|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)
1 RAJENDRA PRATAPRAO MANE & ORS. ... APPELLANTS
Vs.
2 SADASHIVRAO MANDALIK K.T.S.S.K.
3 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.
