Bombay High Court
Savitri Mehta Horowitz And Anr vs The Goveia Marina Coop. Maintenance ... on 24 January, 2025
2025:BHC-GOA:100
2025:BHC-GOA:100
908 WP 3120-2024-F
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IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.3120 OF 2024 (F)
1. Savitri Mehta Horowitz,
73 years of age,
R/o. Villa 21, Goveia Marina,
Vaddy Chapora, Siolim-Goa.
2. Dr. Ajay Raj Bhagat
53 years of age,
Presently residing at C-583,
Defence colony,
New Delhi-110024
R/o Villa 4, Goveia Marina,
Vaddy Chapora, Siolim-Goa
Through his POA Holder,
Mr. Hitesh Raj Bhagat,
45 years of age,
Indian citizen, R/o Villa-80,
Aldia, Phase-I Bambolim-Goa. ... Petitioners.
Versus
1. The Goveia Marina Coop. Maintenance
Housing Society Ltd,
Through its Administrators,
1. Mr Rajesh Seth
2. Mr. Umesh Seth
3. Anuraag Mehendiratta
Vaddy, Siolim, Bardez-Goa.
2. The Assistant Registrar of Co-operative
Societies, North Zone, Mapusa-Bardez,
Goa.
3. The Registrar of Co-operative Societies,
Government of Goa
Panjim-Goa.
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908 WP 3120-2024-F
4. The State of Goa
Through its Chief Secretary
Secretariat, Porvorim
Bardez-Goa. ... Respondents.
Mr Nigel da Costa Frias with Ms Barbara Andrade, Advocates for the
Petitioners.
Mr Manish Salkar, Government Advocate for Respondent Nos.2 to 4.
CORAM: VALMIKI MENEZES, J.
DATED: 24th January, 2025
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith at the request of, and with
the consent of the parties, the matter is finally disposed of.
2. This petition under Article 226 of the Constitution of India
throws a challenge to an order dated 18.05.2023 passed by the
Assistant Registrar of Co-operative Societies, North Zone, Mapusa,
Goa exercising powers under Section 61 of the Goa Co-operative
Societies Act, 2001. The impugned Judgment holds that the
Petitioners, who are the elected Directors of the Board of Directors
of the Respondent No.1 Co-operative Society should incur
disqualification for a period of 5 years, from being chosen or elected
as Directors, and further held them to be ineligible to continue as
Directors of the Respondent No.1 Co-operative Society.
3. The Assistant Registrar issued a show cause notice dated
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15.03.2023 against the 5 Directors, 2 of which are the Petitioners
herein. The disqualification of the Director Mr. Abhimanyu Raj Singh
was set aside by this Court in Writ Petition No.531/2023 by its
Judgment dated 06.03.2024. Though only 2 out of the remaining 4
Directors covered by the impugned Judgment had challenged the
order of disqualification incurred by them, I would proceed to
examine the impugned Judgment and Order as passed against all the
remaining 4 directors, since the question before me is a pure question
of law.
4. The show cause notice alleged that the Directors named therein
had not presented the accounts of the Society to the General Body
Meeting and called for such a meeting within the time prescribed by
the Act. According to the show cause notice, the audited accounts
ought to have been presented in a meeting to be called for within 6
months of the end of the Co-operative Year, the Co-operative Year
being year ending 31st March; the meeting, in accordance with the
provisions of the Act ought to be called for presenting the accounts
by 30th September of the subsequent Accounting Year.
5. In answer to the show cause notice, the Petitioners submitted
that the delay in having the accounts audited was due to the Covid
lockdown and the restrictions imposed on travel, and since many of
the members did not reside at the units of the Society building, they
were unable to call for a General Body Meeting. The explanation
further states that the members of the Society were informed through
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908 WP 3120-2024-F
Email of the accounts of the Society, which were circulated to all its
members and a meeting was ultimately held for the purpose of
presenting the audited accounts only on 25.07.2022.
6. In the impugned order, the Assistant Registrar did not accept
the explanation and has concluded that there is no justification for the
delay in calling for the Annual General Body Meeting. The Assistant
Registrar has further concluded that the delay automatically results in
the 5 Directors covered under the order incurring disqualification in
terms of Section 61 of the Act, and he was further of the opinion that
there was no discretion in refusing the period of disqualification as
the Act, according to him, required the disqualification to apply for a
straitjacket period of 6 years.
7. Learned Counsel for the Petitioners submits that the question
as to whether the disqualification is automatic is no more res integra
and is covered by at least two Judgments of this Court.
8. In Noella Fernandes vs. Assistant Registrar of Co-operative
Societies, this Court by its Judgment dated 05.02.2024 passed in Writ
Petition No.607/2023, has held that the wordings of Section 61 are
mandatory in nature. There is no discretion left to the Registrar to
decide whether disqualification should be imposed or not, and since
the disqualification is automatic, it would operate as such from the
last date when the accounts were to be presented.
9. In Vinod Vellapan vs. Assistant Registrar of Co-operative
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908 WP 3120-2024-F
Societies, this Court by its Judgment dated 26.03.2024 passed in Writ
Petition No.221/2024, has arrived at the very same conclusion that
Section 61 postulates an automatic disqualification on the non-
submission of accounts before a General Body Meeting within the
time stipulated by the Act. Both these Judgments, however, clearly
hold that though the disqualification is automatic, the Assistant
Registrar is vested with the power of discretion, based upon the
justification given by the Directors or other circumstances borne from
the record, to reduce the period of disqualification.
10. In Vinod Vellapan (supra), this Court has further held that the
Registrar is obliged to approach the matter, not with a strict
construction, but by applying the principle of proportionality of the
period of disqualification to be imposed.
11. The present case appears to be directly covered by the ratio laid
down in Noella Fernandes (supra) and Vinod Vellapan (supra). The
order of the Assistant Registrar though rightly holds that the
Directors named therein incurred an automatic disqualification, the
order further imposes a period of disqualification for 5 years without
assigning any reasons or circumstances which could act as mitigation
to impose such a heavy penalty on the Directors. To that extent, the
impugned order is required to be set aside, applying the ratio of the
aforementioned Judgments.
12. After going through the record, it is clear that the 4 Directors
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908 WP 3120-2024-F
namely, Mr. Warren Pinto, Ms. Savitri Mehta Horowitz, Mr. Samir
Kalia and Dr. Ajay Raj Bhagat, have automatically incurred
disqualification as Directors of the Respondent Society with effect
from 01.10.2021, which is the date on which the 6 monthly period
after the Co-operative Year ends i.e. 31.03.2021. However,
considering the explanation offered to their reply, since the accounts
were to be presented immediately after the Covid-19 pandemic and
most of the residents did not reside in the units within the buildings
of the Co-operative Society, this could be taken as a mitigating
circumstance to exercise discretion in favour of the aforementioned 4
Directors and reduce the period of disqualification to 1 year from
01.10.2021. The period of disqualification would thus end on
30.09.2022 and such Directors would be eligible to stand for fresh
election and to be chosen as Directors/be eligible to continue as
Directors of the Respondent No.1 Society. To that extent, the
impugned Judgment and Order stands quashed and set aside.
13. Consequently, Rule is made absolute in the above terms. No
order as to costs.
VALMIKI MENEZES, J.
24th January, 2025
