Maharashtra Co-operation Department, issues the Order for fixing Schedule of fees payable to Auditors under the signature of a Desk- Section Officer, of the Housing Section 14-C.
The Department of Co-operation has done it again. After avoiding to address the issue of Appointment of Auditors for nearly a year, as hastily made in 2013 & which were struck down twice in 2013, by the Hon’ble High Court, things started to creak ahead recently.
The latest in the series is the Order dated 29/10/2014, regarding the Scale of fees payable to an Auditor issued under uncited section/rule, by the officer, which is shocking & surprising.
Besides the provision of Section 81-1-f of the amended act 2013, as relied upon by the Section Officer is misplaced & goes against the clear mandate of the law.
Section 81-1-f reads, “(f) The remuneration of the auditor or auditing firm of a society shall be borne by the society and shall be at such rate as may be prescribed.”
Section 165-2-xlvii deals with prescribing the procedure for appointment of auditors under sections 75 and 81 and fees to be paid to such auditors
Now the term “prescribed” means, as per section 2-21 of the MCS act means Prescribed by rules.
The Schedule of Scale/rate of fees payable to Auditors have to be in the form of an amendment to Rules, just like, Society Registration fees, under Rule 4, Education Fund under Rule 53 & Rate of Court fees under Rule 86 & Dispute fees under Rule 86A of the MCS Rules, calling for prior objections from public on the Draft Rules, considering them & then placing them before both the houses of the State legislature for approval & enforcement, as it involves a legislative exercise. The quoted figures for fees in numerals & the various heads under the types of societies are an inseperable part. The mandate of the act require a legislative process & not an executive fiat in the form of any order under Section & 79A or 157 of the MCS act. What has been sought to be done hastily, in the instant case, is that the legislative power to fix, specify & notify the rate has been bypassed & infact usurped by the executive which is neither the intention nor can be drawn by implication from the legal provision. The MCS Amended rules, 2013 have not been reportedly notified as of date, nor are the rules published on the websites of the State Govt. Co-operation Department or the Registrar Co-operative Societies Pune office. Even otherwise it is settled law in numerous apex court & hc orders, that the term State Govt. referred to in any statute means the minister incharge of the particular department & the act precedes & over-rides the rule & all other orders, notifications, if they are inconsistent with the act. The present Order has been issued by the Housing Section 14-C of the department despite it only dealing with coop. hsg. society matters, whereas all legal & universally applicable orders to all societies are issued by the Legal cell desk-section 15-C of the Co-operation Department. The rules, regulations, orders & notifications are traditionally, customarily & mandatorily issued under the hand & signature of the Secretary to the department & certainly not a desk-section officer as is in the case on hand.
Protocol & Office procedure both appear to have been dented severely, leading to the said Order being declared as ultravires, nullity & struck down later.
Courtesy: Mr.Jagdish Gianchandani