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Judgment
R.V. More, J.—Rule. Rule made returnable forthwith. Counsel for the respondents waive notice for the concerned respondents. As the question involved in this petition is in narrow compass, petition is taken up for final disposal forthwith, by consent.
Heard learned counsel appearing for the respective parties.
By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order dated 8th January, 2013 passed by the Minister for Co-operation, Government of Maharashtra-Respondent No. 7 herein in Appeal No. 1060 of 2012. By the said order, Minister has quashed and set aside Respondent No. 4- Assistant Registrar''s order dated 29th December, 2012 and directed Assistant Registrar, Co-operative Societies, Niphad to register Respondent No. 1-Society.
Few facts giving rise to the present petition are as follows:
On 18th December, 2012, respondent no.1-Society filed proposal before respondent no.4-Assistant Registrar for its registration under Sections 4 and 9 of the Maharashtra Co-operative Societies Act, 1960 (In short ''Said Act''). Respondent no.4 returned this proposal to respondent no.1 in view of Government Resolution (In short ''GR'') dated 3rd December, 2011, which contains Government decision to suspend registration of new PACSs till further orders. Respondent no.1 thereafter preferred appeal being Appeal No. 1060 of 2012 before Respondent No. 7- Minister. As stated above, this appeal is allowed and the Minister has directed Respondent No. 4 to register respondent no.1-Society.
Mr. Joshi, learned counsel for respondent no.1, at the outset, challenged maintainability of the present petition. He submitted that petition is not maintainable at the instance of the petitioner, who is member of respondent no.3-Society. He also submitted that in pursuance of the impugned order passed by Respondent No. 7-Minister, Respondent no.1-Society is registered by respondent no.4 by the order dated 13th February, 2013 and the petitioner will have to challenge this order by filing appeal before the appellate authority.
Preliminary objection to the maintainability of the present petition can not be accepted as Mr. Joshi could not point out any prohibition or bar to the petitioner to challenge the order impugned in this petition. Petitioner is member of respondent no.3-Society, which is existing registered society in the Village: Pimpalgaon and, therefore, petition at his instance is maintainable. So far as second objection of Mr. Joshi is concerned, I find that Hon''ble Minister by impugned order directed respondent no.4-Assistant Registrar to register respondent no.1- Society. Respondent no.4-Assistant Registrar had no alternative but to register respondent no.1-Society and, accordingly, he registered it. Registration order passed by respondent no.4 is a consequential order passed in pursuance of the order impugned in this petition. If the impugned order is set aside, consequential order of registration will automatically go. Therefore, Mr. Joshi''s second objection is also overruled.
Before entering into merits of the matter, let us analyse Government Policy regarding registration of the Primary Agricultural Credit Co-operative Societies (In short ''PACSs''). The Government Policy is important in the light of proviso to Section 4 of the said Act under which no society shall be registered if it is likely to be economically unsound, or the registration of which may have an adverse effect on development of the co-operative movement, or the registration of which may be contrary to the policy directives which the State Government may, from time to time, issue. For the purpose of present matter, we need not look into the policy prior to 2001 and it will suffice if we consider policies subsequent to 2001. There are three GRs in this regard, namely, GR dated 7.2.2001, GR dated 3.12.2011 and GR dated 23.9.2013. Apart from these GRs, there is one Circular dated 5.3.2007 issued by the Commissioner for Co-operation and the Registrar of Co-operative Societies, Maharashtra State Pune.
GR dated 7.2.2001 requires, inter-alia, that the estimated loan disbursement of the proposed society should be more than Rs.50 lakhs. On 5th March, 2007, the Commissioner for Co-operation and the Registrar of Co-operative Societies issued Circular directing all subordinate officers that, they should not forward to the office of the Commissioner any proposal for prior sanction before registration of a new PACS.
Government thereafter issued GR dated 3.12.2011. This GR is more or less similar to Circular dated 5.3.2007. Under this GR, directions were given that the proposals for registration of new PACS should not be accepted and registration process of the same is stayed until further orders.
Government thereafter issued GR dated 23.9.2013. By this resolution, fresh policy was framed fixing the viability criteria''s for registration of new PACS. This GR is issued on the basis of recommendations of Vaidyanathan Committee.
At this stage, it is pertinent to note that Circular dated 5.3.2007 issued by the Commissioner for Co-operation can not be termed as policy of State Government as per proviso to Section 4 of the said Act. Learned Single Judge of this Court considered the question whether said Circular is Government Policy in his order dated 18th January, 2012 passed in Writ Petition Nos. 2808 of 2011 and 2809 of 2011 and made following observations in paragraphs 21 and 23:
"21. It is difficult to accept the contention of Mr. Borkar that the Circular dated 05.03.2007 is a policy decision of the State Government as contemplated by proviso to Section 4. A policy decision of the State Government can only be in the form of a Government Resolution issued by the order and in the name of the Governor of Maharashtra. The Circular has been issued on the basis of the decision taken in the meeting of the SLIC held on 11th January, 2007 presided over by the Principal Secretary of the concerned Department. However, neither the SLIC nor the Registrar of the Co-operative Societies are empowered to take any policy decision on behalf of the State Government. Hence, the said Circular dated 05.03.2007 cannot be considered to be a policy decision as contemplated by proviso to Section 4.
In my opinion, the Respondents are justified in their submissions that the Circular dated 05.03.2007 issued by the Commissioner does not override the policy decision dated 07.02.2001. I may hasten to add that I may not be treated to have expressed opinion that the State Government cannot take policy decision on the basis of tripartite MOU. However, as a matter of fact there is no policy decision in the form of G.R. regarding the complete stoppage of registration of the multipurpose co-operative credit societies which is shown to have been taken by the State Government. In the absence of any such subsequent policy decision, the original policy decision contained in the G.R. Dated 07.02.2001 will continue to operate and hold the field. Hence, the first contention of Mr. Borkar cannot be accepted and fails.
I agree with the view taken by the learned Single Judge in the above order. Thus, Commissioner''s Circular dated 05.03.2007 can not said to be policy decision of the State Government.
Under GR dated 3rd December, 2011, proposals for registration of new PACS was not to be accepted as the finalization of criteria for the registration of new PACS, in pursuance of the recommendations of Vaidyanathan Committee, were under consideration of the Government. Ultimately, Government passed Resolution dated 23.9.2013 framing a policy laying down the viability criteria for the registration of new PACS.
Under the GR dated 7/2/2001, PACS could be registered if the estimated loan disbursement of the proposed society is more than 50 lacs of rupees.
The criteria laid down under the latest GR dated 23/9/2013 for granting registration to new PACS is as follows:
(I) There should be only one PACS in one Revenue Village.
(ii) There should be at-least 75 members in a proposed PACS.
(ii) Estimated loan disbursement of the proposed society should be-
(a) more than Rs.1.5 Crore in Western & North Maharashtra including Khandesh).
(b) Rs. 1 Crore in Konkan, Marathwada & Vidarbha.
(c) Rs. 50 Lakhs in tribal areas in the State.
The controversy in issue needs to be considered with reference to following time zones (period) which are marked by specific events as set out hereunder:
(A) From 07.02.2001 up to 05.03.2007:
On 07.02.2001, the Government of Maharashtra in pursuant of the powers conferred upon it by the proviso to Section 4 of the Said Act framed policy and issued directives regarding registration of PACSs in the State of Maharashtra. These directives laid down various eligibility criteria for regulating registration of a new PACSs.
On 05.03.2007, the Commissioner for Co-operation and the Registrar of Co-operative Societies, Maharashtra State, Pune issued a ''Circular'' directing all subordinate officers not to forward to the office of the Commissioner any proposal for prior sanction of PACSs before registration of new PACSs. I have already observed that this ''Circular'' is not a Government Policy within the meaning of proviso to Section 4 of the Said Act.
(B) From 05.03.2007 up to 03.12.2011:
In view of above legal position, it is clear that the policy directives of the Government of Maharashtra dated 07.02.2001 hold the field in spite of Circular dated 05.03.2007. Consequently, it was legally permissible to register a new PACS even after the issuance of the said Circular dated 05.03.2007, albeit, only if the new PACS to be registered complied with the aforesaid policy directive dated 07.02.2001.
On 03.12.2011 a Government Resolution has been issued containing the Government decision to suspend registration of new PACS. It specifically directs that proposals for registration of new PACS should not be accepted and that until further orders of the Government, the process of registration of new PACS is suspended/stayed.
(C) From 03.12.2011 to 23.09.2013:
Government issued fresh Resolution dated 23.09.2013 whereby the Government framed a new policy for registration of new PACS and also for merger and/or of liquidating ineligible PACS. Thus, under the new policy the registration of new PACS was permitted to be restarted only on and from 23.09.2013, albeit, on the basis of new criteria laid down by the said GR of 23.09.2013.
Thus, during the aforesaid period from 03.12.2011 till 23.09.2013 the policy of the Government was not to permit registration of any new PACS within the state, principally for the reasons set out in detail in the said GR dated 03.12.2011. Thus, it was impermissible in law to register any new PAC during the aforesaid period.
It is pertinent to note that the Government of Maharashtra vide its Affidavit dated 24.02.2014 has made its stand clear that GR dated 23.09.2013 is applicable prospectively and, therefore, would not apply retrospectively. In my considered view, stand of the Government that the latest GR dated 23.09.2013 is prospective in operation will have to be accepted in the light of decision of the Apex Court in the case of Tamil Nadu Electricity Board and Another Vs. Status Spinning Mills Ltd. and Another, . In this decision, Apex Court has held that policy decisions of a State are always prospective unless specifically made applicable retrospectively. The observations of the Apex Court in this regard in paragraph 44 read as follows:
"44 A distinction must be made between a policy decision and a statute. Whereas prima facie a policy decision may not have any retroactive operation, a statute may have. Only because it affects a past transaction the same, by itself, would not come in the way of the legislature in enacting an enactment or the executive government to exercise its power of subordinate legislation."
Perusal of the aforesaid factual as well as legal aspects of the matter demonstrates that the policy of the Government under GR dated 07.02.2001 regulated the registration of new PACS upto and until 03.12.2011 on which date, Government of Maharashtra put registration of new PACS under suspension as the Government was in the process of re-framing the criteria for registration of new PACS. This suspension of registration of new PACS was removed after introduction of new policy vide GR dated 23.09.2013, albeit, on new criteria which are quite different and distinct from the criteria spelt out by the GR dated 07.02.2001.
It is, therefore, clear that till 03.12.2011 the policy of the Government dated 07.02.2001 continued to hold the field and regulate the registration of new PACSs. Whereas, on and from, 23.09.2013 the new policy of the Government came into operation, only with prospective effect. It is clear that in the interregnum period from 03.12.2011 to 23.09.2013 there could not have been registration of any new PACS at all, the old policy dated 07.02.2001 NOT having been continued with effect from 03.12.2011 and the new policy having been implemented only with prospective effect from 23.09.2013, during this period in the absence of any criteria provided by the Government of Maharashtra but more particularly, in view of the clear policy not to allow registration of new PACS, such a registration was an impossibility in the eyes of law. Thus, registration of PACSs, if any, granted during the aforesaid period from 03.12.2011 to 23.09.2013 is absolutely illegal and can not be sustained.
In view of aforesaid facts and circumstances of the case, following conclusions are deduced:
(I) Registration of PACSs granted up to 03.12.2011 in terms of Government policy contained in GR dated 07.02.2001 is legal, valid and, therefore, will have to be upheld.
(II) Registration of PACSs granted between the period from 03.12.2011 and 23.09.2013 is impermissible and illegal and, therefore, will have to be set aside.
(III) Applications for registration of new PACS submitted/filed/lodged BEFORE 03.12.2011 shall be considered in terms of the Government Policy contained in GR dated 07.02.2001.
(IV) Applications, for registration of a new PACS submitted/filed/lodged AFTER 23.09.2013 to be considered/reconsidered in terms of the policy dated 23.09.2013.
(V) The applications filed during the period 03.12.2011 and 23.09.2013 may be reconsidered strictly in terms of the policy dated 23.09.2013.
In the light of above conclusions, now, let us consider case of respondent no.1 in this petition. Respondent no.1-Society filed proposal on 18.12.2012 before respondent no.4-Assistant Registrar for its registration under Sections 4 and 9 of said Act. Respondent no.4 returned the said proposal by letter dated 29.12.2012 in view of GR dated 3rd December, 2011. In the teeth of GR dated 03.12.2011, respondent no.1 could not have filed proposal and Assistant Registrar could not have accepted the same. That apart, respondent no.1 challenged Assistant Registrar''s order dated 29.12.2012 by approaching Hon''ble Minister directly under Section 152 of the said Act. In my considered view, respondent no.1''s appeal could not have been entertained by respondent no.7-Hon''ble Minister. Under Section 152(1)(b) of the said Act, appeal against the order of the Assistant Registrar would be maintainable before the Joint Registrar only. Hon''ble Minister in usurpation of the power of Joint Registrar, directed Assistant Registrar to register respondent no.1- society.
Thus, impugned order is liable to be quashed and set aside on both counts, namely, respondent no.1-Society could not have filed proposal in the light of GR dated 03.12.2011 and secondly, Hon''ble Minister could not have exercised appellate powers vested in the Joint Registrar. Challenge to the impugned order, therefore, succeeds.
In above conspectus of the matter, Writ Petition is disposed of in following terms:
(I) Impugned order dated 8th January, 2013 passed by Respondent No. 7-Minister in Appeal No. 1060 of 2012 is quashed and set aside. Consequently, respondent no.1''s registration stands cancelled automatically.
(II) Respondent no.4-Assistant Registrar is directed to consider respondent no.1''s proposal dated 18.12.2012 afresh in accordance with the G.R. Dated 23.09.2013, and pass appropriate orders.