Bombay High Court
Alhad R. Vaidya And Ors vs The State Of Maharashtra And Ors on 7 July, 2016
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2569 OF 2002
Alhad R. Vaidya and ors. ... Petitioners
V/s.
The State of Maharashtra & Ors. ... Respondents
Mr. G.S. Godbole i/b Mr. A.B. Tajne for the Petitioners.
Mr. S.D. Rayrikar, AGP for Respondent Nos.1 to 3.
Mr. Vijay Patil a/w. Mr. Kalpesh for Respondent No.4.
Nidhi Singh a/w. Mr. Pradip Patil i/b India Law Alliance for Respondent
Nos. 5 to 8.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment
ig : 22 APRIL 2016.
Date of Pronouncing the Judgment : 07 JULY 2016.
JUDGMENT :
1] The primary challenge in this petition is to the judgment and order
dated 28 January 2002 made by the Secretary and Officer on Special Duty
(Appeals), Revenue and Forest Department, Government of Maharashtra.
2] The petitioner No.1 alongwith some others, proposed the formation
of "Samudra Manthan Cooperative Housing Society Ltd.", in order to apply
for and obtain the allotment of a Government plot of land and eventual
construction of buildings/apartments thereon. The petitioner No.1 was
styled as Chief Promoter of such proposed society. The record does
indicate that the petitioner No.1 alongwith others took steps to obtain
allotment of plot and thereafter, even submitted a list of the proposed
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members of the society, who could ultimately be beneficiaries of the
apartments and matters connected therewith. Even before, all formalities
with regard to allotment could be complete, there arose disputes and
differences between the proposed members of the society. The petitioners,
led by the petitioner No.1 constituted one group and fourteen other
members constituted another group. There were allegations and counter-
allegations in the matter of timely depositing of the amounts in order to
secure the allotment of the plot. The extra ordinary general body meeting
was held amongst such proposed members. Correspondence was also
exchanged with the authorities, including in particular, the District
Collector, who is authorised to approve the names of the members, who
would be eventually allottees of the apartments in the building to be
constructed upon the plot, to be obtained from the Government.
3] The District Collector, by communication dated 20 September 1991
approved names of eighteen members from out of the list forwarded. By
supplementary order dated 18 October 1991, names of two more
members were also approved. There is correspondence which establishes
that the District Collector required such twenty members to deposit the
occupancy price, so that the allotment Could be made. The disputes
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between the members really arose at this stage, because fourteen
members alleged that the petitioner No.1 was avoiding deposit of
occupancy price. Finally, the extra ordinary meeting was convened, in
which, fourteen members supported the replacement of petitioner No.1 by
one Mr. A.S. Bhandarkar. On such basis, the demand draft towards
occupancy price was forwarded to the Government authorities. The
petitioner No.1 also forwarded the demand draft towards occupancy price.
However, the record indicates that the authorities relied upon majority
opinion as expressed in the extra ordinary meeting and retained the
demand draft towards occupancy price submitted by Mr. A.S. Bhandarkar
as Chief Promoter of the proposed society.
4] Ultimately, the Samudra Manthan Cooperative Housing Society
Ltd. came to be registered as a Cooperative Society under the provisions of
the Maharashtra Cooperative Societies Act, 1960 (said Act), by order
dated 2 April 1992 made by the Deputy Registrar of the Cooperative
Societies. At the time of registration, Shri. Bhandarkar. was indicated as
Chief Promoter. The petitioners were also indicated as persons proposing
the incorporation of the society, but, the application for registration does
not bear the signatures of the petitioners. The society was nevertheless
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registered and the Government plot was allotted and handed over to the
society some time 20 May 1992. The allotment letter at Anenxure-I
contains the list of approved members.
5] There is no record that the petitioners were actually enrolled as the
members of the Society. Although, the contention was raised that the
petitioners had applied for enrollment of membership and the said
application was pending consideration, the record bears out that the
petitioners were neither actually enrolled as members of the society nor
have the petitioners have taken any steps to pursue their application for
their enrollment as members. The said Act provides for remedies where
application for enrollment is either not accepted or rejected without
sufficient cause. There is nothing on record to indicate that the petitioners
ever availed any such remedies under the said Act.
6] The District Collector, by Corrigendum dated 4 April 1994
corrected the original list of approved members and ordered the deletion
of the names of the petitioners from the said list. It is pertinent to note
that the petitioners had not been enrolled as the members of the society.
However, the names of the petitioners appear in the list of persons
approved to be members of the society by the District Collector. Since,
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such Corrigendum/order was made by the District Collector without
afford of opportunity to the petitioners, the petitioners appealed against
the same to the Additional Commissioner, Koknan Division.
7] The Additional Commissioner vide order dated 3 June 1997
allowed the appeal and remanded the matter to the District Collector for
fresh decision, in accordance with law and after due compliance with
principles of natural justice. The District Collector, in compliance with the
remand order and afford of opportunity of hearing to the petitioners, once
again ordered deletion of the names of the petitioners from the list of
persons approved to be members of the Cooperative Society.
8] The petitioners instituted Writ Petition No. 1028 of 1999 before this
Court, which was disposed of on 13 July 1999. By the said order, this
Court granted leave to the petitioners to withdraw the petition with liberty
to impugn the fresh order dated 19 January 1999 made by the District
Collector, by institution of an appeal before the Additional Commissioner,
Konkan Division.
9] The Additional Commissioner, Konkan Division by order dated 22
October 1999, allowed the petitioners' appeal and quashed and set aside
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the decision of the District Collector, approving the deletion of their
names. The Additional Commissioner, reasoned that the District Collector
had no legal authority or jurisdiction to decide on the issue of inclusion or
deletion of members in a Cooperative Society and that such jurisdiction
vested exclusively in the authorities constituted under the said Act.
10] The respondents herein, instituted revision application before the
Secretary and Officer on Special Duty, which has, since been allowed by
the impugned judgment and order dated 28 January 2002. Hence, the
present petition.
11] Mr. Godbole, learned counsel for the petitioners, has submitted that
the District Collector had no power, authority or jurisdiction to deal with
the issues of membership of the Cooperative Housing Society and it is only
the authorities under the said Act, which have been vested with exclusive
jurisdiction in this regard. Relying upon the decision of this Court in case
of Professor (Dr.) D.R. Bhardwaj Vs. State of Maharashtra - AIR 1993
Bom 366, Mr. Godbole submitted that the District Collector had no
jurisdiction to terminate the membership and direct the society to recover
possession from such member. In any case, Mr. Godbole submitted that it
was not possible for the petitioners to pursue the issue of their
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membership with the authorities under the said Act, because in terms of
the order by which the plot in question was allotted by the Government to
the society, the approval of District Collector was necessary for enrollment
of any person as member of the Society. In this case, the District Collector,
has acted without jurisdiction and in any case, illegally in directing the
deletion of the names of the petitioners from such list of approved persons
and in their place substituting the names of some of the respondents. For
these reasons, Mr. Godbole submitted that the impugned order dated 28
January 2002 deserves to be set aside and the earlier order dated 22
October 1999 made by the Additional Commissioner, Konkan Division,
deserves to be restored.
12] The learned counsel appearing for the contesting respondents
submitted that at no stage, the petitioners were actually enrolled as
members of the Society. Therefore, there was no question of authorities
under the said Act having any jurisdiction over the issues raised by the
petitioners in this matter. The real issue in this case was with regard to
inclusion or exclusion of persons approved to be enrolled to the
membership of the society. The District Collector, upon due consideration
of all materials on record, including in particular the wishes of the
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majority, the defaults committed by the petitioners in the matter of deposit
of occupancy price, failure on the part of the petitioners to avail
membership of the society despite afford of adequate opportunities, has
ordered the deletion of the names of the petitioners and substituted the
names of some of the respondents. The learned counsel for the
respondents pointed out that the petitioners were themselves not
cooperating in the matter of deposit of occupancy price or contributing
towards the construction of the building and matters connected therewith
and at the same time, on account of non-cooperation of the petitioners, it
was not possible for the remaining persons to proceed with the project.
Upon due consideration of all these circumstances, the District Collector
rightly ordered the substitution of some of the respondents in place of the
petitioners. Such an order was both legal as well as intra vires. The
learned counsel for the respondents, also pointed out that the petitioners
have taken no steps whatsoever to secure membership of the society, in
case, they had really applied for the membership of the society and that
they were aggrieved by their non-enrollment as members of the society.
Learned counsel for the respondents, therefore, submitted that this is not a
fit case for grant of any reliefs in this petition, particularly, because the
reliefs as prayed for, will never be complete in themselves. The learned
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counsel for the respondents further submitted that by now, there are no
vacant apartments. The allottees were never impleaded as parties to the
proceedings. Any order, is bound to affect the interest of such allottee
members. For all these reasons, it was urged that the present petition be
dismissed with costs.
13] The rival contentions now fall for my determination.
14] From the record, the petitioners were unable to make out any case
that at any stage, they were in fact enrolled as the members of the society.
In fact, it is the case of the petitioners that they had applied for enrollment
as members, but such application was either not accepted or in any case,
no action was taken on the basis of same. There is nothing on record to
indicate that the petitioners have taken any steps to pursue the issue of
their non-enrollment as members of the society. The submission that such
steps were not taken simply because the District Collector deleted the
names of the petitioners from the list of persons approved to be members
of the society, cannot be appreciated at this stage. In any case, if this be
the position, the petitioners cannot at the same time, maintain that the
District Collector had no jurisdiction in the matter as the jurisdiction was
vested exclusively in the authorities constituted under the said Act.
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15] In terms of Section 22 of the said Act, subject to the provisions of
Section 24, no person shall be admitted as a member of a society except
those which have been prescribed under sub-section (1). Section 22 (2)
provides that where a person is refused admission as a member of a
Society, the decision with reasons therefor, shall be communicated to that
person within fifteen days from the date of decision, or within three
months from the date of receipt of application for admission, whichever is
earlier. If the society does not communicate any decision to the applicant
within three months from the date of receipt of application, the
application shall be deemed to have been admitted as a member of the
society. If any question arises whether a person has become a deemed
member or otherwise, the same shall be decided by the Registrar after
giving reasonable opportunity of being heard to all the concerned parties.
16] Section 23(1) of the said Act provides that no society shall, without
sufficient cause, refuse admission to membership to any person duly
qualified therefor under the provisions of the said Act or bye-laws of the
society. Section 23(2) of the said Act provides that any person aggrieved
by the decision of a society, refusing him admission to its membership,
may appeal to the Registrar within a period of sixty days from the date of
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the decision of the society. Every such appeal as far as possible, shall be
disposed of by the Registrar within a period of three months from the date
of its receipt. Provided that, where such appeal is not so disposed of
within three months, the Registrar shall record the reasons for the delay.
Sub-section (3) of Section 23 imparts statutory finality to the decision of
the Registrar.
17] From the material on record, it is not quite clear as to whether the
petitioners had applied for enrollment as members. However, even
assuming that they had applied for such enrollment, there is nothing on
record to indicate that the petitioners have taken any steps whatsoever as
may be available to them under the provisions of the said Act in the mater
of their enrollment as members of the Society. The issue of approval by the
District Collector of the names of the persons, who can be enrolled as
members of the society, is quite a distinct issue. In case of any dispute with
regard to such issue, it is a District Collector who will have jurisdiction in
the matter. The jurisdiction to decide any disputes upon such issue will not
be vested with the authorities under the said Act. To such a dispute, the
provisions contained in Section 23(2) of the said Act will not apply. In
these circumstances, the Secretary and Officer on Special Duty cannot be
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said to have exceeded jurisdiction or committed any manifest illegality in
interfering with the Additional Commissioner's order dated 22 October
1999, which had taken the view that the exclusive jurisdiction in such
matters is vested only in the authorities under the said Act.
18] The decision in case of Prof (Dr.) D.R. Bharadwaj (supra) is
completely distinguishable. In the said case, the District Collector had
purported to virtually expel or in any case, approved the expulsion of a
person, who had already been admitted to the membership of the society.
It is in these circumstances that it was held that the Collector had no
jurisdiction to terminate the membership of a person and to direct the
society to recover possession from such member. This Court, considered
the Scheme under Section 35 of the said Act and held that right to
determine the expulsion is available only to the society and not to any
other authority including the State Government. In the present case, as
noted earlier, the petitioners were never enrolled as members of the
society. The issue involved was not of either inclusion of the petitioners as
members of the society or their expulsion from the membership of the
society. Clearly, therefore, the decision in case of Prof. (Dr.) D.R.
Bhardwaj (supra), is distinguishable and cannot be said to be applicable
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to the facts and circumstances of the present case.
19] On merits, it is really not for this Court to exercise any appellate
powers and on such basis interfere with the impugned order. As long as, it
is not demonstrated that the findings of fact recorded in the impugned
order are vitiated by perversity in the sense that such findings are based
upon no evidence or that some relevant material has been excluded from
consideration or some irrelevant parameters has over influenced the
decision making process, it is not for this Court, in the exercise of its
powers of judicial review to interfere.
20] If the impugned judgment and order is perused, none of the
aforesaid vices can be said to be attracted to either decision or the
decision making process. The Secretary and Officer on Special Duty has
recorded findings in the matter of non-cooperation by the petitioners, with
rest of the persons. The Secretary and Officer on Special Duty has also
recorded a finding that several opportunities were afforded to the
petitioners, but the same were not availed by the petitioners. It appears
that the petitioner No.1 was keen upon continuing as Chief promoter of
the society and unless, the other persons were agreeable to the petitioner
No.1 retaining this position, the petitioner no.1 was not ready to
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cooperate. The Secretary and Officer on Special Duty has recorded
findings that even the society or for that matter other members did afford
opportunities to the petitioners. The impugned order also makes reference
to allotments of apartments to other persons, whose allotment has neither
been challenged nor have been such allottees have been impleaed as
parties in the proceedings. There is really no perversity in the recording of
finding of fact. Further, taking into consideration the material on record
and the facts and circumstances as appear from them, it cannot be said
that the view taken in the impugned order is either vitiated by any
jurisdictional error, unreasonableness or perversity.
21] The impugned order directs that the amounts deposited by the
petitioners be refunded to them. However, considering the lapse of time, it
would be reasonable if the society is directed to refund such amount
alongwith interest. Although, this is not a case where the society or other
members can be held to have unreasonably with held the amounts
deposited by the petitioners, nevertheless, the fact remains that such
amounts have remained with the society for considerable period of time.
The record also indicates that the petitioner No.1 , who was earlier Chief
Promoter, has put in some efforts in the matter of allotment of plot.
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Ultimately, it is possible that differences is broke out, which led to
exclusion of the petitioners. However, it will be appropriate if the society is
directed to refund such amounts to the petitioners within a period of three
months from today and that too with interest at the rate of 8% per annum.
Save and except, this modification, there is no case made out to interfere
with the impugned order.
22] Rule is accordingly, disposed of in the aforesaid terms. The interim
order, if any, stands vacated. There shall however, be no order as to costs.
(M. S. SONAK, J.)
