1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1221 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. ......Respondents. 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. CORAM : R.K. DESHPANDE, J. DATE : 26th July, 2010. ORAL JUDGMENT : 1. This petition challenges the certificate dated 10.7.2008 issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as 'the said Act') by the Assistant Registrar, Co- operative Societies, Jalgaon in Case No. 1741 of 2008. 2 2. This Court by order dated 27.2.2009, granted ad-interim relief in terms of prayer clause "C" and stayed the execution and implementation of the order dated 10.7.2008 in Case No. 1741/2008 passed by the Assistant Registrar, Co-operative Societies, Jalgaon, on condition to deposit Rs. 70,000/-. Accordingly, the said amount has been deposited in this Court on 26/3/2009. 3. In this writ petition, the Co-operative Society, which is a banking company, is made party respondent along with the Assistant Registrar, Co-operative Societies. The learned A.G.P. Shri. D.R. Kale has filed an affidavit for and on behalf of the Assistant Registrar, Co-operative Societies. Shri. A.I. Deshmukh appears for respondent No. 2. The learned counsels for the parties agree that this matters can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. The learned counsels appearing for the respondents waive service of notice. 4. In this petition a grievance is raised 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. This position is disputed by the Assistant Registrar by filing an affidavit. However, undisputed position is that there is no judgment or order passed in support of the impugned certificate. The reasons are not recorded. The complaint is also that there is no enquiry made as contemplated. In response to these 3 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 petitioner relies upon the judgments of this Court reported 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 certificate is vitiated on that count only and it is 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 giving of notice to the petitioner by the Assistant Registrar before issuance of certificate is concerned, it may be disputed question of fact, depending 4 upon the facts and circumstances of the case. However, as the ground regarding non recording of reasons is available, I do not want to go in to the other issues, as to whether the notice is issued and the party was 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 petitioner will have to put be on some terms. Hence, the following order is passed. ORDER (1) This writ petition is allowed. The certificate dated 10.7.2008 issued under Section 101 of the said Act by the Assistant Registrar in Case No. 1741/2008 is hereby quashed and set aside. (2) Petitioner is 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) The petitioner has deposited Rs. 70,000/- in this Court on 26/3/2009. The same shall be transmitted to the concerned Assistant Registrar, Co-operative Societies, which shall be treated as a 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 petitioner to deposit the balance amount, 5 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 the petitioner fails to deposit 50% of amount as per the order passed by this Court, then in that event, the Assistant Registrar shall treat this Writ Petition as dismissed and shall proceed accordingly with execution proceedings. (5) The amount, deposited by the petitioner 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 the petitioner shall appear before the Assistant Registrar on 23rd of August 2010 as fixed by this Court. If at all the petitioner wanted to file her reply or response to the proceedings under section 101, she shall be granted 15 days time to file the same. The Assistant Registrar shall, thereafter, conclude the proceedings in accordance with law, after giving petitioner an opportunity of being heard in the matter. The Assistant Registrar shall also ensure that the petitioner is supplied with relevant statements of accounts by the concerned Co-operative Society, before filing of reply by the petitioner. 6 (7) The Assistant Registrar shall decide this case 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, either personally or through registered post acknowledgment due. The deposit of the amount by the concerned petitioner 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/wp1221.09