by the learned Counsel for the petitioner that the impugned order dated 29.7.2009 is a consequential order pursuant to the impugned order dated 18.7.2009 issued by the Secretary, Government of Maharashtra, Department of Co-operation, Marketing and Textiles. 10. As pointed out by us in the earlier part of the judgment, this petition was filed on 27.7.2009 impugning the order dated 18.7.2009 issued by the Secretary, Government of Maharashtra, Department of Co-operation, Marketing & Textiles. When this petition came up for admission on 30.7.2009, the learned Counsel, the learned Counsel for the petitioner pointed out to us that pursuant to the said order, the order dated 29.7.2009 had been passed by the Assistant Registrar, Co-operative Societies, Kallamb, District Osmanabad appointing the Committee. Accordingly we had granted leave to the petitioner by our order dated 30.7.2009 to amend the petition for incorporating 15 challenge to the order dated 29.7.2009 and for joining the members of the committee excepting the Chairman who was already a respondent to the petition. As pointed out by us above, the petitioner carried out the amendment raising challenge to the impugned order dated 29.7.2009 and also joined the members of the committee. However, it appears that inadvertently the prayer clause remained to be amended incorporating a prayer for striking down the order dated 29.7.2009. In any event, the order dated 29.7.2009 is an order which has been issued by the Assistant Registrar, Co-operative Societies, Kallamb, Dist. Osmanabad on the basis of the impugned order dated 18.7.2009. If the impugned order dated 18.7.2009 is struck down by the Court, the consequent order dated 29.7.2009 would have no force of law. However, it is true that a technical deficiency does exist in the petition as there is no challenge for striking down the order dated 29.7.2009. However, as pointed out by us above, the petition incorporates the challenge to the order dated 29.7.2009 on merits and all the members of the committee who have been appointed by the order dated 29.7.2009 have been made respondents to the petition and have been duly served with the notice of the Court. According to us, in order to ensure that no technical flaw remains in the petition, we permit the petitioner to amend the petition by incorporating a prayer for striking down the order dated 29.7.2009. 16 11. Shri Thombre, learned Counsel for respondent no.4 has placed reliance on the Division bench judgment of this Court in Chandralok Sahari Gruha Nirman Sanstha Ltd. vs. Assistant Registrar, Co-operative Societies, 1992 (2) Mh.L.J. 1118. The aforesaid judgment has been rendered considering the provisions of section 77A (1) relating to the appointment of the administrator. The ratio laid down therein has no bearing on the decision of the present petition. Therefore, according to us, the ratio laid down in the said judgment is inapplicable to the facts of the present case. 12. As pointed out by us above, the impugned orders by which the present committee has been constituted is in direct conflict with the provisions of section 78 (1) (a) of the Maharashtra Co- operative Societies Act. The aforesaid provision of law empowers the respondent authorities to appoint either an administrative committee or an administrator/administrators who shall function only for a period of nine months and does not empower the respondent authorities either to make fresh appointment or toi continue the term of the administrative committee or administrator/administrators beyond the period of nine months. In that light of the matter, therefore, the petition deserves to succeed and accordingly we allow the petition. 17 13. We accordingly allow this petition and strike down the impugned orders dated 18.7.2009 and 29.7.2009. We direct the respondent authorities to take such steps as are available in law for the administration of the respondent no.5 society. We further direct that since the authorities have already directed the respondents to hold the elections, the elections be held as expeditiously as possible and in tune with the orders passed earlier in respect of holding of the elections. Rule is thus made absolute on the above terms. In the circumstances of the case, there will be no order as to costs. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE amj/wp4966.09 18