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2019 Supreme(Bom) 1150
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Ponvel Nadarajan, & Ors. - Appellants
Versus
State of Maharashtra & Ors. - Respondents
Writ Petition (Lodging) No.1700 of 2019
Decided On : 14-08-2019
For the Respondent: Mr. Ponvel Nadarajan.
For the Respondent: Mr. Manish Upadhye, Assistant Government Pleader, Mr. Vishal C. Ghosalkar, Mr. N.N. Bhadrashete with Ms.Priyanka Bhadrashete.
Headnote:
Constitution of India,1950 – Article 226 and 243ZL - Maharashtra Co-operative Societies Act, 1960 – Section 77(A),80(2),79(2)(b) and 73CB(11) - Co-operative Society – Membership - Petitioners claimed to be members of Managing Committee of respondent no.4 society - Petitioners claimed to have been elected as Managing Committee members by General Body of respondent no.4 for the tenure of five years - Respondent no.4 society was registered under provisions of MCS Act as “General Society” with 16 members - It is the case of petitioners that object of the respondent no.4 society was to procure piece and parcel of land and to divide and allot the plot of land to its members to build their industrial premises for carrying on their individual industrial activities - Respondent no.4 society acquired ownership of the property under a registered Conveyance Deed entered into between respondent no.4 and one - There were various disputes between parties who purchased various units in the respondent no.4 society and respondent no.4 in respect of membership of those parties in respondent no.4 society - It is the case of the petitioners that respondent no.4 society was thereafter reconstructed with 20 members in compliance with order of this Court in Writ Petition - New Managing Committee of respondent no.4 society took charge - Second general election of the respondent no.4 society was conducted for a period - Whether the Registrar is empowered to take action as contemplated under Section 77A of MCS Act read with Section 73-I(1) of the MCS Act or not and can appoint an Authorized Officer under Section 77A or not – Held, in court view, in view of failure on the part of then managing committee members of respondent no.4 to comply with its duty to intimate to State Co-operative Election Authority as provided under Section 73CB(14) of MCS Act, in view of provisions of Section 73-1(2) of the MCS Act since there was a wilful failure on part of committee not to inform State Co- operative Election Society, members of the committee of respondent no.4 ceased to hold their office - In such a situation, Registrar is empowered to take action against respondent no.4 as contemplated under Section 77A of the MCS Act - Registrar is empowered to appoint an Authorized for Officer, who shall intimate to State Co-operative Election Authority for holding of an election with immediate effect and to assist to make necessary arrangement for holding such election within the period prescribed - Petitioners have not challenged the constitutional validity of these provisions of the MCS Act read with Rules and thus cannot be allowed to urge this submission before this Court - This Court thus does not propose to go into this issue raised across the bar for the first time by the petitioners - In court view, there is no infirmity in the order passed by learned Deputy Registrar, Co-operative Society - Petition is devoid of its merits - Writ Petition (Lodging) is dismissed.
JUDGMENT :
1. By this petition filed under Article 226 of the Constitution of India, the petitioners have impugned the order dated 20th April, 2019 passed by the learned Deputy Registrar, respondent no.2 appointing the respondent no.3 as an authorized officer under section 77(A) of the Maharashtra Co-operative Societies Act, 1960 (for short “MCS Act”) and further seeks to challenge the order dated 29th May, 2019 passed by the Tahsildar and Executive Magistrate, respondent no.5 under section 80(2) of the MCS Act. Some of the relevant facts for the purpose of deciding this petition are as under :
2. The petitioners claimed to be the members of the Managing Committee of the respondent no.4 society. The petitioners claimed to have been elected as the Managing Committee members by General Body of the respondent no.4 on 1st December, 2018 for the tenure of five years from 2018 till 2023.
3. Some time in the year 1987, the respondent no.4 society was registered under the provisions of MCS Act as “General Society” with 16 members. It is the case of the petitioners that the object of the respondent no.4 society was to procure piece and parcel of the land and to divide and allot the plot of land to its members to built their industrial premises for carrying on their individual industrial activities. The respondent no.4 society acquired the ownership of the property bearing survey no.34, Hissa nos.1 and 3 and CTS nos.339, 339/1, 340, 340/1 & 2, 341, 343, 343/1, 344, 345, 346 and 346/1 to 7 admeasuring 7057 sq. mtrs. Situated at Deonar village, Taluka Kurla, Mumai Suburban District, Mumbai under a registered Conveyance Deed dated 18th August, 1989 entered into between the respondent no.4 and one Vaity family. There were various disputes between the parties who purchased various units in the respondent no.4 society and the respondent no.4 in respect of the membership of those parties in the respondent no.4 society.
4. On 5th February, 2008, the respondent no.2, Deputy Registrar, Co-operative Societies passed an order under section 77(A) of the MCS Act thereby appointing an authorized officer for looking after day to day work of the respondent no.4 society for a period of six months. The respondent no.2 appointed an Administrative Committee comprising of P. Nadarajan and another member as the Chairman and the member of the said Administrative Committee. The elections of the committee members of the respondent no.4 society was thereafter held. It is the case of the petitioners that the respondent no.4 society was thereafter reconstructed with 20 members in compliance with the order of this Court in Writ Petition No.8966 of 2004. The new Managing Committee of the respondent no.4 society took charge on 6th October, 2008. The second general election of the respondent no.4 society was conducted on 18th September, 2013 for a period from 2013 to 2018.
5. It is the case of the petitioners that the election of the Managing Committee was held by the Returning Officer appointed by the respondent no.4 society on 24th November, 2018 in compliance with Maharashtra Ordinance No.XXV of 2018 dated 30th October, 2018. The results of the elections were declared in the said General Body meeting of the respondent no.4 on 1st December, 2018. It is the case of the petitioners that the Managing Committee members of the respondent no.4 society were elected for the tenure of next five years from 2018 till 2013.
6. On 15th December, 2018, the respondent no.2 passed an order under section 79(2) (b) of MCS Act thereby appointing the Authorized Officer for implementation of the order dated 26th June, 2014 for transfer of shares in favour of one of the member.
7. On 20th March, 2019, the respondent no.2 issued a notice to the petitioners to show cause as to why an Authorized Officer under section 77(A) of MCS Act shall not be appointed. It was stated in the said show cause notice that the Managing Committee of the respondent no.4 society had not informed the State Co-operative
