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1987 Supreme(Bom) 365
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Dharmadhikari C.S., Actg.C.J. Nirgudkar P.V., J.
Kerbaji Maroti Rao Shinde .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 681 of 1983, decided on 29-10-1987.
Headnote:Section 78.
See Maharashtra co-operative Societies Rules, 1961, Rule 58 (1) and (2).
Sections 78, 73 - FF (2) - Maharashtra Co - operative Societies Rule, 1961, Rule 58 (2) - Cessation of membership under Rule 58 (2) and automatic Procedure therefore.
It Section 78 is read in its context and harmoniously with the other provision of the Act, including Section 72 - FF, a conclusion is inevitable that the law laid down by High Court in Keshavarao Narayanrao Patil v. District Dy. Registrar, Co - operative Societies, Akola, (1987) Mah LJ 709, must apply even to an action contemplated by Rule 58. Rule 58 (1) lays down the disqualifications and Rule 58 (2) provides consequence or the result of disqualification. Though in a given case declaration - could relate back to the date of the disqualification itself that does not mean that no adjudication or order is necessary. When a disqualification has been incurred by a member, is in itself, in doubt of disputed then an. adjudication is obviously necessary. An enquiry in that behalf is not administrative but is judicial or quasi judicial in nature. This seems to b9 the reason why a provision is made under Section 78 of the Act, for removal of member if he stands disqualified by or under the Act for being a member, after giving the member an opportunity of being heard. In Substance, after the person is elected as a member of the committee if he is to cease as a member, an order of removal under Section 78 of the Act is necessary. The provisions of Section 73 - FF are in addition to, and without prejudice to under provisions of the, Act and rules made there under in relation to disqualifications. Therefore provision of Section 73 - FF, Rule 58 and Section 78 will have to be read and 90nstrued harmoniously so as to make them consistent and reasonable, So construed, unless an action under Section 78 of the Act is taken a person cannot cease to be the number of the committee even under Rule 58, of the Rules .
Rule 58 (1) and (2)-Maharashtra Co-operative Society Act, 1960-Section 78-Unless an action under Section 78 was taken a person cannot cease to be the member of the Committee even under Rule 58 of the Rules- Disqualifications incurred by a member-An adjudication necessary-An enquiry in that behalf not administrative but judicial or quasi-judicial in nature.
Rule 58 (2) which deals with the cessation of membership after the person is elected as a member of the Society which is akin to removal of a member from membership of the Committee of the Society in view of incurring a disqualification mentioned in sub-rule (I) of Rule 58. If Section 78 is read in its context and harmoniously with the other provision of the Act including Section 73-FF, a conclusion inevitable that the law laid down by the Couri in Keshav Raos case must apply even to an action contemplated by Rule 58. Rule 58 (1) lays down disqualifications and Rule 58 (2) provides consequence or the result of disqualification. Though in a given case, a declaration could relate back to the date of disqualification itself that does not mean that no adjudication or order was necessary. When a disqualification has been incurred by a member, was in itself in doubt or disputed, then adjudication was obviously necessary. An enquiry in that behalf was not administrative but was judicial or quasi-judicial in nature. This seems to be the reason why a provision was made under Section 78 of the Act for removal of member if he stands disqualified by or under the Act for being a member after giving the member an opportunity of being heard. In substance the person is elected as a member of the Committee if he is to cease III. member, an order of removal under Section 78 of the Act is necessary seem to be the view taken by the Bombay High Court in Keshav raos cafe, though in the context of Section 73-FF of the Act. In this context it is pertinent to note that Rule 58 (1) and (2) also applies to the specified Societies. The provisions of Section 73-FF are in addition to, and without prejudice to other provisions of the Act and rules made there under in relation to disqualifications. Therefore, provisions of Section 73-FF, Rule 58 and Section 78 will have to be read and construed harmoniously so as to make them consistent and reasonable. So construed, unless an action under Section 78 of the Act was taken, a person cannot cease to be the member of the Committee even under Rule 58 of the Rules.
In the instant case, it was an admitted position that no action under Section 78 of the Act was taken against the petitioner though there was a dispute about it. In view of that, it cannot be said that the petitioner has ceased to be the Director of the Vikri Sangh. Therefore, the order passed or intimation issued by the Deputy Registrar of the Co-operative Societies must get vitiated and deserved to be set aside.
Rule 58 (1).
See Maharashtra Co-operative Societies Act, 1960, Sections 78, 73-FF (2).
2. Shri Godhamgaokar, learned Counsel appearing for the petitioner, contended before us that in fact and in law the petitioner was not a defaulter under Rule 58. Further, no order or intimation could have been issued under Rule 58(2) by the District Deputy Registrar, without taking recourse to section 78 of the Maharashtra Co-operative Society Act. According to the learned Counsel Rule 58(2) only lays down the consequences or result of disqualifications and does not confer any power upon the Deputy Registrar to pass such an order. Rule 58(2) is not self-operative. An order in that behalf could only be passed by the competent authority under section 78 of the Act which deals with the removal of a member of a society and unless recourse was taken to section 78 it was not open to the District Deputy Registrar to pass the impugned order. In support of this contention he has placed strong reliance upon the decision of this Court in (Keshavrao Narayanrao Patil v. District Deputy Registrar, Co-operative Societies, Akola and ors.)1, 1987(3) Bom.C.R. 225 and a decision of Supreme Court in (Moolchand Sharma v. State of U.P.)2, A.I.R. 1967 S.C. 112. It is also contended by the petitioner, that if it is held that no enquiry or order under section 78 is necessary in a case covered by Rule 58, then the said Rule is arbitrary and unreasonable.
3-4. On the other hand, it is contended by Mr. A.S. Bobde, learned Advocate General, and Shri J.V. Savant, learned Government Pleader, that Rule 58(2) is self-operative and no further action under section 78 is contemplated. In support of this contention they have placed reliance upon the earlier decisions of this Court in (Roha Ashtami Co-operative Urban Bank Ltd. v. The Judge, Co-operative Court, Alibag)3, A.I.R. 1978 Bom. 62 : 1977 Mh.L.J. 712 and (Murlidhar Tukaram Bhandekar v. The Nagpur District Central Co-operative Bank Ltd.)4, 1986 Mh.L.J. 599. 5. For properly appreciating the controversy
