Akola Zilla Parishad Primary Teachers' Co-operative Credit Society Ltd. Vs. State of Maharashtra and Anr. (22.08.2008 - BOMHC) - Court Judgment

Excerpt:
banking - right of amendment - maharashtra co - operative societies act, 1960 (act) - respondent no 2 a co- operative bank amended its bi-laws for petitioner's membership - sought approval of amendment before registration authority - amendment rejected - appeal before appellate authority - appeal rejected - revision before state government - revision allowed - hence, present petition - held, as per act deputy district registrar have no jurisdiction to approve amendment - they are required to forward amendment to divisional joint registrar for approval - all orders passed by authorities below set aside - petition allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 9. i have considered the submissions made by the learned counsel for the rival parties and perused the record as well as the judgments relied upon.a.p. lavande, j.1. heard mr. a.h. patil, learned counsel for the petitioner, mr. t.a. mirza, learned a.g.p. for respondent no. 1 and mr. a.m. gordey, learned counsel for respondent no. 2 in writ petition no. 5259/07 and mr. a.m. ghare, learned counsel for petitioner, mrs. a.r. taywade, learned a.g.p. for respondent no. 1 and mr. a. m. gordey, learned counsel for respondent no. 2 in writ petition no. 4349/07.rule. heard forthwith.2. both these petitions are being disposed of by common order since in both these petitions the challenge is to the order dated 8-11-2006 passed by the ministry for state for co-operation, marketing and textiles in revision no. 167/06 referred by respondent no. 2 by which orders dated 24-4-2006 and 31-1-2005 passed by respondents 1 and 2 in the revision application have been set aside.3. briefly, the facts relevant for disposal of the present petitions are as under:the respondent no. 2 is a co-operative bank registered under the provisions of the maharashtra co-operative societies act, 1960 ('the act' for short). the deputy district registrar, co-operative societies, amravati is the registering authority and the divisional joint registrar co-operative societies, amravati is the appellate authority. respondent no. 2 in its annual general meeting dated 24-10-2004 unanimously resolved to amend its existing bye-laws to extend its area of operation to the adjoining districts viz. akola, washim and yavatmal. by the proposed amendment the respondent no. 2 resolved to amend its existing bye-laws to allow the teachers of the zilla parishad working at the districts of washim, akola and yavatmal to become its members. the retired teachers from the zilla parishad from the said districts were also allowed to become members. the respondent no. 2 submitted the proposed amendments to bye-laws to district deputy registrar, amravati for approval who by order dated 31-1-2005 refused to record approval to the proposed amendment. being aggrieved by the said order the respondent no. 2 preferred appeal no. 11/05 under section 152 of the act to the divisional joint registrar, amravati division who by order dated 24-4-2006 dismissed the appeal.4. being aggrieved by both these orders the respondent no. 2 preferred revision to the state government under section 154 of the act. by the impugned order dated 8-11-2006 the minister for state and textiles has allowed the revision by setting aside orders dated 24-4-2006 and 31-1-2005.5. being aggrieved, the akola zilla parishad primary teachers cooperative credit society ltd. akola has preferred writ petition no. 5259/07 and washim zilla parishad primary teachers co-operative society ltd., washim has preferred writ petition no. 4349/07.6. at the outset, mr. patil and mr. ghare, learned counsel appearing for the petitioners submitted that since by the proposed amendment to the bye-laws the area of operation of respondent no. 2 was extended beyond amravati to the districts of akola, washim and yavatmal, the deputy district registrar had no jurisdiction to entertain the application for amendment of bye-laws. placing reliance upon the order dated 7-8-1993 of the state government by which powers of registrar have been delegated to different authorities the learned counsel for the petitioners submitted that since by the proposed amendment the area of operation was extended beyond the district of amravati, the deputy district registrar, amravati had no jurisdiction to entertain the amendment to the bye-laws and it is only the divisional joint registrar of the division who had jurisdiction to decide the application.6. the learned counsel further submitted that since the original order was passed by the deputy district registrar which was confirmed by the divisional joint registrar which in turn has been set aside by the state government all the three orders are liable to be set aside since the original order passed by the district deputy registrar is without jurisdiction and as such the question of preferring appeal and revision against the order passed by the district deputy registrar does not arise. according to the learned counsel for the petitioner it is only the joint divisional registrar who had jurisdiction to entertain the proposal for amendment to the bye-laws and hence the entire proceedings initiated by respondent no. 2 in relation of the amendment to the bye-laws are without jurisdiction and consequently all orders passed by the three authorities are liable to be set aside.7. the learned counsel further submitted that the impugned orders are also liable to be set aside on another ground. before allowing the proposed amendment permitting respondent no. 2 to extend its area of operation beyond the districts of amravati, the petitioners who were operating within the district of akola and washim were entitled to be heard and admittedly no hearing was given to them and, therefore, the impugned order passed by the state government in exercise of revisional jurisdiction is liable to be set aside. in support of this submission mr. patil and mr. ghare relied upon the following judgments.i) maharashtra state co-operative bank limited and anr. v. the state of maharashtra and ors. 2000 m.l.j. 183 sonewadi vividh karyakari seva sahakari society ltd. through its director shri dnyandeo karbharipatil gudghe v. the state of maharashtra and ors. 2004 m.l.j 429.8. per contra, mr. t.a. mirza and mrs. taywade, learned a.g.ps. appearing for respondent no. 1 supported the impugned order.mr. gordey, learned counsel appearing for respondent no. 2 in both the petitions submitted that the petitioners were not entitled to any notice before allowing the proposed amendment to the bye-laws permitting the extension of area of operation beyond amravati since neither the act nor the rules make any provision thereof. mr. gordey, further submitted that the deputy joint registrar who had registered the bye-laws of respondent no. 2 had jurisdiction to decide about amendment to the bye-laws even in terms of the order dated 7-8-1993. he further submitted that the impugned order has been passed in consonance with the provisions of the act and the rules and therefore, no fault can be found with the same. he, therefore, submitted that both the petitions deserve to be dismissed.9. i have considered the submissions made by the learned counsel for the rival parties and perused the record as well as the judgments relied upon.since the petitioners have challenged the jurisdiction of district deputy registrar to allow amendment to the bye-laws of the respondent no. 2 by which the area of operation has been extended to the districts of akola, washim and yavatmal it would be necessary to decide this question first. since the respondent no. 2 was initially operating within the district of amravati, the respondent no. 2 had rightly submitted its original bye-laws for approval and registration to the . deputy district registrar, amravati and they were approved by the district deputy registrar, amravati.10. by the proposed amendment the respondent no. 2 wanted to extend its area of operation beyond the district of amravati to the districts of akola, washim and yavatmal. perusal of the order dated 7-8-1993 passed by the state government by which the powers of the registrar have been delegated to different officer discloses that insofar as the powers of the registrar in division is concerned the same have been conferred upon the divisional joint registrar obviously for the reason that since the deputy district registrar exercises jurisdiction within a particular district he cannot exercise the jurisdiction beyond that district. since the respondent no. 2 wanted to extend its area of operation beyond amravati district in terms of the order dated 7-8-1993 it is only the divisional joint registrar who could have entertained the application for amendment of the bye-laws. the deputy district registrar, amravati had no jurisdiction to allow and register amended bye-laws by which respondent no. 2 were permitted to extend its area of operation beyond the district of amravati. therefore, i am not in a position to accept the submission made by mr. gordey and mr. mirza on behalf of the respondents that the district deputy registrar, amravati had jurisdiction to allow and register the amended bye-laws whereby the respondent no. 2 was permitted to extend its area of operation beyond amravati. this being the position, the necessary sequitur is that the proposal submitted to deputy district registrar by respondent no. 2 seeking to amend the bye-laws could not have been entertained by him since it was only the divisional joint registrar who could have entertained the same and taken decision thereof. on this sole ground all the three orders passed by the three authorities are liable to be quashed and set aside.11. the necessary sequitur is that the deputy district registrar, amravati ought to have forwarded the proposal of the respondent no. 2 for amendment of its bye-laws to the divisional joint registrar of the division. obviously, this has not been done. therefore, it would be appropriate to direct the deputy district registrar to forward the proposal for amendment of the bye-laws to the divisional joint registrar of the division who has exclusive jurisdiction to decide the same under the act, for his decision.the next question which arises for consideration is whether the petitioners in both these petitions are entitled to be heard before allowing the amendment to the bye-laws which would have the effect of permitting the respondent no. 2 to extend the area of operation to the districts of akola and washim in which the petitioners are operating. in my considered opinion, the issue is no more res intergra and is covered by the judgment delivered by the learned single judge in sonewadi vividh karyakari seva sahakari society ltd. (supra) in which the learned single judge after referring to three earlier judgments delivered by the division bench has held that before the society is registered under the act the other existing societies in the same category are entitled to be heard. none of the authorities below have heard the present petitioners. no doubt, the judgments relied upon by learned single judge are in relation to registration of society.12. but the same ratio would be applicable in relation to amendment of bye-laws. on this ground also the impugned order passed by the state government is liable to be set aside.in the result, therefore, the impugned orders dated 31-1-2005, 24-4-2006 and 8-11-2006 passed by the district deputy registrar, divisional joint registrar and the state government respectively are quashed and set aside. the deputy district registrar, amravati is directed to forward the proposal dated 4-12-2004 submitted by the respondent no. 2 for amendment of its bye-laws to the divisional joint registrar, amravati who shall take appropriate decision after hearing the petitioners in both these petitions in accordance with the act and the rules. the deputy district registrar shall forward the proposal along with the proposed amendment to the divisional joint registrar, amravati within a period of one week from the date of receipt of the writ of this court.13. the divisional joint registrar, amravati shall take decision thereafter after hearing the petitioners herein within a period of eight weeks uninfluenced by the findings given in the impugned orders.14. it is not in dispute that pursuant to the impugned order passed by the state government the respondent no. 2 has already enrolled the members within the districts of washim, akola and yavatmal. since the impugned orders are set aside and the divisional joint registrar is directed to decide the proposal for amendment of bye-laws it would be just and proper to direct the respondent no. 2 not to enroll new members from the districts of akola, washim and yavatmal till the decision is taken by divisional joint registrar. from today the respondent no. 2 shall not disburse any further loans to the members already enrolled from the districts akola, washim and yavatmal till the decision is taken by the divisional joint registrar as directed. it is made clear that insofar as the members already enrolled from the districts of yavatmal, washim and akola by the respondent no. 2 are concerned, the respondent no. 1 is at liberty to continue its business till the decision is taken by the divisional joint registrar.15. rule is made absolute in both the petitions in the aforesaid terms. considering the facts and circumstances, there shall be no order as to costs.