Uma Vadecha Thr. Poa Vinay Kumar ... vs The State Of Maharashtra Thr. ...
2022 Latest Caselaw 6079 Bom

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BDP-SPS-TAC




   BHARAT
   DASHARATH
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
   PANDIT


   Digitally signed
   by BHARAT
   DASHARATH
                                          CIVIL APPELLATE JURISDICTION
   PANDIT
   Date:
   2022.06.30
   15:07:24 +0530

                                       WRIT PETITION NO. 7173 OF 2022

                                                       WITH

                                         WRIT PETITION NO.7174 OF 2022

                      Uma Vadecha                                   ... Petitioner.

                               V/s

                      State of Maharashtra and Others               .... Respondents.


                      Mr. Krishna K. Holambe Patil for the Petitioner in both the Writ
                      Petitions.

                      Mr. Amogh Singh a/w Mr. Jeet Singh i/b D.P. Singh for Respondent
                      Nos. 5 to 8 in both the above Writ Petitions.

                      Mr. P.P. Pujari AGP for Respondent Nos. 1 to 3 in Writ Petition No.7173
                      of 2022.

                      Mr. C.D. Mali, AGP for Respondent Nos. 1 to 3 in Writ Petition
                      No.7174 of 2022.

                                          CORAM: NITIN W. SAMBRE, J.

                                          DATE:    JUNE 30, 2022

                      P.C.:-

                      1]       Both these Petitions are pertaining to very same Respondent




                                                    910 -WP 7173-2022.doc


No.4-Society questioning      the order of     disqualification of the

Respondents-members under Section 78A(1)(b), thereby disqualifying

Respondents members for period of five years to be the members of

the Managing Committee of the Co-operative Housing Society and

directing their removal from such Committee and further

consequential order in exercise of powers under Section 77(A)(1)

(b-1), appointing Administrative Committee.

2] Contentions of the Counsel for the Petitioners are, the order of

appointment of Administrator is a sequel of removal of the

Respondents-members from the post of members of the Executive

Committee of the Respondent-Society. According to him, though

elections were due, as the tenure of Respondents-members, as

members of the Managing Committee of the Society, has come to an

end, the order impugned came to be passed. He would further point

out that the orders of District Deputy Registrar were justified in a

given situation and there was eminent situation created because of

conduct of the Respondents-members which prompted the District

Deputy Registrar to exercise aforesaid powers under Section

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78A(1)(b). He would further urge that election programme is already

declared under the aegis of Administrative Committee appointed vide

order of the District Deputy Registrar and the elections are being

held. According to him, today is the last date of nomination and that

being so the authorities below i.e. Divisional Joint Registrar so also the

State Government committed an error in upsetting the order of

District Deputy Registrar. He would further urge that even if it is

presumed that provisions of Section 78A of the Act which provide for

consultation with the federal society in the matter of initiation of

action under Section 78A(1)(b) of the Act, such provisions are not

mandatory. He would invite attention of this Court to the

communication issued by the District Deputy Registrar calling for such

consultation and opinion of federal society and since the federal

society did not respond to the same, District Deputy Registrar was left

with no other option but to pass the order of removal of the

Respondents-members as members of the Executive Committee of the

Society and their disqualification having regard to their conduct

reflected in the order impugned. He would further invite attention of

this Court to the very conduct of the Respondents-members which

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according to him has rightly prompted the authorities to pass the

orders impugned.

3] Mr. Singh, learned Counsel for Respondent Nos. 5 to 8 and

learned AGPs would support the orders impugned. According to them,

this Court in the matter of Hemchandra Madhukar Shaligram & Ors.

Vs. Sonal Sanjeeva Shetty & Ors. reported in 2019(6) ABR 138 relying

on the judgment of the Apex Court held that consultation provided

under the said provision is mandatory. According to them, merely

because District Deputy Registrar has issued communication to the

federal society communicating his intention to take action under

Section 78A(1)(b) by itself will not amount to effective consultation.

As such, according to them, the orders impugned are sustainable in

law.

4] I have appreciated the aforesaid submissions.

5] Fact remains that Section 78A of the Act provides for

consultation with the federal society in the matter of action to be

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taken against the sitting members of the Executive Committee of the

Co-operative Society pursuant to the provisions of Section 78A(1)(b)

of the Act. Merely because District Deputy Registrar has issued

communication that by itself will not make the consultation provided

under Section 78A effective. There has to be response either positive

or negative from the said federal society which is absent in the case in

hand. Apart from above, I am informed that District Deputy Registrar

has not issued order calling for any say of the federal society on the

aforesaid issue by forwarding or making entire record available to

federal society, which he has relied on for passing the order impugned.

As a sequel of above, Divisional Joint Registrar so also the State

Government, in my opinion, were justified in setting aside the order

impugned.

6] That being so, no case for interference in extraordinary

jurisdiction is made out. Petition as such fails and same stands

dismissed. Parties are in agreement that tenure of the Executive

Committee of the Respondent-Co-operative Housing Society has come

to an end more than a year back. As a sequel, Administrative

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Committee came to be appointed, which has declared the election of

the Respondent-Co-operative Housing Society.

7] The the fact that election programme is already declared by the

Administrative Committee appointed by the order District Deputy

Registrar has travelled at an advance stage i.e. today is the date to

filing nomination forms, this Court thinks it fit to continue the said

Administrative Committee only for the purpose of holding elections.

Any expenses of such election has to be with prior approval of the

District Deputy Registrar. Needless to clarify that this Court has not

gone into as to whether the said election declared by the

Administrative Committee is legal or not as same can be gone into in

appropriate proceedings.

8] Needless to clarify that if Respondent-members against whom

order under Section 78A(1)(b) of the Act was passed which is set

aside by this Court, submit their nomination forms same be not

rejected by the Returning Officer. Any other objection to the

nomination of Respondents-members be decided by the Returning

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Officer in accordance with law.

9] Copy of the present order is directed to be made available to the

District Deputy Registrar by learned AGP for taking appropriate steps

and issuing instructions to the Administrative Committee to that

effect.

( NITIN W. SAMBRE, J. )