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2009 Supreme(Bom) 1067
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE S.B. MHASE & THE HONOURABLE MR. JUSTICE R.M. SAVANT
Shantilal Lalchand Changede & Others – Appellant
Versus
Prasad Oak & Others - Respondent
Writ Petition No.5832 of 2009
Decided on : 21-08-2009
For the Petitioners:A. S. Desai, Advocate.
For the Respondents: Samir Patil, AGP. for the Intervenors :M.M. Vashi i/b M/s. M. P. Vashi & Associates, Advocates.
Headnote:Constitution of India - Articles 226 and 227 - Maharashtra Co-operative Societies Act, 1960, Sections 75 and 102 - Writ petition - Challenging order of Deputy Registrar appointing an interim liquidator of society under Section 102 of Act - Held - Impugned order passed to defeat City Civil Court decree passed in Apex Court - Merely because society not raised construction for 37 years, no ground for liquidation - Respondent in hurry to appoint liquidator - Impugned order set aside - Matter directed to be reconsidered by finding out true facts/members - If due claim of interveners to be taken as members in place of their father under Section 30 of Act be decided in accordance with law. - Under the Maharashtra Co-operative Societies Act, 1960 the Registrar has adequate powers if he finds that the society is not functioning and that there are disputes between the members of the society and/or that the co-operative movement discipline has not been followed by the managing committee members. When the Registrar finds that the elections of the society are not conducted, he can take appropriate steps to elect the new managing committee members and to remove the old members taking recourse to provisions of Section 78 or 73-H of the said Act. However, ignoring all such powers which are vested in him which could have made the society workable in the interest of its members so that residential accommodation can be provided to its members, unfortunately, the respondent No. 1 has taken a decision to liquidate the said society.
Since Court is constrained to make observations that Court has made against the respondent No. 1, Court makes it clear that the respondent No. 1 Mr. Prasad Oak shall not deal with this society in any manner or in any enquiry. Court instead appoints Mr. J.D. Patil, Deputy Registrar, Award, Bombay as officer to deal with the enquiries and complaints of the members or in respect of the managing committee members of the petitioner No. 6 society. The said Shri. J.D. Patil would deal with the society as if he is the concerned Registrar of the society under the Co-operative Societies Act, 1960. We further direct Mr. J.D. Patil that he shall find out from the record of the society as who are the members, and the managing committee members of the petitioner No. 6 - society. If for any reason he finds that the present members who claim to be the managing committee members of the said society are holding office without there being an election of the said society, he shall call the meeting of the general body of the said society and elect new managing committee to manage the affairs of the said society. The said meeting to elect the new managing committee members shall be presided over by Mr. J.D. Patil personally and he shall not delegate that power to anyone. We also direct Mr. J.D. Patil that before holding the general body meeting, from the record which is available with the petitioner Nos. 1 to 15 or from the Members Register, he shall find out who were the initial members of the said society and if there are new members enrolled, when they were enrolled and whether they were unrolled as per Rule 19 of the Maharashtra State Co-operative Societies Rules, 1961. He shall also find out if any member of the said society has expired and whether the shares of the said deceased member has been transferred to the heirs of the said member or not. If any application is made under Section 30 of the said Act by any person, he shall also deal with it in accordance with law.
Court also makes it clear that in case the intervenors in the present writ petition make an application under Section 30 of the said Act, said application shall be decided by the Registrar in accordance with the provisions of Section 30 of the said Act and Rules framed thereunder without being influenced by the observations made by this Court in this order.
Court has allowed the intervention application in the peculiar facts and circumstances of the present case which are enumerated above. Court makes it clear that it has not expressed any opinion as to the entitlement of the intervenors for membership of the society under Section 30 of the said Act. That matter is to be dealt with by the Registrar and the society in accordance with law.
Oral Judgment: (S. B. Mhase, J.)
1. Rule, with the consent of the parties made returnable forthwith and heard.
2. The Petitioners have approached this Court under Article 226 of the Constitution of India challenging the order dated 15th April 2009 passed by the Deputy Registrar of Co-operative Societies, KWest Ward, Bombay. By the said order, the Respondent No.1 exercising power under section 102 of the Maharashtra Co-operative Societies Act, 1960 (for short “the said Act”) has appointed one Shri. Ashok Pagare, the Assistant Cooperative Officer, K-West Ward, Bombay as an interim liquidator of the Cool-Home Versova Co-operative Housing Society Ltd. - the Petitioner no. 6 herein.
3. At the outset we would like to clarify that normally we would not have entertained the present petition, since the order under challenge is only an interim order and the parties could approach the Deputy Registrar under subsection (2) of section 102 of the said Act before the final order of liquidation is passed. But we have decided to exercise our extraordinary jurisdiction in the peculiar facts and circumstances which we are going to enumerate hereinbelow as a result of which we are of the view that the order which has been passed appointing an interim liquidator though passed by the Deputy Registrar purportedly under the garb of protecting the interest of the society and its members, but is in fact passed to defeat the decree which has been passed by the City Civil Court, Bombay in Short Cause Suit No. 5985 of 1978 and which has been confirmed by this Court in First Appeal No. 837 of 1986 by judgment dated 26th September 2008 and thereafter confirmed by the Apex Court by rejecting the SLP No. 26174 of 2008, and thereby an attempt is being made by the Respondent No.1 to support the defendants in the said suit, i.e, the encroachers in the suit property. Therefore, in order to uphold the majesty of law, and not allow it to suffer at the hands of the Deputy Registrar, who has exercised powers of liquidation under section 102 of the said Act, obviously and patently for the reasons which in our view are not sustainable in law.
4. The society in question, ie., the Petitioner No. 6 herein was registered on 24th March 1972 bearing registration No. BOM/HSG/3430 of 1972. At the time of registration the society was not possessed of property. However, immediately after registration, on 30th March 1972 the society purchased the property bearing Plot No. 30, C.T.S. No. 1301/24 of village Versova, Mumbai Suburban District, Mumbai admeasuring 652.16 square meters and also obtained possession of the said plot. It appears that thereafter some persons encroached upon the said plot and in order to remove the encroachment, the Petitioner No. 6 society filed a suit in the City Civil Court, Bombay being Short Cause Suit No. 5985 of 1978. The said suit was decided on 3rd September 1986 and decree for eviction of the encroachers was passed by the Court in favour of the society. Against the said judgment and decree of the City Civil Court, Bombay, the defendants preferred an appeal in this Court being First Appeal No. 837 of 1986. The said First Appeal was dismissed by this Court on 26th September 2008 and the decree passed by the City Civil Court, Bombay in the above referred to suit was confirmed. Against both these decrees, the defendants in the suit preferred SLP bearing SLP No. 26174 of 2008. The said SLP was also dismissed by the Apex Court on 17th April 2009. Thus, ultimately the decree passed by the City Civil Court, Bombay in Short Causes Suit No. 5985 of 1978 was confirmed upto the Apex Court. It would be relevant to reproduce the order of the Apex Court.
“Having heard learned counsel for the respective parties, we are not inclined to entertain the special leave petition and the same is dismissed. However, time is given to the petitioner to vacate the suit premises within 31st July 2009. In the event the premises are not vacated within the said dat
