wp4394.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4394 OF 2010 Swargiya Rajiv Gandhi Mastyavyavsay Society Bamani, ...Petitioner Versus The State of Maharashtra and others ...Respondents ..... Mr. M.P. Kale, advocate for the petitioner Mr. K.J. Ghute Patil, A.G.P. for respondent Nos.1 to 4 and 6 Mr. R.T. Nagargoje, advocate for respondent No.5. ..... CORAM: B. P. DHARMADHIKARI, J. DATED: 21st FEBRUARY, 2011 PER COURT:- 1 Heard advocates for the respective parties. Shri Kale points out that the appeal under section 152 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter for the sake of brevity referred to as the ‘Societies Act”) was filed by the petitioner before the Commissioner (Fisheries department) and after more than a period of one year, the said appeal came to be transferred to the subordinate authority viz. Deputy Registrar, Co-operative Societies, (Fisheries). Before that authority the petitioner filed its notes of argument and the appeal was decided as not maintainable, as the said authority had no jurisdiction. After getting knowledge of that order, fresh appeal was then filed wp4394.10 -2- before the Commissioner but that appeal has also been rejected on 22.9.2009 after holding that it is barred by limitation. 2 Learned A.G.P. as also advocate Shri Nagargoje point out that after the appeal filed under Section 152 of the Societies Act was transferred to Deputy Registrar, the petitioner did not raise any objection to his jurisdiction. On the contrary, he participated in hearing and after adverse order was passed, chose not to come to this Court, immediately did file another appeal and after its dismissal in September, 2009, present writ petition is filed. Advocate Shri Nagargoje states that the order impugned in the appeal before the Commissioner is dated 31.5.2008 and at that time the petitioner had no locus to maintain such appeal. He further points out that even earlier appeal was barred by limitation and there was no prayer for condonation of delay. 3 After hearing respective counsel, it is seen that the petitioner is trying to redress his grievance and for that purpose had filed appeal under Section 152 of the Societies Act before the Commissioner, Co- operative Societies, (Fisheries department). His further appeal after rejection thereof by the Deputy Registrar is again before the same authority. As I find that the petitioner had ventilated his grievance continuously before same authority, I am not inclined to accept the wp4394.10 -3- contention that filing petition itself suffers from delay and laches. 4 The petitioner had filed the appeal before the Commissioner (Fisheries) but the said authority has not decided it. When the Deputy Registrar to whom that appeal was forwarded by the Commissioner (Fisheries) found that he he had no jurisdiction to entertain the appeal, he ought to have returned the appeal to the Commissioner instead of deciding it on merits. 5 In view of this position, the appeal initially filed before the Commissioner (Fisheries) under section 152 of the Societies Act is restored back. The said Commissioner shall decide the appeal in accordance with law after giving the parties the opportunity of hearing. The objection of respondent No.5 about its maintainability and about limitation are kept open and shall be looked into by the appellate authority before proceeding further with merits and the controversy. 6 With these observations and directions, petition is partly allowed. No costs. ( B. P. DHARMADHIKARI, J.) rlj/ wp4394.10 -4-