1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1992 OF 2009 1) Parag Vasant Rane, Age-34 years, Occu:Business, R/o-Vivare (Bk), Tq-Raver, Dist-Jalgaon. 2) Santosh s/o Namdeo Partane, Age-36 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The State of Maharashtra, (Through its Secretary, Co-operative Department, Mantralaya, Mumbai-32), 2) The Assistant Registrar, Co-operative Societies, Bhusawal, Dist-Jalgaon, 3) Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon, Through its Manager. 4) The Divisional Joint Registrar, Co-operative Societies, Nashik Division, Nashik, 5) Special Recovery Officer, Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon. ...RESPONDENTS. 2 WITH WRIT PETITION NO.1993 OF 2009 1) Namdeo s/o Ramchandra Partane, Age-62 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon. 2) Santosh s/o Namdeo Partane, Age-36 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The State of Maharashtra, (Through its Secretary, Co-operative Department, Mantralaya, Mumbai-32), 2) The Assistant Registrar, Co-operative Societies, Bhusawal, Dist-Jalgaon, 3) Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon, Through its Manager. 4) The Divisional Joint Registrar, Co-operative Societies, Nashik Division, Nashik, 5) Special Recovery Officer, Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon. ...RESPONDENTS. 3 WITH WRIT PETITION NO.1994 OF 2009 1) Sau. Shashikala Vijay Zope, Age-52 years, Occu:Business, R/o-59-B, Type-3, Ordinance Factory, Varangaon, Tq-Bhusawal, Dist-Jalgaon, 2) Namdeo s/o Ramchandra Partane, Age-62 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The State of Maharashtra, (Through its Secretary, Co-operative Department, Mantralaya, Mumbai-32), 2) The Assistant Registrar, Co-operative Societies, Bhusawal, Dist-Jalgaon, 3) Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon, Through its Manager. 4) The Divisional Joint Registrar, Co-operative Societies, Nashik Division, Nashik, 5) Special Recovery Officer, Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon. ...RESPONDENTS. 4 WITH WRIT PETITION NO.1995 OF 2009 1) Chetan s/o Namdeo Partane Age-32 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon, 2) Sau. Shobha Namdeo Partane, Age-58 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The State of Maharashtra, (Through its Secretary, Co-operative Department, Mantralaya, Mumbai-32), 2) The Assistant Registrar, Co-operative Societies, Bhusawal, Dist-Jalgaon, 3) Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon, Through its Manager. 4) The Divisional Joint Registrar, Co-operative Societies, Nashik Division, Nashik, 5) Special Recovery Officer, Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon. ...RESPONDENTS. 5 WITH WRIT PETITION NO.1996 OF 2009 1) Sau. Sapna Santosh Partane, Age-28 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon. 2) Chetan s/o Namdeo Partane Age-32 years, Occu:Business, R/o-Vidya Nagar, Bhusawal Road, Faizpur, Dist-Jalgaon, ...PETITIONERS. VERSUS 1) The State of Maharashtra, (Through its Secretary, Co-operative Department, Mantralaya, Mumbai-32), 2) The Assistant Registrar, Co-operative Societies, Bhusawal, Dist-Jalgaon, 3) Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon, Through its Manager. 4) The Divisional Joint Registrar, Co-operative Societies, Nashik Division, Nashik, 5) Special Recovery Officer, Sahakar Mitra Shri Chandrakant Hari Badhe Sir Urban Co-operative Credit Society Ltd., Varangaon, Dist-Jalgaon. ...RESPONDENTS. 6 ... Mr. A.G. Talhar Advocate for Petitioners in all the Writ Petitions . Mr. N.H. Boarade, Mr. V.G. Shelke and Mr. D.R. Kale, A.G.P. for Respondent Nos. 1, 2 and 4 in all the Writ Petitions. Mr. V.B. Patil Advocate for Respondent Nos. 3 and 5 in all the Writ Petitions. ... CORAM: K.K. TATED, J. DATE : 25TH AUGUST, 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matters are taken up for final hearing at the stage of admission. 2. Heard Mr. Talhar, learned counsel for the Petitioners, learned A.G.P. for Respondent Nos. 1, 2 and 4 and Mr. Patil, learned counsel for Respondent Nos. 3 and 5. 3. All these Petitions can be disposed of by common Order because the issue involved is of similar nature. 7 4. By these Petitions under Article 227 of the Constitution of India, the Petitioners are challenging the recovery certificate dated 31st March, 2009 issued by Respondent No.2 directing the Petitioner to pay the amount involved in that certificates. In all these matters, an amount of near about Rs. 7 Crores is involved. 5. Learned counsel for Respondent Nos. 3 and 5 raised preliminary objection about the maintainability of the Petition under Article 226 and 227 of the Constitution of India on the ground that alternate remedy is available to the Petitioner under Section 154 of the Maharashtra Co-operative Societies Act, 1960. Learned counsel for Petitioner submits that present Petitions are maintainable against the impugned order because the impugned order is passed contrary to the natural justice and the same is unreasoned order. Learned counsel for the Petitioner submits that they filed their reply dated 19th March, 2008 in application filed by Respondent No.3 for Certificate under Section 101 of the said Act and specifically requested to the concerned authority to fix the date for final hearing. Instead of fixing the date 8 for final hearing, the impugned certificates under Section 101 of the said Act came to be issued by order dated 31st March, 2008. Therefore, it is the contention of the leaned counsel for the Petitioner that without hearing to them the concerned authority i.e. Respondent No.2 issued certificates dated 31st March, 2009. 6. On the other hand, learned A.G.P. appearing on behalf of Respondent Nos. 1, 3 and 5 pointed out that full-fledged hearing was given by Respondent No.2 to the Petitioner. He pointed out from the affidavit in reply filed by Respondent No.2 in which it is specifically stated that on 19th March, 2009 Advocate for the Petitioner was present as well as Advocate for the society was also present and Respondent No.2 heard at length the arguments of Advocates and after hearing the parties, matter was reserved for Judgment. Para 3 and 6 of the said affidavit in reply of Respondent No.2 dated 30th April, 2009, is as under: "3. I respectfully say and submit that, the Petitioner has filed present Writ Petition before this Hon'ble High Court praying to quash and set aside 9 the order dated 31.3.2008 issued by the Respondent No.2 thereby issuing recovery certificate under Section 101 of Maharashtra Co-operative Societies Act, 1960 in favour of Respondent No.3 Co-operative Credit Society. The Respondent No.3 had submitted proposal before Respondent No.2 for issuance of recovery certificate alleging that the loan amount disbursed to the borrower is not paid regularly and his become due. The loan installment are not repaid regularly and therefore the account has become as non performance assets. The Respondent No.2 after considering the proposal submitted by the credit society, the Respondent No.2 initiated proceedings and accordingly, issued notices to the borrower and guarantor and the Respondent No.2 has given detailed hearing to the borrower and guarantors and after hearing all the parties certificate under Section 101 of Maharashtra Co-operative Societies Act, 1960 is issued on 31.3.2008 in favour of the credit society." "6. I respectfully say and submit that, on 19.3.2008 the Advocate of the Petitioner was present as well as the 10 Advocate of the society was also present and the Respondent No.2 has heard at length the arguments of the advocates and after hearing all the parties, matter was reserved for giving judgment. On 31.3.2008 the Respondent No.2 has delivered the judgment and accordingly issued certificate under Section 101 of Maharashtra Co-operative Societies Act, 1960. The Respondent No. 2 on the Roznama dated 19.3.2008 has obtained the signature of advocate appearing on behalf of the parties. Therefore, the contentions of the Petitioner that, the Petitioners were not heard is not correct and denied." 7. Learned A.G.P. further submitted that it is crystal clear from above mentioned Para 3 and 6 that Respondent No.2 heard both the sides and after hearing, he passed the order dated 31st March, 2008, therefore, there is no violation of natural justice. 8. Learned counsel for the Petitioner submitted that the impugned order/ certificate dated 31st March, 2008 issued by Respondent No.2 is unreasoned order. I have gone through the impugned order dated 31st March, 2008 11 which is at Exhibit I. It is crystal clear from the order dated 31st March, 2008 that Respondent No.2 has considered the submissions made by the Petitioner as well as Respondent Nos. 3 and 5 and after considering all the submissions and documents, he passed the impugned order. Therefore, there is no substance in the submissions of the Petitioners that impugned order dated 31st March, 2009 is unreasoned order. 9. Learned counsel for Respondent Nos. 3 and 5 submitted that alternate remedy is available to the Petitioner to challenge the impugned order dated 31st March, 2008 under Section 154 of the Maharashtra Co- operative Societies Act, 1960. Section 154 of the Maharashtra Co-operative Societies Act, 1960 reads thus: " 154. Revisionary powers of State Government and Registrar (1) The State Government or the Registrar, suo motu or on an application, may call for and examine the record of any inquiry or proceedings of any matter, other than those referred to in sub-section (9) of section 149, where any decision or 12 order has been passed by any subordinate officer, and no appeal lies against such decision or order for the purpose of satisfying themselves as to the legality or propriety of any such decision or order, and as to the regularity of such proceedings. If in any case, it appears to the State Government, or the Registrar, that any decision or order so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may, after giving the person affected thereby an opportunity of being heard, pass such orders thereon as to it or him may seem just. (2) Under this section, the revision shall lie to the State Government if the decision or order is passed by the Registrar, the Additional Registrar or a Joint Registrar, and to the Registrar if passed by any other officer. (2A) No application for revision shall be entertained against the recovery certificate issued by the Registrar under section 101 unless the applicant deposits with the concerned society, fifty per cent, amount of the total amount of recoverable dues. 13 (3) No application for revision shall be entertained, if made after two months of the date of communication of the decision or order. The revisional authority may entertain any such application made after such period, if the applicant satisfies if that he had sufficient cause for not making the application within such period. (4) The State Government may, by order, direct that the powers conferred on it by this section shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised also by an officer of the rank of Secretary to Government." 10. It is clear from bare reading of Section 154 of the Maharashtra Co-operative Societies Act, 1960 that alternate remedy is available to the Petitioner. 11. Learned counsel for the Petitioner submits that if the impugned order is contrary to law, then Writ Petition under Article 226 and 227 of the Constitution of India is maintainable. In support of his contention, 14 learned counsel for the Petitioner relied on the Judgment in the matter of Rajkumar s/o Sudarshan Agarwal vs. The Debts Recovery Appellate Tribunal and others, reported in 2004 (1) ALL M.R. Page 525. In that Case the Bombay High Court held that there is no presumption in law that the bank documents and bank officers are always truthful. Head Note (B) of the Judgment reads as under: " (B) Recovery of Debts Due to Banks and Financial Institutions Act (1993), S.22 - Proceedings before Tribunal - Presumption as to Bank documents- There is no presumption in law that the Bank documents and Bank Officers are always truthful. There is no presumption in law that the Bank documents and the Bank Officers are always truthful and the citizens or the borrowers are always false or liers. The Tribunals must change such presumptive approach in favour of the Banks and the Financial Institutions which are also manned by the frail human beings. There is nothing sacrosanct about them and their documents which are subject to the Law 15 of Evidence." 12. Learned counsel for the Petitioner also relied on the Judgment in the matter of S.N. Mukherjee vs. Union of India reported in (1990) 4 Supreme Court Cases Page 594. He mainly relied on following observations in the Apex Court Judgment: "In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial disposal." 16 "... If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuses of power. But, if reasons for an order are given, it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard." "30. In Mahabir Prasad Santosh Kumar v. State of U.P. the District Magistrate had cancelled the licence granted under the U.P. Sugar Dealers' Licensing Order, 1962 without giving any reason and the State Government had dismissed the appeal against the said order of the District Magistrate without recording the reasons. This Court has held: (SCR pp.204-05: SCC p.768, paras 6 and 7) "The practice of the executive authority dismissing statutory appeals against orders which prima facie 17 seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law. "Recording of reasons in support of a decision on a dispute claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just." 13. The Apex Court in the matter of S.N. Mukherjee (Supra) held that the disclosure of reasons in support of the order is necessary. If reasons are not disclosed, the order is liable to be set aside. In the present case, I have gone through the impugned order dated 31st 18 March, 2008 passed by Respondent No.2. Respondent No.2 considered all the documents and arguments advanced by the Petitioner and passed reasoned order. Therefore, there is no question of setting aside the order on the ground that the impugned order is unreasoned order. In any case, the Apex Court in the matter of Arun B. Khanjire vs. The Ichalkaranji Urban Co-op. Bank Ltd. and others, reported in JT 2009 (1) S.C. Page 41 in Para 16, held as under: "16. Having carefully considered the submissions made on behalf of the respective parties and having car3efully considered the provisions of Section 154 of the Maharashtra Co- operative Societies Act, 1960, and in particular sub-section 2(A) of section 154, we are convinced that no interference is called for with the order of the High Court impugned in these proceedings. Admittedly, Section 154 (1) of the above Act confers revisionary powers on the State Government and also the Registrar of Co-operative Societies under the Act. It also empowers the State Government or the Registrar to satisfy themselves as to the legality or the proprietary 19 of any such decision or order and to modify, annul or reverse the same after giving the person affected thereby an opportunity of being heard either suo motu or on an application. In the instant case, although learned counsel Mr. Jaydeep Gupta tried to impress upon us that the proceedings had been commenced suo motu, we are unable to accept such submission since an application had been made by the Petitioner to the officer concerned in which all the facts relating to the appeal had been set out. Although, the same was not in the form of a formal memorandum of appeal it served the purpose of the appeal without compliance with the provisions of sub- section (2A) which required deposit of 50% of the recoverable dues. In fact, the petitioner resorted to an innovative procedure in order to avoid the precondition of payment of 505 of recoverable dues as stipulated under sub-section (2A) of Section 154 of the above Act." 14. Therefore, during the course of hearing I called upon the Petitioner to deposit 50% of amount of recovery 20 certificate in this Court so that matter can be considered on merits. But learned counsel for Petitioners shown their inability to do so. 15. It is clear from the Apex Court Judgment in the matter of Arun B. Khanjire (supra) that if alternate remedy is available, that has to be availed first and then only Writ Petition under Article 226 and 227 of the Constitution of India can be considered. In view of the facts and circumstances of the present case, as alternate remedy is available to the Petitioner under Section 154 of the Maharashtra Co-operative Societies Act, 1960, Writ Petitions are dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/AUG09/wp1992.09