IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO.4579 OF 2008 WRIT PETITION NO.4579 OF 2008 WRIT PETITION NO.4579 OF 2008. Shri Rajesh Arondekar & Ors ..Petitioners. V/s. The Divisional Joint Registrar Co-operative Societies & Ors. ..Respondents. Mr V. V. Pai, Advocate for the Petitioners. Mr V. A. Zonal, A.G.P. for Respondent Nos. 1 and 2. Mr S.V. Phadke, Advocate for Respondent No.8. Respondent No.5 appears in person. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 9th September,2008. DATED: 9th September,2008. DATED: 9th September,2008. P.C.: P.C.: P.C.: ---- ---- ---- 1. Heard the learned counsel for the parties. Perused the Petition. 2. This petition is directed against the judgment and order dated 5.5.2008 in Appeal No. 229 of 2005 confirming the order dated 30.11.2005 passed by Respondent No.1 under Section 73-1A of the Maharashtra Co-operative Societies Act,1960 to supersede the managing committee of Respondent No.8-Society. SUBMISSIONS: SUBMISSIONS: SUBMISSIONS: ----------- ----------- ----------- 3. Having heard Mr V.V. Pai, learned counsel for the Petitioner, who, in his forceful submission urged that there is no effective consultation with the Federal Society. Such impugned orders and the action taken thereunder are bad and illegal. He placed reliance on the judgment of learned Single Judge of this Court in the case of Shriram Sahakari Shriram Sahakari Shriram Sahakari Sakhar Karkhana Ltd and Anr vs. Director of Sugar Sakhar Karkhana Ltd and Anr vs. Director of Sugar Sakhar Karkhana Ltd and Anr vs. Director of Sugar and Additional Registrar, Co-operative Societies, and Additional Registrar, Co-operative Societies, and Additional Registrar, Co-operative Societies, Maharashtra State, Nagpur & Ors. 1997 (3) ALL MR Maharashtra State, Nagpur & Ors. 1997 (3) ALL MR Maharashtra State, Nagpur & Ors. 1997 (3) ALL MR 106, 106, 106, wherein the learned Single Judge of this Court has discussed the meaning of effective consultation and went on to observe that in the absence of effective consultation the order superseding the managing committee of the society cannot be held to be legal and valid. 4. The above submissions were effectively countered by Mr Sonpal, learned A.G.P. appearing for the State, who urged that the action of superseding managing committee is sustainable on the admitted facts. He does not dispute that consultation is mandatory. He also does not dispute that consultation has to be meaningful and not a formality. He, thus, submits that as a matter of fact there was a effective consultation with the Federal Society. The reply submitted by the petitioners to show cause notice along with show cause notice were forwarded to the Federal Society and for getting their reaction or opinion in the matter. 5. The respondents proceeded to take action since no reply or opinion was received from the Federal Society within a reasonable time. Mr Sonpal, thus, submits that as there is obligation on the person taking action under Section 78 of the Act to have consultation and by remitting necessary papers to the Federal Society. The Federal Society also owes a similar obligation to come forward with their opinion. If they chose to remain silent or decide not to send any opinion that by itself cannot be a ground to hold that there was no effective consultation and the action is bad. 6. Mr Sonpal placed reliance on the judgment of the learned Single Judge of this Court in the case of Arjun Panditrao Khotkar Vs State of Arjun Panditrao Khotkar Vs State of Arjun Panditrao Khotkar Vs State of Maharashtra & Ors 2002 (2) ALL MR 303 Maharashtra & Ors 2002 (2) ALL MR 303 Maharashtra & Ors 2002 (2) ALL MR 303. He also placed reliance on the judgment of Shalikram Shalikram Shalikram Shivram Khobragade and others vs. Divisional Joint Shivram Khobragade and others vs. Divisional Joint Shivram Khobragade and others vs. Divisional Joint Registrar, Co-operative Societies, Nagpur and Ors Registrar, Co-operative Societies, Nagpur and Ors Registrar, Co-operative Societies, Nagpur and Ors 1998 (1) Mh.L.J. 206. 1998 (1) Mh.L.J. 206. 1998 (1) Mh.L.J. 206. 7. Mr Sonpal also urged that the admitted facts which are admitted by the Advocate appearing for the petitioner, during the course of hearing, relating to non-furnishing a bond under Section 73 (1A) of the Act, the petition must fail and that the submission made by the petitioners cannot be accepted. He further submits that if the petition is allowed, then, it will result in restoring illegality. As such, this is not a fit case, wherein Writ Court should exercise its jurisdiction under Article 227 of the Constitution of India. CONSIDERATION: CONSIDERATION: CONSIDERATION: ------------- ------------- ------------- 8. Having heard both parties, one of the admitted facts admitted by Mr Pai, learned counsel appearing for the petitioners, relates to non-furnishing bond under Section 73 (1A) of the Act. Admittedly, no bonds were furnished by the Members of the Managing Committee within 15 days from the date of resuming office. There is no provision for condonation of delay in furnishing bond under Section 73 (1A) of the Act. The execution of a bond is a mandatory requirement as held by this Court in number of cases. One of the readily available judgment is the Division Bench Judgment of this Court in the case of Assisi Assisi Assisi Co-operative Housing Society Limited & Ors v Co-operative Housing Society Limited & Ors v Co-operative Housing Society Limited & Ors v. State of Maharashtra & Ors State of Maharashtra & Ors State of Maharashtra & Ors The learned Division Bench of this Court was pleased to hold that provision is a mandatory since it provides for consequence for non-compliance. 9. The another Division Bench of this Court, in the case of Gulab Vs. State of Maharashtra Gulab Vs. State of Maharashtra Gulab Vs. State of Maharashtra 2008 (1) Mh.L.J. 323 was pleased to hold that there is no question of holding enquiry under Section of 78 of the Act to find out as to whether or not bond has been executed by the Petitioners and whether or not the bond has been forwarded to the concerned authority by the Secretary in time when the Petitioners themselves clearly admit they have not executed the subject bond within 15 days but they executed the same after lapse of about one year. 10. It is, thus, clear that once there is breach of Section 73 (1-AB) deeming provision operates being self-operative provision. 11. If the fact of non furnishing bond is admitted, then in that event, it is not necessary even to issue show cause notice to the defaulter. It becomes a futile formality. Though, in the case in hand, the show cause notice was issued and the principles of natural justice were followed, on admitted facts, the office of the Managing Committee has fallen vacant. 12. The requirement of consultation as expressed by this Court in the case of Shalikram Shalikram Shalikram (supra) has been complied with. Mr Pai went on to urge that the view taken by the learned Single Judge in the case of Shalikram (supra) Shalikram (supra) Shalikram (supra) runs counter to the view taken by the Single Judge in the case of Shriram Sakhar Karkhana Ltd. Shriram Sakhar Karkhana Ltd. Shriram Sakhar Karkhana Ltd. The submission made is misplaced. Whether the consultation is effective or not will depend upon the facts of each case. In the case in hand the Federation, inspite of receipt of the show cause notice and the reply given by the petitioner, did not send their opinion-finding that the office of the Managing Committee has already fallen vacant. 13. Assuming for the sake of argument that had the Federal Society expressed their views not to supersede the Managing Committee, still that view could not have been accepted in view of the fact that once the breach of Section 73-1A is admitted then it results in automatic vacation of the Managing Committee and then the authorities have no choice but to appoint an Administrator. In the instant case, the submission advanced by Mr Pai is without any substance. Even, otherwise irregularity, if any, in consultation proceeds cannot result in installing the managing committee which has already gone out of office in view of breach of mandatory provision of section 73 (1A). 14. Mr Sonpal is right in contending that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is discretionary. It can be exercised to meet the ends of justice. It is equitable in nature. While exercising jurisdiction, the High Court not only acts as Court of Law but also acts as Court of Equity. It is, therefore, power and also the duty of the Court to ensure that the power of prevalence must advance the ends of justice and uproot injustice. 15. In Roshan Deen vs. Preeti Lal, (2002) 1 Roshan Deen vs. Preeti Lal, (2002) 1 Roshan Deen vs. Preeti Lal, (2002) 1 SCC 100, SCC 100, SCC 100, dealing with an order passed by the High Court setting aside an order of Commissioner for Workmen’s Compensation, this Court stated: "Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law. The High Court is not expected to erase such justice in the name of correcting the error of law". 16. In Gadde Venkateswara Rao v. Government of Gadde Venkateswara Rao v. Government of Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors (1966) 2 SCR 172, Andhra Pradesh & Ors (1966) 2 SCR 172, Andhra Pradesh & Ors (1966) 2 SCR 172, a Primary Health Centre was formerly inaugurated at village "A" subject to certain conditions. Since those conditions were not satisfied, it was resolved by Panchayat Samithi to shift it to village "B". The Government set aside the said resolution without giving notice to the Samithi. Subsequently, however, the Government reviewed the said order without giving opportunity of being heard to the affected persons. The action was challenged in the High Court. The High Court held that the order passed by the Government on review was bad. It, however, did not interfere with the order on merits. In Apex Court it was contended that an order passed on review by the Government was illegal since no opportunity of hearing was afforded and the High Court was wrong in not setting aside the said order. The Apex Court, however, did not interfere with the order passed by the High Court observing that"if the High Court had quashed the order passed by the Government, it would have restored an illegal order and would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi". In the opinion of the Apex Court, therefore, the High Court was right in refusing to exercise discretionary power in the circumstances of the case. 17. It is, thus, clear that grant of writ will result in restoring managing committee which is admittedly, guilty of committing breach of the provisions of the Act which has resulted in rendering the office of the Managing committee vacant. It will result in restoring illegal state of affairs. As such, no writ as sought can be issued. In the result, the writ petition is dismissed in limini with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)