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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
Shahid Tamboli and Others – Petitioners
Versus
Divisional Joint Registrar Co-Op. Societies and Others – Respondents
Writ Petition No. 5096 of 2022
Decided On : 20-07-2023
Maharashtra Co-operative Societies Act, 1960 – Section 154B- 23 (1) (iii) – Committed default in furnishing – Default in furnishing – Disqualification of democratically elected committee members – Held, Court find it rather difficult to accede to submission that there was substantial compliance – On contrary, situation which thus emerges is that, even after a considerable time, beyond 45 days had elapsed, despite opportunity, Society did not furnish specified documents to Respondent No. 3 – Drawing an inference of substantial compliance, would defeat provisions of Act, 1960 – Submission on behalf of Petitioners that Respondent No. 3 was a privy to affairs of Society and had pursued matter with an oblique motive does not advance cause of Petitioners – Court find substance in submission that by pursuing the instant proceedings, Respondent No. 3 unintendedly invited consequence of his own disqualification and, thus, bona-fide of Respondent No. 3 cannot be questioned – Petition dismissed.
Based on the provided legal document, the key points are as follows:
The case pertains to the disqualification of elected committee members of a cooperative housing society under the Maharashtra Co-operative Societies Act, 1960, specifically for default in furnishing requested documents within the prescribed time limit (!) (!) .
The relevant provisions establish that members of the society have the right to inspect and request copies of certain documents, and the society is obliged to furnish these documents within 45 days of the request. Failure to do so can lead to disqualification of the committee members involved (!) (!) .
The disqualification applies to committee members who are responsible for the default, especially if they have been held responsible under specific sections of the Act, including those related to the default in furnishing documents (!) (!) .
The legislation emphasizes that the time limit of 45 days is a critical procedural requirement. While the use of the word "shall" might suggest mandatory compliance, the courts have interpreted such provisions as potentially directory, especially when substantial compliance is achieved and no prejudice is caused (!) (!) (!) (!) .
The doctrine of "substantial compliance" is applicable, meaning that if a party has done all that is reasonably possible within its control to comply with the requirement, minor infractions should not result in severe penalties like disqualification. This approach promotes fairness and the democratic principles underlying cooperative societies (!) (!) (!) .
In this case, the evidence indicated that the society made bona fide efforts to furnish the documents, but these efforts were not completed within the 45-day period. The delay was due to circumstances beyond the control of the petitioners, such as respondent No. 3 not residing in the flats and the society's communication issues (!) (!) (!) (!) .
The authorities below found that there was no intentional withholding of documents and that the delay was not indicative of mala fide intent. The delay was considered a procedural lapse rather than a deliberate act, and the order of disqualification was challenged on this basis (!) (!) .
The court recognized that while the provisions are strict, the requirement of compliance should be viewed in the context of the overall legislative aim, which is to promote transparency and good governance in cooperative societies. The disqualification should not be imposed for minor procedural lapses if substantial compliance is demonstrated (!) (!) .
Ultimately, the court dismissed the petition, affirming that the authorities' decision was justified given the failure to furnish the documents within the stipulated period, and that the order of disqualification was valid and proportionate to the default committed (!) (!) (!) .
The decision underscores the importance of adhering to procedural deadlines but also recognizes the principles of fairness and the need to interpret statutory provisions in a manner that furthers legislative intent and democratic functioning of cooperative societies.
JUDGMENT :
N.J. JAMADAR, J.
1. Rule. Rule made returnable forthwith and, with the consent of the learned Counsel for the parties, heard finally.
2. The petitioners who are the former members of the Managing Committee R-Euphoria Phase II, Co-operative Housing Society Ltd., the respondent No. 2, take exception to an order dated 4th February, 2022, passed by the Divisional Joint Registrar, in Revision Application No. 145 of 2021, whereby the Revision Application preferred by the petitioners and other committee members came to be dismissed by affirming an order passed by the District Deputy Registrar on 8th April, 2021, declaring that the petitioners and other committee members had incurred disqualification under Section 154B- 23 (1) (iii) of the Maharashtra Co-operative Societies Act, 1960 (“the Act 1960”) for having committed default in furnishing the documents to respondent No. 4, a member of respondent No. 2- Society, under Section 154B-8 (2) of the Act, 1960 and thereby disqualifying them from being and becoming a member of the Committee for a term of five years.
3. The Petition arises in the backdrop of the following facts:
(b) On 24th October, 2019, the respondent No. 3 made an application to the Chairman of the Society, seeking copies of documents, including Minutes of Meeting of Special General Body Meeting, AGM and Managing Committee monthly meeting held on 30th September, 2019 and a copy of the agreement between the Runwal and Kunal and E-Euphoria Phase II, Co-operative Housing Society Ltd, singed by Chairman and Secretary on 7th August, 2017, receiving thereunder a sum of Rs.16,00,000/-.
(c) The petitioners claim that the respondent No. 3 was not residing in his two flats, situated in respondent No. 2-Society. The petitioner thus could not serve the acknowledgment of the receipt of the said letter despite efforts and eventually the acknowledgments were forwarded by speed post vide communication dated 11th November, 2019 and e-mail dated 29th November, 2019.
(d) Alleging that the committee committed default in furnishing the copies of the documents, as sought, the respondent No. 3 lodged the complaint before the DDR on 26th November, 2019. DDR vide letter dated 5th March, 2020, called upon the petitioners to furnish reply. Suitable reply was submitted on 16th March, 2020. It was informed, inter alia, that all the documents were furnished to the respondent No. 3 and other members of the Society from time to time and particularly the documents sought by the respondent No. 3 were sent by post on the address of respondent No. 3 on 22nd October, 2019.
(e) Eventually, the DDR addressed a notice on 23rd October, 2020, calling upon the petitioners to show cause as to why action under Section 154-B of the Act, 1960, be not taken against the petitioners. The petitioners appeared and furnished an explanation. After hearing the parties, the DDR issued a formal notice under Section 154B-23 (1) (iii) and (3) of the Act, 1960, calling upon the petitioners to show cause why they should not be disqualified for a term of five years.
(f) After providing an opportunity of hearing and considering the submissions canvassed, by an order dated 8th April, 2021, the DDR was persuaded to return the findings that the petitioners had committed default in furnishing the copies of the documents within the period of 45 days stipulated by Sub Section (2) of Section 154
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