RAJENDRA PRATAPRAO MANE Vs SADASHIVRAO MANDALIK K.T.S.S.K.LTD.&ORS
Bench: ALTAMAS KABIR,J. CHELAMESWAR
Case number: C.A. No.-002990-002991 / 2012
Diary number: 7648 / 2012
Advocates: SHIVAJI M. JADHAV Vs
GAURAV AGRAWAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.2990-2991 OF 2012 (Arising out of SLP(C)Nos.8397-8398 of 2012)
RAJENDRA PRATAPRAO MANE & ORS. … APPELLANTS
Vs.
SADASHIVRAO MANDALIK K.T.S.S.K. LTD. & ORS. … RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. The 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.
3. A few facts are required to be set out in order to
appreciate the question which has been raised in these
appeals.
4. On 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 the appellants.
5. On 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.
6. Writ 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.
7. Immediately, 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 Maharashtra.
8. In 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.”
9. The 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.
10. The 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.
11. The 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.
12. Yet 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.
13. On 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 do so.
14. At 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.
15. As 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 of Business.
16. The 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.
17. In 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.
18. The 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.
19. We, 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 since 2007.
20. The appeals are accordingly disposed of with the
aforesaid directions.
21. There will be no order as to costs.
………………………………………………………J. (ALTAMAS KABIR)
………………………………………………………J. (J. CHELAMESWAR)
New Delhi March 22, 2012.