Quashed

Narsing Matsya Vyavsaik Sahakari Sanstha, Vanwada Latur Thru Secretary v. the State of Mah and Ors.

Bombay HC2 May 2012WP/1325/2012

Case brief

AI extract

What is this about?

The High Court, in a writ petition, quashed an order setting aside a five-year lease allotment to a fishery cooperative society. The court held that setting aside the allotment was inequitable as four years of the lease had lapsed. It noted that the rival society had filed an appeal regarding bye-law amendments, reserving its final challenge on that ground.

What did the court decide?

The impugned order passed by the Assistant Commissioner of Fisheries is quashed and set aside. Rule is made absolute in these terms.

Narsing Matsya Vyavsaik Sahakari Sanstha, Vanwada Latur… — Cooperative Societies | Bombay HC (2012)

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1 W.P. 1325.2012 - [ J ]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1325 OF 2012

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Narsing Matsya Vyavsaik Sahakari Sanstha, Vanwada, Tq. : Ausa, Dist. : Latur, through its Secretary Murlidhar S/o Prabhu Kadam

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Age : 50 Yrs., Occ. : Fishery, R/o : Vanwada, Post : Borphal,

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Tq. Ausa, Dist. : Latur .... PETITIONER

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V E R S U S

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The State of Maharashtra

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Through its Secretary Krishi Pashusavardhan Dugdh Vikas and Matsya Vyavsai Vibhag, Mantralaya, Mumbai – 32 [ Animal Husbandry, Dairy and Fishery Development Department ].

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The Commissioner of Fishery Taraporwala Matsalaya, Charni Road, Mumbai.

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The Regional Deputy Director/ Commissioner of Fishery, Aurangabad.

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The Development Officer, Fishery, Aurangabad.

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The Assistant Registrar

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2 W.P. 1325.2012 - [ J ]

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Co-operative Societies [ Dairy ],

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Latur.

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Assistant Commissioner of Fishery Administrative Building, 2^nd Floor, Latur. 7. Nagnath Matsya Vyavsai Sahakari Sanstha, Nagur, Tq. Lohara, Dist. Osmanabad Through its Secretary. .... RESPONDENTS

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Mr.V.D.Salunke, Advocate instructed by Mr. S.P.Urgunde, Advocate for the Petitioner. Mrs. R.K.Ladda, Asstt. Govt. Pleader for State. Mr. P.S.Chavan, Advocate for Resp. No. 7

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CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT: 02/05/2012.

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ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. With the consent of

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the learned counsel for the parties, taken up for final hearing.

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The petitioner assails the order passed by the Assistant Commissioner [ Fisheries ], Latur [ For short, ‘ the Commissioner ’ ] passed in the Revision filed by the present respondent no. 7, wherein the order/report/noting dated 05/05/2008 was set aside.

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3 W.P. 1325.2012 - [ J ]

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Mr. V.D.Salunke, learned counsel for the petitioner submits

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that there is no provision for seeking no objection of the other society. The Revision has been allowed by the Commissioner only on the ground that no objection of the present respondent no. 7 was not obtained. According to the learned counsel, the lease was sanctioned on 07/05/2008 for the period of five ( 5 ) years. The bye-laws of the petitioner/society were amended on 11/02/2008, wherein the Nimna Terana Project, Ausa, Dist. Latur [ For short, ‘ said Project ’ ] was also included within the jurisdiction of the petitioner. The said bye-laws are not challenged. In the bye-laws, as the said project is within its jurisdiction, the lease was validly executed in favour of the petitioner. When in law there is no requirement of the no objection from the Society and the Department, the lease in favour of the petitioner could not have been set aside.

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Mr. Chavan, learned counsel for respondent no. 7 relies on the Govt. Resolution, which states that if there are two ( 2 ) or more societies registered in the same jurisdiction, then the allotment has to be by auction. The auction is not held and as such the said allotment is rightly set aside. According to the learned counsel, even bye-laws are challenged and the Appeal is filed challenging the amendment to the byelaws. The learned counsel submits that as there is a basic violation of the

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4 W.P. 1325.2012 - [ J ]

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Govt. Resolution, the order can not be faulted.

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With the assistance of the learned counsel, I have gone through the order.

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The only ground on which the allotment of the petitioner has been set aside is that prior to the allotment, no objection of the department has not been obtained and the order amending the bye-laws and enhancing the jurisdiction, is not as per rules. The amendment to the bye-laws was not the subject matter of the challenge before the authority. Unless the amendment to the bye-laws are set aside, the bye-laws would operate and as per the amended bye-laws, the jurisdiction of the petitioner/Society was enhanced and the said Project was included within its jurisdiction. The allotment is not set aside on the ground that the same is not made by auction. No such reasoning appears in the order. More over, already four ( 4 ) years of the lease have lapsed from the date of allotment and only one ( 1 ) year has remained. At this stage, it would not be appropriate to set aside the allotment. The respondent no. 7 has filed Appeal challenging the amendment to the bye-laws. The learned counsel submits that there is no stay to the said amendment in the Appeal. Needless to state, the bye-laws as amended would be operating in the field, subject to the decision in the Appeal.

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5 W.P. 1325.2012 - [ J ]

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If the Appeal of the present respondent no. 7 challenging the amendment to the bye-laws is allowed, then the respondent no. 7 would have a fresh cause of action to assail the allotment.

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At this stage, the reason given by the Commissioner while setting aside the allotment is not in consonance with the provisions of law, so also in equity, as four ( 4 ) years of the lease have already lapsed and

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only one ( 1 ) year has remained.

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In light of the above, the impugned order is quashed and set

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aside.

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Rule is made absolute in above terms. No costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 1325.2012 - [ J ]

Narsing Matsya Vyavsaik Sahakari Sanstha, Vanwada Latur Thru Secretary v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Narsing Matsya Vyavsaik Sahakari Sanstha, Vanwada Latur Thru Secretary v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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