(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2165 OF 2011 Swargiya Rajiv Gandhi Mastyavyavsay Society, Bamani, through its Chairman, Sayyad Mabud s/o. Sayyad Maheboob, Age : 39 years, Occupation : Fishery, R/o. Yeldari Camp, Taluka : Jintur, District : Parbhani. .. Petitioner. versus 1. The State of Maharashtra, Through its State Minister for Agriculture, Animal Husbandry, Dairy Development and Fisheries, Mantralaya, Mumbai. 2. The Deputy Registrar, Mastyalaya, Charni Road, Mumbai. 3. The Assistant Registrar, Cooperative Societies (Milk), Parbhani. 4. The Deputy Director Fisheries, Aurangabad Division, Aurangabad. 5. Purna Mastya Vyavasay Society, Savali, Taluka : Jintur, Dist. Parbhani, Through its Chairman. .. Respondents. (2) ....................... Mr. E.P. Sawant, Advocate, with Mr. M.P. Kale, Advocate, for the petitioner. Mr. S.K. Tambe, Assistant Government Pleader, for respondent nos.1 to 4. Mr. R.T. Nagargoje, Advocate, for respondent no.5. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 2ND MAY 2011 ORAL JUDGMENT : 1. This court has already issued notice for final disposal. Accordingly, I have Heard Adv. Mr. E.P. Sawant, with Adv. Mr. M.P. Kale, for the petitioner; learned AGP Mr. S.K. Tambe, for respondent nos.1 to 4, and Adv. Mr. R.T. Nagargoje, for respondent no.5. 2. Rule. Rule made returnable forthwith. Heard finally with consent. (3) 3. By the impugned order dated 9th March 2011, respondent no.1 has allowed revision filed by respondent no.5 and quashed and set aside the registration granted to petitioner / Society by respondent no.3 vide orders dated 12-5-2010. 4. Adv. Mr. E.P. Sawant, for the petitioner, contends that findings contrary to the facts and conclusions reached by appellate authority, namely, respondent no.4 are drawn by respondent no.1 ignoring the records. According to him, this is nothing but failure to exercise jurisdiction. 5. Learned AGP Mr. S.K. Tambe, for respondent nos.1 to 4, is supporting the impugned order. In the alternative and without prejudice, he has also urged that in case, this court notices any defect in consideration by respondent no.1, matter can be sent back. 6. Adv. Mr. R.T. Nagargoje, for respondent no.5, has pointed out that as per policy decision of State Government, unless and until water tank with particular storage capacity is available, the proposal for registration cannot be considered. He argues that the present petitioner is seeking registration on water tank of Yeldari Dam and that water tank is already allotted on (4) 4-10-2005 to present respondent no.5 for a period of 5 years i.e. from 2005 onwards till 2010 and thereafter, for a period of one more year i.e. up to June 2011. His contention is, till June 2011, water tank is not available and hence the proposal for registration cannot be considered. 7. Perusal of the policy decision dated 1st September 1989, to which Adv. Nagargoje has invited attention, reveals availability of a water tank with 30 Hectares area with proposed Society as one of the norms. This is also reiterated in modified norms and the norm no.5 in communication dated 27-9-1989 shows that while granting registration to a new Society, the authorities have to see that pecuniary interest of the Society already existing is not prejudiced. 8. At this stage, Adv. Mr. Nagargoje contends that as per provisions of Sections 4 and 9 of the Maharashtra Cooperative Societies Act, 1960, a party likely to be adversely affected must be heard before hand and in this matter, respondent no.5 / Society was never heard. However, it is not in dispute that it was heard by respondent no.1 before passing impugned order. 9. Perusal of the order passed by the appellate authority on 12-5-2010 shows a finding that respondent no.5 / Society was (5) registered initially on river bed and thereafter its bye-laws were amended and the villages in benefit zone of dam have also been added to its area. The appellate authority has looked into all this and found that allotment to respondent no.5 was not permanent. On Yeldari tank, initially one Sawangi (Mh.) Fisheries Cooperative Society was registered. But then, after its failure, the tank was allotted to present respondent no.5. The appellate authority has also noted a certificate given by District Fisheries Development Officer, Parbhani, to all members of the petitioner / Society, that they are residents of concerned village and have got necessary experience in fishing. The area of Yeldari tank was found to be 6212 Hectares and it is noted that more than one Fisheries Cooperative Society can operate it, thereby providing livelihood to more members. 10. While considering revision against this order, the respondent no.1 through its Hon. Minister has recorded a conclusion that the present petitioner / Society did not furnish any proof that its members were fishermen. It has also found that while registering petitioner / Society, the requisite area / water tank was not available. 11. The facts above clearly show perversity in these findings. The authorities below have reported and found that (6) Yeldari tank having area of 6212 Hectares was given temporarily to respondent no.5 and more than one Society can be registered on it. This aspect is lost sight of by respondent no.1, though respondent no.1 has noted that minimum tank area required for registration is only 30 Hectares. Thus, 200 times of the required area was available and this aspect has not been looked into by the revisional authority. Similarly, the experience certificate issued by the District Fisheries Development Officer noted by the appellate authority finds no mention. 12. It is, therefore, obvious that even if respondent no.5 is permitted to operate on the said tank, looking to its area, petitioner / Society can be registered and can be permitted to operate it accordance with policy decision of respondent no.1. Adv. Mr. E.P. Sawant, for the petitioner, has contended that respondent no.5 / Society has amended its bye-laws after registration granted to the petitioner / Society. However, I do not find it necessary to record any finding in this respect. 13. In the result, the petition is allowed. The impugned order dated 9th March 2011, passed by respondent no.1 / Hon. Minister, in Revision No. 16/2010, is quashed and set aside. The order dated 12-5-2010 passed by the (7) appellate authority is restored. 14. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/2165wp