WP 2883 of 09 1 SSK/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2883 OF 2009 Abhyudaya Co-operative Bank Ltd. ....Petitioner Versus Vilas Vishnupant Khandave & Ors. ...Respondents Mr. P. S. Dani, Advocate for the Petitioner. Mr. S. M. Sabrad, Advocate for Respondent No.1. Mr. S. M. Bhosale, AGP for Respondent Nos.2 & 3. CORAM : R. V. MORE, J. DATED : 12th AUGUST, 2010. P.C.: Heard Mr.Dani and Mr.Sabrad, learned Counsel for the Petitioner and Respondent No.1, and Mr. Bhosale, learned AGP for Respondent Nos.2 & 3. 2. Rule. By consent of the parties, Rule is made returnable forthwith and since dispute is in narrow compass, the petition is taken up for hearing. 3. The Respondent No.1 was the office bearer of erstwhile-Citizens Co-operative Bank Limited. Admittedly, the said Bank is merged in the Petitioner-Bank. The Petitioner has taken up rights and liabilities of the WP 2883 of 09 2 SSK/6 said Bank. The Registrar initiated enquiry under section 83 of the Maharashtra Co-operative Societies Act, 1960 against office bearers of the erstwhile-Citizens Co-operative Bank Limited. In pursuance of the finding in this enquiry, a proceeding under section 88 of the Maharashtra Co- operative Societies Act, 1960 was taken out. In this proceeding, liability of some of the office bearers of the erstwhile-Citizens Co-operative Bank Limited including that of Respondent No.1 was fixed. Some of the office bearers are exonerated. The Petitioner has filed an appeal under section 152 of the M.C.S.Act against the office bearers of the erstwhile-Citizens Co-operative Bank Limited who have been exonerated in proceedings under section 88 of the M.C.S.Act. The office bearers including the Respondent No.1 whose liabilities were fixed have also filed an appeal challenging the proceedings under section 88 of the M.C.S.Act. 4. In pursuance of the fixation of liability under section 88 of the M.C.S.Act, a certificate was issued by the Registrar under section 98 of the said Act against Respondent No.1 to enable the Petitioner to execute the order under section 88 of the said Act on 19th May, 2006. This certificate was challenged by the Respondent No.1 by filing an appeal before the Hon’b’e Minister for Co-operation and Textile. By the order impugned, the Hon’ble Minister set-aside the certificate in favour of the Petitioner and therefore, the present petition. WP 2883 of 09 3 SSK/6 5. Having heard the learned Counsel for the respective parties and having gone through the impugned order, in my opinion, the impugned order cannot be sustained on two grounds. Firstly, the appeal itself is not maintainable and secondly, the reasons on which the said certificate is set- aside , does not stand scrutiny of law. Section 152 of the M.C.S.Act deals with appeals. Perusal of the same, reveals that order granting a certificate under section 98 is not appealable. This position is not disputed even by Mr.Sabrad, learned Counsel for Respondent No.1. The impugned order, therefore, deserves to be quashed and set-aside on this ground alone. The Hon’ble Minister has set-aside the certificate under section 98 of the M.C.S. Act, on the ground that the Petitioner’s appeal challenging the order under section 88 of the M.C.S. Act, is pending before the Appellate Authority. The Petitioner, by way of an appeal, is not challenging the fixation of liability as against Respondent No.1 and the appeal is filed against the office bearers, who are exonerated under section 88 of the M.C.S. Act. Mr. Sabrad, learned Counsel for the Respondent No.1 makes a statement that even Respondent No.1 has filed an appeal. If Respondent No.1 has already filed an appeal, then, it is for him to obtain appropriate order in that appeal. However, he could not have approached the Hon’ble Minister challenging the certificate under section 98 of the M.C.S. Act. The act of issuance of certificate is ministerial act based on liability fixed under section 88 of the M.C.S. Act. Therefore, same cannot be independently challenged WP 2883 of 09 4 SSK/6 by way of appeal. In the facts and circumstances mentioned above, the impugned order cannot be sustained and the same is accordingly quashed and set-aside. Rule is made absolute accordingly. 6. In the interest of justice, the Divisional Joint Registrar, Co- operative Societies , Pune Division, Pune, is directed to hear and dispose of the Appeal No.1 of 2007, filed by Respondent No.1 challenging the order under section 88 of the M.C.S.Act, if pending, as expeditiously as possible and preferably within a period of three months from the date of receipt of this order. (R. V. MORE, J.)