Bombay High Court
Jayprakash Gupta vs Poonam Chembers B Wing Premises ... on 20 December, 2023
Author: Nitin Jamdar
Bench: Nitin Jamdar
2023:BHC-AS:38662
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 13018 OF 2023
Mr.Jayprakash Gupta,
The Director & Authorised Representative
Of The Loot (India) Pvt. Ltd.
Aged about 48 years, Occ.: Business,
Hindu, Indian Inhabitant, having office at
004/D, Ground floor, Poonam Chambers 'B'
Wing Premises Co-operative Society Ltd.,
Shivsagar Estate, Plot No. G.
Dr. Annie Besant Road, |
Worli, Mumbai- 400018. ... Petitioner.
V/s.
1. Poonam Chambers 'B' Wing Premises
Co-operative Society Limited,
Having address at Shivsagar Estate,
Plot No. G, Dr. Annie Besant Road,
Worli, Mumbai- 400 018. (Through
The Administrator Mr. Ananda Patil).
2. The Deputy Registrar of Co-operative
Societies, G/S Ward, 6" Floor,
Malhotra House, Opp. G.P.O,
Fort, Mumbai- 400001.
SANJAY
KASHINATH 3. Mr. Dinanath Kale (Returning Officer),
NANOSKAR
Room No. 30 Building No.108,
Digitally signed by
SANJAY KASHINATH
NANOSKAR
Rambhavan Building, Dadasaheb Phalke
Date: 2023.12.20
20:05:00 +0530 Road, Dadar (East), Mumbai- 400 014.
C/o. The Office of the Deputy Registrar CS,
G/S Ward, 6" Floor, Malhotra House,
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Opp. G.P.O, Fort, Mumbai- 400001.
M: 8108755227
Email.: [email protected]
4. Mr. Ananda Patil,
Administrator of Poonam Chambers
'B' Wing Premises Co-operative Society
Limited, C/o. The Office of the Deputy
Registrar CS, G/S Ward, 6" Floor,
Malhotra House, Opp. G.P.O, Fort,
Mumbai- 400001.
M: 9764193452
Email.: [email protected]
5. Shri Chirag Shah,
Aged about 50 years, Occ.: Builder,
Hindu, Indian Inhabitant,
having office at 101/A, 1st Floor,
Poonam Chambers 'B' Wing Premises
CSL Shivsagar Estate, Plot No. G,
Dr. Annie Besant Road, Worli,
Mumbai- 400018.
9619179169
Email.: [email protected]
6. Shri. Mahavir Murarka,
Aged about 55 years, Occ: Employee
Of Soyuz Trading Co. Ltd.
Hindu, Indian Inhabitant, having
office at 302/B, 3rd Floor, Poonam
Chambers 'B' Wing Premises Co-operative
Society Ltd., Shivsagar Estate, Plot No. G,
Dr. Annie Besant Road, Worli,
Mumbai- 400018.
M: 8976237810
Email.: [email protected]
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7. Mr. Ashwani K. Shrivastava,
Aged about 60 years, Occ.: Employee
of Ms/ Samarjit Realities & Farma Pvt. Ltd.,
Hindu, Indian Inhabitant having office at
5th Floor, Poonam Chambers,
501/A, Fifth Floor, Poonam Chambers 'B'
Wing Premises Co-operative Society Ltd.,
Shivsagar Estate, Plot No. G,
Dr. Annie Besant Road, Worli,
Mumbai- 400018.
M: 9167222101
Email.: [email protected]
8. Sonu G. Samtani
Aged about 65 years, Occ. Business,
Hindu, Indian Inhabitant, having office at
001/A, Ground Floor, Poonam Chambers
'B' Wing Premises Co-operative Society Ltd.,
Shivsagar Estate, Plot No. G,
Dr. Annie Besant Road, Worli,
Mumbai- 400018.
M: 9323092383
Email.: [email protected]
9. Shri. Devendra Agarwal,
Aged about 50 years, Occ. Employee
Of Jindal Buildmart Ltd.,
Hindu, Indian Inhabitant,
having office at 102/B, Gr. Floor, Poonam
Chambers 'B' Wing Premises CSL,
Shivsagar Estate, Plot No. G,
Dr, Annie Besant Road, Worli,
Mumbai- 400018.
M: 9892427100
Email.:[email protected]
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10. The Maharashtra State Co-Operative
Election Authority, 2nd Floor,
New Central Building,
Dr. Baba Saheb Ambedkar Road,
Pune, Maharashtra 411001. ... Respondents.
Mr.Subhash Jha with Ms.Usha Tiwari, Ms.Manshi Jain and
Ms.Praveena Venkatraman i/b. Law Global for the Petitioner.
Ms.Mandakini Sinh for Respondent No.3.
Mr.Bhavin Gada i/b. Atul Thakkar for Respondent Nos.5 to 9.
CORAM : NITIN JAMDAR, AND
MANJUSHA DESHPANDE, JJ.
DATE : 20 December 2023.
JUDGMENT :
(Per Nitin Jamdar, J.)
The Petitioner is a member of Respondent No.1 -
Poonam Chambers 'B' Wing Premises Co-operative Society Limited.
The petition challenges the nominations of Respondent Nos. 5 to 9
for contesting the election of the Managing Committee of
Respondent No.1- Society.
2. The election took place during the pendency of this
petition, and Respondent Nos. 5, 7, 8, and 9 were elected, while
Respondent No. 6 was not elected. After the election, the Petitioner
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has the remedy of filing an election dispute as per the provisions of
the governing statute. The reason the petition continued and was
heard further was that, according to the Petitioner, the Returning
Officer did not decide on the objections raised by the Petitioner to
the nominations of Respondent Nos. 5 to 9.
3. When the petition first came up on board on 23 October
2023, a query was put to the Petitioner as to whether the Petitioner
had taken objections to the nominations of Respondent Nos.5 to 9
and whether the copies of the objections are on record. At that time,
the learned counsel for the Petitioner took time to file an additional
affidavit to place on record the objections taken. Then on 26
October 2023, the Petitioner filed an additional affidavit but the
counsel for the Returning Officer was unable to inform the Court
whether the objections had been decided. The counsel for
Respondent Nos.5 to 9 accepted the position that the objections
have not been decided. Thereupon the petition was adjourned to 8
November 2023 without staying the election as, if Respondent
Nos.5 to 9 would not have been elected, the petition would not have
survived. Thereafter on the next date, the Court was informed that
Respondent No.6 was not elected and the other Respondents were
elected. Having recorded that the objections to the nominations of
Respondent Nos.5 to 9 were not decided, to address the question as
to the scope of the proceeding thereafter, the petition was adjourned
directing that Respondent Nos.5, 7, 8 and 9 would not attend the
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meetings of the Managing Committee till the next date and their
absence would not be held against them if the Petitioner does not
succeed. Thereafter replies and rejoinders have been filed.
4. We have heard Mr. Subhash Jha, learned advocate for the
Petitioner, Ms. Mandakini Sinh learned advocate for Respondent
No.3- Returning Officer and Mr.Bhavin Gada learned advocate for
Respondent Nos.5 to 9.
5. The position as of today is that the election to the
Managing Committee of Respondent No.1 has taken place.
Respondents Nos.5, 7,8 and 9 have been elected. The legal
provision is not debated before us that a challenge to the election
results of the co-operative society have to be adjudicated by filing
proceedings under the Maharashtra Co-operative Societies Act,
1960. The proceedings before the Court under Act, 1960 are full-
fledged proceedings where the Court has the power to receive
evidence, render factual findings and pass suitable orders. The order
of the Court can be challenged in the Appellate Forum. Therefore,
there is full-fledged machinery in deciding the questions of fact
governing the results of the election under the Act of 1960.
6. Though it is the duty of the Returning Officer under the
statutory scheme to decide the objections to the nominations, the
writ court cannot proceed on the basis that because the Returning
Officer has not decided the objections raised to the nominations, the
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objections deemed to be valid and election of the elected members
should be set aside without any further enquiry. Such a course of
action will prejudice the elected members. Therefore, even though
the writ court may be called upon to look into the objections raised
to the nominations of the elected members after the election in these
circumstances, such scrutiny cannot be akin to a trial before the trial
Court. The scrutiny of writ court in such circumstances, if at all,
would be only to ascertain whether on the face of it without looking
into any factual aspect the election can be set aside. If not, the
proper course of action would be to relegate the objectors to the
remedy under the Act of 1960. This, however, is subject to the
objector lodging the objection in time and before the correct
authority and on an unexplained failure of the authority to decide
the objections.
7. Therefore, the first aspect to be considered will be the
factum of lodging the objections by the Petitioner in time before the
Returning Officer. Respondent Nos.5 to 9 contend that there is
serious doubt as to whether the Petitioner filed objections before the
Returning Officer and the Petitioner has come to the Court with
unclean hands with the sole intention of disrupting the elections.
8. The election programme of the Respondent- Society for
the elections to the Managing Committee is on record. The
provisional list of voters for the election of the Managing Committee
of the Respondent- Society was published on 12 June 2023. As per
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Rule 76E of the Maharashtra Co-operative Societies (Election to
Committee) Rules of 2014, objections had to be raised with respect
to the provisional voters list within 10 days. Thereafter final voters
list was published on 23 September 2023. According to the
Petitioner, some of the objections raised by the Petitioner could have
disqualified Respondent Nos.5 to 9 from even being voters.
Nothing is on record to show that the Petitioner raised any objection.
The provisional voter's list became final.
9. Respondent Nos.5 to 9 have contended that there is
serious doubt as to whether the Petitioner submitted objections to
the nominations of Respondent Nos.5 to 9 in time. As per the
election programme declared on 25 September 2023, the
nominations were to be submitted from 25 September 2023 to 3
October 2023 and the list of nominations received was to be
published on 3 October 2023. A scrutiny of nominations was to be
done on 4 October 2023 with the publication of nominations on 5
October 2023. Therefore, after the publication of nominations on 3
October 2023 till the date of scrutiny of nominations i.e. 4 October
2023 at 11.00 a.m. The objections had to be lodged so that it would
be scrutinized and the list would be published on 5 October 2023.
10. As regards lodging of objections, it would be fruitful to
examine the contentions of the Petitioner. In paragraphs- 3(cc) and
(dd) of the petition, the Petitioner has stated as under:
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(cc) The Respondent No. 3 on 05-10-2023 after 05:00 p.m,
published the List of Valid Nomination Forms dated 05-10-
2023. In the said List the name of the Respondent Nos. 5 to 9
are listed at the serial Nos.8, 6, 10, 3(woman category) and 1
respectively. The Petitioner states that the names of the
Respondent No.5 to 9 have been illegally included in the Valid
Nomination List because the Respondent Nos. 5 to 9 are not
eligible and disqualified under the said Act, MCS Rules and
Respondent No.1 Society Bye-Laws to contest election of the
Managing Committee of the Respondent No.1 society. Hereto
annexed and marked as Exhibit "P is a copy of the List of Valid
Nomination Forms dated 05-10-2023.
(dd) After receipt of list of valid Nomination after scrutiny
from the Respondent No.3 the Petitioner by his Letter dated
06-10-2023 requested the Respondent No.3 to provide the
Petitioner certified copy of the Nomination Forms submitted
by all the members contesting election, The Respondent No.3
refused to accept the said Letter hence the Petitioner
WhatsApp the said Letter to the Respondent No.3 but till date
the Respondent No.3 has not provided any document to the
Petitioner. Hereto annexed and marked as Exhibit "Q" is a
copy of the Petitioner's Letter dated 6-10-2023.
When the petition was filed what was annexed to the petition was a
letter dated 6 October 2023 issued by the Petitioner to Respondent
No.3- Returning Officer for certified copies of the nomination forms
and documents referred for the scrutiny of nominations. Another
communication to Respondent No.10- Maharashtra State Election
Authority was placed on record. The communication dated 6
October 2023 to the Returning Officer did not refer to any
objections but only called for information. The communication to
the Election Authority on the same date reproduced all that
Petitioner wanted to point out regarding the validity of the
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nominations. As to why such detailed communication was not
addressed to the Returning Officer is not explained. As the Rules
and as per the election programme declared, the objection to the
nominations has to be lodged with the Returning Officer.
11. According to Respondent Nos.5 to 9, even the proof of
communicating through social media WhatsApp is also not placed
on record with relevant screenshots etc. In the additional affidavit,
objections have been reproduced. It is to this additional affidavit that
the letter on the letterhead of the Returning Officer dated 4 October
2023 is annexed. In the body of the petition in the chronology of
events, we do not find specific assertions regarding this
communication dated 4 October 2023. The communication dated 6
October 2023 annexed to the petition addressed to the Returning
Officer does not refer to the objections stated to be lodged on 4
October 2023. To add to the confusion, the Returning Officer in his
affidavit referred to the letter of 4 October 2023. In this state of
affairs, it is not possible for us to record a conclusive finding that the
Petitioner did submit his objections on 4 October 2023. Nothing
stopped the Petitioner from asserting this position on oath and
annexing the objections so filed when the petition was filed,
especially, when the contention is that the Returning Officer did not
deal with the objections. We do not wish to conclude on this aspect
but state this would require adjudication of various disputed facts.
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12. Even assuming that the objections so lodged are not
decided, the question will arise as to the degree of scrutiny in writ
jurisdiction. Respondent Nos.5 to 9 contend that all the objections
raised by the Petitioner are frivolous and baseless and none of
Respondent Nos.5, 7, 8 and 9 can be held to be disqualified based on
the material.
13. As regards Respondent No.5 Steel Fab, the Petitioner in
the additional affidavit, has stated that it is a defaulter member of the
Respondent No.1 society. The Respondent No.5 is not an active
member. Respondent No.5 has carried out repair/renovation in
violation of the Order dated 26 April 2001 passed by this Court.
Respondent No.5 has refuted the accusations, asserting that all
maintenance charges owed to Respondent No.1 Society have been
duly settled. There are no outstanding dues pertaining to the
maintenance charges for M/s.Steelfab Building Systems. Given that
no repair work has been executed in Respondent No.1 Society's
building, it follows that there can be no outstanding dues for such
work. There cannot be billing of major repair contributions in the
absence of corresponding work. It is stated that the question of
outstanding dues for major repair work that has not been undertaken
does not arise. Further, it is stated that M/s.Steelfab Building
Systems is not listed in the defaulters' column of the Provisional List
and no demand notice for the recovery of outstanding dues has been
issued by Respondent No.1 Society. Hence, the assertion that
M/s.Steelfab Building Systems is a defaulter is unfounded.
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Respondent No. 5 contends that on 5 May 2022, Jignesh P. Shah,
another member authorized Respondent No.5 to participate in and
vote at the Managing Committee election of Respondent No.1
Society. Regarding the renovation of Unit No.101/A in 2011, all
necessary permissions were obtained, as communicated by the
Architect in a letter dated 20 January 2011. However, no subsequent
renovation or interior work has been carried out in Unit No.101/A
since then. It is stated that Respondent No.5 has consistently
attended the Annual General Body Meetings of Respondent No.1
Society, including the one held on 30 September 2021. These rival
contentions show various areas of debate regarding the extent of
dues, repair work, whether the name of Respondent No.5 was
included in the defaulter's list, whether Respondent No.5 has
authority in and a NOC for renovation etc.
14. About Respondent No.7, the Petitioner asserts in
paragraph 4 of the supplementary affidavit that one Samarjit Realties
and Farms Private Limited (Samarjit) is a member of the Respondent
No.1 society for Unit No.501/A on the 5th Floor, as claimed by
Respondent No.7, who purports to be the authorized representative.
Petitioner contends that Respondent No.7 has presented
authorization from both Samarjit and Matix Fertilizers and
Chemicals (Matix). However, Matix is not a member of the society
for the mentioned unit. Respondent No.7 has submitted two
authorizations, one from a member and another from a non-member
of the society, both dated the same day for the same unit. Also, these
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resolutions do not empower Respondent No.7 to participate in the
election. The nomination for Respondent No.7 is proposed by a
nominee and not a member of the society. This resolution
contravenes the statutory provisions since it grants authorization for
more than one person to vote. Respondent No.7 is not a director of
either of the companies. These members have entered into a Leave
and License Agreement without the NOC of the Respondent-
Society and have undertaken repairs and renovation of the unit
without the approval of Respondent No.1 Society. Respondent No.7
rebuts the aforementioned allegation by stating that Samarjit
initiated the process by requesting Respondent No.1 Society, through
a letter dated 24 March 2022, to issue a No Objection Certificate
and a No Due Certificate for the sale of the premises located at the
5th Floor, 501-A in Respondent No.1 Society in favour of Matix.
Subsequently, Samarjit executed a Deed of Sale on 31 March 2022,
for the said premises in favour of Matix. Respondent No.1 Society, in
response to Samarjit's letter dated 24 March 2022, communicated
on 11 April 2022, that, in accordance with the society bye-laws, it
cannot issue NOC and No Due Certificate until all society dues are
settled by Samarjit. It is stated in response, that Samarjit settled the
outstanding dues by issuing two cheques dated 20 April 2022, and
29 April 2022, amounting to Rs.16,73,294/- and Rs.12,258/-,
respectively, both of which were duly encashed. Matix took steps to
transfer the membership from Samarjit's name to Matix, issuing a
letter on 31 May 2022, and approaching the authorities under the
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Maharashtra Cooperative Societies Act 1960 for the necessary
changes. It is stated that despite these efforts, the society did not
effect the transfer. Respondent No.7 asserts that the authority from
Samarjit to contest the election is valid, as Samarjit had fulfilled all
requirements for obtaining the NOC for the Deed of Sale, but
Respondent No.1 Society failed to facilitate the necessary transfer.
Respondent No.7 states that Samarjit has been a member of
Respondent No.1 Society since 2008, rendering the argument that
two years have not elapsed since enrolment moot. Respondent No.7
clarifies that the application is solely for contesting the election on
behalf of Samarjit, who remains a recorded member of Respondent
No.1 Society. Furthermore, Samarjit settled outstanding maintenance
dues and interest on 20 April 2022, and 29 April 2022,
respectively. Respondent No.7 also affirms attendance at Annual
General Meetings. These are the rival contentions. Again, these
rival contentions are in the arena of disputed facts and need to be
more appropriately dealt with by way of election dispute.
15. Concerning Respondent No.8, the Petitioner asserts that
Respondent No.8 is not a member of the Respondent No.1 society
but is only a nominee, occupying the fifth position in the sequence of
nominees. Furthermore, Respondent No.8 has not presented the
Consent Letters from the other four nominees, enabling her to
participate in the election. Respondent No.1 Society has lodged
complaints of forgery against both Respondent No.8 and
Respondent No.9. The collapse of the Respondent No.1 Society
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building during renovation work led to the loss of lives, attributed to
members of the concerned Unit. Despite this, Respondent No.8
proceeded to carry out repairs and renovations in violation of the
Court's Order dated 26 April 2001. Additionally, Respondent No.8
has obstructed the fire exit of the Respondent No.1 society building.
Examining Share Certificate No.2 issued by Respondent No.1
Society, which was transferred to Mrs. Kamla Manu Daswani, it
indicates her and others as mere nominees with Respondent No.8.
Respondent No.8 has contravened these allegations asserting that
Respondent No.8, along with four sisters are members of
Respondent No.1 Society. Share Certificate No.2 issued by
Respondent No.1 Society in their favour is relied upon. It is stated
that four sisters of Respondent No.8 issued a No Objection
Certificate on 5 May 2022, permitting Respondent No.8 to
participate in the managing committee election of Respondent No.1
and granting voting rights to Respondent No.8. Respondent No.8
asserts of being a joint member in Respondent No.1 Society. It is
stated that this arrangement is supported by the Minutes of the
Annual General Body Meeting of Respondent No.1 Society on 24
September 2016. The mother of Respondent No.8 communicated
in a letter dated 23 December 2015, that her licensee had secured the
necessary permissions for interior/renovation work from the
Municipal Corporation of Greater Mumbai. It is stated that in the
2017 managing committee election, the published list of members
featured the name Sonu Samtani and others as the member for Unit
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No.001/A. Consequently, Respondent No.8 and her four sisters have
recognized as members of Respondent No.1 Society. These rival
contentions again would require adjudication of the factual aspects.
16. As regards Respondent No.9, the Petitioner asserts that
Jindal Buildmart holds membership in the Respondent No.1 society,
of which Respondent No.9 claims to be the authorized
representative. It is emphasized that Respondent No.9 is not the
Director of the mentioned member, and the nomination form
submitted by him is proposed by a non-member. Furthermore,
Respondent No.9 has undertaken repair/renovation work in
contravention of the order of this Court. A letter dated 28 January
2022 is issued by Respondent No.9 to the society, acknowledging
the renovation in violation of the aforementioned court order.
Respondent No.9 has filed an affidavit challenging these assertions.
According to him, there was no renovation conducted in Unit
No.102/B in the year 2019. The Petitioner is attempting to link the
renovation work to the circular dated 20 March 2019, issued by
Respondent No.1 Society, however, the circular does not specifically
mention any renovation activity in Unit No.102/B; instead, it has a
general nature, emphasizing that members should refrain from
engaging in illegal and unauthorized work. The alterations in Unit
No.102/B took place in 2009, with all necessary permissions
obtained and compliance with the rules observed. Following the
Petitioner's complaint, the investigating officer, in a letter dated 2
May 2022 communicated that no offence was established against
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Respondent No.9. The nomination form for Respondent No.9 was
proposed by another member, Respondent No.8, who has submitted
an affidavit affirming her membership in Respondent No.1 Society.
These are the justifications of Respondent No.9.
17. Therefore, from the above discussion what emerges is
that there is doubt as to the submission of objections of the
Petitioner to the nominations of Respondent Nos.5 to 9 in time and
to the correct authority. Each of the allegations will require
adjudication. In affidavits, the parties have levelled allegations
against each other. There appears to be a history of inter se disputes
within society and various court orders have been passed. There
have been allegations against the Petitioner as well and the parties
have filed complaints against each other. In this state of affairs,
thorough adjudication of various aspects would arise for
consideration.
18. Reverting to the position referred to at the outset,
ordinarily if the election is held the writ court would not set aside the
election if there is adequate efficacious remedy of challenging the
results of the election is available. In the present case, there is no
dispute that such a remedy is available. The Petitioner had
contended that the objections to the nominations were not decided
and, therefore, since the elections were imminent, we had deferred
the hearing while not stopping the process of election to examine
whether the objections to the nominations raised by the Petitioner
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could be considered of such a nature that no scrutiny whatsoever
required assuming that writ jurisdiction can be exercised. We find
this is not a fit case where the writ jurisdiction should be exercised
and the matter must be left to the appropriate authority/ court under
the Act to decide the dispute if the Petitioner chooses to approach
the same.
19. It is during the hearing of the final arguments that the
learned counsel for the Petitioner sought to contend, based on
rejoinder, that the Government by order dated 21 February 2023 has
sought to remove Respondent No.3- Returning Officer from the list
of administrators and that he should not have been appointed. These
documents were placed on record on 6 December 2023 when the
election was already held, and the day before the matter was heard
and closed for orders on 7 December 2023. This ground does not
appear in the writ petition which was filed on 23 October 2023 even
though the communications relied upon are of the period from 22
December 2022 to 22 February 2023. There is no justifiable reason
as to why this ground was not raised when Respondent No.3 was
appointed as Returning Officer. It was not raised when the petition
was filed before the election. The election has now been held and,
therefore, we are not inclined to take this ground into consideration
which is now raised post-election when the same can be raised in the
election dispute.
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20. Thus, we decline to entertain the petition any further
leaving it open to the Petitioner to agitate his grievance before the
appropriate statutory forum.
21. The writ petition is disposed of accordingly.
22. The observations made in this order are only the reasons
why the dispute raised in this petition cannot appropriately be
decided in writ jurisdiction and if the Petitioner files a
dispute/proceeding before the appropriate forum/ court, it will be
decided on its own merits.
(MANJUSHA DESHPANDE, J.) (NITIN JAMDAR, J.)
