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2016 Supreme(Bom) 20
IN THE HIGH COURT OF BOMBAY AT GOA
K. L. WADANE, J.
Shri Nelson Heredia and Ors. – Petitioners
Versus
The Assistant Registrar of Cooperative Societies - Respondents
WRIT PETITION NO. 236 of 2015.
Decided On : 7.01.2016.
Advocate Appeared:
Mr. A. Nigalye, Advocate for the petitioners.
Ms. S. Mordekar, Additional Government Advocate for the respondents.
Delegated authority of the Assistant Registrar to issue disqualification orders under Section 61 of the Act based on deemed disqualification for failure to fulfill statutory obligations.
Headnote:
Disqualification - Co-operative Housing Society - Goa Cooperative Housing Societies Act, 2011 - Section 61 - [Section 61 of the Act] - The court discussed the powers of the Assistant Registrar of Co-operative Societies to disqualify members of the Board of Directors, the delegation of powers by the Registrar, and the deemed disqualification for failure to conduct annual general meetings and submit annual returns. The court found that the impugned order was valid and dismissed the petition.
Fact of the Case:
The petitioners, members of the Board of Directors of a Co-operative Housing Society, were disqualified for 5 years due to delays in conducting the annual general meeting and submitting annual returns.
Finding of the Court:
The court found that the Assistant Registrar had the authority to issue the disqualification order and that the petitioners had failed to fulfill their responsibilities, leading to deemed disqualification under Section 61 of the Act.
Issues: 1. Jurisdiction of the Assistant Registrar to disqualify members. 2. Disqualification of individual members versus the entire board. 3. Breach of natural justice in issuing the impugned order.
Ratio Decidendi: The Assistant Registrar had the delegated authority to issue the disqualification order, and the deemed disqualification was applicable to all directors for failure to conduct the annual general meeting and submit annual returns. The court found no breach of natural justice in the issuance of the order.
Final Decision: The petition was dismissed, and the impugned order was upheld.
The petitioners have challenged the order dated 8.1.2015 passed by the Assistant Registrar Co-operative Societies, North Zone, Mapusa Goa, by which the petitioners are disqualified for a period of 5 years from the date of the order.
2. The brief facts of the case may be stated as follows:-
The petitioners were the members of the Board of Directors of M/s Sapana Garden Co-operative Housing Society Ltd. M/s Sapana Garden Co-operative Housing Society Ltd is a Co-operative Housing Society Ltd registered under Goa Cooperative Housing Societies Act, 2011( “the Act” for short) The Board of Directors/Managing Committee of the society consist of 9 members. The new Board of Directors of the said Society was elected on 4.6.2014 and the petitioners are amongst 9 elected members. They were also members of the Board of Directors of previous committee.
3. The members of the Board of Directors of the society have their own businesses and professions and they are performing their duties as the members of the Board purely on honorary basis to help/run the affairs of the society for the benefit of its members. It is further stated that since the members of Board of Directors do part time work and are busy with their daily schedules, some times there is delay in complying with the procedural matters relating to work of society. It is further contended that Annual General Body Meeting of the society was required to be held before the end of September, 2013 however, there was delay of 39 days in holding the said meeting and it was held on 9.11.2014. Similarly there was delay in auditing the Accounts of the Society and that work started after appointment of the auditor in the General Body Meeting. These were minor discrepancies and not a major defect in the work of the society so as to invoke disqualification of the members of its Board of Directors.
4. The respondent issued show cause notice dated 19.11.2014 on the ground that the society has failed to convey Annual General Body Meeting, secondly failed to file Annual Returns and conduct audit. The chairman of the society filed detailed reply dated 8.12. 2014 explaining as to the excess charges/penal interest in respect of the dues of one Mr. Sirakar. After receipt of the reply the respondent has passed an impugned order and declared that the Board of Directors of M/s Sapana Garden Co-operative Housing Society Ltd have incurred disqualification for a period of 5 years from the date of the order.
5. I have heard the arguments of Mr. Nigalye, learned Counsel appearing for the petitioner and Ms. S. Mordekar, learned Additional Government Advocate for the respondent.
6. During the course of the arguments Mr. Nigalye, learned Counsel appearing for the petitioners has argued that Assistant Registrar of Co-operative Society have no jurisdiction to pass the orders under Section 61 of the Act as the powers to issue order under Section 61 of the Act are vested with the Registrar. Secondly, he argued that the action by the respondent is only against the petitioners which is contrary to the provisions of law. Thirdly, he argued that before passing of the impugned order no individual notices were issued to the petitioners, therefore, there was breach of principle of natural justice as the respondents had not given an opportunity of being heard.
7. As against this, Ms. S. Mordekar, learned Additional Government Advocate appearing for the respondent has argued that the Registrar has delegated its powers to the Assistant Registrar as per the order and notification dated 13.9.2012. Ms. Mordekar, learned Additional Government Advocate further argued that the disqualification as per the impugned order is in respect of entire board and the present petitioners were the members of the earlier board. They are re-elected, therefore, that disqualification is restricted to the present petitioners. During the course of arguments Ms. Mordekar, pointed out that the disqualification under Section 61 of the Act is a deemed di
