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IN THE HIGH COURT OF BOMBAY
Videocon Appliances Ltd.
VERSUS
Maker Chambers V. Premises Co-op. Socy. Ltd.
Decided no: December 1, 2005
Maharashtra Co-operative Societies Act, 1960 - Sections 22(2) and 23(2) - Deemed membership of society - Determination - Jurisdiction of Registrar - The authority prescribed under Section 22(2) and under Section 23(2) being both identical, the Registrar while exercising power under Section 22(2) is also equally empowered to consider if there is a refusal, whether the refusal of membership of society is legal and valid - Plea by society that application was only for deemed membership and authority ought not to have gone into validity or otherwise of action of society on merits of case is untenable. - The authority prescribed under Section 22(2) and under Section 23(2) of the Maharashtra Co-operative Societies Act, being both identical, the Registrar while exercising the power under Section 22(2) is also equally empowered to consider, if there is a refusal, whether the refusal of the membership is legal and valid. Section 22(2) and 23(2) of the Act is a complete scheme for becoming a member of the society. It provides that society’s membership is an open membership and every person is entitled to become a member of the society. This is a complete scheme alternatively providing that by virtue of inaction or by virtue of an illegal action if the membership is refused by the society then Registrar is empowered to take action in the matter. The contention that it is a separate scheme by itself and, therefore, the Registrar exercising power under Section 22(2) and under Section 23(2) exercise a totally different power one in case of original power and another in case of appellate power and, therefore, both the proceedings must be treated as separate, independent and distinct, is devoid of any merit. It is because under Section 23(1-A)(2) the power is conferred on the Registrar to determine whether there is a deemed membership or not. If this power under Section 23(1-A) in contrast to the power under Section 22(2) of the Act is conferred on the basis that where the society has accepted the application but did not take decision then the power under Section 22(2) can be exercised. But where the society refuses to accept the application itself for membership, then the application can be filed with the Registrar who will forward the same to the society for taking action and if action is not taken, a person becomes a demand and if any dispute arises about the deemed membership in such a case, then under Section 23(1-A) the Registrar is empowered to determine the said dispute. Sections 22(2) and 23(2) is required to be harmoniously interpreted. The power of the Registrar under Sections 22(2) and 23(2) is identical and he is exercising the very same jurisdiction thus he is entitled to determine whether a person is entitled to become a member of any co-operative society or not. It is not possible to accept the contention that the application was only for deemed membership and the authorities ought not to have gone into the validity or otherwise of the action of the society on merits of the case. (2005) 2 SCC 334, W.P. No. 4180 of 1998 dated 18.2.1999, 2001 (2) Mh LJ 834; 2000 (3) Mh LJ 115 : 2000 (3) BCR 474; 2004 (1) Mh LJ 656; 2004 (5) Mh LJ 222 : 2005 (2) BCR 604 - Referred.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Revisional Powers of Court - Once Registrar exercised said power - Power exhausted - Second revision before Secretary or Minister of Co-operation of State Government not maintainable - Power of revision can only be exercised once and not twice over.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Power of revision can only be exercised once and cannot be exercised twice over under Section 154. - The builder sought to sell certain premises. However, the Income-tax Authorities under the provisions of Section 269-UD(I) of the Income-Tax Act, 1961 intervened and took over the said premises. Income-tax Authorities thereafter placed the said premises on auction and the petitioner purchased the same in auction. Authorities executed necessary deed of transfer in favour of the petitioners. Petitioners made an application for being made a member of the 1st respondent society in respect of the premises. Membership of the petitioner was refused by the respondent society by a letter dated 18.11.1993.
Deputy Registrar, Co-operative Societies, allowed the application/appeal and directed the respondent No. 1 society to make the petitioner as a member. Against the said order, a revision was filed under Section 154 Maharashtra Co-operative Societies Act, 1960 before the Divisional Joint Registrar, Cooperative Societies, Bombay. The revision application of the society was allowed and the order passed by the Deputy Registrar, directing the respondent to make the petitioner as a member was set aside. The petitioner preferred a second revision before the Secretary (Co-operation), Government of Maharashtra by exercising power under the provisions of Section 154 of the Act who dismissed the said application as not maintainable against the revisional order passed by the Divisional Joint Registrar. In petition challenging the order of the Secretary (Co-operation), Government of Maharashtra and the order of the Divisional Joint Registrar.
Held, that the power of revision under Section 154 of the Maharashtra Co-operative Societies Act, 1960 cannot be exercised twice over and once the power having been exercised by the Registrar or the Secretary, the said power is exhausted and revision against the order of Registrar in exercise of revisionary power under Section 154 is not maintainable before the Secretary and/or Minister of Co-operation of the State of Maharashtra under very same provision of law. The power of revision can only be exercised once and cannot be exercised twice over under Section 154 of the Act. The provisions of Section 154 does not give a concurrent jurisdiction to the Registrar and the State Government because the words prescribed thereunder are "the State Government or the Registrar may call for and examine the records." The word "or" indicates that it is the power conferred on ’either’ or ’or’ in such cases the power cannot be exercised by both but it can be exercised by one of the two. Thus, the contention that the order passed by the Secretary holding that the second revision is not maintainable is bad in law is rejected. The order passed by the Secretary holding that the second revision is not maintainable is upheld. 2005 (2) SCC 334 - Distinguished; 2001 (2) Mh LJ 834; 2000 (3) Mh LJ 115 : 2000 (3) BCR 474; 2004 (1) Mh LJ 656 and 2004 (5) Mh LJ 222 : 2005 (2) BCR 604 - Followed.
Key Points: - The authority prescribed under Sections 22(2) and 23(2) of the Maharashtra Co-operative Societies Act, 1960, is identical, empowering the Registrar to determine the legality and validity of membership refusal (!) . - Sections 22(2) and 23(2) of the Act provide a complete scheme for becoming a member, covering both inaction and illegal action by the society leading to membership refusal (!) . - The power of revision under Section 154 of the Maharashtra Co-operative Societies Act, 1960, can only be exercised once; a second revision against a revisional order is not maintainable (!) (!) (!) . - A cooperative society cannot refuse membership on the ground that the construction of the premises is unauthorized or in contravention of Section 7 of the Maharashtra Ownership Flats Act, 1963 (!) (!) . - Disputes regarding the legality or authorization of construction are civil matters to be determined by a Civil Court, not by cooperative societies or registrars when deciding membership (!) . - A person purchasing premises in an auction sale is entitled to apply for membership, and refusal cannot be based on external factors like the legality of construction (!) (!) . - The Divisional Joint Registrar erred in upholding the refusal of membership on the ground of alleged unauthorized construction, as this issue is outside the Registrar's purview for membership determination (!) . - The Deputy Registrar's order directing the society to make the petitioner a member was legal and valid (!) (!) . - The order passed by the Secretary (Co-operation) holding the second revision as not maintainable is upheld (!) (!) . - The petition was allowed, setting aside the Divisional Joint Registrar's order and confirming the Deputy Registrar's order (!) .
( 2 ) IN 1984 a builder constructed a building known as Maker Chambers V at nariman Point, Bombay. The plans in respect of the said building were approved upto 15th floors and in 1981 a plan for 16th floor was also approved. The premises in the subject matter of the present case is Premises No. 1601 which are situated at the 16th floor of the said building. It is the case of the petitioner that by 1980 all the 15 floors of the building were sold by the builder to the various purchasers of the said premises and on 2. 7. 1985 the occupiers of the said premises have formed a society known as Maker Chambers V Premises Co- operative Society Ltd. , being the respondent no. 1 herein. However, prior to the said society could be incorporated, the builder has got the plan sanctioned for the 16th floor and constructed the 16th floor on the said building. In 1991 in respect of the office no. 1601, the builder became the member of the respondent society. On 16. 4. 1992, the builder sought to sell the premises to one Jayantilal Khandwala and Sons being the premises no. 1601 along with two car parkings for total consideration of rs. 3. 51 crores. However, the Income-tax authorities under the provisions of section 269-UD (I) of the Income-Tax Act, 1961 intervened and took over the said premises. In the meantime, it seems that on 24. 7. 1992 the respondent no. 1 society filed a dispute in the co-operative Court against the builder and the income-tax Authorities in respect of the said office premises and terrace attached thereto. The respondent society also filed a writ petition in this Court being Writ Petition No. 4232 of 1992 challenging the order passed by the Co- operative Court in the said proceedings. The said writ petition is pending. The respondent no. 1 has also filed a civil suit being Suit No,659 of 1993 on the original side of this Court inter alia seeking a declaration that the builder had no right to put up any construction on the common terrace on the 16th floor of the building without prior consent being obtained from all the premises purchasers under Section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, sale, Management and Transfer) Act, 1963, (hereinafter referred to as the Maharashtra ownership Flats Act, 1963 ). No interim orders are passed in the said proceedings and the said suit is still pending. The Income-tax Authorities thereafter placed the said premises on auction and the petitioner purchased the said premises in auction for a sum of Rs. 4. 037 crores on 16. 12. 1992. On 14. 9. 1993 the Income-tax authorities has executed necessary deed of transfer in favour of the petitioners. On 26. 8. 1993 the Petitioners forwarded the application for being made a member of the 1st respondent society in respect of the premises bearing no. 1601. The Petitioners also filed various forms in favour of the 1st respondent society calling upon them to transfer the said premises. On 18. 11. 1993 the 1st respondent addressed a letter calling upon the petitioners to furnish certain documents and holding that the application will be considered only on compliance with the said requisition. On 22. 11. 1993, the petitioners completed the requirements by forwarding the necessary documents and calling upon the society to transfer the said membership from the builder in his favour. On 26. 4. 1994 a deed of rectification was entered into between the income-tax Authorities and the respondent wherein the mistake in the area was rectified. The correspondence went on between the petitioner and the respondent for the purpose of transfer of the said membership.
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