1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD UNREPORTED WRIT PETITION NO.8168 OF 2009 Date of decision:11/8/2010 For approval and signature HON'BLE MR. JUSTICE R.K.DESHPANDE 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/8168-09wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8168 of 2009 1. Rajendra s/o Dnyaneshwar Patil, Aged 45 years, Occ: Service, r/o 155/3, Swapnapurti apartment, Vishwabharti Colony, Aurangabad. 2. Kanhailal s/o Ranchoddas Zariwala, Aged 66 years, Occ. Ret. r/o.5, 'Sandesh", Shrinagar, Garkheda Parisar, Aurangabad. 3. Ramrao s/o Jagannath Badakh, Aged 50 years, Occ: Service, r/o 3, Vidyaniketan Colony, Aurangabad. ...PETITIONERS VERSUS 1. The Deputy Registrar, Co-operative Societies, Aurangabad, Tq. & Dist. Aurangabad. 2. Deogiri Nagari Sahakari Bank Ltd., Aurangabad, Arth Complex, Kesarsinghpura, Aurangabad, Through its Manager. 3. Shivaji Walmik Kale, Aged 48 years, Occ: Agril. & Contractor, r/o Kumbhar Galli, Kannad, Tq. Kannad, Dist. Aurangabad. 3 4. The Special Recovery Officer, Deogiri Nagari Sahakari Bank Ltd., Aurangabad, Arth Complex, Kesarsinghpura, Aurangabad. 5. The Divisional Joint Registrar, Cooperative Societies, Aurangabad Division, Aurangabad. ...RESPONDENTS ... Mr. R.L.Kute, Adv., for the petitioners Mr. V.G.Shelke, AGP for respondent Nos.1 & 5. Mr. A.R.Kale, Adv., h/f Mr. A.R.Joshi, Adv., for respondent nos. 2 and 4. Respondent no.3 served. ... CORAM:R.K.DESHPANDE, J. DATE : 11/8/2010 *** ORAL JUDGMENT: 1. This writ petition claims reliefs as under: "A) Call for record and proceedings. B) Quash and set aside the order/letter dated 29.4.2009, passed by the respondent No.5 - Divisional Joint Registrar, Cooperative Societies, Aurangabad in Revision Petition, which is at Exh.N and remand the matter back to the respondent no. for fresh hearing and for that purpose issue necessary orders. 4 C) Pending hearing and final disposal of this writ petition, grant stay to the order/letter dated 29.4.2009 passed by the respondent no.5 in Revision Petition, which is at Exh.N and for that purpose issue necessary orders. D) Pending hearing and final disposal of this Writ Petition, grant stay to the further recovery proceedings initiated by the respondent nos. 2 and 4 against the petitioners in pursuance of Recovery Certificate dated 08.05.2002 issued by the respondent no.1 U/Sec.101 of the Maharashtra Cooperative Societies Act, 1960 and for that purpose issue necessary orders. E) Grant ad interim relief in terms of prayer clauses (C) (D). F) Any other suitable and equitable relief may kindly be granted in favour of petitioners. " 2. The order dt.29.4.2009 has been passed by the Divisional Joint Registrar, Cooperative Societies, Aurangabad, on 29.4.2009. By this order, the revision petition filed by the petitioner under Section 154 of the Maharashtra Cooperative Societies Act, 1960 ( for short, "the said Act") has been dismissed for non compliance of Sub-Section (2A) of Section 154 of the said Act. 3. Notice in this matter was issued on 4.12.2009 for final disposal. In response to the same, Shri A.R.Kale, learned Counsel, holding 5 for Shri A.R.Joshi, learned Counsel appearing for respondent nos. 2 and 4, waives service of notice. Learned Assistant Government Pleader waives service of notice for respondent nos. 1 and 5. Respondent no.3 is the borrower - none appears for him. Learned Counsel for the parties submit that the matter can be disposed of at the stage of admission. Hence, Rule, made returnable forthwith. Heard finally by consent of learned Counsels for parties. 4. Shri Kale, learned Counsel for respondent no.2, has placed on record decision of the learned Single Judge of this Court reported in 2004(3) Bom.C.R. 229 (Greater Bombay Cooperative Bank Ltd. and another Vs. Dhillon P.Shah and others) in support of his contention that the Divisional Joint Registrar was justified in dismissing the revision application for non compliance of the mandatory provisions of Section 154(2A) of the said Act, regarding 50 per cent deposit of the amount under certificate issued under Section 101 of the Act. In this judgment, it has been held that there is bar to the revisional authority either to waive this condition or even relax the quantum of 50 per cent. In view of this, he submits that the Divisional Joint Registrar has no jurisdiction to deal with the matter on merits, without compliance of Section 154(2A) of the said Act by the revision petitioner. 6 5. Learned Counsel for the petitioner has relied upon the judgment delivered by another Single Judge of this Court in Writ Petition No. 1929/2010 decided on 20th of June, 2010 (Changdeo s/o Kisan Bargal Vs. The State of Maharashtra and others). In this judgment the certificate issued under Section 101 of the Act was challenged. The said certificate was quashed and set aside on the ground that no opportunity was given to the petitioner and there was violation of principles of natural justice. The matter was remanded back to the competent authority for deciding the proceedings under Section 101 of the said Act afresh after granting opportunity of hearing to the petitioner. Learned Counsel for the petitioner further submits that the Divisional Joint Registrar has, while condoning the delay caused in filing the revision application, by order dt.30.12.2008, has observed that the certificate was issued without granting hearing to the petitioners. In view of this finding, learned Counsel submits that the matter is required to be remanded back by the Divisional Registrar to the Assistant Registrar for afresh inquiry in respect of the certificate under Section 101 of the said Act. 6. In Changdeo's case (cited supra), the certificate under Section 101 of the said Act was 7 challenged before this Court without having recourse to the remedy of revision under Section 154 of the said Act. This Court set aside the certificate on the ground that it was issued in violation of the procedure prescribed and also in breach of the principles of natural justice. The said judgment does not apply to the facts of the present case for the reason that the petitioner in this petition had approached the revisional authority under Section 154 of the said Act by filing application for condonation of delay. After getting delay condoned in filing revision application, it is not open for him to come before this Court and urge that the revision application should be decided without insisting upon compliance of mandatory provisions of Sub- section (2A) of Section 154 of the said Act. 7. Learned Counsel for the petitioner has also urged that the petitioner stood guarantor for an amount of Rs.10 lacs only and the said amount has been repaid by the principal borrower and, therefore, the petitioner, as a guarantor, is not liable to pay any amount. However, there is no pleading in that behalf in the present writ petition. Be that as it may, it is a matter which is to be agitated in a revision under Section 154 of the said Act and this Court cannot, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, 8 go into the factual aspects. 8. The decision of another learned Single Judge in Greater Bombay Cooperative Bank's case (cited supra), clearly governs the controversy involved in the present case. It has been held in the said judgment that the revisional authority has no power either to waive the condition of pre-deposit of 50 per cent amount as required by Section 154(2A) of the said Act or even to relax quantum of 50 per cent. Without such deposit, the revisional authority does not get jurisdiction to entertain and decide the revision application on merits, though the delay can be condoned without such deposit. 9. Learned Counsel for the petitioner submits that he may be granted time to deposit 50 per cent amount as contemplated by Section 154(2A) of the said Act before the Divisional Joint Registrar. He further submits that if three weeks' time is granted, he shall deposit the said amount before the Divisional Joint Registrar. (a) In view of this, the order passed by the Divisional Joint Registrar is modified and the petitioner is permitted to deposit 50 per cent of the amount, as is required by Section 154(2A) of the said Act before the revisional authority. 9 (b) If, within such a period, the amount is deposited, the revisional authority shall decide the matter on merits. (c) If such deposit is not made, the revision application shall stand dismissed. With the aforesaid observations, this petition stands disposed off. No costs. (R.K.DESHPANDE) JUDGE ... agp/8168-09wp