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VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION No. 514 OF 2011AND

WRIT PETITION No. 515 OF 2011

ANDWRIT PETITION No. 516 OF 2011

AND

WRIT PETITION No. 522 OF 2011AND

WRIT PETITION No. 524 OF 2011

Surendra Digamber Juvekar ...Petitioner

Vs.Devtirth CHS Ltd. & Ors. ...Respondents

***

Mr. K. S. Patil, for the Petitioner.

Mr. Amber Joshi for Respondent Nos. 1 to 3.

Mr. R. M. Patne, AGP for Respondent Nos. 4 & 5.

***

CORAM: V. M. KANADE J.

DATE : JANUARY 19, 2011

P.C.

1. Heard the learned counsel appearing on behalf of the

petitioner in all the petitions. All these petitions can be disposed of by a

common order since the parties are same. Only respondent No.3 whose

nomination has been accepted by the authorities is different.

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2. The grievance of the petitioner is that respondent No.3 in

these petitions was not eligible to file his nomination, in view of bye-law

No. 118(iii), and in view of the orders passed by the Dy. Registrar,

Cooperative Societies under Section 79 and 88 of the Maharashtra

Cooperative Societies Act, 1960 (hereinafter referred to as the Act).

He invited my attention to the said orders which are annexed at Exhibit

B (Colly). It was submitted that the Scrutiny Officer had rightly

rejected the nomination of respondent No.3 in each of these petitions, on

the said ground. However, the Appellate Authority had accepted the

nomination. It was submitted that it was not necessary for the Dy.

Registrar to pass a separate order of disqualification or non-compliance

in respect of the individual member of the Managing Committee, either

under Section 79(1), 79(2) and 79(3) of the said Act and it was sufficient

if the order was passed under any of the sub-sections of Section 79 of the

Act, it would automatically amount to a disqualification, as envisaged

under Bye-Law No. 118(iii). He submitted that in the instant case, the

Registrar had given given 15 days time to the Managing Committee

members to carry out repairs of the leakage in the flat of one Surendra

Digambar Juvekar, the petitioner herein. It was submitted that this was,

however, not done in spite of repeated notices being given.

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3. On the other hand, the learned counsel appearing for

respondent No.3 in each of these petitions submitted that until a specific

order was passed under section 79(3) of the Act, it can be said that such a

member had incurred disqualification. He submitted that no order was

passed by the Registrar, under the said sub-clause (3). It is then

submitted that these writ petitions were not maintainable. It was

submitted that under section 152A of the said Act, appeal was provided

only against the order of rejection of the nomination papers and no

appeal could lie against the acceptance of the nomination papers. He

submitted that on the same analogy, against the order of acceptance of

nomination papers by the Appellate Authority, writ petitions were not

maintainable. In support of the said submission, he relied on the Division

Bench judgment of this Court in the case of Maniklal Peerchand

Lunawat vs. Rupee Cooperative Bank Ltd. [CDJ 1988 BHC 547].

4. I have heard the learned counsel appearing on behalf of the

petitioner and the learned AGP for the State, and also the learned counsel

appearing on behalf of respondent No.3, in all the petitions. By consent

of parties, rule is granted. Rule made returnable forthwith, taking into

consideration the controversy raised in this case.

5. In my view, the submissions made by the learned counsel

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appearing for the petitioner cannot be accepted for the following

reasons-

. Respondent No.3 in each of these petitions was a member of

the Managing Committee of the said Society. There was some grievance

made by the Petitioner, regarding the leakage of his flat and he has made

the application to the Dy. Registrar that the said leakage was not repaired

by the Managing Committee. The Dy. Registrar, had therefore, asked the

Managing Committee to repair the said flat within a particular period and

thereafter repeated directions were given by him under Section 79 (2)(a)

of the Act. It will be necessary to have a look at the relevant provisions

of the bye-law No. 118(iii), which reads as under-

118. No person shall be eligible for being elected as member

of the Committee or co-opted on it, if:

(i) ...

(Iii) ...

(iii) he has been held responsible under Section 79 or 88 of

the Act or has been held responsible for the payment of the

costs of enquiry under Section 85 of the Act.

6. In this case it is alleged that it has been held he has been

disqualified by virtue or order passed under Section 79 of the Act.

Section 79 of the Act reads as under-

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79. (1) The Registrar may direct any society or class

of societies, to keep proper books of accounts with respect to

all sums of money received and expended by the society, and

the matters in respect of which the receipt and expenditure

take place, all sales and purchases of goods by the society, and

the assets and liabilities of the society, and to furnish such

statements and returns and to produce such records as he may

require from time to time; and the officer or officers of the

society shall be bound to comply with his order within the

period specified therein.

(2) Where any society is required to take any action

under this Act, the rules, or the bye-laws, or to comply with an

order made under the foregoing sub-section and such action is

not taken-

(a) within the time provided in this Act, the rules or

the bye-laws, or the order, as the case may, or

(b) where no time is provided, within such time,

having regard to the nature and extent of the action to be

taken, as the Registrar may specify by notice in writing,

the Registrar may himself, or through a person authorised by

him, take such action, at the expense of the society; and such

expense shall be recoverable from the society as if it were an

arrear of land revenue.

(3) Where the Registrar takes action under sub-

section (2), the Registrar may call upon the officer or officers

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of the society whom he considers to be responsible for not

complying with the provisions of this Act, the rules or the bye-

laws, or the order made under sub-section (1), and, after giving

such officer or officers an opportunity of being heard, may

require him or them to pay to the society the expenses paid or

payable by it to the State Government as a result of their

failure to take action, and to pay to the assets of the society

such sum not exceeding twenty-five rupees as the Registrar

may think fit for each day until the Registrars directions are

carried out.

7. Perusal of the section reveals that the section is divided in

three parts. Sub-section (1) empowers the Registrar to give directions to

the society which directions have to be complied; Sub-section (2) reveals

that the said direction has to be complied either within the time, provided

under the Act, the rule or the bye-laws or the order; and Sub-section (3)

provides that when no time is provided as per the direction given by the

Registrar in his order in writing.

8. Sub-clause (2) of Section 79 of the Act further provides that

if there is non-compliance as per the directions under sub-clause (1),

then the Registrar may himself or through a person authorized by him

take such action at the expense of the society and such expenses shall

be recoverable from the Society; Sub-clause (3) thereafter specifically

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lays down that after the action is taken under sub-section (2), the

Registrar may either call upon the officer or the officers of the society

whom he considers to be responsible for non-complying with the

provisions of the Act, the rules or the bye-laws or the order made under

sub-section (1) and after giving such officer or officers an opportunity of

being heard, may ask him to make the payment of the expenses to the

society and also ask him to pay the penalty. In the instant case, the Dy.

Registrar had given a direction to the Managing Committee to repair the

flat of the petitioner within a time bound period. The period was,

however, extended from time to time by issuing fresh notices. It is an

admitted position that the Registrar has not called upon the Society

through any other person to show-cause for not repairing the flat of the

petitioner, and consequently did not recover the said amount paid or

payable from the Society. It is also an admitted position that no show-

cause notice was issued to respondent No.3 in each of these petitions,

asking him to show cause why such amount should not be recovered,

and also an admitted position that no hearing has taken place, as required

under sub-section (3). That being the position, in my view, there is no

order passed by the Registrar under sub-section (3) holding respondent

No.3 in each of these petitions as individually or jointly liable for non

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compliance of the said order. In my humble view, therefore, unless such

a specific order is passed under Section 79(3) of the Act, it cannot be

said that such a person has incurred a disqualification under the Bye-law

No. 118(iii), so far as disqualification under Section 79 is concerned.

9. Though the bye-law merely refers to Section 79, it is

obvious for the purpose of incurring disqualification, a specific order has

to be passed either against the individual or the entire Managing

Committee or all the officers of the Managing Committee, and therefore,

merely because bye-law refers to order passed under Section 79, it does

not mean that an order which is passed under Section 79(1) or (2), would

automatically be treated as a disqualification under the said bye-law No.

118(iii). In the result, the submission made by the learned counsel for the

petitioner, therefore, cannot be accepted.

10. In this view of the matter, there is no merit in the

submissions made by the learned counsel for the petitioner. All the writ

petitions are, therefore, dismissed.

[ V. M. KANADE J.]