Shriram Gangaram Bute, President ... vs Deputy Registrar, Co-Operative ...
2008 Latest Caselaw 121 Bom

JUDGMENT

R.C. Chavan, J.

1. This appeal, directed against the judgment of learned Single Judge in Writ Petition No. 2325 of 2006, raises an important question as to the jurisdiction of the learned single Judge to direct the authorities in the Co-operation Department to appoint an administrator on a society, and to hold elections of such society. The facts in the context of which this question arose are as under:

2. Appellant Shri Shriram Bute as well as respondent No. 3 Shri Motiram Thombre claimed to be Presidents of Shri Gajanan Prathamik Shikshak Sahakari Gruhanirman Sanstha, a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. The term of the office of office bearers of the society was over. However, both, appellant and respondent No. 3, had issued notices of general body meeting for electing new office bearers, appointing different persons as Returning Officers. The Deputy Registrar, Cooperative Societies, by his order dated 21st April, 2006, therefore, superseded the managing committees and appointed an administrator on the society. This order was challenged by a writ petition before the Single Judge. While entertaining this petition the learned Vacation Judge granted interim relief staying the effect and operation of order dated 21st April, 2006.

3. In this petition, the petitionerpresent appellant, Shri Shriram Bute, had not joined his adversary Shri Motiram Thombre as a party and, therefore, Shri Thombre applied for either being joined as respondent or for being allowed to intervene in the petition. After the impugned order was stayed, according to the appellant Shri Shriram Bute on 05.06.2006, elections were held and a new managing body was unanimously elected with Shri Shriram Bute as President. After hearing the parties the petition was eventually disposed of by judgment dated 6th November, 2006. The learned single Judge upheld the petitioner's contention that the impugned order dated 21st April, 2006 appointing an administrator was liable to be quashed and set aside and proceeded to hold as under:

Writ petition is thus allowed partially & accordingly. Though order dated 21/4/2006 is quash and set aside, respondent No. 1 or other competent authority is directed to forthwith appoint Administrator under Section 73H and arrange to hold elections of Society as mentioned therein. The managing committee whose term has expired shall cooperate with Cooperative Department for expeditious holding of such elections. Neither petitioner Shriram nor added respondent Mr. Thombre shall in any way interfere with or obstruct management or affairs of society till such Administrator is appointed. Rule is made absolute accordingly. No order as to costs of present petition.

4. This Letters Patent Appeal was preferred on 04.12.2006. The appellant had not arrayed his adversary Shri Thombre as respondent in this appeal, who has been subsequently joined as respondent No. 3. In view of the judgment of the learned single Judge, on 08.12.2006 an administrator allegedly took over the affairs of the society. Order admitting this appeal was passed on 12th December, 2006. Ad-interim relief in terms of prayer Clause (b) was granted whereby respondents were directed to handover the records of the society to the appellant who claimed to have been duly elected. Thus, as the matter stands there is neither administrator, nor possibly any committee, managing the affairs of the society.

5. We have heard learned Advocate Shri Madkholkar for the appellant, learned A.G.P. Shri Dhote for respondents No. 1 and 2 and learned Advocate Shri Panpalia for respondent No. 3.

6. Learned Advocate Shri Madkholkar for the appellant contended that while the learned single Judge had rightly allowed the petition quashing and setting aside the order, appointing an administrator, passed by Deputy Registrar on 21st April, 2006, by further directions the learned single Judge had virtually nullified the relief granted, by directing the Deputy Registrar to appoint an administrator and hold further elections. He submitted that the elections held on 5th June, 2006, during pendency of the petition, had not been challenged by any party and had not been questioned in the petition. He, therefore, submitted that relief in respect of the elections dated 05.06.2006, or relief for appointment of administrator, not having been sought by the petitioner, could not have been granted in the appellant's petition.

7. In any case, according to the learned Counsel, this part of the order, issuing mandatory directions to respondents No. 1, 2 and 3, is beyond the jurisdiction of the learned single Judge. He submitted that the High Court ordinarily disposes of its business in Division Benches consisting of two or more judges as provided in Rule (1) of Chapter I of Bombay High Court Appellate Side Rules. Even Rule (1) of Chapter XVII provides that every application for issuance of a direction, order or writ under Article 226 of the Constitution shall, be heard and disposed of by a Division Bench. Thus, jurisdiction as regards to issuance of directions vests squarely in Division Benches only. Clause 12 of Rule 18 of Chapter XVII of the Appellate Side Rules provides that, notwithstanding anything contained in Rules, 1, 4 and 17 of the said Chapter, applications under Article 226 or 227 of the Constitution arising out of the orders passed under the Maharashtra Co-operative Societies Act, may be heard and finally disposed of by a single Judge appointed in this behalf by the Chief Justice. The expression order appearing in various clauses of this rule had been explained in an explanation appended to the rule, which reads as under:

Explanation The expression order appearing in Clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the abovementioned statutes.

8. The learned Counsel, therefore, submitted that a single Judge of this Court gets jurisdiction to decide applications under Article 226 or 227 of the Constitution arising out of only orders passed by any judicial or quasi judicial authority empowered to adjudicate under the relevant statute. He, therefore, submitted that observations of the learned single Judge, and directions issued to respondents No. 1 and 2 to appoint an administrator or hold elections travelled beyond the scope of jurisdiction limited by Rule 18, which a single Judge is entitled to exercise.

9. The learned Counsel for the appellant placed, for our perusal, an order passed by a Division Bench of this Court in Letters Patent Appeal No. 363 of 2006 where the question of jurisdiction of a Single Judge had arisen. The Division Bench had held that if the proceeding is neither judicial nor quasi judicial in nature, writ petition was not maintainable before the single Judge. The learned Counsel submitted that in so far as challenge to the order dated 21.04.2006 was concerned, it squarely lay before the learned single Judge because the petitioner had challenged an order passed upon adjudication by the Deputy Registrar under the Cooperative Societies Act. Once the learned single Judge found the order to be unsustainable and quashed and set it aside, the jurisdiction vested in the learned single Judge was exhausted, and nothing further was required to be done. Though none had sought any directions from the learned single Judge to direct the respondents No. 1 and 2 to appoint an administrator or to hold elections, even if such directions had been sought by any party, the single Judge should have declined to issue such directions, as beyond the scope of his jurisdiction.

10. Learned Advocate Shri Panpalia for respondent No. 3 wondered as to how the learned Counsel for appellant could say that the learned single Judge could not issue mandatory directions. We have carefully considered this contention. While a court entertaining a petition under Article 226 would without doubt have the power to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, the question is whether a single judge could exercise all or any of these powers. As rightly pointed out by the learned Counsel for appellant, the powers of the High Court are to be exercised by a Division Bench comprising of two or more judges in view of Rule 1 of Chapter I, Rule 1 of Chapter XVII of High Court Appellate Side Rules. Though rule 18 of Chapter XVII begins with a non- obstante clause, this overriding provision in fact carves out an exception. Therefore, the jurisdiction of a single Judge would be restricted to applications arising out of judicial or quasi judicial orders of various authorities enumerated in the rule.

11. Does this restriction imply that a single Judge would be entitled to issue writs in the nature of certiorari or prohibition only ? When an application arises out of judicial or quasi judicial orders, ordinarily, the court may only be calling for proceedings to examine the correctness of orders, or prohibit a lower court/ tribunal or authority from proceeding in any particular manner. Occasion to issue a mandatory direction, or a writ of mandamus, may not arise while examining correctness of proceedings in exercise of jurisdiction under article 226. While examining the distinction in powers under articles 226 and 227 of the Constitution to calling for proceedings from lower courts/ authorities, in Surya Dev v. Ramchander reported at 2004(1) Mh.L.J. 633, the Apex Court observed that while issuing a writ of certiorari the High Court may simply annul or quash the proceedings and then do no more. On the other hand, in exercise of supervisory jurisdiction (under Article 227), the High Court may not only quash or set aside the impugned proceedings, judgment, or order, but it may also make such directions as the facts and circumstances may warrant. In Umaji v. Radhikabai reported at too, the Apex Court had drawn out the real difference in the nature of powers under Article 226 and 227 of the Constitution, observing that though the end result may be same the nature of power is different and the two articles operate in different fields.

12. In the present proceeding powers under Article 226 ( and not 227) had been invoked. In view of provisions of High Court Appellate Side Rules, referred to earlier, these powers are to be exercised only in relation to judicial or quasi-judicial orders passed by concerned authority. This hedging would imply that a single Judge may not be in a position to issue mandatory or further directions in exercise of powers under article 226, which he could have done in exercise of jurisdiction under Article 227.

13. Learned Advocate Shri Panpalia for respondent No. 3 next submitted that, in any case, he is entitled to support the order dated 21.04.2006, which had been questioned in the writ petition. For this purpose, he drew our attention to the decision in the case of Vitthaldas v. Mansukhdas reported at 1980 Mh.L.J. 612 arising out of the proceedings under the C.P. & Berar Letting of Houses and Rent Control Order. In paragraph 13 of the judgment the Division Bench held that a respondent in an appeal has two distinct rights. First is the right of upholding the decree of the Court of the first instance on any ground, including grounds on which the Court held against him. The second is that of taking a cross-objection. Therefore, he submitted that since he was invoking his first right, there was no question of his not having challenged the order impugned in this appeal.

14. We are afraid that the learned Counsel is misreading the ratio of this judgment relied upon by him. What respondent No. 3 can doubtless do is to support the order of learned single Judge before us. By supporting order dated 21.04.2006 quashed by the learned single Judge, the respondent No. 3 herein is not trying to support the impugned judgment on grounds which did not find favour with the learned single Judge. He is, in fact, taking exception to the judgment of the learned single Judge whereby the learned Judge quashed and set aside the order dated 21.04.2006. Supporting the judgment on other grounds cannot be stretched to include even ignoring express order passed by the learned single Judge. Therefore, we hold that respondent No. 3 cannot now attempt to resurrect order dated 21.04.2006 without preferring an appeal against the single Judge's judgment quashing the said order.

15. Learned Advocate Shri Panpalia for respondent No. 3 next submitted that it would not be open to the appellant to assail the order passed by learned single Judge on the ground that the learned single Judge lacked jurisdiction, since the petitioner has himself sought mandamus in the petition. Prayer Clause (a) to the petition, shows that the petitioner had sought quashing and setting aside order dated 21st April, 2006, with a further direction to the Election Officer to hold the elections in accordance with the election programme published on 19.04.2006. As rightly countered by his learned adversary, a party may seek proverbially the moon, but it would not clothe the Court with jurisdiction to grant such a prayer if the Court inherently lacked it. Therefore, this prayer in the petition cannot justify the directions issued by the learned single Judge to appoint an administrator or to hold fresh elections.

16. The learned Counsel for respondent No. 3 submitted that the petition itself was not tenable since order dated 21st April, 2006 passed under Section 77A of the Maharashtra Co-operative Societies Act was amenable to an appeal under Section 152 of the said Act. He was, therefore, critical of the statements in the petition that the petitioner did not have any alternate remedy. He submitted that since the petitioner had an alternate remedy, the petition ought to have been disposed of on this ground alone. The learned Counsel for the appellant submitted that this objection ought to have been taken at the threshold and since it was not taken it cannot be raised now. This objection of the appellant has to be rejected, since, in this case respondent No. 3's application for intervention was allowed in the final judgment itself, and, therefore, technically respondent No. 3 could not have time enough to raise his objection to the tenability of the petition on the ground of availability of alternate remedy. In any case, if respondent No. 3 wanted to assail the judgment of the learned single Judge quashing order dated 21.04.2006 on the ground of availability of alternate remedy or any other ground, respondent No. 3 ought to have done so by appropriate proceedings. This objection too does not amount to supporting the decree on other grounds and therefore, cannot be entertained in this appeal.

17. Learned Advocate Shri Panpalia next drew our attention to a judgment in Sahebrao v. State of Maharashtra reported at 2000(3) Mh.L.J. 644 where the Court had directed the Collector to complete election programme since the term of the office of the society was over. There can be no doubt that upon completion of term of the office fresh elections should be held for electing a new body. As rightly pointed out by the learned Counsel for the appellant this direction was issued in the aforementioned case by a Division Bench of this Court and not by a single Judge and the Division Bench was competent to issue such direction.

18. Learned Advocate Shri Panpalia for respondent No. 3 had a very critical comment to make upon the conduct of the petitioner. We have no doubt that the appellant/petitioner ought to have joined respondent No3 as party to the petition, as well as this appeal when these proceedings were first filed. But that does not affect the merits of appeal. Learned Advocate Shri Panpalia also submitted that the order passed by the learned single Judge could not be faulted as in the prevailing vacuum in the affairs of the society, the learned single Judge could not have been a mute spectator to the melee in which affairs of the society were thrown. There can be no doubt that the learned single Judge was activated by a good motive to restore order in the affairs of the society which was riddled with claims and counter claims, and so normally the course adopted by the learned single Judge could not have been faulted but for want of jurisdiction in him to do so.

19. To sum up, exception cannot now be taken to the order of the learned single Judge in so far as he quashed and set aside the order dated 21.04.2006 since the party aggrieved by such quashing- respondent No. 3, has not preferred any appeal. As for the further direction to respondent No. 1 to forthwith appoint administrator and to hold elections of the society, such directions could not have been issued being beyond the scope of jurisdiction of the learned single Judge,

20. The appeal is, therefore, allowed and the directions in paragraphs No. 9 and 10 of the judgment to appoint an Administrator under Section 73H and to hold elections of the society are set aside.