Case Note & Summary
The petitioners were members of respondent no. 3 society and had unpaid dues. Proceedings under section 101 of the Maharashtra Cooperative Societies Act, 1960 (MCS Act) were initiated against them. The Sub Registrar passed an order on 24 January 2013, which recorded that the petitioners' advocate had withdrawn appearance after seeking and obtaining permission. However, the recovery certificate issued subsequently stated that 'none present' for the petitioners and the recovery order was issued ex parte. The petitioners challenged the recovery certificate by filing writ petitions. The court noted that it had already observed in Balasaheb Dhondiram Naikam v. The Joint Registrar, Cooperative Societies, Kolhapur and Others (Writ Petition No. 2183 of 2014, decided on 13 February 2015) that a requisite opportunity of hearing must be given before passing an order under section 101. Since the Sub Registrar's order recorded the advocate's withdrawal but the certificate misrepresented the presence, the court found a violation of natural justice. The court allowed the petitions, set aside the recovery certificates, and remanded the matters for fresh consideration after giving the petitioners a proper opportunity of hearing. The court also directed that the petitioners be heard before any fresh order is passed.
Headnote
A) Cooperative Law - Recovery Certificate - Section 101 Maharashtra Cooperative Societies Act, 1960 - Opportunity of Hearing - The Sub Registrar's order dated 24 January 2013 recorded that the petitioners' advocate withdrew appearance with permission, but the recovery certificate stated 'none present' and was issued ex parte. The court held that a requisite opportunity of hearing must be given before passing an order under section 101, and the certificate was invalid due to procedural irregularity. (Paras 2-3)
Issue of Consideration
Whether the recovery certificate under section 101 of the Maharashtra Cooperative Societies Act, 1960 was validly issued when the petitioners' advocate had withdrawn appearance and the certificate recorded 'none present' despite the Sub Registrar's order noting the withdrawal.
Final Decision
The court allowed the writ petitions, set aside the recovery certificates, and remanded the matters for fresh consideration after giving the petitioners a proper opportunity of hearing. Rule made absolute.
Law Points
- Natural justice
- opportunity of hearing
- recovery certificate
- section 101 Maharashtra Cooperative Societies Act
- 1960
Case Details
2015 LawText (BOM) (02) 37
Writ Petition No. 10463 of 2014, Writ Petition No. 10464 of 2014, Writ Petition No. 10465 of 2014, Writ Petition No. 10466 of 2014, Writ Petition No. 10490 of 2014
Mr. Yakshay Chheda for the petitioners, Mr. T.D. Deshmukh along with Mr. N.R.T. Kothari for respondent nos. 3, Ms. P.S. Cardozo, A.G.P. for respondent no. 1
Shri. Rakesh Jain, Shri. Devang Choksi, Shri. Prabodh Shah, Smt. Kikila Shah, Smt. Neeta Kanungo
District Deputy Registrar Cooperative Societies and Ors.
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Nature of Litigation
Writ petitions challenging recovery certificates issued under section 101 of the Maharashtra Cooperative Societies Act, 1960.
Remedy Sought
Petitioners sought quashing of recovery certificates and a fresh opportunity of hearing.
Filing Reason
The recovery certificates were issued ex parte despite the Sub Registrar's order recording that the petitioners' advocate had withdrawn appearance with permission.
Previous Decisions
The Sub Registrar passed an order on 24 January 2013 under section 101 of the MCS Act, recording the advocate's withdrawal. Subsequently, a recovery certificate was issued stating 'none present' for the petitioners.
Issues
Whether the recovery certificate under section 101 of the MCS Act was validly issued when the petitioners' advocate had withdrawn appearance and the certificate recorded 'none present' despite the Sub Registrar's order noting the withdrawal.
Submissions/Arguments
Petitioners argued that the recovery certificate was issued without proper opportunity of hearing as their advocate had withdrawn appearance and the certificate misrepresented their presence.
Respondents likely argued that the proceedings were properly conducted.
Ratio Decidendi
A requisite opportunity of hearing must be given before passing an order under section 101 of the Maharashtra Cooperative Societies Act, 1960. The recovery certificate was invalid due to procedural irregularity as the Sub Registrar's order recorded the advocate's withdrawal but the certificate stated 'none present'.
Judgment Excerpts
I have already observed in Balasaheb Dhondiram Naikam Versus The Joint Registrar, Cooperative Societies, Kolhapur and Others in Writ Petition No. 2183 of 2014 delivered on 13th February, 2015 in paragraphs 3 and 5 that a requisite opportunity needs to be given before passing an order under section 101 of the MCS Act.
Procedural History
The Sub Registrar passed an order on 24 January 2013 under section 101 of the MCS Act, recording the advocate's withdrawal. Subsequently, a recovery certificate was issued. The petitioners filed writ petitions in 2014 challenging the certificate. The court heard the matter and delivered judgment on 23 February 2015.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: 101
