Back
2011 Supreme(Bom) 1069
2011 (6) ALLMR 760
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.P. BHANGALE
Anant Ramchandra Dakshindas
Versus
Divisional Joint Registrar and Others
Writ Petition No. 4837 of 2009
Decided on : 08-09-2011
For the Petitioners:R.B. Pendharkar, Senior Advocate, Belsare, Advocate.
For the Respondents:R1, R6, R7 & R8, Bharti Dangre, Additional Government Pleader, R9 S.Y. Deopujari, Advocate.
Headnote:Bombay High Court Appellate Side Rules, 1960 - Chapter 17, Rule 18 - Challenge to validity of circular - Since a circular issued by Commissioner for co- operation is not Statute, or Rule or Regulation hence single Judge can look into validity thereof.
The circular in question is administrative in nature. Status of a Statute or of Rule/Regulation framed under Statute cannot be conferred on it. Hence challenge thereto cannot be viewed as a challenge to Statute or Rules or Regulation. When such circular is not Statute or Rule or Regulation, the Single Judge of High Court can look into validity thereof.
Bombay High Court Appellate Side Rules, 1960 - Chapter 17, Rule 18, Last Proviso- Maharashtra Co-operative Societies Act, 1960, Section 152-Maharashtra Co-operative Societies rules 1969, Rule 107-Jurisdiction of High Court-Scope of-Validity of sections, rules or regulation under Act can be challenged before Division Bench-An administrative circular issued by Commissioner for Co-operative Societies cannot be construed as a rule, regulation or statute-Challenge thereto cannot be made before Division Bench-Question as to validity of circular required to be placed before single Judge.-The word used in this proviso viz., "Statute" is followed by words "any rules or regulations" and thereafter the words used are "made thereunder". Therefore, if challenge is to rules or regulations made under the Maharashtra Co-operative Societies Act or any other Statute, the matter again need to be placed before the Division Bench. The provisions of the Maharashtra Co-operative Societies Act under its Section 165 contemplate framing of Rules only. It does not contemplate framing of any regulation. The impugned circular has not been demonstrated to be a Rule or then under any particular section of the Act. In any case, said circular itself cannot be construed as a rule or regulation or statute. There is no argument that it is issued in exercise of legislative power or then in exercise of Rule making or regulation framing power delegated to the issuing authority by the Maharashtra Co-operative Societies Act. Its bare perusal shows that said circular dated 3.2.2003 is administrative in nature. Status of a Statute or of Rule/Regulation framed under Statute cannot be conferred upon it. Hence, challenge thereto cannot be viewed as a challenge to Statute or Rules or Regulations.
When such circular is not Statue or Rule or regulation, learned single Judge of this Court can look into validity thereof.
P.C.
1. In this petition filed under Articles 226 and 227 of the Constitution of India, the challenge is to the order dated 24.2.2009 passed by the Divisional Joint Registrar (respondent no. 1) with further challenge to a circular dated 3.2.2003 issued by respondent no. 7 Commissioner for Cooperation. It is contended that said circular is unconstitutional and ultra vires the powers of said respondent. There is also an interim prayer to stay the effect and operation of communication dated 4.9.2007.
2. The impugned order dated 24.2.2009 is passed by respondent no. 1 as an appellate authority under Section 152 of the Maharashtra Cooperative Societies Act, 1960 and that appeal was preferred by present petitioner against the enquiry report dated 24.4.2007. The Appellate Authority has dismissed that appeal. The circular dated 3.2.2003 is issued by the Office of Commissioner for Cooperation and Registrar of Cooperative Societies specifying the condition subject to which an enquiry officer for conducting enquiry under Sections 83 and 88 of the Maharashtra Cooperative Societies Act can be appointed. The communication dated 4.9.1987 of which stay is sought is notice of attachment under rule 107 (5), 107 (9) and 107 (11) (k) (d) of the Maharashtra Cooperative Societies Rules, 1961.
3. It is not in dispute that challenge to appellate judgment mentioned supra lies before the learned single Judge of this Court because of Chapter XVII, rule 18 (entry 12) of the Bombay High Court Appellate Side Rules, 1960. However, the petition has been filed before the Division Bench with contention that as validity of circular dated 3.2.2003 has been assailed, the learned single Judge lacks jurisdiction.
4. In this background, we have heard Mr R.B. Pendharkar, learned Senior Advocate with Mr Belsare, learned counsel for petitioner and Ms B.D. Dangre, learned Additional Government Pleader for respondents no. 1,6,7 and 8 as also Mr S.Y. Deopujari, learned counsel for respondent no. 9I, II and III at length.
5. Learned Senior Advocate after inviting attention to provisions of Chapter XVII rule 17 of the Appellate Side Rules has contended that general arrangement/intention is to have all such challenges considered by a Bench consisting of two Judges, rule 18 makes an exception to this general provision and, therefore, needs to be approached accordingly. Attention is invited to the fact that orders passed by the Authorities under the Maharashtra Cooperative Societies Act can be assailed before learned single Judge and as per explanation added at the end of rule 18, the expression “order” has been explained to mean any order passed by any judicial or quasi judicial authority “empowered” to adjudicate under the Maharashtra Cooperative Societies Act. The meaning of word “empower” as explained in Black’s Law Dictionary (16th Edn) is also pressed into service for the said purpose. It is urged that circular assailed, therefore, cannot be viewed as an order and circular could not have formed subject matter of challenge before Appellate Authority. Attention is also invited to a proviso added just above the said explanation in rule 18 itself to show that validity of any Statute or any Rule or Regulation cannot form subject matter of consideration of such challenge before single Judge. It is pointed out that the words employed therein are only illustrative and other similar type of instruments like Ordinance, Byelaws or Circular or resolution which may have similar tendency and impact are not specifically mentioned therein. It is contended that by implication, it is apparent that intention of framers was to have such other instruments challenged before the Division Bench only. Support is also derived from scheme emerging from Section 113 of the Code of Civil Procedure and Article 228 of the Constitution of India.
6. The judgment of Division Bench of this Court in the case of Prabhakar Sadasheo Nandanwar v. State of Maharashtra and ors reported at 2002 (4)
