Bombay High CourtO.K. Vasudevan vs Shri Paras Darshan Co-Operative ... on 10 March, 2004Equivalent citations: 2004(4)MHLJ23Author:R.M.S. KhandeparkarBench:R.M.S. KhandeparkarJUDGMENT
 

R.M.S. Khandeparkar, J.1. Heard the learned Advocate for the petitioner and the respondent Nos. 2 and 3. None present for respondent No. 1 though served. Perused the records. Petitioner challenges the order passed by the Deputy Registrar underSection 101of the Maharashtra Co-operative Societies Act, 1960 (hereinafter called as, 'the said Act') on 6-11-2001, as well as the order passed by the Divisional Joint Registrar of Co-operative Societies on 11-7-2002, in the Revision Application No. 715 of 2001 filed by the petitioner against the said order of the Deputy Registrar.2. The challenge to the impugned order is three fold. Firstly that the Deputy Registrar issued recovery certificate without giving proper opportunity of being heard to the petitioner and thereby recovery certificate has been issued in violation of the basic principles of Natural Justice. Secondly that in terms of circular No. 1094/15165/P.K./317/14-C dated 9-3-1995, the charges in respect of non-occupancy of the premises from the member of the society cannot exceed 10% of the maintenance charges collected from the member or 10% of the rent received by the member from the occupant of the premises, whichever is higher, and in spite of the said restriction the respondent society had admittedly sought to collect the non-occupancy charges by way of one time recovery and the Deputy Registrar had confirmed the claim of non-occupancy charges to the tune of Rs. 12,350/- without considering the objection raised by the petitioner and clear admission on the said point by the respondent society, and that the same mistake has been repeated by the Revisional Authority as the said authority has also not considered the said point. Thirdly that the order passed by the Revisional Authority discloses total non application of mind and arbitrary exercise of jurisdiction while rejecting the revision application.3. As regards the first ground of challenge pertaining to non-compliance of the basic principles of natural justice, attention was drawn to the copy of the roznama in relation to the proceedings before the Deputy Registrar, particularly from 26-6-2001 till 1-10-2001. The entry in relation to 26-6-2001 discloses that at that stage the notice to the petitioner was not issued and therefore there was no occasion for the petitioner to appear before the authority. The entry of 10-7-2001 discloses the presence of the respondents and adjournment of the proceeding. Entry of 20-10-2001 discloses that the notice was received by the petitioner. Obviously the notice was in relation to the hearing of the matter before the Deputy Registrar in relation to the proceeding underSection 101of the said Act. Entry in relation to 27-7-2001 discloses that the representative of the petitioner had attended the office of the Deputy Registrar and collected the necessary papers and noted the next date of hearing in the matter. The next date of hearing was 6-8-2001, and the entry in relation to the said date in the roznama discloses that the petitioner's representative was present, but none had appeared on behalf of the respondent society, at the same time the Deputy Registrar was also on leave and therefore the proceedings were adjourned to 17-8-2001. Thus the entry in respect of the said date of hearing discloses that though the petitioners' representative was present, but none had appeared on behalf of the respondent Society and the matter was adjourned to 24-9-2001 on account of absence of the Deputy Registrar. When the matter came up before the Deputy Registrar on 24-9-2001, though the representative of the society was present, none appeared on behalf of the petitioner and on account of the absence of the petitioner it was adjourned to 1-10-2001. When the matter came up for hearing before the Deputy Registrar on 1-10-2001 the petitioner remained absent though representative of the society was present. The matter was ordered to proceed ex parte and thereafter the order dated 6-11-2001 came to be passed and the certificate was issued.4. The proceedings before the Deputy Registrar as revealed from the roznama entries referred to above, disclose that the petitioner was fully aware of the dates of the hearings. Undoubtedly, he had appeared before the Office of the Deputy Registrar on 6-8-2001 and 17-8-2001 and it was to his knowledge that the matter was adjourned to 24-9-2001 and he did not remain present on the said date of hearing. The story was not different from that of 24-9-2001, when the matter came up for hearing for the last time before the Deputy Registrar i.e. on 1-10-2001, and on account on the absence of the petitioner the Deputy Registrar ordered the matter to proceed ex-parte. The petitioner had full knowledge of the dates of the hearing of the matter yet he had chosen to remain absent. Merely because the adjudicating authority decides to proceed ex-parte, it cannot be said that the applicant is not given an opportunity of being heard or that there is any violation of principles of natural justice. If the party itself chooses not to remain present, in spite of the full knowledge of the date of hearing, then such party cannot be thereafter heard to complain that it was not given fair opportunity of being heard in the matter. Once the party is served, with the notice about the hearing of the matter, it is the duty of the party to remain present or to ensure the presence of his or her representative before the Court or the adjudicating authority as the case may be. Failure in that regard on part of the petitioner himself cannot entitle him to complain about non compliance of the principles of natural justice by the adjudicating authority.5. It was sought to be contended that the dates of the hearing of the matter were fixed at short intervals and without the gap of sufficient number of days. It is surprising to note that the petitioner has grievance for disposing the matter expeditiously. It is really strange that in spite of an opportunity being given to the party to get the matter disposed off expeditiously, the petitioner wants to make a grievance about the same. It is unfair on the part of the petitioner to make any grievance for having proceeded expeditiously in the matter.6. As regards the second ground of challenge, undoubtedly the circular in question dated 9-5-1995 is in relation to the amount which can be recovered as non-occupancy charges from the members who do not occupy the premises by themselves. The limit is also quantified as 10% of the maintenance charges or of the rent collected by such member from the actual occupant of the premises. The statement filed by the respondent Society before the Deputy Registrar in the proceeding underSection 101apparently reveals that the respondent society had levied the charges on one time basis. At the same time it is true that the said statement is not clear in the sense whether one time service charges were more than 10% of the rent received by the petitioner or not. Certainly in that regard appropriate enquiry was expected from the Deputy Registrar.Section 101of the said Act clearly provides that when an application is made by the society along with the statement of account in relation to the arrears from its members, the Registrar may after making such enquiry, as he deems fit grant certificate of recovery of the amount. Undoubtedly, scope of enquiry would depend upon the facts and circumstances of each case. However, the discretion in that regard has to be exercised judiciously. The dispute raised by the party apparently discloses that the grievance of the party was to the effect that the society had sought to collect non-occupancy charges by one time recovery and the same was prima facie the higher than the charge equivalent to 10% of the rent received by the petitioner. Further enquiry, in relation to the quantification of the arrears claimed by the society would also be necessary and it is for the Registrar to ascertain whether the quantification has been done correctly or not. The order passed by the Deputy Registrar nowhere discloses that the non-occupancy charges levied by the society being one time charges are equivalent to that of 10% rent received by the petitioner. Apparently the exercise of the powers underSection 101of the Deputy Registrar do not seem to be in accordance with the provisions of law.7. As regards the third ground of challenge the order of the Revisional Authority discloses that it comprises of four paragraphs apart from the operative portion of the order. First paragraph of the order relates to the factum of the issuance of the recovery certificate. Second paragraph relates to the contentions of the petitioner. The third paragraph relates to the contentions of the respondent before the Revisional Authority that the society had levied non occupancy charges as per law. Dealing with the rival contentions, the Revisionary Authority observed thus :"After hearing both the parties and going through the documents it is seen that prima facie the applicant could not make the case to interfere in the impugned Recovery Certificate issued by the respondent No. 2, Deputy Registrar. Hence I pass the following order :ORDER
 

The  Revision   Application   is  dismissed.   The   impugned  Recovery Certificate dated 6-11-2001 issued by the respondent No. 2, Deputy Registrar, Co-op. Societies, N Ward, Navi Mumbai underSection 101of the M.C.S. Act, 1960 is hereby confirmed. No order as to cost."8. Plain reading of the said order discloses that the Revisional Authority has not at all applied its mind to the matter in issue, nor exercised its jurisdiction in the manner required to be exercised in terms ofSection 154of the said Act which deals with the powers of the Revisional Authority under the said Act.Section 154clearly states that the Revisional Authority is required to get itself satisfied about the legality or propriety of the decision under challenge before such authority and also regarding the regularity of the proceedings before the lower authority wherein the order is passed. The expressions 'legality or propriety' had been subject matter of number of decisions of this Court as well as the Apex Court and it has been clearly held that such an exercise would include power to ascertain whether the findings arrived at by such authority are borne out from the record and whether are in accordance with the provisions of law and on the basis of evidence on record. In that sense, such power is much wider than that underSection 115of the Civil Procedure Code.9. The order of the Revisional Authority in the case in hand, apparently discloses total non application of mind to the issues sought to be raised as well as it reveals the arbitrary exercise of such powers. The authority has simply proceeded to dismiss the application on the ground that on hearing the parties and on going though the documents, it does make prima facie case to interfere with the recovery certificate. It is not merely the prima facie case to interfere in the recovery certificate, that was required to be considered but it was necessary to ascertain that the order passed by the Deputy Registrar underSection 101has in consonance with the provisions of the said section and whether the authority had considered all the points raised by the parties in relation to the quantification of the arrears as well as the justification in support of such quantification amount of the arrears. The Revisional Authority has failed to apply its mind on these points.10. For the reasons stated above while rejecting the first ground of challenge, the impugned order cannot be sustained on the subsequent two grounds and therefore is liable to be set aside.11. The petition therefore succeeds. Both the orders are hereby quashed and the matter be remanded to the lower authority to deal with the dispute and to quantify the claim relating to non occupancy charges, bearing in mind the observation made hereinabove. The Rule is made absolute in above terms with no order as to cost.Parties to act on the copy of this order duly authenticated by the Court Associate.