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2013 Supreme(Bom) 2061
In the High Court of Bombay at Aurangabad
MRIDULA BHATKAR, J.
Hiradgaon Vividh Karyakari Seva Sahakari Society Ltd. & Others
Versus
The State of Maharashtra through the Secretary for Co-operation Department & Others
Writ Petition Nos.9628 of 2012, 346 of 2013, 486 of 2013 & 1683 of 2013
Decided On : 10-10-2013
For the Petitioners:V.D. Hon, S.N. Patil, A.M. Gaikwad, Advocates.
For the Respondents:R1 to R3, V.D. Rakh, A.G.P., R4, N.V. Gaware, Mrs Madhveshwari D. Thube – Mhase, A.D. Shinde, Advocates. For the Intervenors:H.D. Deshmukh, Advocate.
Headnote:Constitution of India - Articles 19(1)(c) and 19(6) - Fundamental right. - Although formation of a Co-operative Society is a fundamental right under Article 19(c) yet State can impose reasonable restrictions under Article 19(6). - It is settled principle of Interpretation of Statute that proviso should not be interpreted in such a manner that it would override the main Section. Proviso is a condition put to the main section. However, interpretation of proviso should not render the main section non-functional. Section 4 of the M.C.S. Act specifies the factors for consideration prior to registration and if proposal of new society fulfills those conditions, then it may be registered under the Act. The factors specified are negative in nature. If a registration of a society is likely to be counterproductive to the purpose of registration of the society itself then proviso enables the authority to refuse the registration of a society. The proviso is a good law of the land today.
By way of amendment, formation of co-operative society is recognised as a fundamental right under Article 19 of the Constitution. No fundamental right conferred by the Constitution can be abridged or violated by any legislation or any Act of the State, except Clause 6 of Article 19 of the Constitution. Clause 6 of Article 19 of the Constitution allows State to make the law imposing reasonable restrictions on the exercise of the right in the interest of the general public. Thus, Clause 6 of Article 19 of the Constitution empowers the State to make policy, placing reasonable restrictions on the fundamental rights in the interest of general public. Co-operative movement or the Co-operation is a subject entrusted to the State as per entry No. 32 of State list in Seventh Schedule of the Constitution.
Maharashtra Co-operative Societies Act, 1960 - Section 4 Proviso - Power of Registrar to refuse registration. - If a registration of a society is likely to be counter-productive to purpose of registration, then proviso confers powers upon Registrar to refuse registration. - It is settled principle of Interpretation of Statute that proviso should not be interpreted in such a manner that it would override the main Section. Proviso is a condition put to the main Section. However, interpretation of proviso should not render the main section non-functional. Section 4 of the M.C.S. Act specifies the factors for consideration prior to registration and if proposal of new society fulfills those conditions, then it may be registered under the Act. The factors specified are negative in nature. If a registration of a society is likely to be counterproductive to the purpose of registration of the society itself then proviso enables the authority to refuse the registration of a society.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Exercise of revisional powers. - In absence of any order of Registrar, refusing registration of society, State cannot exercise its revisional powers to refuse registration of society. - An application for the registration as per Section 9 of the M.C.S. Act, is to be submitted to the Registrar and the Registrar has to satisfy himself about the registration of the society.
Reversal or annulment or modification of the order means to cancel the order of rejection and to send those applications of registration to the Registrar, Co-operative Societies with a direction to entertain the application as the reasoning given by him while rejecting to entertain the application for registration is wrong. When no order was passed on merits by the Registrar, there was no material before the revisional authority to satisfy himself about the legality, propriety and the regularity of the order on that issue. As the Registrar has refused to entertain the applications, the orders passed by the Honourable Minister on merit ex facie disclose that the revisional authority has passed the order beyond his revisional scope. Refusal to entertain the application and return of the same if considered more or less similar to rejection of the plaint under Order VII, Rule 11 of the Civil Procedure Code and that order is challenged, the higher Court is expected to deal with the correctness and legality of the reason given for rejection.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Revision petition. - If a revision petition, not specifically addressed to Minister, Co-operation but addressed to Secretary to Government then non-consideration of petition by Minister is no violation of principles of natural justice. - The petitioners - interveners addressed the Secretary and, therefore, it appears that as the application was not filed specifically in the said revision application, the Honourable Cabinet Minister did not consider the same. Thus, there is no violation of natural justice.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Revisional powers under. - Section 154 of Act confers revisional powers to State and State can modify or reverse order passed by Subordinate Officer.
Rule. Rule made returnable forthwith. By consent of learned Counsel for the parties, heard finally at the stage of admission.
1. Writ Petition No.9628 of 2012 is filed by the existing society challenging the order in the Revision passed by the Honourable Minister (Co-operation), dated 7.11.2012 and also challenging the registration certificate dated 19.11.2012 issued by the Assistant Registrar, Co-operative Societies, Shrigonda in favour of respondent No.4. Writ Petition No.346 of 2013, order dated 5.12.2013 passed by Honourable Minister is challenged. In Writ Petition No.1683 of 2013 which is filed by the existing society, the order dated 20.2.2013 passed by the Honourable Minister (Cooperation) in Revision Application No.49 of 2013 is challenged. In Writ Petition No.486 of 2013, which is also filed by the existing society, the order dated 10.1.2013 passed by Honourable Minister for Cooperation, Marketing and Textile in Revision Application No. 983 of 2011 is challenged.
2. In all these writ petitions, the order of the Honourable Minister allowing the registration of a new co-operative society is challenged. The Honourable Minister by his orders, set aside the orders passed by the Assistant Registrar and Divisional Joint Registrar, by which the proposals made for registration of new societies were rejected. Earlier, this Court clubbed all these writ petitions and by consent of learned Counsel for the parties, common arguments were made and are being decided by this common judgment. However, in Writ Petition No.486 of 2013, additional points are involved and, therefore, though the common submissions are made in all these writ petitions, the arguments advanced on the additional points in Writ Petition No.486 of 2013 are specifically considered at the end of the judgment and accordingly, order is passed.
3. Before dealing with the submissions of the learned Counsel, it will be useful to give background of all these petitions. Under Section 4 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “M.C.S. Act”), the State has power to issue regulations, resolutions and circulars as per the policy. The State of Maharashtra has formulated a policy by issuing Government Circular dated 7.2.2001 stating that a transaction financial and capital of a proposed society should be more than Rs.50 lacs. Thereafter, on 5.3.2007, a Circular was issued by State of Maharashtra informing that there should not be new registration of the Co-operative Societies and all the Registrars were directed to take note of the said Circular and to implement the same with immediate effect. Pursuant to the said Circular, the State Government issued Resolution on 3.12.2011 by which Government has decided that in view of Baidyanathan Committee, i.e. State Government, Central Government and National Bank for Agricultural and Rural Development Agricultural (NABARD) have entered into a tripartite agreement dated 13.11.2006 and the Government appointed a Committee to take an overall view to collect data in respect of existing societies, their economic condition; also in respect of existing societies, which are economically very poor and dying and on the report of that committee, the State to finalise the policy. Till then, the Government has decided not to register any new society with a view to protect the cooperative movement and to give life support to the economically weak existing cooperative societies.
4. The legislature in 2012 amended the Article 19 (c) of the Constitution by way of Ninety-seventh amendment Act, 2011 w.e.f. 12.1.2012 by inserting words, “Cooperative Societies” in Article 19 (1) (c). The Constitution thus recognized formation of co-operative society as a fundamental right, included in Part III of the Constitution. Action of the Assistant Registrar rejecting the applications for registration of new society is based on the Circular dated 5.3.2007 and Government Resolution dated 3.12.2011. Validity of said Cir
