Bombay High CourtAlhad R. Vaidya And Ors vs The State Of Maharashtra And Ors on 7 July, 2016Author:M. S. SonakBench:M. S. SonakDSS                                      1/15                                           J-WP-2569-02.sxw


                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::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                      2/15                                           J-WP-2569-02.sxw


     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::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                     3/15                                           J-WP-2569-02.sxw


     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 

     theMaharashtra   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::: Uploaded on - 07/07/2016                            ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                      4/15                                           J-WP-2569-02.sxw


     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,::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                     5/15                                           J-WP-2569-02.sxw


     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::: Uploaded on - 07/07/2016                            ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                      6/15                                           J-WP-2569-02.sxw


     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::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                       7/15                                           J-WP-2569-02.sxw


     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::: Uploaded on - 07/07/2016                              ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                      8/15                                           J-WP-2569-02.sxw


     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::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                       9/15                                           J-WP-2569-02.sxw


     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.::: Uploaded on - 07/07/2016                              ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                      10/15                                           J-WP-2569-02.sxw


     15]      In terms of Section 22 of the said Act, subject to the provisions ofSection 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::: Uploaded on - 07/07/2016                            ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                        11/15                                           J-WP-2569-02.sxw


     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) ofSection 23imparts 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 inSection 23(2)of the said Act will not apply. In 

     these circumstances, the Secretary and Officer on Special Duty cannot be::: Uploaded on - 07/07/2016                              ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                         12/15                                           J-WP-2569-02.sxw


     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   underSection   35of   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::: Uploaded on - 07/07/2016                               ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                          13/15                                           J-WP-2569-02.sxw


     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::: Uploaded on - 07/07/2016                                ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                       14/15                                           J-WP-2569-02.sxw


     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.::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::DSS                                       15/15                                           J-WP-2569-02.sxw


     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.)::: Uploaded on - 07/07/2016                             ::: Downloaded on - 30/07/2016 08:28:20 :::