Ashok Mahadevan & Ors vs The Divisional Joint Registrar & ...
2012 Latest Caselaw 381 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  O. O. C. J.




                                                                                     
                        WRIT PETITION (L) NO.1882 OF 2012




                                                            
    Ashok Mahadevan & Ors.                                   ...Petitioners.
                   Vs.
    The Divisional Joint Registrar & Ors.                    ...Respondents.
                         ....




                                                           
    Mr.Aspi Chinoy, Senior Advocate with Mr.Shiraz Rustomjee, Senior Advocate,
    Mr.Rohan Rajadhyaksha and Mr.Jariwala i/b. M/s.Thakore Jariwala &
    Associates for the Petitioners.
    Ms.Anjali Helekar, AGP for Respondent No.1.
    Mr.A.A.Kumbhakoni with Mr.Pankaj S.Sutar, Mr.Kuldeep U.Nikam and




                                                     
    Mr.Nikhil A.Wable i/b. Jayakar & Partners for Respondent Nos.2, 3 and 6.
    Mr.Bharat Vaishnawa i/b. Bharat Vaishnawa & Co. for Respondent Nos.4 and
    8.
                         .....
                                  
                         CORAM : DR.D.Y.CHANDRACHUD AND
                                    A.A.SAYED, JJ.

November 21, 2012.

ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J. :

Rule; with the consent of Counsel for the parties returnable

forthwith. With the consent of Counsel and at their request the Petition is

taken up for hearing and final disposal.

2. In these proceedings under Article 226 of the Constitution, the

Petitioners have sought a writ of prohibition against the First Respondent, the

Divisional Joint Registrar of Co-operative Societies, from proceeding with an

application dated 15 March 2012 filed by Respondents 2, 3 and 6, seeking

sanction to prosecute the Petitioners under Section 148 of the Maharashtra

Co-operative Societies Act, 1960. Section 148 specifically provides that no

prosecution under the Act shall be lodged, except with the previous sanction

of the Registrar. The application which has been filed by Respondents 2, 3

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and 6 is pending before the First Respondent.

3. The application for sanction proceeds on the basis that the Pilot

Bunder Co-operative Housing Society was allotted a plot of foreshore land by

the Collector, admeasuring 4048 sq.mtrs. for housing defence and civil

services officers, serving and retired. A lease agreement was entered into on

7 March 1967 and a formal lease was executed by the Government on 10

August 1971 for a term of 99 years on an annual rent. Membership of the

Society is alleged to be restricted to officers in service and equivalent civilian

officers serving or retired. Moreover, it has been stated that the licensee was

restricted from transferring, assigning, encumbering or parting with its

interest and the benefit of the agreement without the previous consent of the

Collector/Government.

4. The Third Petitioner, who is stated to be residing at

Vishakapatnam in the State of Andhra Pradesh, is alleged to have been

admitted as a member of the Society following which shares representing his

interest in the Society were transferred to his name in pursuance of a decision

of the Managing Committee dated 12 June 2008, without the prior permission

of the Collector as required under Bye-law 17(c) and Lease condition 6(n).

The Third Petitioner is alleged to have purchased Flat No.8B in the building of

the Society, "Dolphin", from a member owner to whom the flat had been

transmitted through his father, who was a Major General in the Army. The

Third Petitioner acquired title to the flat by a registered Sale Deed dated 6

August 2008 and possession was handed over. The application alleges that

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the Secretary of the Society, Capt. Raichand, addressed a letter dated 23

January 2009 to the Second and Third Petitioners stating that neither the

Third Petitioner, nor his Constituted Attorney (the Second Petitioner) had

submitted Government service records to justify his eligibility for membership

in the Society. Capt.Raichand is alleged to have resigned from the position of

Honorary Secretary of the Society upon which the Second Petitioner is

alleged to have been co-opted as Joint Secretary. The Second Petitioner as

Joint Secretary, together with the First Petitioner as Secretary, are alleged to

have passed a resolution at a subsequent meeting of the Managing

Committee to expunge from the records, all correspondence which Capt.

Raichand as Secretary had addressed to the Third Petitioner. The

application alleges that on 12 March 2009, the erstwhile member of the flat

and vendor of the flat filed an application before the Collector and obtained

permission to sell the flat to the Third Petitioner. It has been alleged that

along with the application, the vendor submitted an undated letter of the

Second Petitioner, acting as Constituted Attorney of the Third Petitioner

together with a copy of a bio-data, income tax return and other documentary

material. The letter stated that the Third Petitioner is a doctor employed by

the Government of Andhra Pradesh and is based at Vizag. However, it has

been alleged that in the bio-data, it has been stated that the Third Petitioner is

a resident of Flat No.8B and as proof of residence, reliance has been placed

on a telephone bill and the bill of the Society. In response to a query in

tabular Column 10 of the bio-data, requiring particulars as regards domiciliary

status, it has been stated that the information required is not applicable. On

this basis, it has been alleged that the Second Petitioner made false claims

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and disclosures to the effect that the Third Petitioner was a resident of the

Co-operative Society in order that as a resident, he could be projected to be

domiciled in Mumbai, a prerequisite for obtaining permission of the Collector

for the purchase of the property in terms of a G.R. dated 25 May 2007.

5. On the basis of these averments, the foundation for seeking the

sanction of the First Respondent is stated to be thus:

"a) Respondent No.1, while acting as Secretary of the

PBCH Society, by certifying Respondent No.3's false Bio-data, submitted by Respondent No.2, had acted on his own, without

knowledge and authorization by the Managing Committee/ General Body of the Society;

b) Respondent No.1, thereby stands guilty of acting in

collusion with Respondent No.2 & 3 in aiding and abetting fraudulent transfer of the said property of Society;

c) Respondent No.1 had fraudulently misused his then position as Secretary of the Society, falsely certifying and

affirming before the Collector of Mumbai that Respondent No.3 was resident of PBCH Society so that Respondent No.2 as

Respondent No.3's Attorney could claim his domiciled status in Mumbai/Maharashtra;

d) Respondent No.1 further was guilty of certifying Respondent No.2's statement that Respondent No.3 who had

retired as a doctor working in Andhra Medical College is an officer of Government who qualifies for membership of PBCH Society as per Clause 2(u) of Lease conditions, without any substantiating evidence of documents/gazette service records of proof of Respondent No.3;

e) Respondent No.1 therefore stands guilty of fraudulent certification of Respondent No.3's Bio-data thereby aiding and abetting with Respondent No.2 and 3 to obtain fraudulently ex- post facto the said permission for the name by order No.CSLI/REV-2/BBR-3/09/68, dated 11-09-2009 of the Collector to justify the illegal purchase of the property."

Finally, it has been alleged that the First Petitioner in active concert and

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collusion with the Second and Third Petitioners has committed offences under

clauses (k) and (p) of Section 146 of the Maharashtra Co-operative Societies

Act, 1960 of furnishing false information and of falsification of records.

6. The application for sanction is pending.

7. These proceedings under Article 226 of the Constitution for a writ

of prohibition have been instituted before the Court during the pendency of the

application. The submissions which have been urged before the Court by

Learned Senior Counsel are to the following effect: (i) The application for

sanction has no basis in law. The application for permission to alienate the

flat which was submitted to the Collector did not form part of the records of the

Co-operative Society and hence no offence can be made out under the

provisions of Section 146 of the Maharashtra Co-operative Societies Act,

1960; (ii) In the application which has been filed before the Collector, a full

disclosure was made of the place of residence of the Third Petitioner in Vizag

and his income tax returns and pension papers were also produced which

would indicate that he was not a resident of Mumbai; (iii) The transfer of the

share capital took place in August 2008 when the First and Second

Petitioners were not members of the Managing Committee and it was only in

March 2009 that an application was made before the Collector. On this basis,

it has been submitted that the Court would be justified in exercising its

jurisdiction under Article 226 of the Constitution to issue a writ of prohibition to

restrain the sanctioning authority from considering the application in view of

the judgment of the Supreme Court in East India Commercial Co. Ltd. vs.

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Collector of Customs.1

8. During the course of the hearing, a preliminary objection has

been raised by Counsel appearing on behalf of Respondents 2, 3 and 6 who

are the applicants, who have sought sanction to institute a prosecution under

Section 148 before the First Respondent. Counsel submitted that a writ of

prohibition can be issued where the High Court is, on the basis of the

application as it stands, satisfied that the authority in question has no

jurisdiction whatsoever to entertain the proceedings. Counsel urged that this

is not a case where there is a total absence of jurisdiction to proceed on the

part of the Divisional Joint Registrar. On the contrary, once an application for

sanction to prosecute is filed, the First Respondent has jurisdiction to proceed

and determine as to whether a case for the grant of sanction has been made

out. In this view of the matter, it has been urged that there is no reason or

justification for the Court to exercise jurisdiction by restraining the First

Respondent from even determining as to whether a case for the grant of

sanction has been made out.

9. At this stage, the correctness of the facts which have been stated

in the application for the grant of sanction to prosecute do not fall for

determination before the Court. The application for sanction is founded on the

terms and conditions governing the allotment of land by the State to a Co-

operative Housing Society on concessional rent as defined by the G.R. dated

25 May 2007. Annexure-A to the G.R. deals with eligibility for approval of

1 AIR 1962 SC 1893

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members in Co-operative Housing Societies seeking to obtain Government

land on concessional rent. Clause (1) stipulates that a member of the Society

should have continuous residence in the State of Maharashtra for at least

fifteen years. Annexure-C refers to the terms and conditions to be imposed

while transferring a flat in a Co-operative Housing Society formed on

Government land and specifies the premium which has to be paid.

Annexure-F refers to the personal information which has to be supplied in a

prescribed form. Bye-law 17(c) governing the Society in question, stipulates

that admission of a person to the membership of the Society as a result of a

transfer of shares by an existing member, shall be subject to the approval by

the concerned competent authority such as the Collector of the District. The

basis on which an application for sanction to prosecute has been filed is that

the Third Petitioner is not domiciled in the State of Maharashtra and that while

seeking the permission of the Collector, the Petitioners had to disclose

information on the basis of which it was established that the Third Petitioner

did meet the required norms. On the other hand, it is sought to be urged on

behalf of the Petitioners that there was a disclosure of the fact that the Third

Petitioner is employed by the Government of Andhra Pradesh and is based in

Vizag. At this stage, it needs to be reiterated that the correctness of the

averments on the basis of which a sanction to prosecute is sought, does not

fall for determination before this Court. Nor for that matter, should this order

be construed as conveying any finding on the interpretation of the G.R. dated

25 May 2007. Plainly, it would be inappropriate for the Court to do so at this

stage.

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10. The locus classicus on the subject is a decision of seven learned

judges of the Supreme Court in Hari Vishnu Kamat vs. Syed Ahmad

Ishaque,2 in which the test has been formulated as follows:

"When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from

continuing the proceedings."

In the judgment of the Supreme Court in East India Commercial Co. (supra),

a writ of prohibition was sought in respect of a notice to show cause. The

Supreme Court held as follows:

"If on a reading of the said notice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified

sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. To state it differently, if on a true construction of the provisions of the said two sections the respondent has no jurisdiction to initiate proceedings or make an inquiry under the said sections in respect

of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the

same."

The test that was applied by the Supreme Court is that if on a true

construction of the provisions of Section 167(8) and Section 3(2) of the Sea

Customs Act, the Collector of Customs had no jurisdiction to initiate

proceedings or to make an enquiry under those sections in respect of an act

alleged to have been done by the noticee, the Collector should be prohibited

from proceeding with the enquiry.

    11.        A Bench of two learned judges of the Supreme Court                       in


    2 AIR 1955 SC 233





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    S.Govinda Menon vs. The Union of India,3                 emphasized the distinction




                                                                                           

between a case involving want of jurisdiction and the manner in which it is

exercised :

"A clear distinction must therefore be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to

continue proceedings therein in excess of its jurisdiction."

In a subsequent decision of three learned judges of the Supreme Court in

Isha Beevi vs. Tax Recovery Officer,4 the Supreme Court laid down the test

of a "total absence of jurisdiction" as the foundation of a writ of prohibition:

"But, in order to substantiate a right to obtain a writ of prohibition

from a High Court or from this Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision."

12. The Second, Third and Sixth Respondents have filed an

application before the First Respondent for the grant of sanction to lodge a

prosecution under Section 148. Upon such an application being filed, the

First Respondent is duty bound to apply his mind to the contents of the

application and to determine whether he should grant or refuse his sanction

under Sub-section (3) of Section 148. The First Respondent clearly has

jurisdiction to conduct an enquiry of the nature contemplated for the purposes

of arriving at a determination as to whether sanction should be granted or

refused. This is not a case where it can be said that the First Respondent

3 AIR 1967 SC 1274 4 (1976) 1 SCC 70

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lacks jurisdiction. Nor can the Court hold in terms of the test laid down by the

Supreme Court that there is a total absence of jurisdiction to proceed on the

part of the Divisional Joint Registrar. At this stage, it would be most

inappropriate for the Court to preempt the exercise of jurisdiction by the First

Respondent on the hypothesis set up by the Petitioners that no offence under

clauses (a) and (c) of Section 146 of the Maharashtra Co-operative Societies

Act, 1960 has been made out. There is no reason or basis for the Court to

presuppose that the First Respondent would not apply his mind to the

governing principles on the basis of which a sanction to prosecute is to be

granted or refused. As a matter of first principle, this is not a case where the

Court should exercise its jurisdiction to issue a writ of prohibition to interdict

an exercise of jurisdiction by the First Respondent for the purpose of applying

his mind to the application for the grant of sanction to prosecute. It is not

possible to come to the conclusion that the First Respondent is bereft of

jurisdiction to conduct an enquiry for that purpose. There is no absence of

jurisdiction to decide on the application.

13. During the course of the hearing, this Court had indicated that

should the First Respondent grant a sanction to prosecute, some safeguard

can be provided so as to allow an opportunity to the Petitioners to test the

legality of an order granting sanction before the competent forum. Counsel

appearing on behalf of Respondents 2, 3 and 6 has fairly stated that as

applicants before the First Respondent, his clients have no intention to

proceed in haste and that reasonable protection may be granted to the

Petitioners. In the circumstances, we direct that in the event that the First

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Respondent decides to grant sanction to prosecute, no steps shall be taken

for enforcing the order of permission for a period of four weeks from the date

of communication of the order of the First Respondent. We have, however,

for the reasons already indicated, declined to issue a writ of prohibition

restraining the First Respondent from deciding the application for sanction to

prosecute.

14. Since the Petitioners have not filed their reply to the application

filed before the First Respondent, we grant, on the request of Counsel

appearing on behalf of the Petitioners, two weeks' time for filing a reply

before the First Respondent.

15. The Petition shall stand accordingly disposed of in the aforesaid

terms. There shall be no order as to costs.

( Dr.D.Y.Chandrachud, J.)

( A.A.Sayed, J. )