Back
2024 Supreme(Online)(Bom) 209
HIGH COURT OF BOMBAY
AVINASH G. GHAROTE, J
PAWANKUMAR NADKISHOR SINGH – Appellant
Versus
STATE OF MAHARASHTRA THR GOVT. PLEADER AND ORS – Respondent
WP/8109/2024
Mr. Swapnil Bangur a/w Mr. Hardik Jain i/b A. V. Jain Associates, Advocate for the Petitioner. Mr. A. B. Chate Add. G. P. a/w Mr. S. D. Rayrikar, AGP, Advocate for the Respondent-State. Dr. Uday Warunjikar a/w Mr. Saivaj Dable, Ms. Priyanka Dable, Mr. Jenish Jain and Mr. Sumit Kate, Advocate for Respondent No.5.
The court upheld the disqualification of a committee member for having more than two children under Section 154B-23 of the Maharashtra Co-operative Societies Act, affirming the applicability of Chapter XIII-B.
Headnote:(A) Maharashtra Co-operative Societies Act, 1960 - Section 154B-23 - Disqualification of member of Managing Committee - Petitioner disqualified for having more than two children as per Section 154B-23 - The court found that the provisions of Chapter XIII-B apply to the petitioner, and the disqualification was validly imposed. (Paras 2, 3, 4, 8, 9)
(B) Interpretation of Statutes - The court ruled that the non-inclusion of certain sections in Section 154B(1) does not render Chapter XIII-B inapplicable, as it was enacted specifically for Co-operative Housing Societies. (Paras 7, 9)
(C) Burden of Proof - The petitioner failed to provide evidence to contest the claim regarding the child listed on the Ration Card, leading to the court's reliance on the authorities' findings. (Paras 11, 12)
Facts of the case:
The petitioner was disqualified from the Managing Committee of a Co-operative Society for having three children, which was contested based on the interpretation of the MCS Act.
Findings of Court:
The court upheld the disqualification, affirming that the provisions of the MCS Act were applicable and correctly interpreted.
Issues: The main issues were whether the provisions of Chapter XIII-B applied to the petitioner and the validity of the disqualification based on the number of children.
Ratio Decidendi: The court concluded that Chapter XIII-B is applicable and that the disqualification for having more than two children is valid under Section 154B-23.
Result: Petition dismissed.
Based on the provided legal document, the court's opinion can be summarized as follows:
-
Applicability of Chapter XIII-B: The court affirmed that Chapter XIII-B of the Maharashtra Co-operative Societies Act, 1960, is a specially enacted provision for Co-operative Housing Societies and is applicable to the petitioner’s case, despite the non-inclusion of specific sections in Section 154B(1) (!) (!) .
-
Disqualification under Section 154B-23: The court upheld the disqualification of the petitioner from the Managing Committee for having more than two children, as the provisions of Section 154B-23, which incorporate disqualification criteria similar to those in Section 73CA(1)(vii), are applicable and valid (!) (!) .
-
Interpretation of the Disqualification Clause: The court emphasized that the disqualification for having more than two children was valid because the petitioner had three children, with the third being included in the Ration Card, and this was not contested with sufficient evidence (!) (!) .
-
Effect of the Amendment and Commencement Date: The court noted that the relevant amendment introducing the disqualification clause came into effect before the petitioner had any additional children beyond the two existing at the time of commencement, reinforcing the validity of the disqualification (!) .
-
Jurisdiction and Legal Exercise: The court found that the authorities acted within their jurisdiction, and the disqualification was based on valid legal provisions, with no grounds to interfere (!) (!) .
-
Final Decision: The petition challenging the disqualification was dismissed, affirming the legality of the orders disqualifying the petitioner based on having more than two children (!) .
-
Interim Orders: The court extended the interim order postponing the election for a further two weeks, considering the lack of prejudice to any party (!) .
In conclusion, the court's opinion is that the disqualification of the petitioner for having more than two children is valid under the applicable provisions of the Maharashtra Co-operative Societies Act, 1960, particularly Chapter XIII-B, and the orders passed by the authorities are justified. The petition is therefore liable to be dismissed.
1.Heard, Mr. Swapnil Bangur learned counsel for the petitioner and Dr. Uday Warunjikar learned counsel for the respondent No.5. Learned AGP appears for the respondents 1 to 3.
2.The petition questions the order dated 15.05.2023 passed by the Deputy Registrar Co-operative Society MHADA/respondent No.3, whereby, the petitioner has been disqualified as a member of the Managing Committee of the respondent No.6/Society in exercise of the powers under Section 154 B-23 of the Maharashtra Co-
- operative Societies Act, 1960 (page 27) and the order dated 2/05/2024 (pg.34) in Revision Application No.251 of 2023 passed by the Divisional Joint Registrar/respondent No.2 by which challenge to the order dated 15/5/2023, has been turned down.
3.The facts leading to the present petition shorn of unnecessary details are that the petitioner was elected as a member to the Managing Committee of respondent No.6/Society. The election of the petitioner was questioned by respondent Nos.4 and 5 by filing a complaint to respondent No.3 contending that the petitioner was having more than two children and therefore, in light of the mandate of Section 154B-23 (v) of the MCS Act, he had incurred a disqualification and therefore was liable to be disqualified. This found favour with respondent No.3, on the ground, that the petitioner had three children No.1-Ms. Mahima Pawan Singh born on 19.04.2001, No.2-Mr. Abhinav Pawan Singh born on 28.09.2009 and Mr. Prabhat Pawan Singh whose name was included in the Ration Card of the petitioner as his son. He also found that the petitioner had one more issue namely Ms. Janhvi born on 31.8.2007. He thus rendered a finding that the petitioner was having more than two children and therefore, he was disqualified in view of the aforesaid provisions. The said order dated 15.5.2023 has been confirmed by the Divisional Joint Registrar/respondent No.2.
4.Mr. Swapnil Bangur, learned counsel for the petitioner by relying upon the provisions of Section 154 B (1) of the MCS Act, submits that by virtue of the provisions of Section 154B-1 to B-31 were not made applicable to actions under Chapter XIII-B of the MCS Act and therefore, the respondent No.3 and Divisional Joint Registrar/respondent No.2 could not have held the petitioner to be disqualified on the above ground. He further submits that Section 154B (2) excludes Section 73(CA) of the MCS, Act from its applicability to Chapter XIII-B of the MCS, Act on which ground also the findings of disqualification are misconceived. He therefore submits that on this ground the impugned orders are liable to be quashed and set aside and the complaint filed by the respondent Nos.4 and 5 is liable to be rejected.
5.The impugned order is supported by the learned Counsel for the respondent No.5, by contending that Chapter XIII-B is a provision inserted subsequent in point of time in the MCS Act and therefore, non mention of Sections 154B-1 to 154B-31, in Sec.154 B (1) of the MCS Act, would not have any effect and the arguments in this regard are misconceived. It is also contended that though, Section 154B (2) excludes the applicability of Section 73(CA), the mandate of Section 154B-23 would be applicable in light of Clause (v) contained therein by which it has been rightly held that the petitioner has incurred disqualification. Learned AGP adopts the above arguments.
6. The relevant provisions of the MCS Act, which fall for consideration are as under :
154B. (1) The following provisions of this Act shall apply mutatis mutandis to the housing societies, namely :— Section 1, clauses (5), (6), (7), (8), (10), (10-ai), (10-aii), (10-
- aiii), (13), (14), (16), (17), (18), (20-A), (21), (24), (26), (27), (28), (29), (29A) and (31) of section 2, sections 3, 3A, 4, 5, 7, 9, 10, 12, 13, 14, 15, 17, 18, 19, 20, 20A, 21, 21A, 22, sub-sections (1), (2) and (3) of section 23, sections 25, 25A, 31, 33, 34, 35, 36, 37, 38, 40, 41, 42, except proviso of sub-section (1) of section 43, section 45 and sub-sections (1
