Sagar Sangeet and Conversion Scheme Chs Ltd. and ors. Vs. Minister for Co-operation, Marketing and Textiles, Government of Maharashtra and ors. - Court Judgment

Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - that contention was rejected by the first authority on the finding that the federal society failed to send its opinion in any manner till the date of passing of the order, inspite of the fact that the show cause notice dated 20th february, 2008 was sent by the authority; and also the submission(written explanation) submitted by the society as well as all the documents demanded by the federation, by letter dated 25th march, 2008. in the circumstances, the authority proceeded to pass the impugned order on 9th april, 2008. in other words, the first authority proceeded on the assumption that the case made out in the show cause notice against the petitioners was acceptable to the federation. this opinion has been upheld by the appellate authority as well as the revisional authority. it is no good answer to say that the opinion of the federation could not be taken into account because no opinion was expressed by it. in that case it is held that where the authority has found that the federation has failed to respond in response to the request of the authority in relation to the proposed action, it is open to the authority to proceed in the matter. 2 dated 9th april, 2008 and the subsequent decision in appeal as well as revision which are founded on such incompetent action;a.m. khanwilkar, j.1. heard counsel for the parties.2. rule. rule made returnable forthwith by consent. mr. pradeep jadhav waives notice for respondent nos. 1 to 3. mr. c.u.singh waives notice for respondent no. 4. mr. v.y.sanglikar waives notice for respondent no. 6. respondent no. 5 in person waives notice.3. as short question is involved, petition is taken up for final disposal forthwith by consent.4. this petition in substance questions the action taken by the authority in removing the petitioners 2 to 9-who were the duly elected members of the managing committee of the petitioner no. 1 society; and instead, appointed administrator to look after the affairs of the petitioner no. 1 society. the respondent no. 2 issued show cause notice on 20th february, 2008. the said show cause notice was contested by the petitioner nos. 2 to 9 by filing written explanation. the explanation however, was rejected and the authority proceeded to pass order in exercise of powers under section 78 on 9th april, 2008. it is not necessary to advert to the other details or the allegations on the basis of which the said action under section 78 was initiated by the respondent no. 2 authority. suffice it to observe that the grievance of the petitioners 2 to 9 during the enquiry under section 78 was that there was no effective consultation with the federal society. that contention was rejected by the first authority on the finding that the federal society failed to send its opinion in any manner till the date of passing of the order, inspite of the fact that the show cause notice dated 20th february, 2008 was sent by the authority; and also the submission(written explanation) submitted by the society as well as all the documents demanded by the federation, by letter dated 25th march, 2008. in the circumstances, the authority proceeded to pass the impugned order on 9th april, 2008. in other words, the first authority proceeded on the assumption that the case made out in the show cause notice against the petitioners was acceptable to the federation. this opinion has been upheld by the appellate authority as well as the revisional authority.5. the fact that the show cause notice served on the petitioners, copy thereof was forwarded to the federal society with request to send its opinion, can be discerned from the communication dated 25th march, 2008. however, the authority did not inform the federal society to submit its opinion within any particular time. the translated copy of the said letter dated 25th march, 2008 which is furnished by the respondent no. 4, which appears in the compilation filed before the appellate authority, reads thus:sub: regarding show cause notice of sagar sangeet & conversion scheme co-op.society ltd.ref: 1) federation letter no. 4048/5/- 3365/07-08 dated 7/3/08.2) dy.registrar letter no. outward no. 788/mumbai/dy.reg/- a-div/b-2/sagar sangeet/2008 dated 12/3/08.requested letters by you send to you alongwith letter ref.2. you have not provided your opinion regarding show cause notice. society has submitted their written submission on 24/3/2008, reply is attached alongwith this letter. please provide your opinion on the show cause notice.sd/-25/3/2008dy.registrarco-op.,society a-div.mumbai.in other words, the authority merely forwarded the show cause notice and subsequent written explanation filed by the petitioner to the federal society. there was no insistence for giving response within any specified time, failing which the authority would be free to decide the matter in accordance with the law. in the fact situation of the present case, the dictum of the apex court in the decision reported in 1986(2) scale 89 in the case of kewal ram v. maharashtra state co-op. societies and ors. would squarely apply. the apex court has observed thus:the expression 'previously consulted' means that the opinion of the federation one way or the other must be taken into account before reaching the conclusion whether or not to supersede. it is no good answer to say that the opinion of the federation could not be taken into account because no opinion was expressed by it. in the eye of law supersession cannot be said to have been made in consultation with the federation. a reply from the federation one way or the other should have been insisted upon and the reckoning before the conclusion to supersede was reached. the order therefore is unsustainable in law.6. counsel for the respondent no. 4 however, submits that this decision of the apex court is not a binding precedent, but is only an order passed in the peculiar facts of that case. it is not possible to accept this submission. the extracted portion is obviously a dictum of the apex court, which would bind this court. counsel for the respondent no. 4 has relied on the decision of our high court in the case of arjun panditrao khotkar v. state of maharashtra and ors. reported in : 2002(2)bomcr368 to contend that this decision has elaborately considered all the decisions on the point and would squarely apply to the present case. in that case it is held that where the authority has found that the federation has failed to respond in response to the request of the authority in relation to the proposed action, it is open to the authority to proceed in the matter. emphasis was placed on observations made in paragraph 12 of this decision. in paragraph-8 of the decision, the court has noted the arguments of the respondent. in that case, the order itself apparently disclosed that all the relevant papers were sent to the federal society and 'after waiting for the period for which the federal society asked for' in order to enable to give its opinion in the matter, the respondent had taken necessary decision. in the present case, the communication sent by the authority to the federal society is dated 25th march, 2008, which is already extracted in the earlier part of this order. the same does not mention that the federal society was expected to send its response within a specified time. admittedly, there is nothing on record that on receipt of this communication the federal society had asked for any specific time in order to give its opinion. on the other hand, after waiting for less than two weeks from dispatching the said communication to the federal society, the authority/respondent no. 2 hastened to pass the order on 9th april, 2009, without reassuring itself as to whether the said communication was already received in the hands of the appropriate officer or authority of the federal society. it would have been a different matter if the communication dated 25th march, 2008 were to mention specific date before which the response ought to be forwarded by the federal society, in absence of which the respondent no. 2 would proceed on the assumption that the federal society has no objection to proceed against the petitioners in connection with the proposed action under section 78. that is not the case on hand. moreover, in view of the judgment of the apex court reproduced earlier the inevitable conclusion is that there was no effective consultation in the fact situation of the present case. in view of this opinion, it is not necessary to burden this judgment with any other aspect raised in the show cause notice.7. however, even if the petitioners have succeeded in their challenge and the consequence thereof would be to set aside the decision of the respondent no. 2 dated 9th april, 2008 and the subsequent decision in appeal as well as revision which are founded on such incompetent action; but in the facts of the present case, it is not in dispute that the term of the managing committee of which petitioners 2 to 9 were the members, has already expired. moreover, during the pendency of this petition, elections were held by the respondent no. 2 to elect and constitute new managing committee, which elections have concluded on 29th march, 2009. in the circumstances, even if this petition succeeds, the election which has already been completed on 29th march, 2009, will have to be taken to its logical end and the newly elected managing committee constituted on that basis.8. insofar as the allegations on the basis of which action under section 78 proceeded against the petitioners, in view of the opinion recorded that there was no effective consultation, it is not necessary for this court to examine the correctness thereof. however, it will be open to the authority to consider appropriate action in relation to any breaches committed by the said petitioners, in case it would constitute malfeasance or misfeasance. all questions in that behalf are left open to be addressed on its own merit in the said proceedings.9. the administrator shall forthwith hand over the charge to the newly elected managing committee members in terms of this order.10. petition disposed of on the above terms.