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2015 DIGILAW 1090 (BOM)

Walni Pardi Majoor Kamgar Sahakari Sanstha Limited v. Assistant Registrar, Co-operative Societies (Housing), Saoner

2015-04-24

R.K.DESHPANDE

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Judgment :- 1. By an order dated 8.11.1988, the Assistant Registrar, Cooperative Societies, Saoner, has passed an order under Section 35(1) of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the said Act"), cancelling the membership of 81 persons in Walni Pardi Majoor Kamgar Sahakari Sanstha. The order was passed after issuance of show cause notice to all those persons. About 35 such members preferred Appeal No. 167 of 2001 under Section 152 of the said Act, challenging the said order after lapse of period of about 13 years. The appeal has been dismissed holding that there is sufficient cause made out for condonation of delay. The relevant consideration in the order passed by the Divisional Joint Registrar is reproduced below; "I have duly considered the submissions put forth before me and also examined the documents submitted before me. It is an admitted fact in the present appeal, and order passed on 08.11.1988 has been challenged. The impugned order thus has been challenged after a lapse of about 13 years, The concerned record and proceedings in connection with the impugned order is not available with the office of the Assistant Registrar, C.S. Saoner and so it is practically not possible to examine the propriety and legality of the impugned order. The copy of the impugned order submitted before me show that the impugned order was accompanied by Annexure-A containing the names of 81 expelled members of the Walani Pardi Mazoor Kamgar Sahakari Sanstha, which include the names of the Appellants. The same has been issued to concerned expelled members under certificate of posting. The list bears the postage stamp and the seal dated 12/11/1988. As such an inference can prima facie be drawn that the impugned order was issued to concerned expelled members on 12.11.1988. Copy of the resolution of Special General Meeting dated 15.06.1988, submitted before me reveal that a decision was taken in the said meeting to expel 81 members. The said resolution seems to have been checked by the Assistant Co-operative Officer and also by Assistant Registrar, C.S. Saoner as copy of the resolution bears their signatures on 15.10.1988. In absence of any other record, the copy of the aforesaid resolution can be relied upon which demonstrates that the same has been scrutinized by Assistant Registrar, C.S.Saoner on 15.10.1988. Further all the Appellants are resident of Mouza Walani and the Respondent No1. In absence of any other record, the copy of the aforesaid resolution can be relied upon which demonstrates that the same has been scrutinized by Assistant Registrar, C.S.Saoner on 15.10.1988. Further all the Appellants are resident of Mouza Walani and the Respondent No1. Society also exists at Walani. It is, therefore, not likely that the Appellants were not aware of the activities of the Respondent No.1 society since Mozua Walani is a small village. It is also not likely that the Appellants could not get knowledge of Annual General Meeting convened by the Respondent No1. Society taking into consideration the fact that the appellants are resident of Mouza Walani and the Respondent No1. Society also exists at Walani. In view of the aforesid facts and circumstances, it is difficult to construe that the appellants were not aware of their expulsion for a long period of about 13 years. Hence, I decline to accept the peal of the Appellants to the effect that they came to know about the impugned order only on 9/10 February 2001 and they had no knowledge about their expulsion for a long period of about 13 years, The appellants have not demonstrated any tangible or valid reason for such an inordinate delay in filing appeal and the same cannot be treated as bonafide delay. The appeal is dismissed holding that no explanation is made out for condonation of 13 years delay caused in filing an appeal. Revision application preferred by the respondents-expelled members has been allowed by the Minister of State for Corporation, Marketing and Textile by an order dated 28.09.2007. Hence this writ petition. 2. The Minister has considered the aspect of delay in its order as under; "From all above observations, I come to the conclusion that the Divisional Joint Registrar has not considered the case of the applicants in its proper perspective and merely on the assumption that the parties are residing at village Walni and therefore it cannot be said that they were not knowing affairs of the society, passed impugned order rejecting the appeal. The Divisional Joint Registrar in his order has specifically mentioned that in the absence of any record it is practically not possible to examine the propriety and legality of the impugned order. The Divisional Joint Registrar in his order has specifically mentioned that in the absence of any record it is practically not possible to examine the propriety and legality of the impugned order. However, in spite of this position, as observed above, merely on the assumption passed impugned order and therefore, same is required to be quashed and set aside. In my view, the Applicants have proved their case. The society failed to prove that the notices of General Body Meeting dated 16.05.1988 have been served on the Applicants and only after giving an opportunity of being heard they were expelled. Therefore, revision application required to be allowed". It has been held that there is no evidence on record to show that the resolution was communicated to all these members. 3. In the application for condonation of delay before the Divisional Joint Registrar under Section 152 of the said Act, the stand was taken by the respondents that it is for the first time in response to Dispute No. 911 of 2000 filed by one Mahipat Bisen Bondre, under Section 91 of the said Act, it was disclosed that 81 members were expelled in the year 1988 and the copy of the order and the list of members was supplied on 9th/10th February, 2001. This fact is not disputed in the reply filed by the petitioners. 4. In view of the finding recorded by the Minister in the order impugned and in the absence of service of order of expulsion of 81 members from the Society, the condonation of delay in filing appeal under Section 152 of the said Act cannot be faulted with. However, the Minister concerned should have remanded the matter back to the Divisional Joint Registrar, Cooperative Societies to decide the appeal under Section 152 of the said Act on its own merits instead of setting aside the order of expulsion passed by the Assistant Registrar, Cooperative Societies on 08.11.1988. 5. In the result, writ petition is partly allowed. The order dated 28.09.2007 passed by the Minister of State for Cooperation, Marketing and Textile is hereby quashed and set aside only to the extent it sets aside the order dated 08.11.1988 passed under Section 35 of the said Act by the Assistant Registrar, Cooperative Societies. 5. In the result, writ petition is partly allowed. The order dated 28.09.2007 passed by the Minister of State for Cooperation, Marketing and Textile is hereby quashed and set aside only to the extent it sets aside the order dated 08.11.1988 passed under Section 35 of the said Act by the Assistant Registrar, Cooperative Societies. The matter is remitted back to the Divisional Joint Registrar, to decide the appeal under Section 152 of the said Act on its own merits. Rule is made absolute in these terms. No order as to cost.