Bombay High Court
Dnyaneshwar @ Dinesh Waman ... vs The State Of Maharashtra And Ors on 20 April, 2016
Bench: R.M. Savant
(22)-WP-10457-14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10457 OF 2014
Dnyaneshwar @ Dinesh Waman Bhosale ]
Age. 42, Occ. Advocate, ]
R/o. C/42 Rangavali. No.1 CHS Ltd, ]
Colbad Road Thane (w) Thane 400 601 ].. Petitioner
Versus
1. The State of Maharashtra
ig ]
Through it's Department of Co operation ]
Mantralaya Mumbai. ]
2. Divisional Joint Registrar Co operative ]
Societies Mumbai Div. Mumbai. ]
3. The Assist Registrar Co operative ]
Societies "A" Ward Mumbai. ]
4. Chairman/Secretary, ]
Parekh Vora Chambers Premises CHS. ]
Ltd. 66. Nagindas Master Road Fort ]
Mumbai 400 001 ].. Respondents
Mr. V. P. Sawant a/w Mr. S. A. Rajeshirke, Mr. Prabhakar Jadhav, Mr.
Rahul Vijaymane, for the Petitioner.
Mr. S. D. Rayrikar, AGP for the Respondent Nos.1 to 3.
Mr. Kishor Maru, for the Respondent No.4.
BGP. 1 of 10
::: Uploaded on - 22/04/2016 ::: Downloaded on - 22/04/2016 23:59:44 :::
(22)-WP-10457-14.doc
CORAM : R.M. SAVANT, J.
DATE : 20th APRIL 2016
ORAL JUDGMENT
1. Rule, having regard to the nature of the challenge raised
made returnable forthwith and heard.
2. The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 25.09.2014 passed
by the then Hon'ble Minister for Co-operation, Government of
Maharashtra, by which order, the Appeal filed by the Respondent No.4
herein came to be allowed and resultantly, the order dated 15.05.2014
passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai,
came to be set aside and the order dated 29.04.2013 passed by the Deputy
Registrar, "A" Ward, Mumbai, came to be confirmed.
3. The facts giving rise to the filing of the above Petition in brief
can be stated thus :-
The Petitioner herein has purchased Office No.10 in the
building of the Respondent No.4 society which is a commercial premises
society from one Smt. Nargis Jal Pardiwala who was the member in
respect of the said Office No.10. The Petitioner vide his application dated
BGP. 2 of 10
(22)-WP-10457-14.doc
29.12.2011 applied for transfer of the membership from the name of the
said Smt. Nargis Jal Pardiwala to his name. The said application of the
Petitioner was rejected by the Respondent No.4 society by letter dated
11.01.2012. The said rejection was inter-alia on the ground that the
application for membership was not in the prescribed format as
contemplated by the bye laws. The Petitioner thereafter filed a fresh
application on 31.01.2012 in the proper format. Having not received
response to the said application made on 31.01.2012, the Petitioner filed
an application before the Deputy Registrar of Co-operative Societies under
Section 22(2) of the Maharashtra Co-operative Societies Act, 1960 (for
short "the MCS Act"). Before the Deputy Registrar, the application of the
Petitioner was opposed to on behalf of the Respondent No.4 society and
the opposition was on the ground that the application of the Petitioner
was not in the proper format as there is no bye law No.38(e)(ii) in the bye
laws of the society. The Deputy Registrar, Co-operative Societies, "A" Ward
i.e. Respondent No.3 by his order dated 29.04.2013 rejected the said
application on the ground that the application filed by the Petitioner was
not in proper format i.e. in terms of Form No.1 bye law No.D-1.3.
4. Aggrieved by the order dated 29.04.2013 passed by the
Deputy Registrar, Co-operative Societies, "A" Ward, the Petitioner filed a
Revision under Section 154 of the MCS Act before the Divisional Joint
BGP. 3 of 10
(22)-WP-10457-14.doc
Registrar, Co-operative Societies, Mumbai Division, Mumbai. The said
Revision Application was founded on the fact that the Petitioner has made
compliances in the matter of making the application in the required
format as also annexing the requisite documents. The share certificate in
the name of Smt. Nargis Jal Pardiwala was annexed to the said application
as also the application was accompanied by the requisite fees. The
Respondent No.4 society opposed the Revision Application inter-alia on
the ground that the said Smt. Nargis Jal Pardiwala had kept the share
certificates with one Mrs. Nalini Tulsidas Vora as security for the loan
taken, that the title to the said premises does not belong to Smt. Nargis Jal
Pardiwala and that in spite of calling upon the said Smt. Nargis Jal
Pardiwala to submit the documents of title, she has failed to provide the
same and that the earlier application dated 29.12.2011 of the Petitioner
has been rejected by the letter of the Respondent No.4 society dated
11.01.2012. The Revision Application was considered by the Divisional
Joint Registrar who by his order dated 15.05.2014 allowed the same. The
Divisional Joint Registrar has adverted to the legal position as enunciated
by the judgments of the Learned Single Judges of this Court in John
D'Souza Vs. Joint Registrar, Co-operative Societies and others 1, Harish
Commercial Premises Co-operative Society Ltd. Vs. Smt. Varsha Dinesh
1 Order dated 29.06.2011 in Writ Petition NO.9881 of 2010.
BGP. 4 of 10
(22)-WP-10457-14.doc
Joshi & others 2 as also Videocon Appliances Vs. Maker Chamber V.
Premises Co-operative Society Limited & others 3 and observed that it is
not for the Authorities exercising powers under the Co-operative Societies
Act to go into the issue of title and that the Authorities are only required
to consider whether the applications filed under Sections 22(2) and 23(2)
are in order. The Divisional Joint Registrar held that the Petitioner having
submitted all the documents as also having filed the application which was
found to be in order by him, deemed it appropriate to set aside the order
passed by the Deputy Registrar dated 29.04.2013 and allowed the
Revision Application filed by the Petitioner vide his order dated
15.05.2014 and thereby directed the Respondent No.4 society to accept
the Petitioner as a member.
5. The Respondent No.4 aggrieved by the said order dated
15.05.2014 passed by the Divisional Joint Registrar filed an Appeal before
the State Government under Section 152 of the MCS Act. The State
Government i.e. the then Hon'ble Minister for Co-operation has by the
impugned order dated 25.09.2014 allowed the said Appeal, and as
indicated above has set aside the order passed by the Divisional Joint
Registrar dated 15.05.2014 and confirmed the order dated 29.04.2013
passed by the Deputy Registrar. The Appeal has been allowed for the
2 (2006 CTJ 544).
3 Judgment of Hon'ble Bombay High Court in Writ Petition No.7471 of 2004.
BGP. 5 of 10
(22)-WP-10457-14.doc
reasons mentioned in the impugned order and a reading of the said order
discloses that the Hon'ble Minister went into the issue of title and came to
a conclusion that the said Smt. Nargis Jal Pardiwala who is the vendor of
the Petitioner and a member of the Respondent No.4 society did not have
title to the said office and therefore the Petitioner could not be conferred
with the membership of the Respondent No.4 society. As indicated above,
it is the said order dated 25.09.2014 which is taken exception to by way of
the above Petition.
6. The principal contention of the Learned Counsel for the
Petitioner Mr. V. P. Sawant was that the Hon'ble Minister has erred in
exercising the appellate powers when none existed having regard to
Section 152 of the MCS Act. It was the submission of the Learned Counsel
that only in respect of the orders passed under the provisions mentioned
in the said Section 152 that an Appeal would lie. In the instant case,
neither Section 22 nor Section 23 nor Section 154 appear in the said
Section 152 and therefore the Appeal filed was thoroughly misconceived
and mis-founded. It was therefore the submission of the Learned Counsel
that the impugned order has been passed without jurisdiction and is
therefore required to be set aside.
7. Per contra, the Learned Counsel Mr. Kishor Maru sought to
BGP. 6 of 10
(22)-WP-10457-14.doc
justify the filing of the Appeal against an order passed in Revision. The
Learned Counsel sought to place reliance firstly on Section 165 of the MCS
Act to contend that the State Government has the power to entertain any
Appeal against any order where there is injustice. Reliance was also sought
to place under Section 154(4) which gives power to the State Government
to vest the power of Revision in an officer of the State Government of the
rank of Secretary to the Government. However, the Learned Counsel was
not able to point out any provision in the MCS Act where-under Appeal
would lie against an order passed under Sections 22 and 23 and thereafter
against the order passed in Revision under Section 154.
8. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The issue that is posed in the instant
matter is whether the Appeal filed by the Respondent No.4 herein against
the order dated 15.05.2014 passed by the Divisional Joint Registrar is
maintainable. In the said context, it would be apposite to refer to Section
152 of the MCS Act.
"152. Appeal.- (1) An appeal against an order or decision
[under sections 4, 9, 11, 12, 13, 14, 17, 18, 19, 21, 21A,
29, 35, 77A, [78, 79, 85, 88 and 105 including against an
order for paying compensation to a society] shall lie,-
(a) if made or sanctioned or approved by the Registrar, or
the Additional or Joint Registrar on whom powers of the
BGP. 7 of 10
(22)-WP-10457-14.doc
Registrar are conferred, tot he State Government.
(b) if made or sanctioned by any person other than the
Registrar, or the Additional or Joint Registrar on whom the
powers of the Registrar are conferred to the Registrar.
[Provided that, no order of stay shall be issued in
respect of the recovery of the dues under the award issued
by the Liquidator unless fifty per cent of the amount stated
in the award is deposited with the society by the
Appellant.]
[(2) Where an appeal against any order or decision to the
Co-operative Appellate Court has been provided under this
Act, it shall lie to the Co-operative Appellate Court].
(3) An appeal under sub-section (1) or (2) shall be filed
within two months of the date of the communication of the
order or decision.
[(3A) The Appellate Authority, in order to prevent the ends
of justice being defeated, may pass such interim orders
including order of stay against the impugned order,
pending the decision and final hearing of the appeal:
Provided that, if any interim order has been passed by
the Appellate Authority without hearing the other side, the
Appellate Authority shall decide such application within a
period of three months and pass the necessary orders on
merits after giving an opportunity of being heard and for
the reasons to be recorded in writing.]
[(4) Save as expressly provided, no appeal shall lie against
any order, decision or award passed in accordance with the
provisions of this Act; and every such order, decision or
award shall, whether expressly provided or not, be final,
but shall always be subject to the provisions for revisions in
this Act; and where an appeal has been provided for, any
order passed on appeal shall likewise be final, but be
subject to such revisions provisions."
BGP. 8 of 10
(22)-WP-10457-14.doc
A reading of Section 152 of the MCS Act therefore makes it clear that an
Appeal lies against an order passed under any of the provisions mentioned
therein. In fact sub Section (4) makes it explicitly clear that save as
expressly provided, no appeal shall lie against any order, decision or
award passed in accordance with the provisions of this Act. Meaning
thereby that Appeal would lie only against orders passed under the
provisions mentioned in Section 152 of the said MCS Act.
9.
Now coming to the contention urged on behalf of the
Respondent No.4 by the Learned Counsel Mr. Kishor Maru, the reliance
placed on Section 165 of the MCS Act is thoroughly misconceived. The
said provision confers the powers on the State Government to frame rules
for conduct and regulation of the business of the society or class of
societies and for carrying out the purposes of the Act and therefore has no
application in so far as filing of an Appeal is concerned. In so far as
Section 154(4) is concerned, the said provision as indicated above enables
the State Government to vest the power of Revision in an officer of the
rank of Secretary to the Government as would be specified in the direction
issued under the said provision. As indicated above, the Learned Counsel
has not been able to pinpoint any other provision in the said MCS Act
under which an Appeal would lie against an order passed under Sections
22 and 23 and thereafter under Section 154 of the MCS Act. It is well
BGP. 9 of 10
(22)-WP-10457-14.doc
settled that an Appeal is a creature of a statute, hence if the statute does
not provide for an Appeal, the Appeal provision cannot be read into the
statute. In my view, therefore, the order passed by the State Government
i.e. the Hon'ble Minister does not have any basis in any statutory
provision, no Appeal could have been entertained by the State
Government against an order passed under Section 22(2) and thereafter
in a Revision under Section 154 of the MCS Act. The said order passed is
therefore without jurisdiction and is therefore required to be quashed and
set aside and is accordingly quashed and set aside. Resultantly, the order
dated 15.05.2014 passed by the Divisional Joint Registrar will operate in
the field. However it would be open for the Respondent No.4 to challenge
the said order dated 15.05.2014 if it so chooses. The said challenge if
raised would undoubtedly be considered on its own merits and in
accordance with law. It would be open for the Petitioner to apply for
implementation of the said order dated 15.05.2014 passed by the
Divisional Joint Registrar. The Petition is allowed to the aforesaid extent.
Rule is accordingly made absolute, with parties to bear their respective
costs.
[R.M. SAVANT, J]
BGP. 10 of 10
