1 WP.3753.97 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3753 OF 1997 Padma Sahakari Dudh Utpadak Sanstha Maryadit and others. ... Petitioners Versus Marshvardhan Patil Sahakari Dudh Utpadak Sanstha Maryadit (proposed) and others. ... Respondents ----- Mr. P.B.Shah for the Petitioners. Mr. S.D.Rayrikar, AGP for Respondent Nos.3 to 6. ----- CORAM : A.S.OKA, J. DATE : 18 th August, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Petitioners and the learned AGP appearing for the Respondent Nos.3 to 6. 2 The Petitioners are Co-operative Societies duly registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”). The case of the Petitioners is that apart from the Petitioners, there were five other registered milk societies in the village Redni, Taluka Indapur, District Pune. According to the case 2 WP.3753.97 of the Petitioners, only six out of nine Societies were collecting milk in the range of 200 to 300 liters per day. 3 A proposal was submitted by the Respondent Nos.1 and 2, which are the proposed milk Societies for registration of their milk societies. It appears that the Respondent Nos.1 and 2 made an application before the State Government for relaxation of the conditions imposed by the Government Resolution dated 2 nd April, 1993. It must be noted here that to the application for registration made by the Respondent Nos.1 and 2, an objection was raised on 27 th March, 1997 before the concerned Hon'ble Minister by pointing out that out of nine milk societies in the village, on account of inadequacy of milk supply, only six societies were collecting milk to the extent of 200 to 300 liters per day and remaining three societies were not collecting milk. It was contended that the financial condition of the Petitioners was precarious and therefore, the registration of new milk societies should not be permitted. On the basis of the application made by the Respondent Nos.1 and 2, an order was passed on 4 th July, 1997 by the 3 WP.3753.97 Hon'ble Minister of the State for Dairy Development by which conditions imposed in clause (5) of the Government Resolution dated 2 nd April, 1993 were relaxed. Thereafter, the Assistant Registrar of the Co-operative Societies considered the application of the Respondent Nos.1 and 2 and by exercising powers under Section 4 of the said Act, he permitted the Respondent No.1 to open bank account and start collection of milk. A statutory appeal was preferred by the Petitioners against the said order before the Divisional Deputy Registrar of the Co-operative Societies (Dairy). The Appellate Authority declined to grant the stay. It is submitted that in view of the earlier order passed by the Hon'ble Minister of State, a statutory remedy of a revision against the order refusing stay will not be efficacious. In this petition, the challenge is to the order of the Hon'ble Minister dated 4 th July, 1997 and the order of the Assistant Registrar dated 17 th July, 1997. 4 The learned counsel appearing for the Petitioners submitted that the Hon'ble Minister of State has no authority to relax the conditions imposed by the Government Resolution dated 2 nd April, 4 WP.3753.97 1993 and therefore, the order passed by him is without jurisdiction. His submission is that the order of the Assistant Registrar dated 17 th July, 1997 shows that the same is based only on the purported exercise of powers of relaxation by the Hon'ble Minister. He pointed that the Assistant Registrar failed to give an opportunity of being heard before passing the impugned orders. He invited attention of the Court to the averments made in paragraph No.4 of the petition. He submitted that the impugned orders are illegal and deserve to be quashed and set aside. The learned AGP appearing for the Respondent Nos.3 to 6 supported the impugned judgments and orders. Though Court service notice is served, none appeared for the Respondent Nos.1 and 2. 5 The first challenge in these petitions is to the order passed by the Hon'ble Minister of State for Dairy Development. By the said order, he has purported to relax two mandatory conditions imposed by the Government Resolution dated 2 nd April, 1993 for registration of the milk societies. Nothing was brought to show that the Hon'ble Minister 5 WP.3753.97 was empowered to relax the said conditions without there being any modification of the Government Resolution dated 2 nd April, 1993. There is no provision in the Government Resolution empowering the Hon'ble Minister to relax the condition imposed by the Government Resolution. Thus, on the face of it, the order dated 4 th July, 1997 granting relaxation is patently illegal as the Hon'ble Minister has purported to exercise non-existing powers. 6 Perusal of the impugned order dated 17 th July, 1997 passed by the Assistant Registrar shows that he was influenced by the order passed by the Hon'ble Minister of State granting relaxation. It will be necessary to make a reference to what is stated in paragraph No.4 of the petition. “4. The petitioners say that in view of the order passed by the Honourable Minister, hearing in respect of the proposals for registration of the respondent Nos.1 and 2 was ultimately fixed on 17/7/1997 at 12.00 noon. The petitioners say that on the said day at 12.00 noon, they sought time of two hours. The petitioners say that when at 2.05 p.m. their Chairmen along with their Advocate appeared before the learned Assistant Registrar, the learned Assistant Registrar informed their Advocate that the file was closed. The Petitioners say that their 6 WP.3753.97 Advocate made two applications. By one application, their learned Advocate sought time for filing their say. By another application, it was pointed out that since the proposals for registration of respondent Nos.1 and 2 was to be considered on the same day i.e. 17/7/1997 and since nobody on behalf of respondent No.2 was present on the said day, their proposal should be rejected and should not be considered independently. The learned Assistant Registrar however refused to grant time and passed the impugned order on 17/7/1997 thereby granting permission to the respondent No.1 society to open bank account and collect milk. Despite nobody being present on behalf of respondent No.2 proposed society, the learned Assistant Registrar observed in his order that their proposal would be considered independently at a subsequent stage. The petitioners may point out that on 14/7/1997, the petitioner No.4 society had given objections to the proposals of registration of respondent Nos.1 and 2 societies. Even that objection had been erroneously rejected.” 7 There is no reply to this petition by any of the Respondents and the factual averments made in paragraph No.4 of this petition have gone unchallenged. Thus, the only conclusion which will have to be recorded is that the impugned order was passed by the Assistant Registrar without giving any opportunity of being heard to the Petitioners. It is true that the statutory remedies are available against the impugned order passed by the Assistant Registrar. However, the 7 WP.3753.97 Hon'ble Minister of State has granted relaxation on the basis of which the impugned order was passed by the Assistant Registrar. Therefore, the remedy available of preferring an appeal before the State Government cannot be said to be an efficacious remedy. The order dated 17 th July, 1997 is virtually based on the order of the State Government dated 4 th July, 1997 granting relaxation. The said order dated 4 th July, 1997 will have to be set aside. 8 By setting aside the impugned orders, the application for registration will have to be directed to be heard afresh after by giving an opportunity to the parties to raise appropriate contentions. 9 Hence, I pass the following order: i. The impugned orders dated 4 th July, 1997 and 17 th July, 1997 are quashed and set aside ; ii. The proposal submitted by the Respondent No.1 and 2 shall be considered afresh by the appropriate authority on its own merits in accordance with law ; and 8 WP.3753.97 iii. Rule is made absolute on above terms with no order as to costs. [ A.S.OKA, J ]