Anoop V. Mohta, J.

1. The matter was called out from final hearing board on 29.01.2015 and again on 02.02.2015, none appeared for Respondent No. 2. Heard the Petitioner and the learned Addl. Government Pleader on 02.02.2015 and kept today for further hearing and orders. Though called out twice, none appeared for Respondent No. 2 again. Therefore, I am inclined to dispose of the present writ petition as heard the parties as referred above.

2. The Petitioner-Society has challenged impugned orders dated 21.07.2010 and 27.07.2010 passed by the Divisional Joint Registrar, Cooperative Societies, Mumbai Division, Mumbai whereby rejected the Application of Respondent No. 2 dated 10.01.2010 treating it to be maintainable and then forwarded the same to the Deputy Registrar, Cooperative societies, K West Ward, Mumbai to take an appropriate decision expeditiously by invoking suo motu inquiry as contemplated under Section 83 of the Maharashtra Cooperative Societies Act, 1960 (The Act).

3. The decision on merits with regard to the members right, based upon an application by the third person, needs to be decided first in the present facts and circumstances of the case. Considering the scope and purpose of Section 83, it is necessary that one third and/or one fifth members of the society to file a complaint/application for an inquiry against the society. The authority, in the absence of any such application, may, suo motu, pass orders for such inquiry, but in a situation like this where an application was filed by Respondent No. 2, who admittedly was not a member on the date of the application i.e. 10.01.2010 -his application was considered by the impugned order. The issue with regard to his membership is still pending in other proceedings.

4. We are concerned with the date when the application was filed where admittedly Respondent No. 2 was not even a member of the society against whom, the Respondents ordered to initiate inquiry under Section 83 which follows Section 88 of the Act. If case is made out with supporting material, an invocation of suo motu power by the authority is difficult to interfere with, but when the application was filed by the third person, as done in the present case, who admittedly was not a member of the society at the relevant time, in my view, need to be tested in the background of litigation between Respondent No. 2 and the society. A person who was not a member at the relevant time and even prior to that just cannot lodge a complaint and/or pray to initiate inquiry against the society members and/or society as he had no personal knowledge of the events and circumstances to initiate such inquiry which certainly affects the rights of the managing committee members of the relevant time and definitely the name and fame of the society.

5. In the present case where Respondent No. 2 is involved and on similar complaints, by order dated 27.10.2010 in Criminal Application No. 4667/2010 Meena Shroff v. The State of Maharashtra, in a criminal proceeding, there is an observation in paragraph 7 as under :

"7 ..... The Respondent No. 2 is not yet admitted as a member of the managing committee. Prima facie, it does appear that complaints are being filed with a malafide intention of harassing them since they did not admit him as a member."

This observation that the complaint so filed with a malafide intention as he was not admitted as a member just cannot be overlooked so also the Criminal Application which is pending in this Court.

6. The order, therefore, passed by the Divisional Joint Registrar, in the above background, to initiate suo motu inquiry by observing that the material placed on record even by a member of public can be taken note of to initiate such inquiry against such private society, in my view, is unacceptable. The power of suo motu cannot be read and referred to mean the basic provisions which required that the one fifty/one third members to file such application to initiate such inquiry just cannot be overlook