2015(6) ALL MR 707
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R. K. DESHPANDE, J.
Smt. Kalpana w/o. Ramesh Taori @ Tawari Vs. The Joint Registrar, Co-operative Societies, Amravati & Ors.
Writ Petition No.5491 of 2006,Writ Petition No.5514 of 2006
27th February, 2015.
Petitioner Counsel: Shri N.S. BHATTAD
Respondent Counsel: Shri NEERAJ PATIL, Shri R.G. KAVIMANDAN
(A) Maharashtra Co-operative Societies Act (1960), S.105(1)(h) - Maharashtra Co-operative Societies Rules (1961), R.89(14) - Recovery certificate - Sustainability - Certificate issued against petitioner - However, no adjudication as to whether petitioner was a member of society - Even if he is a member of society, nothing on record to show that prior approval of Registrar was obtained - Exercise of issuing certificate is without jurisdiction - Certification in question not sustainable.(Para 3)
(B) Maharashtra Co-operative Societies Rules (1961), R.89(14) - Maharashtra Co-operative Societies Act (1960), S.105(1)(h) - Power of Liquidator - Extent of - Held, no such power u/S.105(1)(h) of MCS Act can be exercised by Liquidator against a person who is not member of society - If such person is member of society, then prior approval of Registrar is required.(Para 2)
JUDGMENT
JUDGMENT :- In exercise of powers conferred under Section 105 (1) of the Maharashtra Cooperative Societies Act read with Rule 89 (14) of the Rules, a certificate for recovery has been issued for an amount of Rs.9,76,506.85, in both these writ petitions. This is the subject matter of challenge in these writ petitions. An appeal under Section 152 of the Maharashtra Cooperative Societies was preferred and it has been dismissed by an order dated 21.07.2006. Hence, both these writ petitions are preferred.
2. Section 105 of the Maharashtra Cooperative Societies Act confers power upon the liquidator to determine the debts due from the members of the society. Under Rule 89 (14) the liquidator cannot exercise such power without approval of the Registrar. It is thus, apparent that the power of the liquidator under Section 105 (1)(h) is in respect of debts dues from the members of the society. If a person is not a member of society, then such power cannot be exercised. If a person is a member of society then prior approval of the Registrar is required.
3. There is no adjudication as to whether the petitioner was a member of the society and even if he is a member of the society there is nothing on record to show that prior approval of the Registrar was obtained. In view of this, the certificate in question cannot be sustained. The exercise of issuing certificate is without jurisdiction. In view of this, the petition is allowed. The certificates issued on 15.07.2004 along with Registrar's order dated 21.07.2006 are hereby quashed and set aside. The respondents are at liberty to proceed to recover the amount in any other mode permissible in accordance with law. No costs.