Advocates:
['TALEKAR AND ASSOCIATES', 'COPY SERVED ON GP', 'CAVEAT FILED BY ADV SHAMBHURAJE V DESHMUKH', '', 'DESHMUKH SHAMBHURAJE V', 'R NO IS SERVED', 'AGP']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.13248 OF 2021

Shri. Prabhakar Gajendra Wadje & Others

… Petitioners

Versus

The State of Maharashtra & Others.

… Respondents

…

Smt. Pradnya Talekar h/f Talekar & Associates, Advocate for the

Petitioners

Mr. Y. G. Gujrathi, AGP for Respondent Nos.1 to 4

Mr. S. V. Deshmukh, Advocate for Respondent Nos.5 & 6

…

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 20^th JULY, 2022

PER COURT :

1.

This petition filed under Article 226 & 227 of the Constitution

of India takes exception to the order dated 24-05-2021, passed by

the Additional Registrar, Co-operative Societies, (Fishery)

Maharashtra State, Mumbai/respondent no.2 in Revision Application

No.31/2016.

2.

It is the case of the petitioners that they were granted

membership of the respondent no.6/society in the year 2009. In

the year 2013, the Committee of the respondent no.6/society was

superseded as per Section 78 (1) of the Maharashtra Co-operative

Societies Act, 1960 (for short ‘the said Act’) and Administrator was

appointed.

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3.

By order dated 01-04-2016 passed under Section 25-A of the

said Act, the respondent no.4 directed removal of the names of the

petitioners from membership register as well as I & J register of

respondent no.6/society. The petitioners challenged this order by

filing appeal under Section 152 of the said Act, before respondent

no.3. The respondent no.5 intervened in the said appeal and

opposed the proceedings on the ground of maintainability of the

appeal. He claimed that the order under Section 25-A is passed at

his instance. After hearing the parties, respondent no.3 allowed the

appeal and set aside the order passed by respondent no.4.

4.

The respondent no.5 challenged the order of respondent no.3

by filing revision under Section 154 of the said Act before the

respondent no.2. The revision is allowed and the order passed in

favour of petitioners by respondent no.3 is set aside. Hence, the

present petition.

5.

Heard the learned Advocate for the petitioners, the learned

Assistant Government Pleader for respondent nos.1 to 4 and the

learned Advocate for respondent nos.5 to 6.

6.

The learned Advocate for the petitioners assailed the

impugned order contending that it is true that, remedy of appeal is

not available for challenging the order passed under Section 25-A of

the said Act and revision is maintainable. However, the respondent

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no.3 had revisional powers, which can be said to be exercised by

him. By relying on N. Mani Vs. Sangeetha Theatre and Others

reported in (2004) 12 SCC 278, she submits that merely because

wrong provision of law is mentioned that by itself would not vitiate

the order passed by respondent no.3. She submits that if it is to be

assumed that the respondent no.3 had exercised powers under

Section 154 of the said Act, then the revision filed before the

respondent no.2 was not maintainable being second revision in view

of the Full Bench decision in Shireen Sami Gadiali and Another

Vs. Spenta Co-op. Hsg. Sco. Ltd. & Others reported in 2011

(3) Mh.L.J. 486.

She further submits that removal of membership under

Section 25-A of the said Act can be only on two circumstances,

either on cessation of membership or on disqualification. Both these

conditions are absent in this matter, hence the petitioners could not

have been removed as members.

7.

By relying on the documents placed on record by the

petitioners i.e. membership application, share certificates and

receipts of membership fees etc., she submits that the petitioners

were conferred membership by following prescribed procedure and

the responde