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2007(3) ALL MR 32
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B. H. MARLAPALLE & J. H. BHATIA, JJ.
Mont Blanc Co-operative Housing Society Ltd. &Anr.- Petitioners.
Vs.
State of Maharashtra & Ors. - Respondents.
Writ Petition No.2635 of 2001
Decided on 2nd March, 2007.
Advocates Appeared
Dr. VIRENDRA TULZAPURKAR with Mr. Y.
R. NAIK and Mr. PRASHANT NAIK, for Petitioners.
Mr. A. A. KUMBHAKONI, Associate Advocate General with Mr. K. R. BELOSEY, Government Pleader and Mr. S. R. NARGOLKAR, Addl. Govt.
Pleader for Respondent Nos. 1 and 2.
Mr. N. K. MUDNANY, for Respondent No.5.
Certainly. Based on the provided legal document, here are the key points:
The petition challenges the order issued by the State Government under Section 79-A of the Maharashtra Co-operative Societies Act, 1960, which restricts non-occupancy charges to a maximum of 10% of service charges (!) .
The core contention is that the order is arbitrary, against the interest of co-operative housing societies, and not in public interest. The petitioners argue that the order violates provisions of the Act and is illegal and void ab initio (!) .
Historically, the Commissioner for Co-operative Societies issued a circular allowing levying non-occupancy charges up to 25%, which was later challenged and withdrawn. Subsequently, the State Government issued orders limiting these charges, which were also challenged (!) (!) .
The government justified the order as a measure to prevent profiteering by majority members from non-occupying members, to curb disputes, and to promote uniformity across the state. The aim was to prevent arbitrary and exorbitant charges and to protect minority members from oppression (!) (!) (!) (!) (!) .
The order was also intended to address misuse of the power to impose non-occupancy charges, which in some societies had become a source of profit-making rather than a nominal contribution for services (!) (!) .
The statutory provisions, including Sections 14 and 79-A, grant powers to the Registrar and the State Government respectively, to direct amendments and issue directions in public interest, provided these do not prejudice the interests of the societies (!) (!) .
The order specifies that non-occupancy charges should not exceed 10% of service charges (excluding municipal taxes) and should not be levied on certain close relatives of the member, such as parents, children, and spouses, but not on relations like brother-in-law or sister-in-law unless they are part of the immediate family (!) (!) (!) .
The order applies uniformly to all residential and commercial flats in co-operative housing societies in the state, and societies are required to amend their bye-laws accordingly. Failure to comply may result in penalties or directives from the Registrar (!) .
The challenge to the order was dismissed on the grounds that it was issued in a bona fide manner to ensure proper management, prevent exploitation, and bring uniformity. The court found no arbitrariness or violation of constitutional guarantees (!) .
The court clarified that certain relations, like son-in-law, brother-in-law (sister’s husband), sister-in-law (wife’s sister), and their husbands, do not qualify for exemption from non-occupancy charges under the order, but immediate family members, including married daughters and grandchildren, do (!) .
An interim order was extended for eight weeks to allow petitioners to seek further remedies, but the main petition was dismissed (!) (!) (!) .
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2. The factual matrix leading to this petition could be briefly stated as under :-
The Commissioner for Co-operative Societies, Maharashtra State, issued a Circular on 13/3/1992 laying down that the co-operative housing societies may levy non occupancy charges upto a maximum limit of 25% of the service charges collected from the member and accordingly the first sentence in Clause (c) of bye-law No.45(2)(iii) to be replaced with the following words,
"He shall pay non occupancy charges to the society at a rate not exceeding 25% of the service charges as will be determined by the meeting of the General Body of the society." This Circular came to be challenged by the petitioner-society and one of its members in Writ Petition No.1618 of 1993 filed on the Original Side of this Court. But the said petition came to be disposed as withdrawn as the impugned Circular was also withdrawn. In the General Body meeting of the petitioner No.1-society held on 4/2/1995, it was resolved that the non occupancy charges payable under byelaw No.45(2)(c) should be levied at Rs.9/- per sq. ft. per month. On 9/3/1995 the State Government issued an order under Section 79A of the Act laying down that the non occupancy charges shall not be fixed beyond 100% of the maintenance charges levied per month and this order came to be challenged in Writ Petition No. 1398 of 1996. On 24/1/2000 when the said petition came up for hearing, the learned counsel appearing for the State submitted that the State Government had asked the Commissioner for Co-operation to appoint a Committee to examine the question relating to non occupancy charges by the co-operative societies and in response thereto the Commissioner had appointed a Committee on 19/6/1997. It was further submitted that the Committee's report was submitted to the State Government on 31/7/1998 and it was under consideration by the State Government and in the meanwhile the order dated 9/3/1995 issued under Section 79-A of the Act and impugned in the writ petition was not being applied. This Court (Single Bench), therefore, dismissed the petition as withdrawn with liberty to challenge the fresh decision that would be taken by the State Government in relation to non occupancy charges upon consideration of the Committee's report and also declared the order dated 9/3/1995 rendered as inoperative. The State Government issued the impugned order and consequently the Deputy Registrar, Co-op. Societies, "D" Ward, Mumbai issued a Circular dated 13/8/2001 appealing the co-operative housing societies to adopt the amended byelaws. This Circular dated 13/8/2001 has also been challenged in the instant petition.
3. The crux of the petitioners' challenge to the impugned order is on the grounds that the said order is against the interest of the co-operative housing societies, arbitrary, not in public interest, unwarranted interference in the affairs of the societies, violative of the provisions of the Act and it is illegal and void ab initio. The petitioners mainly rely upon a division bench judgment of this court in the case of Karvenagar Sahakari Griha Rachana Sanstha Maryadit, Pune and anr. Vs. State of Maharashtra and ors. [AIR 1989 Bombay 392], which came to be confirmed by the Apex Court in the case of State of Maharashtra & ors. Vs. Karvenagar Sahakari Griha Rachana Sanstha Maryadit and ors. [JT 2000(8) S.C. 68]. In short, it is contended that the order dated 1/8/2001 is against the interest of the members of the society
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