2015(5) ALL MR 10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Vithalnagar Co-operative Housing Society Vs. The Divisional Joint Registrar, CSMD & Ors.
Writ Pettion No.1609 of 2010
4th February, 2015.
Petitioner Counsel: Mr. ROHAN RAJADHYAKSHA with Mr. VIRAL AMIN i/by B. AMIN & CO
Respondent Counsel: Mr. RAJIV MANE
Maharashtra Co-operative Societies Act (1960), S.83 - Complaint by third person - Non-member cannot lodge a complaint and/or pray to initiate enquiry against society members and/or society.
If the Registrar and/or concerned authority wants to initiate inquiry suo motu against the society based upon the material with them, there cannot be issue on this power. But if there is a case of complaint by a member then it should be as per the mandate of the Section so referred above i.e. one fifth/one third members should lodge the complaint. And if it is based upon the third person's complaint, the situation is different. This, just cannot be overlooked. Therefore, in a given case, if such an application is filed by a person claiming to be the member, to initiate inquiry under Section 83 against the society, the Registrar and/or authority need to test the same differently. This cannot be treated like a public interest litigation. A person who was not a member at the relevant time and even prior to that just cannot lodge a complaint and/or pray to initiate inquiry against the society members and/or society as he had no personal knowledge of the events and circumstances to initiate such inquiry which certainly affects the rights of the managing committee members at the relevant time and definitely the name and fame of the society. [Para 4,6]
JUDGMENT
JUDGMENT :- The matter was called out from final hearing board on 29.01.2015 and again on 02.02.2015, none appeared for Respondent No.2. Heard the Petitioner and the learned Addl. Government Pleader on 02.02.2015 and kept today for further hearing and orders. Though called out twice, none appeared for Respondent No.2 again. Therefore, I am inclined to dispose of the present writ petition as heard the parties as referred above.
2. The PetitionerSociety has challenged impugned orders dated 21.07.2010 and 27.07.2010 passed by the Divisional Joint Registrar, Cooperative Societies, Mumbai Division, Mumbai whereby rejected the Application of Respondent No.2 dated 10.01.2010 treating it to be maintainable and then forwarded the same to the Deputy Registrar, Cooperative societies, K West Ward, Mumbai to take an appropriate decision expeditiously by invoking suo motu inquiry as contemplated under Section 83 of the Maharashtra Cooperative Societies Act, 1960 (The Act).
3. The decision on merits with regard to the members right, based upon an application by the third person, needs to be decided first in the present facts and circumstances of the case. Considering the scope and purpose of Section 83, it is necessary that one third and/or one fifth members of the society to file a complaint/application for an inquiry against the society. The authority, in the absence of any such application, may, suo motu, pass orders for such inquiry, but in a situation like this where an application was filed by Respondent No.2, who admittedly was not a member on the date of the application i.e. 10.01.2010 his application was considered by the impugned order. The issue with regard to his membership is still pending in other proceedings.
4. We are concerned with the date when the application was filed where admittedly Respondent No.2 was not even a member of the society against whom, the Respondents ordered to initiate inquiry under Section 83 which follows Section 88 of the Act. If case is made out with supporting material, an invocation of suo motu power by the authority is difficult to interfere with, but when the application was filed by the third person, as done in the present case, who admittedly was not a member of the society at the relevant time, in my view, need to be tested in the background of litigation between Respondent No.2 and the society. A person who was not a member at the relevant time and even prior to that just cannot lodge a complaint and/or pray to initiate inquiry against the society members and/or society as he had no personal knowledge of the events and circumstances to initiate such inquiry which certainly affects the rights of the managing committee members at the relevant time and definitely the name and fame of the society.
5. In the present case where Respondent No.2 is involved and on similar complaints, by order dated 27.10.2010 in Criminal Application No.4667/2010 - Meena Shroff v. The State of Maharashtra, in a criminal proceeding, there is an observation in paragraph 7 as under :
"7 ........ The Respondent No.2 is not yet admitted as a member of the managing committee. Prima facie, it does appear that complaints are being filed with a malafide intention of harassing them since they did not admit him as a member."
This observation that the complaint so filed with a malafide intention as he was not admitted as a member just cannot be overlooked so also the Criminal Application which is pending in this Court.
6. The order, therefore, passed by the Divisional Joint Registrar, in the above background, to initiate suo motu inquiry by observing that the material placed on record even by a member of public can be taken note of to initiate such inquiry against such private society, in my view, is unacceptable. The power of suo motu cannot be read and referred to mean the basic provisions which required that the one fifty/one third members to file such application to initiate such inquiry just cannot be overlooked but need to be dissected for all the purposes. If the Registrar and/or concerned authority wants to initiate inquiry suo motu against the society based upon the material with them, there cannot be issue on this power. But if there is a case of complaint by a member then it should be as per the mandate of the Section so referred above i.e. one fifth/one third members should lodge the complaint. And if it is based upon the third person's complaint, the situation is different. This, in my view, just cannot be overlooked. Therefore, in a given case, if such an application is filed by a person claiming to be the member, to initiate inquiry under Section 83 against the society, the Registrar and/or authority need to test the same differently. This cannot be treated like a public interest litigation.
7. In the present case, however, the Divisional Joint Registrar in spite of pendency of criminal application between the parties and the observation of malafide, so referred above, directed the Deputy Registrar, Cooperative Societies, K West Ward, Mumbai to take the decision treating it suo motu inquiry, though this Court by order dated 27.04.2010 in Writ Petition No.817/2010, directed the Divisional Joint Registrar to consider the said application dated 10.01.2010 afresh, the Deputy Registrar, inspite of this, as recorded above, directed the other authorities to deal with the application, contrary to the order passed by this Court. There was no such direction earlier issued by this Court in the order dated 27.4.2010. On the contrary the directions were issued to consider the application including the issue of maintainability and locus.
8. Therefore, in view of above, I am inclined to observe that the application filed by Respondent No.2 dated 10.01.2010 is not maintainable and has no locus and so also the orders issued by Respondent No.1 to initiate the proceedings under Section 83 of the Act of 1960 by treating it to be as suo motu.
9. In the result, both orders dated 21.07.2010 and 27.07.2010 passed by Respondent No.1 are quashed and set aside. The writ petition is accordingly allowed.