BABAN NAIK Vs. UNION OF INDIA

JUDGEMENT

(1.) The orders contained in the notification dated May 18, 1978 and the order dated May 23, 1978 are challenged in this writ petition. By the impugned notification the State Government in exercise of the powers vested in it by S. 157 of the Maharashtra Co-oper'atixe Societies Act, 1966 as applied to the Union Tettitory of Goa, Daman & Diu, (hereinafter referred to as "the Act"), purports to exempt the Goa, Daman and Diu, Co-operative Fisheries Federation Ltd; Panaji, a registered Society which shall hereinafter be referred to as the "Society", the respondent No. 10 herein, form a part of the provisions of S. 78(1) of "the Act " By the impugned order Government purported to remove the Board of Directors (hereinafter referred to as "the Committee" of the Society including the Chairman and the vice-Chairman.

(2.) The case of the petitioners is as follows : The petitioners and the respondents Nos. 3 to 8 were nominated by the Government to constitute the Conmmittee of the Society and were empowered to elect a Chairman and Vice-Chairman to act as such till elections were held in accordance with the established procedure. The Committee thus constituted, elected the first and second petitioners as the Chairman and Vice-Chairman respectively, in the meeting held on March 21, 1973. Under the management of the Committee, the Society worked properly and substantially fulfilled all the obligations indicated by the bye-laws. In the Audit Report for the years 1975-76 and 1976-77, the Auditors stated that the Society is working properly and has fulfilled the objectives to some extentand that its prospects were good According to the Auditors, the functioning of the Society has also been good. Under the management of the Committee the Society made substantial profits. In June 21, 1977, the Committee framed rules for election of the Committee and after placing them before a special general body meeting, submitteed the rules for approval of the Registrar, the respondent No. 3 herein. The Registrar instead of approving the Rules, deliberately and with ulterior purposes kept the rules in abeyance without approving them for over a period of 9 months. No technical difficulties existed to excuse the delay in approving the Rules. In the absence of rules the Committee had to continue to function and in fact continued to function even after Jan. 27, 1978. Such continuation after the expiry of 6 years' term amounts to an implied extension by the Government of the term of"the Committee". The conduct of the Registrar (Respondent No. 3), in sending his representative to attend the general body meeting called on Feb. 14, 1978, and that of the Assistant Registrar in attending the special general body meeting held on April 30,1978, and also the fact that the Registrar deemed it necessary to pass an order removing the Committee, confirm the fact that the Government had impliedly extended the term of "the Committee." By the Notification dated May 18, 1978 (hereinafter referred to as "the Notification"), purported to have been passed under S.157 of the Act, the Government purported to exempt the Society from a provision to Sub-s. (1) of S. 78 of "the Act". The notification modified in substance the provisions of S. 78 of the Act and is therefore ultra vires S.157 of the Act. Before the Notification was passed no opportunity was given to the Society to represent its case, though it contained an order to the prejudice of the Society. The notification is therefore illegal, null and void. Subsequently, purporting to exercise powers under S.78 (1)(b) of "the Act" read with cl. (b) of sub-r. (1) of R. 6 of the Rules the Registrar of Co-operative Societies (hereinafter referred to as "the Registrar") by the order dated May 23, 1978 (for short "the order") removed the Committee including the Chairman and Vice-Chairman and appointed Shri K.C.D. Gangawani as Administrator of the Society with immediate effect to manage the affairs fora period of 6 months. The order could not be passed, not only because under the provisions of S.78 the Registrar had not duly and legally been exempted, but also because he had not at all been exempted from complying with the provisions of R. 61 (2). All the aforesaid acts of the Registrar and of the Government are mala fide. The Registrar acted at the instigation of the Chief Minister who has been acting in ulter disregard of, and in a manner highly prejudical to, the co-operative movement. In the year 1972 the petitioners Nos. 2 and 3 were elected to the Legislative Assembly of the Union Territory of Goa, Daman and Diu on a Mhahrashtrawadi Gomanatk ticket and were thus members of the ruling party at the time the order nominating them as members of the Committee of the Society, was passed. Dissatisfied with her leadership, after the death of the former Chief Minister, Shri Dayanand Bandodkar, the said petitioners, left the Maharashtrawadi Gomantak Party and joined the Janata Pary. The said petitioners seriously imperilled the political postition of the present Chief Minister, Smt. Sashikala Kakodkar, by depriving her of a large number of votes in the elections to the Legislative Assembly of the Union Territory of Goa, Daman and Diu in 1977. The present Chief Minister, Smt. Sashikala Kakodkar is bent upon resorting to all means to reduce the influence of the said petitioners on the electorate of Goa. The present Chief Minister, Smt. Sashikala Kakodkar holds in the present ministary also the portfolio of Co-operation. In the 1967 1972 term, Smt Kakodkar was no.t holding the portfolio of Co-operation, Smt Kakodkar has been manipulating the levers of power and has been using, the Registrar as an instrument to achieve her goal of reducing the influence of the said petitioners. Shri K.C. D. Gangwani, the law Secretary to the Government of Goa, Daman and Diu coerced the petitioner No. 1 Shri Baban Naik who was the Chairman of "the Society" to hand over charge to him. Shri Gangwani came to the commercial establishment of Shri Baban Naik and coerced Shri Naik to accompany Shri Gangweni to the office of "the Society" Shri Baban Naik was, under duress, compelled by Shri Gangwani to sign a decleration that he had handed over charge to Shri K C. D. Gangwani. The second petition Shri punaji Achrekar who was the Vice-Chairman of the Society did not hand over charge. The third petitioner Shri Jaisingrao Rane who was a Director of the Society and the remaining petitioners who were also Directors did not hand over charge at all. Therefore, not only because the impugned order and the notification are bad, but also because charge of the society was not handed over as aforesaid, shri Gangwani cannot function as the Administrator of the society. The petitioners pray that the notification dated May 18, 1978 and the order dated May 23, 1978 be quashed; that the respondents be directed to approve their election rules and to hold their elections to elect the member of the Committee and that pending the hearing, Shri K. C. D. Gangwani be restrained from acting and functioning as the Administrator under the said Notification and order. This last prayer was not decided because the parties agreed that the entire petition could be heard and the prayer be disposed of accord ingly.

(3.) Shri Pukhraj Bumb, the Registrar of the Co-operative Societies replied to the petition and put forth the following case : An order under S. 78 of the Act is appealable and there. fore the petition is not maintainable under Art, 226 of the Constitution. The term of the Board of Directors had expired on Jan. 28, 1978 and the petitioners have from that day ceased to be the Directors of the Society Trie petitioners have no locus standi in this petition. Since the Committee had ceased to exist, no prejdice was caused to the Society by the exemption made by the Notification. The first petitioner accepted the appointment of the Administrator, handed over charge to him and ceased to attend the Society's Office since then, without any protest. He has therefore, no locus standi in this petition. No particulars of the alleged coercion or duress were given. These charges are false and puerile. With the exception of the Chairman and Vice-Chairman who were to act as such till the election was held as per the Bye-law No. 27 the remaining members of "the Committee" have ceased to be Directors. The functions of the Society other than those which are required to be performed by the General Body, are to be performed by the Committee and with the exception of the function of exercising general control over the affairs of the Society and of presiding over the meetings, there are no other functions to be performed by the Chairman or the Vice-Chairman. When there is no Committee there is no executive Body and therefore, the Society cannot function at all properly. The continuation in the office of the Chairman and Vice-Chairman is of no avail to the Society. When there is no Committee the Administrator of the Society is sine qua non for the proper functioning of the Society. The Registrar had to appoint an Administrator to administer the Society. No election for electing the Committee can be held withouta Committee. The appointment of the Administrator was essential for that purpose also. In the audit for the years 1975-76 and 1976-77 the Auditors had passed strictures about the violation of the Bye-laws by the petitioners and has also pointed out that due to bad management of the petitioners the Society has suffered trading lossess in certain item of the business. The Society was not properly managed by the Committee. The petitioners have falsely alleged that they have earned profit for Society. The Committee delayed in framing the Rules and submitting them for the approval of the Registrar. The delay in approval was caused by the fact that the Rules required a detailed scrutiny. The Rules were approved in July 14,1978. The Chief Minister has nothing to do with the appointment of the Administrator. The motives imputed to the Chief Minister are ridiculous. The fact that the petitioners joined, the Janta Party has nothing to do with the appointment of the Administrator. The position of the Chief Minister was not imperilled, in the election held in 1977 because the first petitioner had joined the Janta Party. The allegations made against the Chief Minister are irrelevant. The Registrar was not influenced by the Chief Minister. In view of the exemption granted by the Government there was no question of giving any opportunity to the petitioners Nos. 1 and2of stating their objections. The other petitioners were not in the picture at all as they had ceased to be Directors. The respondents pray that the petition be dismissed.