Bombay High Court
Sheela Namdeo Bondekar And Ors vs The State Of Mah And Ors on 6 May, 2016
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6286 OF 2012
1] Smt. Sheela W/o. Namdeo Bondekar,
Age : 71 Years, Occu. Household,
Resident of 37, Shreya Nagar,
Aurangabad, Dist. Aurangabad.
2] Smt. Mandakini W/o Shankarrao Hanumante,
Age : 58 Years, Occu. Household,
Resident of Sai Nagar, N-6, CIDCO,
Aurangabad, Dist. Aurangabad.
3]
Smt. Suhasini W/o Vithalrao Pohankar
Age : 65 Years, Occu. Household,
Resident of Shambhu Mahadev Nagar,
Aurangabad, Dist. Aurangabad.
... Petitioners.
Versus
1] The State of Maharashtra,
Through its Secretary,
Cooperation Department,
Mantralay, Mumbai - 32.
2] The Joint Registrar, Cooperative
Societies, Aurangabad.
3] The Taluka Dy. Registrar Cooperative
Societies, Adalat Road, Aurangabad.
4] Ahilyabai Magasavargiya Gruhnirman
Sahakari Sanstha Ltd. Satara,
Tq. & Dist. Aurangabad.
5] Smt. Vatsalabai W/o Maruti Nikalje,
Age : 68 Years, Occu. Household,
Resident of Bansilal Nagar,
Near Shrimaya Hotel, Aurangabad.
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6] Smt. Vijaya W/o. Prabhakar Shirole,
Age : 63 Years, Occu. Household,
Resident of Devanagari,
Behind Shahnoormiya Dargah,
Osmanpura, Aurangabad.
... Respondents.
...
Mr. D. V. Soman, Advocate for Petitioners.
Mr. V. M. Kagne, Asst. Govt. Pleader for Respondent No.1/State
Mr. A. D. Kasliwal, Advocate for Respondent No.5.
Respondent Nos.2 to 4 & 6 are served
...
ig CORAM : V. L. ACHLIYA, J.
RESERVED ON : 15th APRIL, 2016.
PRONOUNCED ON : 06th MAY, 2016.
JUDGMENT :
. Rule. Rule is made returnable forthwith. With consent
of parties, Petition is heard finally at the stage of admission.
2] By the present petition filed under Article 226 & 227 of
the Constitution of India the petitioners have claimed reliefs as
under :-
"A. This Writ Petition may kindly be allowed.
B. The impugned order dated 17.4.2012 passed by the Joint
Registrar, Co-operative Societies, Aurangabad in Revision
Application No.21/2011 (Exhibit "B") may kindly be quashed and
set aside.
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C. The so called Sale Deed executed on 22.1.2007 by the
respondents No.5 and 6 in favour of Ravindra Babulal Jain and
Ashish Tejmal Mugdiya in respect of Mugdiya in respect of land
Gat No.74, admeasuring 1 Acre 20 Guntha, situated at village
Satara, Taluka & District Aurangabad, pursuant to the impugned
order of permission dated 15.12.2006may kindly be cancelled
declaring it null and void."
3] Brief facts of the case of the petitioners are as under :-
A] Petitioners herein claims to be members of respondent
No.4 - Housing Cooperative Society, i.e. Ahilyabai Magasavargiya
Gruhnirman Sahakari Sanstha Ltd. Satara, Aurangabad (hereinafter
referred to as 'the said Society' for the sake of brevity). The object
of society is to make available land to the people of backward class
at affordable price so that they can build their houses on said land.
The respondent No.4 society was registered on 20.11.1981 as co-
operative housing society for backward class society under the
provisions of Maharashtra Co-operative Societies Act, 1960
(hereinafter referred to as 'said Act' for the sake of brevity). When
the society was formed there were twelve members. Later on
three members are added and thereby the total strength of the
members of the society become fifteen.
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B] In furtherance of object of said society the land
admeasuring 1 Acre 20 Gunthas bearing Gut No.74 situated at
village Satara, Dist. Aurangabad was purchased with the
contribution of the members of the society. The respondent No.5
and 6 were appointed as Chairman and Secretary respectively of
said Society. Although the land was purchased to allot the plots to
members of the society by taking steps to get sanction the layout
plan and permission for non agriculture use, no steps in that behalf
were taken by the officials of said society. On the contrary the
respondent Nos.5 & 6 acting in collusion with two builders namely
Ravindra Babulal Jain and Ashish Tejpal Mugdiya who have already
purchased land adjacent to the land in question and sold said land
of society to said builders without the consent of members of the
society and more particularly the petitioners. According to
petitioner for the purpose of selling said land to said builders, the
respondents No.5 & 6 prepared false and forged documents
showing that, the members have resigned. Such documents were
prepared on back dated stamps. After preparing the false record of
resignation they submitted application before Taluka Deputy
Registrar, Co-operative Societies, Aurangabad i.e. respondent No.3,
seeking permission to sale the said land. The application in that
respect was presented on 07.12.2006. The respondent No.3
without giving notice to members of society passed order thereby
granted permission to respondents No.5 & 6 to sale the said land
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on the conditions mentioned in letter/order dated 15.12.2006.
While granting such permission the respondent No.3 has relied
upon the copies of forged and fabricated resignations of the
members of the society, copies of the resolution etc. It is for the
case of the petitioners that though the respondent No.3 granted
permission to respondents to sale the land on following conditions,
the respondents No. 5 & 6 have not complied those condition :-
"(i) The land should be sold by giving an advertisement in a widely
circulated newspaper;
ii) The land should not be sold at a price less than market price;
iii) The sale proceeds be deposited in the blank;
iv) The valuation of the land should be obtained from the office of
the Sub-Registrar;
v) As per the Maharashtra Cooperative Societies Act and
Rules made there-under, the payment of the price should be
made by Account Payee cheque;
vi) No member should b paid in cash."
C] According to petitioners the respondents No.5 & 6 who
acted in collusion with the builders sold the said land without
complying a single condition imposed by the respondent no.3 while
granting permission to sale said land. On 10.12.2008, the
respondents No. 5 & 6 told them that the land in question has been
sold to builders on 22.01.2007. After great efforts they could
obtained the information under Right to Information Act from the
office of respondent No.4. On 10.12.2008, they came to know that
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the land in question was sold by respondents No.5 & 6 for a
meager amount of Rs.34,50,000/- (Rupees Thirty Four Lakhs Fifty
Thousand) when the market price of the land was running into
Crores of Rupees. They also noticed that by preparing false and
forged documents the respondents No.5 & 6 have got permission
to sell the land and respondent No.3 has also acted in collusion
with respondents No.5 & 6 in granting permission. For the purpose
of such transactions the false affidavit of resignation of members
were prepared. Keeping the members of the society in dark, the
land belonging to society has been sold by respondents No.5 & 6 to
builders namely Ravindra Babulal Jain and Ashish Tejmal Mugdiya
in consolidation with one Sanjay Kasliwal. Being aggrieved by
order of permission granted by respondent No.3 for sale of land the
petitioner approached to respondent No.2 by way of revision
against the order passed by respondent No.3. The respondent
No.2 rejected the Revision Petition vide order dated 17.4.2012.
The petitioners being aggrieved and dissatisfied by the order
passed by respondent no.2 has preferred this petition on the
grounds set out in the petition.
4] Learned counsel for the petitioners strenuously
contended that the permission granted by the respondent No.3
itself without authority of law. He has contended there is no
provision under the Maharashtra Co-operative Societies Act and
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Rules framed thereunder to entertain such application and grant
permission that too without notice to the members of the society.
The permission has been granted relying upon false and fabricated
documents prepared by respondents No. 5 & 6 and produced
before the respondent No.3. Even the affidavits of the members
shown to have been resigned from the membership of society,
produced before the respondent No.3 were false and fabricated.
The said transaction was done behind the back of the petitioners
by the respondents No.5 & 6 who acted in collusion with two
builders namely Ravindra Babulal Jain and Ashish Tejmal Mugdiya.
The respondent No.2 though observed in the order that the
Revision Petition is decided on merit, but failed to take into account
the grounds raised in the revision memo. He has submitted that
the order passed by the Revisional Authority is perverse and
contrary to evidence on record. The respondent No.2 has not
verified as to whether the documents produced on record are
authentic. He has also failed to take into consideration that there
is no provision under the Maharashtra Co-operative Societies Act
which empowers the respondent no.3 to entertain such application
and grant permission for sale of the land belonging to Co-operative
society. Learned counsel submitted that the order passed by
respondent No.3 being passed without jurisdiction and authority
vested with respondent No.3 the order passed by the Revisional
Authority deserves to be set aside.
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5] On the other hand, Shri A. D. Kasliwal, learned counsel
representing the respondents No.5 & 6 supported the order passed
by respondent No.2. He has submitted that the petition filed by the
petitioners is devoid of merit and substance therein. He has
further submitted that, the petitioners are not the members of the
society. He has also submitted that, they had given of their
membership of respondent no.4 - society long back. He has further
submitted that, the decision to sale the land was well within the
knowledge of the petitioners. In fact, they had attended the
meeting of the society in which the decision was taken. The
allegations made against the respondents No. 5 & 6 are false and
petition is file with ulterior motive. So far as authority of the
Respondent No.3 to grant permission for sale of said land, the
learned Counsel submitted that the permission was obtained by
way of abundant precaution. He has submitted that for selling the
land of the society the permission of Registrar of the Co-operative
Society is not required and the society on its own can sale the land.
Learned counsel submitted that the reliefs claimed in the petition
can not be entertain by this Court in exercise of writ jurisdiction.
According to learned Counsel, there is alternate and efficacious
remedy available to petitioners under the provisions of
Maharashtra Co-operative Societies Act.
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6] I have carefully considered the submissions advanced
in the light of the record and proceedings of the permission
granted by the respondent No.3 and the Revisional Authority i.e.
respondent No.4.
7] So far as the relief claimed by the petitioners by way of
prayer clause 'B' there is no dispute that the petition is
maintainable as there is no efficacious and alternate remedy
available to petitioners to challenge the order passed by
respondent No.2. In the light of submissions advanced the first
and foremost question which falls for my consideration, whether
the respondent No.3 vest with authority under the provisions of
Maharashtra Co-operative Societies Act to entertain such request
to grant permission to sale the land of co-operative society.
Learned counsel appearing for respondents No.5 & 6 has fairly
conceded that there is no such provision in the MCS Act, 1960,
vesting authority under law to entertain such application.
However, the learned counsel submitted that there is no
requirement of law for the society to obtain such permission.
Learned AGP also conceded that there is no such provision in MCS
Act to entertain such request and grant permission by respondent
No.3.
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8] Having appreciating the submissions advanced in the
light of the provisions of Maharashtra Co-operative Societies Act, I
have no hesitation to hold that, the order dated 15.12.2006 passed
by the respondent No.3 is without jurisdiction and authority vested
with respondent No.3. The fact is not in dispute that the land in
question was purchased in the name of the society for the benefit
of members of the society and that too out contribution made by
them. The fact is also not in dispute that the respondent No.4 is co-
operative Society duly registered under the provisions of MCS Act,
1961. Once the society is registered under the provisions of Co-
operative Societies Act it makes the Society a body corporate and
the provisions of the MCS Act applicable to such society. The rights
of the members and right against the society are regulated by said
act. Thus, on registration of society the working of the society is
regulated by the provisions of MCS Act and the Rules and
Regulations framed thereunder. The society, its office bearers and
the members of society are bound to act as per the provisions of
the said act and rules and regulation framed thereunder. Any
action contrary to the provisions of said Act is not sustainable in
law. The authorities created and vested with power under the said
Act are also bound to act within the scope of their powers,
authority and jurisdiction conferred upon them under the
provisions of MCS Act. Any act and action on the part of such
authority beyond the purview of their powers and authority is not
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sustainable in law and same is liable to set aside.
9] It appears from the record that the land in question was
purchase as an agriculture land to use for residential use after
converted for residential use, by adopting the procedure prescribed
for sanction of layout. However, the permission to convert the said
agriculture land for non agriculture use and sanction of layout
couldn't be made as Municipal Corporation refused to grant such
permission.
Since it was not possible to get the land converted
into plots, certain resolution came to be passed to sale the said
land. The audit of the society was made for the period 01.04.2003
to 31.03.2006 by the certified auditor. In the report, the auditor
has observed that though the society was registered about 25
years back, still the permission to convert the land for non-
agriculture use couldn't be secured and therefore the land and the
plots couldn't be distributed to the members of the society. He has
further observed that the very object of formation of the society
has been frustrated. He has further noted that the some of the
members have died, some of them have left the City in connection
with their Job or business and some of the members have
demanded price of their share in land by accepting their
resignation. While making such comment he has instructed the
society to take appropriate decision after seeking prior permission
from Deputy Registrar, Co-operative Society, Aurangabad. It
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appears that, the observations noted by the auditor may be the
reason to make such application.
10] The question remains, whether the respondent No.3
vest with authority in law to entertain such request. The answer to
this question is in negative. As observed in the foregoing para,
once the society is registered the functioning of the society is
regulated by the provisions of Maharashtra Co-operative Societies
Act. The land in question is an asset of the society. The existence
of any society can be put to an end and in that eventuality the
assets of the society can be sold and distributed amongst the
members in the manner provided under the co-operative societies
Act. One of such eventuality is the winding up proceeding and
another is the cancellation of registration of the society. So far as
the case in hand, no such proceedings of winding up was initiated
any point of time. Therefore, the only remedy by which the assets
of the society could have been sold and distributed amongst the
members available for the society was to seek the cancellation de-
registration of the society i.e. to get the society de-registered
under Section 21-A of the Co-operative Societies Act for the reason
the purposes for which the society was formed registered could not
be served/achieved. In this context, it is useful to refer Section 21
and 21-A of MCS Act, 1961 which reads thus under:-
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"21. Cancellation of Registration
The Registrar shall make an order cancelling the registration of a
society if it transfers the whole of its assets and liabilities to another
Society, or amalgamates with another society, or divides itself into
two or more societies or if its affairs are would up, [or it is de-
registered under the provisions of sub-section (1) of Section 21A or
winding up proceedings in respect of the society are closed or
terminated under Section 109.
The society shall, from the date of such order of cancellation, be
deemed to be dissolved, and shall cease to exist as a corporate
body.
21-A. De-registration of societies.
(1) If the Registrar is satisfied that any society is registered on
misrepresentation made by applicants, or where the work of the
society is completed or exhausted or the purposes for which the
society has been registered are not served, or any primary
agricultural co-operative credit society using the word "Bank",
"Banking", "Banker" or any other derivative of the word "Bank" in its
name, he may, after giving an opportunity of being heard to the
Chief Promoter, the committee and the members of the society, de-
register the society;
Provided that, the number of members of the society is so large
and it is not possible to ascertain the correct addresses of all such
members from the records in the office of the Registrar and, in the
opinion of the Registrar it is not practicable to serve a notice of
hearing on each such individual member, a public notice of the
proceedings of the de-registration shall be given in the prescribed
manner and such notice shall be deemed to be notice to all the
members of the society including the Chief Promoter and the
members of the Committee of the Society, and no proceeding in
respect of the de-registration of the society shall be called in
question in any Court merely on the ground that individual notice is
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not served on any such members.
(2) When a society is de-registered under the provisions
of sub-section (1), the Registrar may, notwithstanding anything
contained in this Act or any other law for the time being in force,
make such incidental and consequential orders including
appointment of Official Assignee as the circumstances may require.
(3) Subject to the rules made under this Act, the Official
Assignee shall realise the assets and liquidate the liabilities within
a period of one year from the date he takes over the charge of
property, assets, books, records and other documents, which
period may, at the discretion of the Registrar, be extended from
time to time, so however, that the total period does not exceed
three years in the aggregate.
(4) The Official Assignee shall be paid such remuneration
and allowances as may be prescribed; and he shall not be entitled
to any remuneration whatever beyond the prescribed remuneration
or allowances.
(5) The powers of the Registrar under sub-sections (1)
and (2) shall not be exercised by any officer below the rank of a
Joint Registrar of Co-operative Societies."
11] It appears from the record that the land which was
purchased by respondent.4 society was an agricultural land and
the permission to approve the layout couldn't be granted as the
land was shown in Green Zone. In this view, the very purpose for
which the society has been formed couldn't be served. The
observation to this effect are also find place in the report of
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auditor. In such circumstances, the recourse which was avaiable
for the respondent No.4 society was to approach for the
registration of society and to obtain the cancellation of registration.
Instead of adopting the recourse available under the law, the
application was filed before the respondent no.3 for permission to
sale the land. Without taking any pains as to whether such
application can be entertain and whether any authority vest with
him to grant such permission the respondent no.3 entertain the
application and
granted the permission vide order dated
15.12.2006. In this view of the matter the order passed by
respondent No.3 granting permission to sale the land of society
given to respondents No. 5 & 6 is void ab initio as same is passed
without any authority and jurisdiction vested in him. In this view,
the order passed by respondent No.2 to upheld the order passed
by respondent No.3 deserves to be set aside.
12] In fact, the respondents No.2 & 3 should have
examined the provisions of MCS Act while passing the order. They
should have satisfied themselves that in the background of the
facts stated in the application filed by the society whether such
permission can be granted in law. They should have advised the
respondent No.4 society to adopt the recourse available under the
law.
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13] In view of above, the petition deserves to be allowed to
the extent of prayer clause 'B' as the respondent no.2 has failed to
take into consideration that the order passed by the respondent
No.2 which was impugned by way of revision, passed without any
authority and jurisdiction vested with respondent No.3 under the
provisions of MCS Act, 1960. In consequences of setting aside the
order passed by the respondent No.2 the order dated 15.12.2006
passed by respondent No.3 also needs to be set aside on the
ground that the respondent No.3 had no authority and jurisdiction
to entertain such application and grant such permission to sale the
land in question.
14] So far as prayer clause 'C' made in the petition, the
petition can not be entertained in exercise of writ jurisdiction by
this Court. The contentions made that, the resignation letters of
the petitioners, and the resolutions passed are forged and
fabricated documents can not be decided in exercise of writ
jurisdiction by this Court. There are several question of facts
involved in the matter which can not be dealt and decided by this
Court in exercise of writ jurisdiction. The persons in whose favour
the sale deed has been executed on 22.01.2007 are not party
before this Court. There is efficacious and alternate remedy
available to the petitioners to approach the appropriate forum
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provided under the Maharashtra Co-operative Societies Act for
seeking redressal of their grievance and filing appropriate
proceedings for declaration and other consequential reliefs. In this
view, the petitioners are granted liberty to adopt the appropriate
remedy for seeking the relief in terms of prayer clause 'C' and any
other consequential reliefs.
15] In the result, the petition is allowed in terms of prayer
clause 'B'. The order dated 17.4.2012 passed by Joint Registrar,
Co-operative Societies, Aurangabad in Revision Application No.
21/2011 is quashed and set aside. In consequences of setting
aside the order passed by respondent No.2, the order dated
15.12.2006 passed by respondent No.3 is quashed and set aside.
So far as the relief claimed by petitioners as per prayer clause 'C'
the petitioner is granted liberty to adopt the appropriate remedy
available under law for seeking such relief.
16] Rule made absolute in above terms. In the
circumstances there shall be no order as to costs.
[V. L. ACHLIYA]
JUDGE
Tandale/office/2016
