2011(3) ALL MR 805
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.V. MOHTA, J.

Ashok Saha & Ors.Vs.State Of Maharashtra & Ors.

Writ Petition No.544 of 2011

15th April, 2011

Petitioner Counsel: Mr. K. M. JOHN
Respondent Counsel: Ms. SMITA GAIDHANI,Mr. LAWRENCE D'COSTA

Maharashtra Co-operative Societies Act (1960), S.83 - Scope and invocation of - Requirement of application of one-third members - An application or complaint should be supported by one-third of the members of the society - If an application is filed by the requisite members of the society, the Registrar is under obligation to take action as contemplated.

Not only the Registrar but there are officers who are responsible and have various obligations under the Act who are bound to look into the affairs of the society from time to time. Therefore, the Registrar can take note of information so received and may of his own proceed to hold the enquiry. In the present case, it is based upon the complaint. Therefore it is necessary that such application or complaint should be supported by one-third of the members of the society. The aspect that some members or one member is against the particular action of the society/managing committee, that itself should not be the reason to invoke the provisions of Section 83 of the M.C.S. Act. But if an application is filed by the requisite members of the society, the Registrar is under obligation to take action as contemplated. [Para 7]

JUDGMENT

JUDGMENT:- The petitioner has challenged the impugned order as the same was passed without considering the provisions of Section 83 of the Maharashtra Co-operative Societies Act, 1960 (in short, the M.C.S. Act). The relevant portion of Section 83 Clause (1) reads as under:-

"Sec.83(1): The Registrar may of his own motion, and shall on the application of one-third of the members of a society, himself or by a person duly authorized by him in writing in this behalf, hold an inquiry into the constitution, working and financial conditions of a society."

2. The point so, as raised is restricted to the initiation of the proceeding/enquiry by the Registrar as contemplated under Section 83 of the M.C.S. Act.

3. The Registrar of his own motion, himself or by any person authorized by him, can hold an enquiry into the constitution, working and financial condition of a society. But, in the present case, admittedly, a complaint dated 13.6.2009 was filed by respondent No.4 and based upon this, on 27.7.2009, by exercising powers under Section 83 of the M.C.S. Act, he appointed an enquiry officer and directed to conduct an enquiry against the society.

4. The order so passed itself provides the reasons for initiating/invoking of Section 83 of the M.C.S. Act i.e. the complaint filed by the member. In my view, this is not the suo-motu proceedings initiated by the Registrar of his own.

5. Therefore, the requirement of application of one-third of the members of the society and in absence of the same, the appointment of the enquiry officer and/or holding of an enquiry based upon the same is incorrect.

6. Mr. D'Costa, respondent No.4 who appeared in person, submitted that the Registrar even otherwise of his own is permitted under the Act to take such action and can invoke Section 83 and order an enquiry. Then merely because a reference is made to the complaint filed should not be the reason to overlook the enquiry so conducted as the Registrar or the other officers may not be aware of the affairs and mismanagement of the society. Therefore, this is the only way whereby any other person/member of the society and/or even in the given case, a third person can file complaint and revoke power of the Registrar. Admittedly, respondent No.4 is the member of the society and not the third person.

7. In my view, not only the Registrar but there are officers who are responsible and have various obligations under the Act who are bound to look into the affairs of the society from time to time. Therefore, the Registrar can take note of information so received and may of his own proceed to hold the enquiry. In the present case, it is based upon the complaint. Therefore it is necessary that such application or complaint should be supported by one-third of the members of the society. The aspect that some members or one member is against the particular action of the society/managing committee, that itself should not be the reason to invoke the provisions of Section 83 of the M.C.S. Act. But if an application is filed by the requisite members of the society, the Registrar is under obligation to take action as contemplated.

8. In view of this, without observing anything on merits of the case, I am of the view that the order of appointment of conducting the enquiry and the consequential inquiry as done in the present is illegal and in the light of the aforesaid reasons is liable to be set aside. No cost. The impugned order is quashed and set aside accordingly. Having been done so of the consequences arising out of the same should also fall.

9. The concerned member is at liberty to take appropriate steps by filing fresh application and if material available and as contemplated under Section 83 of the M.C.S. Act, may proceed in accordance with law.

10. In view of the above, the objection about the maintainability of this petition for want of alternate remedy under Section 154 of the M.C.S. Act has no substance as the impugned order and the action is illegal and without jurisdiction.

11. The writ petition is accordingly allowed in terms of prayer clause (a). No cost.

Petition allowed.