Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 175 OF 2005
1. Matru Ashish Coop. Hsg. Soc. Ltd. )
39, Napean Sea Road, Mumbai400 036 )
2. Shashikant R. Doshi )
Matru Ashish Coop. Hsg. Soc. Ltd. )
39, Napean Sea Road, Mumbai400 036 ).Petitioners
vs.
1. The State of Maharashtra, )
(Notice to be served through the Secretary to the )
Govt. of Maharashtra, Cooperation & Textiles Dept., )
Mantralaya, Mumbai400 032 )
2. Under Secretary to the Government of Maharashtra )
Cooperation and Textiles Department, Mantralaya, )
Mumbai400 032 )
3. Divisional Joint Registrar, Cooperative Societies, )
th
Mumbai Division, Malhotra House, 6 floor, )
Opp. GPO, Mumbai400 001 )
4. Deputy Registrar, Cooperative Societies, A Ward, )
Malhotra House, Opp. GPO, Mumbai400 001 )
5. The Commissioner for Cooperation & Registrar of )
Cooperative Societies, Maharashtra State, )
Central Buildings, B.J. Road, Pune. ).Respondents
Mr. Sachin Kudalkar, instructed by M/s. Madekar & Co., for the petitioners.
None for the respondents.
CORAM : P.B. MAJMUDAR &
R.M. SAVANT, JJ.
DATE: OCTOBER 05, 2011.
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ORAL JUDGMENT: (Per R.M. Savant, J.)
The issue in the above petition is as regards the challenge to
st
the order dated 1 August, 2001 issued by the State Government in
exercise of the powers under Section 79A of the Maharashtra Co
operative Societies Act, 1960 (for short “the Act”). By the said order, the
State Government had directed the Cooperative Housing Societies in the
State to charge nonoccupancy charges on a particular basis. The said
issue had come up for consideration before a Division Bench of this Court
in Writ Petition No. 2635 of 2001. The Division Bench by its judgment
nd
and order dated 2 March, 2007 in the matter of Mont Blanc Cooperative
1
Housing Society Ltd. and another vs. State of Maharashtra and others ,
inter alia, held that the power under Section 79A of the Act cannot be
exercised so as to be prejudicial to the interest of the Society. The
Division Bench has further held that the directions in question issued are
binding on the Cooperative Housing Societies. Paragraph 12 of the said
report is material and is reproduced herein under.
“12. Section 79A of the Act clearly states that if the State
Government, on receipt of a report from the Registrar or
otherwise, is satisfied that in the public interest or for the
purpose of securing proper implementation of cooperative
production or for preventing the affairs of the society being
conducted in a manner detrimental to the interest of the
members, it is necessary to issue directions to any class of
1 2007 (3) ALL MR 32
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societies generally, it may issue directions to them from time
to time and all societies concerned shall be bound to comply
with such directions. As per subsection 2 of Section 79A the
State Government may modify or cancel any directions issued
as above and in modifying or cancelling such directions may
impose such conditions as it may deem fit. Subsection 3 of
Section 79A provides for a penal action for failure in
complying with any directions or modified directions issued to
a society under subsections 1 and 2 and failed without any
good reasons or justifications to comply with the directions.
Whereas Section 14 empowers the Registrar to call upon the
society in the manner prescribed to make the amendments in
its byelaws if the same is found to be desirable in the interest
of such society and amendments are required to be made
within such time as he may specify. In the case of Karvenagar
Sahakari Griha Rachana Sanstha Maryadit (supra), the
Registrar had issued directions on 19/1/1985 to the effect
that the tenant ownership type of cooperative housing
societies should amend their byelaws so as (i) to enable the
plot holders to construct multistoried building with more
than one residential tenement on their plots and (ii) to form a
society of the owners of the flats of the multistoried building
which shall be a member of the housing society and be
represented by its representative in the housing society. When
it was informed by the Registrar that the amendments as
directed were not carried out, he issued a Circular on
5/12/1985 threatening to take action under Section 14 (2) of
the Act. These directions/circulars were challenged by the
housing societies, inter alia, on the grounds that they
completely destroy the basis of such societies and would
encourage commercialisation of housing schemes which is
meant for individuals on the basis of the tenantownership
and that they were without authority of law and violative of
Article 19 (1) (c) of the Constitution. The societies succeeded
before this Court and, therefore, the State Government
approached the Apex Court. The objects and byelaws of the
Society were considered by the Apex Court and it held that
though the power is conferred to direct amendment of the
byelaws of the society, yet the paramount consideration,
while amending the byelaws, is the interest of the society. So
also the power of the State Government to issue directions in
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public interest cannot be exercised so as to be prejudicial to
the interest of the society. The Apex Court further observed,
“...In our view, what is in the interest of the
society is primarily for the society alone to decide
and it is not for an outside agency to say. Where,
however, the Government or the Registrar
exercises statutory power of issuing directions to
amend the byelaws, such directions should
satisfy the requirement of the interest of the
Society....”
The petitioners have relied upon the judgment in the case of
Zoroastrian Cooperative Housing Society Ltd. and anr. vs.
District Registrar, Cooperative Societies (Urban) and Ors.
[(2005) 5 SCC 632: 2005 (5) ALL MR (S.C.) 731]. In our
considered opinion the said judgment is not applicable in the
instant case.
In the case of Sahabro Kacharu Patil and ors. vs.
Collector, Aurangabad and ors. [1983 Mh. L.J. 476], a
Division Bench of this Court, regarding the scope of Section
79A of the Act, stated thus:
“It can then be seen that Section 79A of the said
Act deals with the powers of the Government to
give directions in public interest. This section only
shows that these directions are issued to the Co
operative Societies for the purpose of securing
proper implementation of the cooperative
production and other development programmes.
They are concerned with the business of the affairs
of the Society being conducted in a manner
detrimental to the interest of the members, or of
the depositors or the creditors thereof. The
Government is also empowered under this Section
to modify those conditions.”
2. In view of the said pronouncement of the Division Bench in
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Mont Blanc’s case, the issue in so far as the present petition is concerned
stands concluded. However, the learned counsel for the petitioners states
that he has no instructions from the petitioners in the matter and,
therefore, cannot proceed with the hearing. In our view, since the issue is
already concluded by the Division Bench judgment in Mont Blanc’s case,
there is no merit in the above petition which is accordingly dismissed. Rule
discharged.
P. B. MAJMUDAR, J.
R.M. SAVANT, J.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 175 OF 2005
1. Matru Ashish Coop. Hsg. Soc. Ltd. )
39, Napean Sea Road, Mumbai400 036 )
2. Shashikant R. Doshi )
Matru Ashish Coop. Hsg. Soc. Ltd. )
39, Napean Sea Road, Mumbai400 036 ).Petitioners
vs.
1. The State of Maharashtra, )
(Notice to be served through the Secretary to the )
Govt. of Maharashtra, Cooperation & Textiles Dept., )
Mantralaya, Mumbai400 032 )
2. Under Secretary to the Government of Maharashtra )
Cooperation and Textiles Department, Mantralaya, )
Mumbai400 032 )
3. Divisional Joint Registrar, Cooperative Societies, )
th
Mumbai Division, Malhotra House, 6 floor, )
Opp. GPO, Mumbai400 001 )
4. Deputy Registrar, Cooperative Societies, A Ward, )
Malhotra House, Opp. GPO, Mumbai400 001 )
5. The Commissioner for Cooperation & Registrar of )
Cooperative Societies, Maharashtra State, )
Central Buildings, B.J. Road, Pune. ).Respondents
Mr. Sachin Kudalkar, instructed by M/s. Madekar & Co., for the petitioners.
None for the respondents.
CORAM : P.B. MAJMUDAR &
R.M. SAVANT, JJ.
DATE: OCTOBER 05, 2011.
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ORAL JUDGMENT: (Per R.M. Savant, J.)
The issue in the above petition is as regards the challenge to
st
the order dated 1 August, 2001 issued by the State Government in
exercise of the powers under Section 79A of the Maharashtra Co
operative Societies Act, 1960 (for short “the Act”). By the said order, the
State Government had directed the Cooperative Housing Societies in the
State to charge nonoccupancy charges on a particular basis. The said
issue had come up for consideration before a Division Bench of this Court
in Writ Petition No. 2635 of 2001. The Division Bench by its judgment
nd
and order dated 2 March, 2007 in the matter of Mont Blanc Cooperative
1
Housing Society Ltd. and another vs. State of Maharashtra and others ,
inter alia, held that the power under Section 79A of the Act cannot be
exercised so as to be prejudicial to the interest of the Society. The
Division Bench has further held that the directions in question issued are
binding on the Cooperative Housing Societies. Paragraph 12 of the said
report is material and is reproduced herein under.
“12. Section 79A of the Act clearly states that if the State
Government, on receipt of a report from the Registrar or
otherwise, is satisfied that in the public interest or for the
purpose of securing proper implementation of cooperative
production or for preventing the affairs of the society being
conducted in a manner detrimental to the interest of the
members, it is necessary to issue directions to any class of
1 2007 (3) ALL MR 32
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societies generally, it may issue directions to them from time
to time and all societies concerned shall be bound to comply
with such directions. As per subsection 2 of Section 79A the
State Government may modify or cancel any directions issued
as above and in modifying or cancelling such directions may
impose such conditions as it may deem fit. Subsection 3 of
Section 79A provides for a penal action for failure in
complying with any directions or modified directions issued to
a society under subsections 1 and 2 and failed without any
good reasons or justifications to comply with the directions.
Whereas Section 14 empowers the Registrar to call upon the
society in the manner prescribed to make the amendments in
its byelaws if the same is found to be desirable in the interest
of such society and amendments are required to be made
within such time as he may specify. In the case of Karvenagar
Sahakari Griha Rachana Sanstha Maryadit (supra), the
Registrar had issued directions on 19/1/1985 to the effect
that the tenant ownership type of cooperative housing
societies should amend their byelaws so as (i) to enable the
plot holders to construct multistoried building with more
than one residential tenement on their plots and (ii) to form a
society of the owners of the flats of the multistoried building
which shall be a member of the housing society and be
represented by its representative in the housing society. When
it was informed by the Registrar that the amendments as
directed were not carried out, he issued a Circular on
5/12/1985 threatening to take action under Section 14 (2) of
the Act. These directions/circulars were challenged by the
housing societies, inter alia, on the grounds that they
completely destroy the basis of such societies and would
encourage commercialisation of housing schemes which is
meant for individuals on the basis of the tenantownership
and that they were without authority of law and violative of
Article 19 (1) (c) of the Constitution. The societies succeeded
before this Court and, therefore, the State Government
approached the Apex Court. The objects and byelaws of the
Society were considered by the Apex Court and it held that
though the power is conferred to direct amendment of the
byelaws of the society, yet the paramount consideration,
while amending the byelaws, is the interest of the society. So
also the power of the State Government to issue directions in
::: Downloaded on - 26/06/2024 07:31:46 :::
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public interest cannot be exercised so as to be prejudicial to
the interest of the society. The Apex Court further observed,
“...In our view, what is in the interest of the
society is primarily for the society alone to decide
and it is not for an outside agency to say. Where,
however, the Government or the Registrar
exercises statutory power of issuing directions to
amend the byelaws, such directions should
satisfy the requirement of the interest of the
Society....”
The petitioners have relied upon the judgment in the case of
Zoroastrian Cooperative Housing Society Ltd. and anr. vs.
District Registrar, Cooperative Societies (Urban) and Ors.
[(2005) 5 SCC 632: 2005 (5) ALL MR (S.C.) 731]. In our
considered opinion the said judgment is not applicable in the
instant case.
In the case of Sahabro Kacharu Patil and ors. vs.
Collector, Aurangabad and ors. [1983 Mh. L.J. 476], a
Division Bench of this Court, regarding the scope of Section
79A of the Act, stated thus:
“It can then be seen that Section 79A of the said
Act deals with the powers of the Government to
give directions in public interest. This section only
shows that these directions are issued to the Co
operative Societies for the purpose of securing
proper implementation of the cooperative
production and other development programmes.
They are concerned with the business of the affairs
of the Society being conducted in a manner
detrimental to the interest of the members, or of
the depositors or the creditors thereof. The
Government is also empowered under this Section
to modify those conditions.”
2. In view of the said pronouncement of the Division Bench in
::: Downloaded on - 26/06/2024 07:31:46 :::
KPP -5-
Mont Blanc’s case, the issue in so far as the present petition is concerned
stands concluded. However, the learned counsel for the petitioners states
that he has no instructions from the petitioners in the matter and,
therefore, cannot proceed with the hearing. In our view, since the issue is
already concluded by the Division Bench judgment in Mont Blanc’s case,
there is no merit in the above petition which is accordingly dismissed. Rule
discharged.
P. B. MAJMUDAR, J.
R.M. SAVANT, J.
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