1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1614 OF 2009 1. Ramchandra s/o. Gaynoba Sonkamble, Age 75 yrs., Occu. Nil, R/o. Siddharth Housing Society, Somnathpur Road, Udgir, Dist. Latur. 2. Baburao s/o. Pandaji Gaikwad, Age 52 yrs., Occu. Service, R/o. As above. 3. Harinatha s/o. Kishan Sutar, Age 58 yrs., Occu. Retired, R/o. As above. 4. Ramrao s/o. Kishan Jadhav, Age 65 yrs., Occu. Nil, R/o. As above. 5. Tukaram s/o. Sangram Kamble, Age 60 yrs., Occu. Retired, R/o. As above. 6. Ragunath s/o. Kishan Sutar, Age 80 yrs., Occu. Nil, R/o. As above. 7. Gundu s/o. Jalba Bansode, Age 65 yrs., Occu. Nil, R/o. As above. 8. Mrs. Kamala Bhagwan Kamble, Age 60 yrs., Occu. Household, R/o. As above. ....Petitioners. Versus 1. The State of Maharashtra, Through Co-operative Department, Mantralaya, Mumbai. 2. Assistant Registrar, Co-operative Societies, 2 (On deputation), The Maharashtra State Housing Finance Corporation Ltd., Aurangabad. 3. Special Recovery Officer, The Maharashtra State Co. Housing Finance Corporation Ltd., Mumbai, District Office, Tapadia Market, Tq. & Dist. Latur. 4. Siddharth Co-operative Housing Society, Somnathpur Road, Udgir, Dist. Latur. ....Respondents. Smt. M.R. Jamdade, Advocate for petitioners. Shri. D.R. Kale, A.G.P. for respondent Nos. 1 and 2. Shri. D.G. Chewale h/f. Shri. K.A. Kadam, Advocate for respondent No. 3. Smt. Pratibha Bharad, Advocate for respondent No. 4. WITH WRIT PETITION NO. 1222 OF 2009 Sau. Rajni w/o. Vijay Sali, Age 50 yrs., Occu. Household, R/o. Pratapnagar, Jalgaon, Dist. Jalgaon. .....Petitioner. Versus 1. The Assistant Registrar, Co-operative Societies, Jalgaon, Tq. & Dist. Jalgaon. 2. Shri. Agresen Urban Co-operative Credit Society Ltd., Jalgaon, Through its Manager, E- 26, 27, 30, 32 Golani Market, IInd Floor, Jalgaon, Dist. Jalgaon. 3. Taramati w/o. Sanjay Pardeshi, Age 50 yrs., Occu. Household, R/o. 11, Subhashwadi, Ring Road, Jalgaon, Dist. Jalgaon. ......Respondents. 3 Shri. V.P. Patil, Advocate for petitioner. Shri. D.R. Kale, A.G.P. for respondent No. 1. Shri. A.I. Deshmukh, Advocate for respondent No. 2. WITH WRIT PETITION NO. 2379 OF 2009 1. Firoj Khan s/o. Jahangir Khan, Age 38 yrs., Occu. Business, R/o. Kingaon, Tq. Yawal, Dist. Jalgaon. 2. Ayub Khan s/o. Jahangir Khan, Age 32 yrs., Occu. Business, R/o. Yawal, Tq. Yawal, Dist. Jalgaon. ....Petitioners. Versus 1. The State of Maharashtra, through it's Assistant Registrar, Co-operative Societies, Yawal, Tq. Yawal, Dist. Jalgaon. 2. Shri. Venkatesh Nagari Sahakari Patsanstha Maryadit, Yawla, Tq. Yalwa, Dist. Jalgaon Through its Manager and Recovery officer. ......Respondents. Shri. V. P. Patil, Advocate for petitioners. Shri. D.R. Kale, A.G.P. for respondent No. 1. Shri. G.D. Jain h/f. Shri. A.B. Girase, Advocate for respondent No. 2. WITH WRIT PETITION NO. 4539 OF 2009 Dattatraya s/o. Shankar Mule, Age 63 yrs., Occu. Business, R/o. "Umakunj" Opp. Rameshwar Nagar, Professor Colony Road, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. ....Petitioner. 4 Versus. 1. The State of Maharashtra, Through the Secretary, Co-operation Department, Mantralaya, Mumbai. 2. The Assistant Registrar, Co-operative Societies, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 3. Santoshi Mata Merchants Co-operative Credit Society Ltd., Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 4. The Special Recovery Officer, Santoshi Mata Merchants Co-operative Credit Society Ltd., Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 5. Rajendra s/o. Shankar Mule, Age 51 yrs., Occu. Business, R/o. Athwade Bazar, Tq. Bhusawal, Dist. Jalgaon. ......Respondents. Shri. N.D. Sonawane h/f. Shri. A.D. Shinde, Advocate for petitioners. Shri. D.R. Kale, A.G.P. for respondent Nos. 1 and 2. Shri. P.R. Katneshwarkar, Advocate for respondent Nos. 3 and 4. WITH WRIT PETITION NO. 4546 OF 2009 Rajendra s/o. Shankar Mule, Age 46 yrs., Occu. Business, R/o. Yashodhan Park, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. ......Petitioners. Versus 5 1. The State of Maharashtra, Through the Secretary, Co-operation Department, Mantralaya, Mumbai. 2. The Assistant Registrar, Co-operative Societies, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 3. Santoshi Mata Merchants Co-operative Credit Society Ltd., Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 4. The Special Recovery Officer, Santoshi Mata Merchants Co-operative Credit Society Ltd., Bhusawal, Tq. Bhusawal, Dist. Jalgaon. 5. Rajendra s/o. Shankar Mule, Age 51 yrs., Occu. Business, R/o. Athwade Bazar, Tq. Bhusawal, Dist. Jalgaon. ......Respondents. Shri. N.D. Sonawane h/f. Shri. A.D. Shinde, Advocate for petitioners. Shri. D.R. Kale, A.G.P. for respondent Nos. 1 and 2. Shri. P.R. Katneshwarkar, Advocate for respondent Nos. 3 and 4. CORAM : R.K. DESHPANDE, J. DATE : 20th July, 2010. ORAL JUDGMENT : 1. All these writ petitions are challenging the certificate issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as 'the said Act') by the Assistant Registrar, 6 Co-operative Societies. 2. In some cases, auction notices are issued and interim orders are also passed by this Court, not to take any coercive action or directing maintenance of statusquo. In some cases, this Court has directed the petitioners to deposit some amount in this Court and accordingly compliance has been made in some cases, whereas in other matters the compliance has not been made. 3. In all these writ petitions, the Co-operative Society, which is a banking company, is made party respondent along with the State and the Assistant Registrar, Co-operative Societies and the Recovery Officer. The learned A.G.P. has filed an affidavit for and on behalf of the Assistant Registrar, Co-operative Societies in all the matters. The learned counsel for the parties submit that all these matters can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. The learned counsel appearing for the respondents in all these writ petitions waive service of notice. 4. All these petitions raise common grievance that the procedure as contemplated by Rule 86-A to F of the said Act has not been followed, while issuing the certificate under Section 101. In some of the cases, this position is disputed by the Assistant Registrar by filing an affidavit. However, undisputed position is that there is no judgment or order 7 passed in support of these certificates. The reasons are not recorded. The complaint is also that there is no enquiry made as contemplated. In response to these contentions, the learned A.G.P. states that the requirement of recording reasons was introduced by Rule 86-F on 18.5.2007 and prior to that, many certificates are issued and hence, the said provision was not applicable. 5. The learned counsel for the petitioners rely upon the judgments of this Court in 2005 (2) Bom.C.R. 925 in the case of Ganeshkumar Makhanlal Chandak and another vs. Nagpur Urban Co-operative Bank Ltd. and another and 2007 (4) Mh.L.J. 333 in the case of Khushal s/o. Narayanrao Mundhe vs. State of Maharashtra and others. In both these judgments, this Court has set aside the certificates under section 101 issued by the Assistant Registrar, on the grounds that certificates are issued without holding any proper inquiry and without giving any opportunity of hearing to the petitioners. 6. In view of the undisputed factual position, neither any judgment is delivered, nor any reasons are recorded, while issuing the certificate under Section 101 of the said Act, the certificates are vitiated on that count only and they are liable to be set aside. Such requirement was implicit even before such amendment introducing Rule 86-F. The contention that prior to amendment no such requirement was there, cannot be accepted. So far as other aspects are concerned, regarding 8 giving of notices to the petitioners by the Assistant Registrar before issuance of certificate is concerned, it may be disputed question of fact, depending upon the facts and circumstances of each case. However, the common ground being available regarding non recording of reasons, I do not want to go in to the other issues, as to whether the notices are issued and the parties were infact heard or not. Similarly, in view of this undisputed factual position, it is not necessary to direct the parties to avail an alternate remedy by filing revision under Section 154 of the said Act. However, the petitioners will have to put be on some terms. Hence, in all these petitions, the following order is passed. ORDER (1) All these writ petitions are allowed. The certificates issued under Section 101 of the said Act by the Assistant Registrar in all these writ petitions are hereby quashed and set aside. (2) Petitioners, in all these petitions, are directed to deposit 50% amount of the certificate before the Assistant Registrar, Co-operative Societies, before whom the proceedings under section 101 shall be taken up. Such deposit shall be made on the first date of hearing which is fixed as 23rd August 2010. (3) If any of the petitioners in these petitions have deposited some amount in this Court, the same shall be transmitted to the concerned Assistant Registrar, Co-operative Societies, which shall be treated as a 9 deposit ordered by this Court. However, the Assistant Registrar shall verify whether the amount deposited is to the extent of 50% of the amount of certificate. If he is satisfied that the amount is short of 50%, then he shall pass an order, directing the concerned petitioners to deposit the balance amount, within a period of 15 days thereafter, and upon such deposit of deficit amount, the Assistant Registrar shall treat it as compliance of this order. (4) If any of these petitioners fail to deposit 50% of amount as per the order passed by this Court, then in that event, the Assistant Registrar shall treat the said Writ Petition as dismissed to the extent of the concerned petitioners and shall proceed accordingly with execution proceedings. (5) The amount, deposited by the petitioners in all the petitions shall be kept in the fixed deposit in the Nationalized Bank, till the decision of the proceedings under Section 101 of the said Act and it shall be subject to decision of concerned proceedings under Section 101 of the said Act. (6) It is made clear that no fresh notices shall be required to be issued by the Assistant Registrar and petitioners in these writ petitions shall appear before the Assistant Registrar on 23rd of August 2010 as fixed by this Court. If at all the petitioners wanted to file their reply or response to the proceedings under section 101, they shall be granted 15 days time to 10 file the same. The Assistant Registrar shall, thereafter, conclude the proceedings in accordance with law, after giving petitioners an opportunity of being heard in the matter. The Assistant Registrar shall also ensure that all the petitioners are supplied with relevant statements of accounts by the concerned Co-operative Society, before filing of reply by the petitioners. (7) The Assistant Registrar shall decide all these cases within a period of six months from the date of receipt of writ from this Court and shall communicate the judgment and order passed alongwith the certificate issued, to the concerned petitioner/borrower/guarantor, either personally or through registered post acknowledgment due. The deposit of the amount by the concerned petitioners shall either be adjusted towards dues or shall be refunded, depending upon outcome of proceedings. (8) Rule is made absolute in the aforesaid terms. No orders as to costs. [ R.K. DESHPANDE, J. ] ssc/wp1614.09