1999 Supreme(Bom) 804

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
The Bombay Catholic Co-operative Housing Society Ltd...... Petitioners.
Versus
V.B. Mathankar others..... Respondents.
Writ Petition No. 2328 of 1991, decided on 21/22-10-1999.
Advocates appeared :
Milind Sakhardande with Vineet Naik i/by Dhruve Liladhar Co., for petitioners.
Rajiv Mane, for respondent Nos. 1 to 6.
K.B. Purohit i/by Purohit Purohit, for respondent No. 23.
M.M. Joshi i/by Shantilal Co., for respondent Nos. 6, 17, 41 and 52.
S.H. Doctor i/by G.T. Gokhale and Ms. Meeta Dagli, Mulla Mulla Craigie Blunt Caroe, for respondent Nos. 8 to 11, 15, 16, 18, 19, 24, 25, 26, 29, 32, 33, 36 to 40, 42 to 46, 47, 49, 51 and 53.
Ms. A. Wandrewala K. Setalvad i/by Ms. Neeta Madhawani, for respondent Nos. 7, 13, 14, 15 and 28.

Headnote:Article 226-See Maharashtra Co-operative Societies Act, 1961, Section 18.

       Article 227, Maharashtra Cooperative Societies Act, 1960, Section 18-Writ Jurisdiction-Bifurcation of Society-Order of Registrar Passing of order not interfered by error of law-Substitution of its own opinion in extra ordinary jurisdiction of Court not permissible-Order passed cannot be sustained.- This Court while sitting in writ jurisdiction under Article 226 shall not interfere with an order passed by the authorities specially constituted under the Act of 1960 when the same have been passed in exercise of the powers given to it under law and said power has been exercised in accordance with law. While silting in extraordinary jurisdiction, it is not competent for this Court to reappraise the facts as Court of appeal and substitute its own opinion. The satisfaction reached by the Assistant Registrar for bifurcation of petitioner society on the facts available before him is not vitiated by any error of law and having not been interfered with by an appellate authority or revisional authority cannot be substituted by this Court in its extra ordinary jurisdiction by reappraising the facts, and therefore, I am not dealing with factual aspects Which the learned comes for petitioner tried to urge to show that the order of bifurcation passed by the Assistant Registrar was not proper.

       Section 18-Maharashtra Cooperative Societies Rules, 1961, Rule 17-Consultation by Registrar with federal Society-Requirement of objection for registrar in consultation not necessary.- The stage at which the consultation with the Federal Society is required to be made and the procedure which is required to be followed by the authority under Section 18. It provides that before passing an order for division, the competent authority shall prepare a draft scheme stating the manner in which the new committees of the society or societies resulting from such division shall be constituted and the bye-laws which the society or societies shall follow. After such draft scheme is prepared, the authority is required to consult the federal society.

       Section 18-See Constitution of India, Article 227.

       Section 18 - The powers of bifurcation of society can only be exercised by the authority mentioned in Section 18 of the Act-The authority empowered to exercise this power has to independently consider and reach satisfaction for division of society. The powers of bifurcation of society can only be exercised by the .authority mentioned in Section 18 of the Maharashtra Co-operative Societies Act on its satisfaction that division of the society is essential in the public interest or in the interest of co-operative movement or for the purpose of securing the proper management of any society. The order for division of society can be passed by the concerned authority only upon compliance of the procedure prescribed in Section 18 based on the grounds stage therein. The authority empowered to exercise power under Section 18 has to independently consider and reach the satisfaction for division of society either in public interest or in the interest of cooperative movement or for securing proper management of society and that independent satisfaction has to be arrived by the concerned authority alone and not based on or influenced by the order or findings of some authority in some proceedings.

       Section 18 and Maharashtra co-operative Societies Rules, 1961, Rule 17-Conjoint reading of Section 18 and Rule 17 does not warrant that the competent authority is mandatorily required to consult federal society after receipt of the objections or reply from the society even though the federal society was consulted before issuance of draft order-The relevant provisions of Section 18 and Rule 17 provides for consultation by the Registrar or concerned authority with Federal Society only once and that too before issuance of draft order and nothing further can be read in the said provision.

       Section 18 and Constitution of India, Article 226-High Court while sitting in writ jurisdiction under Article 226 shall not interfere with an order passed by the authorities specially constituted under the Act of 1960 when the same has been passed in exercise of the powers given to it under law and the said power has been exercised in accordance with law-While sitting in extraordinary jurisdiction, it is not competent for Court to reappraise the facts as Court of appeal and substitute its own opinion.

       Section 18, read with Sections 91 to 96-Bifurcation of Society-Exercise of power by authority mentioned, in Section 18 of act-Consideration of division of society not the subject matter of dispute under Section 91-Dispute between tenant member and society-Plea that order under Section 91 speaks of res judicata not tenable.-The order for division of society can be passed by the concerned authority only upon compliance of the procedure prescribed in Section 18 based on the grounds stated therein. The consideration of division of society ""as not and could not have been the subject matter of the dispute under Section 91 of the Act of 1960, nor there is any finding recorded in the award passed by the officer on special duty in the preceding under Section 91 about public interest or interest of cooperative movement or for the purpose of the proper management of the society, the factors necessary for exercise of the power for division of the co-operative society. The registrar or for that matter the authority satisfied on that behalf is the only competent authority entitled to exercise the power under Section 18 which cannot be influenced by the extraneous authority or proceedings nor can he be said to be bound by the findings recorded by the Officer on Special Duty in the proceedings under Section 91. The Officer on Special Duty recorded its findings in the dispute under Section 91 of the Act for considering the question whether the resolution passed by the society accepting in principle demolition of old cottages and constructing new building in their place was legal and valid or not. The authority who is empowered to exercise power under Section 18 has to independently consider and reach the satisfaction for division of society either in public interest or in the interest of co-operative movement or for securing proper management of society and that independent satisfaction has to be arrived by the concerned authority alone and not based on or influenced by the order or findings of some authority in some proceedings.