Mane & Ors. Vs. Sadashivrao Mandalik K.T.S.S.K. Ltd. & Ors.
Nos.2990-2991 of 2012 arising out of SLP (C) Nos.8397-8398 of 2012)
J U D G M E N T
ALTAMAS KABIR, J.
facts of these appeals give rise to an interesting question of law regarding
the interpretation of the Rules of Business framed by the Governor of
Maharashtra in exercise of powers conferred under Article 166(2) and (3)of the
Constitution of India. According to the said Rules of Business, statutory
appeals filed under Section 152 of the Maharashtra Cooperative Societies Act,
1960, hereinafter referred to as "the M.C.S. Act, 1960", are to be
heard by the Minister-in-charge of the concerned Department.
few facts are required to be set out in order to appreciate the question which
has been raised in these appeals.
30th June, 2011, the appellants filed an application before the Commissioner of
Sugar, Maharashtra State, Pune, complaining about the unlawful manner in which persons
had been enrolled by the respondent Karkhana, despite the fact that they did
not fulfill the required criteria and were ineligible from becoming members. As
the Commissioner, or his subordinates, did not take any action on the application
filed by the appellants they filed a writ petition, being W.P. No.7257 of 2011,
before the Bombay High Court, for a writ in the nature of Mandamus upon the authorities
under the M.C.S. Act, 1960, to conduct an inquiry into the allegations made by
27th September, 2011, the Division Bench of the Bombay High Court passed an
order on the statement made by the Regional Joint Director (Sugar), Kolhapur,
to the effect that an inquiry team would look into the allegations made by the
appellant. The Division Bench directed that the inquiry be completed within the
stipulated time and the report be submitted before it. The order of the
Division Bench was challenged by the respondent Karkhana by way of
S.L.P.(C)No.28880 of 2011, which was dismissed by this Court and it was also
indicated that the inquiry to be conducted would be one under Section 11 of the
M.C.S. Act, 1960.
Petition No. 7257 of 2011, and the connected Writ Petition No.10133 of 2011,
were disposed of on a statement made by the Government Pleader that the inquiry
into the complaint by the appellants would be completed within 15th February, 2012.
While disposing of the Writ Petitions, the High Court directed that the previous
list of voters for election to the Managing Committee of the respondent sugar factory
should be published only after the inquiry was completed. In his report dated 10th
February, 2012, the Regional Joint Director (Sugar), Kolhapur, found that a total
number of 6617 persons did not satisfy the required criteria to become members of
the respondent sugar factory and passed an order under Section 11 read with
Section 11A of the Act.
thereafter, the respondent sugar factory and several of the members, who were
held to be ineligible from becoming members of the factory, challenged the order
passed by the Regional Joint Director (Sugar), Kolhapur, by filing appeals
before the State of Maharashtra, under Section 152 of the M.C.S. Act, 1960. On 22nd
February, 2012, the said appeals were listed for admission and interim orders before
the Minister for Cooperation, State of Maharashtra, but in view of the allegations
of bias made against him in W.P.No.1685 of 2012, the Minister recused himself from
hearing the appeals and transferred the cases to the Secretary, Department of Cooperation,
for hearing and disposal.
The appellants appeared
before the Secretary on 24.2.20121, but raised an objection to his jurisdiction
to hear a substantive appeals under Section 152 of the M.C.S. Act, 1960. The
order of the Joint Director (Sugar), Kolhapur was also challenged by the
respondent sugar factory and some of the persons who were held to be
ineligible, notwithstanding the pendency of their substantive appeals under
Section 152 of the Act, challenging the very same order before the State of
the above-mentioned appeals assigned for hearing to the Secretary, Cooperation
Department, an objection was raised on behalf of the Respondent No.2 that
neither under the Maharashtra Cooperative Societies Act and Rules, nor under
the provisions of the Rules of Business of the Government of Maharashtra, was
the Secretary of the Department entitled to hear the appeals and that it was
only the Minister in charge of the Department who could do so. The same
objection was raised in the writ petitions also.
The learned Single
Judge of the High Court, while disagreeing with the said decision, and
referring the matter for determination of the issue by a larger Bench, also
observed that the judgment of the Bombay High Court in the case of Ravindra V.
Gaikwad & Ors. Vs. State of Maharashtra & Ors. still held the field
and, accordingly, attempted to work out a solution to solve the deadlock. The
learned Single Judge was of the view that the answer to the question which had
arisen, lay in Rules 6 and 6-A of the Rules of Business of the Government,
which provides as follows :
"6. The Chief
Minister and a Minister in consultation with the Chief Minister may allot to a
Minister of State or a Deputy Minister any business appertaining to a
Department or part of a Department. 6-A. When the Chief Minister is unable to discharge
his functions owing to absence, illness, or for any other cause, the Chief Minister
may direct any other Minister to discharge all or any of his functions during
his absence. When any Minister is likewise unable to discharge his functions,
the Chief Minister may direct any other Minister to discharge all or any of the
functions of the Ministers during the Minister's absence."
learned Judge, after recording that the Minister for Cooperation had expressed
his inability to hear and decide the appeals, felt that this was a case, where
the Chief Minister could himself hear the appeals or direct any other Minister
to exercise the function of the Minister for Cooperation for hearing the
appeals. The learned Judge was of the view that the said power contained in
Rule 6-A would have to be exercised by the Chief Minister. Since, the appeals
were already pending before the State Government, the learned Single Judge
directed the Chief Minister to either hear the appeals himself or to appoint any
other Minister to hear and decide the same by performing the function of the
Minister for Cooperation, in relation to the hearing of the above appeals.
present appeals have been filed by the Respondent Nos.3, 4 and 5 on various
grounds. The first ground, which has been urged by Mr. Mukul Rohatgi, learned
Senior Advocate, appearing for the Appellants, is that the High Court was not justified
in disposing of the writ petitions with directions, without giving the
Appellants herein an opportunity of being heard.
second ground taken for filing the appeals is whether the High Court could have
directed the Chief Minister of Maharashtra to invoke the Rules of Business in
terms of Rules 6 and 6-A thereof and also whether the appeals could at all be heard
by the Secretary of the Cooperation Department. Mr. Rohtagi contended that when
the Minister of State for the Department of Cooperation was available, as were
other Ministers who could decide the appeals in terms of Rule 6-A of the Rules
of Business, there was no reason for having the appeals heard by the Secretary
of the Department.
another ground was taken as to whether the High Court was justified in hearing the
writ petition of the Respondent, when its substantive appeal under Section 152
of the M.C.S. Act, 1960, in respect of the same order, was pending before the Government
of Maharashtra. Mr. Rohatgi also urged that Rule 10 of the Rules of Business were
probably overlooked by the High Court while passing the impugned order, since by
virtue of the said Rule, it was the Minister in charge of the Department, who
was to be primarily responsible for the disposal of the business of the Department.
the other hand, Mr. Uday U. Lalit, learned Senior Advocate, urged that in view
of the peculiar situation created by the Minister concerned and, thereafter,
the Chief Minister who also recused himself from the hearing of the appeals, on
account of the allegation of bias against them, the Court had no alternative but
to work out a solution so that the elections to the Cooperative Societies could
be held. The ground realities were such as to make it almost impossible to have
the appeals heard out, unless the Secretary of the Department was directed to
this stage, it may be recalled that the entire controversy arose on account of the
disqualification of 6617 voters, who were found ineligible to be members of
Respondent No.1 Karkhana by the Regional Joint Director (Sugar), Kolhapur.
indicated hereinbefore, the order passed under Section 11 read with Section 25A
of the Maharashtra Cooperative Societies Act, was challenged by the members of
the said factory. The Appellants herein, who appeared before the Secretary,
brought to his notice that in view of the decision of the Bombay High Court in the
case of Ravindra V. Gaikwad (supra), he possibly did not have jurisdiction to hear
the appeals under Section 152 of the said Act. It was, thereafter, that the writ
petitions were filed and orders were passed by the learned Single Judge, whereby
he directed the Chief Minister to exercise his powers under Rule 6-A of the Rules
Writ Petitions were heard and disposed of by the learned Single Judge of the
Bombay High Court by the order impugned in these appeals, at the very
threshold, without issuing notice to the Respondent Nos.3, 4 and 5. In our
view, the said Respondents, who are likely to be affected by the order, should
have been given notice before the impugned order was passed. Such being the
position, the normal course for us would have been to remand the matter to the High
Court for a fresh decision after hearing the Appellants herein, but nothing
fruitful will materialize if we were to pass such an order, in view of the reasoning
of the learned Judge while making the impugned order. Apart from the above, we
have heard Mr. Rohtagi on the legal aspect of the question regarding the
competence of the Secretary of the Department to hear the appeals in the light
of Rule 6-A of the Rules of Business. Any further hearing before the High Court
on this question would only amount to duplication and waste of judicial time.
our view, the order passed by the learned Single Judge, was a pragmatic attempt
by the High Court to ensure that the elections were duly held and the same was
within the parameters of Rule 6-A of the Rules of Business, which has been
extracted hereinabove and indicates that if the Chief Minister was unable to discharge
his functions for the reasons indicated, he could direct any other Minister to
discharge all or any of his functions during his absence. Likewise, if any other
Minister was unable to discharge his functions, the Chief Minister could direct
any other Minister to discharge all or any of the functions of the Minister during
the absence of the said Minister.
order of the learned Single Judge has been made within the framework of the aforesaid
Rules and as indicated hereinabove, was a pragmatic attempt to break the
impasse so that the elections to the Board of Directors of the Karkhana could
be held. Rule 6-A of the Rules of Business does not contemplate the functions
of a Minister being discharged by the Secretary of the Department or any other
officer for that matter.
therefore, see no reason to interfere with the order passed by the learned
Single Judge, and the appeals are, therefore, dismissed. So as not to delay the
elections any further, we request the Chief Minister to take immediate steps to
have the appeals filed by the Appellants herein under Section 152 of the M.C.S.
Act, 1960, heard and disposed of as early as possible, but not later than 2
months from the date of communication of this judgment. In the event the Chief Minister
is unable to hear the appeals himself and entrusts the hearing to one of the other
Ministers, which, in our view, would also include the Minister of State of the concerned
Department, he should also impress upon the said Minister the urgency of the
matter since the elections to the Board of the Karkhana have not been held
appeals are accordingly disposed of with the aforesaid directions.
will be no order as to costs.