1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 13 OF 2002 Goa Post & Telegraphs Credit Co-operative Society Limited, a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960 as applied to the State of Goa, having its Registered Office at 3rd Floor, Fatima Chambers, Dr. Atmaram Borkar Road, Panaji, Goa, represented through its Secretary Shri Bhikaji B. Naik Gaonkar. ... Petitioner versus 1. The Registrar of Co-operative Societies, State of Goa, having his office at Mala, Panaji, Goa. 2. The Goa Bharat Sanchar Nigam Staff Credit Co-operative Society Ltd., a proposed co-operative Society seeking registration under the Maharashtra Co-operative Societies Act, 1960 as applied to the State of Goa, through its Chief Promoter Shri V. K. Sambary, having office at Telephone Exchange, Altinho, Panaji, Goa. ... Respondents 2 Mr. A. V. Nigalye, Advocate for the Petitioner. Mr. P. A. Kholkar, Advocate for Respondent No.2. CORAM : A. P. DESHPANDE & N. A. BRITTO, JJ. DATE : 14TH NOVEMBER, 2008. ORAL JUDGMENT(Per A. P. DESHPANDE, J.) Heard. 2. By this petition, the Petitioner questions the legality and validity of a Notification dated 4-1-2002 issued by the Respondent No.1 whereby the Respondent No.2-Society has been granted registration in the area of operation of the Petitioner-Society. 3. Few facts that are necessary for adjudicating the issues raised in the petition are narrated herein below:- The Petitioner-Society is a Credit Co-operative Society registered under the Maharashtra Co-operative Societies Act, 1960. It is undisputed that the Petitioner-Society has been operating in BSNL and prior to the establishment of BSNL the same was representing the employees working with the Post & Telegraphs Department at Goa. There are about 1125 employees working with 3 BSNL who are capable of being enrolled as members of the Petitioner-Society. A perusal of the report prepared by the Assistant Registrar, while examining the application moved by the Respondent No.2 under Section 9, shows that the Petitioner had membership of 869 out of 1125 employees. It is not in dispute that the members of the Respondent No.2 as well are employees of BSNL and could be enrolled as members of the Petitioner-Society. It is the case of the Petitioner that some of the members of the Respondent No.2-Society were in the past the members of the Petitioner-Society and having lost in an election to the post of members of the Managing Committee have chosen to form a Society and thus had gone ahead by making an application under Section 9 seeking registration of the said Society. 4. The application moved by the Respondent No.2 was filed in the Office of Deputy Registrar of Co-operative Society at Panaji. On receipt of the application, the record reveals, that the same was entrusted by the Deputy Registrar to the Assistant Registrar for making an inquiry and submission of the report. The Assistant Registrar noticed the fact that the Petitioner-Society was already registered and the Respondent No.2's application for registration was within the same area of operation wherein the petition was registered and was operating. The Assistant Registrar submitted his report to the Deputy Registrar observing that it would not be viable to register the Respondent No.2 as a Co-operative Society as the members of both the Societies are working in the 4 same organization, the nature of activity would be the same and they would be operating in the same area for operation. It will not be out of place to mention that the present Petitioner had objected to the registration of the Respondent No.2- Society on the ground that the Petitioner was registered and already functioning in the area of operation and it would not be in furtherance of the Co-operative movement to grant permission to the Respondent No.2. The Deputy Registrar being of the view that it would not be in the interest of the Co-operative movement to grant permission to register the Respondent No.2-Society vide communication dated 9-11-2001 informed the Respondent No.2-Society that the application of the Respondent No.2 dated 22-8-2001 cannot be entertained as there already exists a registered Society in the same area of operation carrying on the same activity. 5. An order refusing registration under Section 9 is appealable under Section 152 of the Act. Strangely enough instead of filing an appeal and questioning the legality and validity of the Order dated 9-11-2001 passed by the Deputy Registrar of Co-operative Societies, the Registrar was moved by a letter received on 19-11-2001 in the Office of the Registrar of Co-operative Societies making a grievance that the refusal to grant registration was on account of a negative report prepared by the Assistant Registrar(Head Quarters) and the same was one sided and biased. Accompanying the application, a statement in the form of a reply to the note prepared by the Assistant Registrar was also submitted. The 5 concluding part of the letter curiously states that the said letter has been sent confidentially. Be that as it may, the Registrar acting on the said representation/letter permitted opening of the Bank account vide communication dated 27-12-2001 and issued a Notification granting registration to the Respondent No.2 which Notification is the subject matter of challenge in this Writ Petition. 6. The learned Counsel appearing for the Petitioner has made twofold submissions:- 1. That an Order passed by the Deputy Registrar under Section 9 can be questioned only by filing an appeal under Section 152 of the Act and no other course is permitted to be adopted in the scheme of the Act to circumvent the order. It is then contended that until and unless the order passed by the Deputy Registrar refusing the registration is set aside, the Registrar has no power to grant registration even though appeal lies to the Registrar. It is also pointed out that neither any appeal was filed as envisaged by the Act nor the order passed by the Deputy Registrar was challenged. True, it is that without setting aside the order passed by the Deputy Registrar, the Registrar has registered the Society. 2. The next submission is that as the Petitioner-Society was already registered and operating in the area of operation which is the same wherein the 6 Respondent No.2 proposes to operate coupled with the fact that the activity of both Societies is the same and as the members of both the Societies are working in the same organization, the Registrar was obliged to grant hearing to the Petitioner. It is contended that the Deputy Registrar had afforded an opportunity of hearing to the Petitioner and had considered its objections hence it was incumbent on the Registrar, assuming that it acted as an appellate authority, to have heard the Petitioner in the matter. 7. The learned Counsel for the Respondent No.2 in the first place tried to contend that the Order dated 9-11-2001 does not amount to refusal of the registration of the Respondent No.2-Society. In his submission, papers were returned back and hence the same does not constitute rejection. On perusal of the communication dated 9-11-2001, we have no iota of the doubt that the application moved by the Respondent No.2 for registration came to be rejected. The communication records that “it is difficult to entertain your proposal for registration of the proposed Goa Bharat Sanchar Nigam Staff Credit Co-operative Society Ltd., Panaji”. Before coming to the said conclusion, reasons are recorded as to why the application for registration made by the Respondent No.2 cannot be entertained. Thus, in substance refusal to entertain the proposal for registration tantamount to rejection of the application moved by the Respondent No.2 under Section 9. The learned Counsel for the Respondent No.2 then submitted that it is not uncommon that in the same area of operation more than one Societies are 7 granted registration. True, it is that more than one Societies could be granted registration, however, the authority is under a statutory obligation, by virtue of the mandate of Section 4, to examine the economic viability of the Society proposed to be registered so also its likely impact on the existing registered Society. Obviously if on scrutiny it is found that there would not be an unhealthy competition, affecting an earlier Society, a second Society could be granted registration. We do not propose to examine as to whether permitting registration of the Respondent No.2 would be in furtherance to the Co-operative movement in the area of operation or otherwise. It is for the authority under the Act to assess the factual situation and record a finding in that regard. The Deputy Registrar has already found that it would not be viable to grant registration to the Respondent No.2. The said finding recorded by an authority under Section 9 can only be set aside in a properly filed appeal questioning the correctness of the finding. No proper appeal has been filed before the Registrar by the Respondent No.2 seeking quashing of the order passed by the Deputy Registrar. However, a representation was made and received in the Office of the Registrar on 19-11-2001, pursuant to which the registration has been granted. What is material to note is that the present Petitioner had raised objections to the registration of the Respondent No.2 and the said objections were considered by the first authority viz. the Deputy Registrar. The objections raised by the Petitioner also find place in the report submitted by the Assistant Registrar. Thus, it is clear that the present Petitioner was afforded an opportunity of hearing when a decision was reached by the Deputy Registrar and as such the Petitioner would very much be entitled to be 8 heard in an appeal filed by the Respondent No.2. It is undisputed that at no point of time the Registrar afforded an opportunity of hearing to the Petitioner. The decision impugned in this petition has been reached in violation of the principles of natural justice. As the rule of Audi alterem Partem has been breached and the civil rights of the Petitioner are adversely affected, the impugned Order cannot be sustained and it deserves to be quashed and set aside. 8. However, having regard to the fact that the Respondent No.2 did approach the Registrar, who happens to be the appellate authority under Section 152, by a letter received in the Office of the Registrar on 19-11-2001 it would be in furtherance of cause of justice to let the said letter be treated as an appeal so that the Respondent No.2 would not face the problem of limitation. 9. In our view, ends of justice would be met by permitting the letter/representation received in the Office of the Registrar on 19-11-2001 to be treated as an appeal under Section 152 of the Act and by further permitting the second Respondent to furnish the grounds in the form of a regular appeal with a prayer to quash the order passed by the Deputy Registrar refusing registration. While doing so, the Respondent No.2 shall implead the present Petitioner as party Respondent in the appeal so that the Petitioner gets an opportunity of hearing. As the order passed by the Registrar granting registration to the Respondent No.2 is 9 contrary to law and in breach of the principles of natural justice. We proceed to quash and set aside the same. 10. In the result, we pass the following order:- The Notification dated 4-1-2002 issued by the Respondent No.1 purportedly under Section 9(1) of the Maharashtra Co-operative Societies Act, 1960 granting registration to the Respondent No.2 is quashed and set aside. The letter/communication from the Chief Promoter of Respondent No.2 addressed to the Registrar of Co-operative Societies, Government of Goa, received in the Office of the Registrar on 19-11-2001 placed in the petition at page 77 shall be treated as an appeal filed by Respondent No.2 under Section 152 of the Co-operative Societies Act. Respondent No.2 is permitted to file a proper memo of appeal against the order passed by the Deputy Registrar contained in the communication dated 9-11-2001 after impleading the present Petitioner as party Respondent. Respondent No.2 shall file the memo of appeal in support of the letter/representation received in the Office of the Registrar on 19-11-2001 within a period of four weeks from today. The Registrar is directed to decide the appeal within a period of two months from the date of receipt of the memo of appeal from Respondent No.2. 10 Till the decision of the appeal the status quo as on today shall continue. Rule made absolute in the above terms with no order as to costs. A. P. DESHPANDE, J. N. A. BRITTO, J. RD