Full Judgment Text
: 1 :
2005:BHC-OS:17678
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.560 OF 2001
1. Twin Star Venus Co-op. Housing )
Society Ltd. Venus Apartments, )
87, Cuffe Parade, Mumbai 400 005. )
2. Pravinchandra H. Nanavati )
Secretary of the Petitioner No.1 )
Society, Venus Apartment, 87, )
Cuffe Parade, Mumbai 400 005. )..Petitioners
Versus
1. G.N.Sainani )
Indian Inhabitant, Member of )
Petitioner no.1 Society, presently )
residing at B, 5/34 MIG, Gandhi )
Nagar, Bandra (E), Mumbai 400 051. )
2. The Deputy Registrar, )
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Cooperative Societies Mumbai (A-Ward))
Malhotra House, 6th floor, Opp.GPO )
Fort, Mumbai 400 001. )
3. The Divisiional Joint Registrar )
C.S. M.d. (Appeals), Malhotra House )
6th floor, Opp. G.P.O. Mumbai 400 001)
4. State of Maharashtra )
(Service) through the Govt. Pleader )
High Court, (O.S.), Mumbai. )..Respondents
Mr.M.M.Bagadia for Petitioner.
Mr.N.K.Mudnaney with Ms R.V.Bagve for Respondent No.1
Mr. Milind More, AGP for Respondent No.2
CORAM : P.V.KAKADE, J.
DATE : 5TH DECEMBER, 2005
ORAL JUDGMENT :
1. Heard the learned counsel for the Petitioners as
well as for the Respondents.
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2. This Petition filed Under Article 226 of
Constitution of India by the Petitioners impugning the
directions issued by Respondent no.4 dated 9.3.1995 by
way of Circular submitting that it is ultra vires,
illegal and contrary to law and consequently sought
quashing and setting aside the impugned Order dated
21.7.2000 passed by the Respondents with regard to the
activities of the concerned parties.
3. The Petitioner No.1 is a Society, duly
registered under the Maharashtra Cooperative Societies
Act, 1960. The Petitioner No.2 is the Secretary of the
Petitioner No.1 Society. The Respondent Nos.2 and 3 are
Officers appointed by Respondent no.4 under the said
Act. The Respondent No.1 is the member of Petitioner
No.1 Society. The Petitioners have submitted that the
Circular issued on 9.3.1995 passed by Respondent No.4 is
purported to exercise the powers vested under Section
79-A of the Maharashtra Cooperative Societies Act, 1960
(hereinafter referred to as "the said Act") and the
consequential order passed by the Respondent Nos.2 and 3
under Section 97 of the said Act. The impugned Order
/Circular dated 9.3.1995, according to the Petitioner,
is ex-facie, ultra vires, discriminatory, arbitrary and
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unreasonable and therefore, has to be struck down.
. In this regard it must be noted that at the time
of admission of this Petition, along with other similar
Petitions, order was passed to the effect that the
liberty was given to apply soon after the Government of
Maharashtra took decision on the Circular dated
9.3.1995. This order came to be passed in view of the
fact that at the time of admission of this petition, it
was submitted on behalf of the State that the process of
reconsideration of Circular dated 9.3.1995 was in effect
and therefore, liberty was given to apply after the
decision was taken. Now as the situation stands today,
the State Government has in fact reconsidered the
earlier impugned Circular dated 9.3.1995 substituting it
by new Circular dated 1.8.2001 issuing directions to the
effect that the earlier Circular dated 9.3.1995 was
cancelled from the date of issuance of new Circular i.e.
1.8.2001. It was also directed that Non-occupancy
charges would be assessed not more than 10% of the
service charges by the Society excluding the Municipal
Charges. It was further directed that no non-occupancy
charges would be levied on the members if the tenements
are occupied by the relatives mentioned in the said
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Circular. This Circular was made applicable to all
residential and commercial Cooperative Societies.
Therefore, it is needless to mention that the entire
scenario has changed since the time when the Petition
was filed and hence the Petition is finally being heard
on merits.
4. On this background, it would be worthwhile to
look into the allegations made by the Petitioners
against the respondents. It is the case sought to be
made on behalf of the Petitioners that the Respondent
No.1 is a Member of Petitioner No.1 Society and allotted
Flat No.181 in building belonging to Petitioner No.1
Society. As per the bye-laws of the Society the object
of the Society inter alia, is to manage, administer and
maintain its building in accordance with the Cooperative
principles and enforce obligation of the members of the
Society, inter se; bye-laws of the Society. It also
provides that the Society shall collect from members by
way of monthly, quarterly or other periodical or ad hoc
sums as may be decided from time to time by the Managing
Committee to be used for meeting the charges and
expenses for maintenance and the upkeep of the building.
Although it was obligatory on the part of the members to
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occupy their respective flats, bye-laws No.45 of the
Society provides that a member with the previous
permission in writing of the Managing Committee can give
a flat on Leave and Licence basis or Caretaker basis
subject to the conditions set out therein and subject to
the payments of non-occupancy charges to the Society at
such rate as is decided by the general body from time to
time. On 29.9.1997 Respondent Oo.1 addressed a letter
to the Society seeking permission to give his flat to
ANZ Grindlays Bank on leave and licence basis and agreed
and undertook to pay the non-occupancy charges at the
rate fixed by the Society during the period mentioned in
the said agreement. The said permission was granted by
the Society by its letter dated 1.10.1997 subject to the
terms set out therein and on payment of non-occupancy
charges at the rate of 7500/= per month. However,
inpsite of the said undertaking to give along with
charges, the Respondent No.1 failed and neglected to pay
the non-occupancy charges and by a letter dated
12.5.1998 the Respondent No.1 purported to contend that
the levy of non-occupancy charges in contravention of
the Government Circular and the same cannot be collected
from the Respondent No.1.
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. This is the bone contention between the parties.
By letter dated 12.3.2000 the Society called upon the
Respondent No.1 to pay outstanding arrears of
non-occupancy charges amounting to Rs.4,92,741/= and
also called upon the Respondent No.1 to give interest
free deposit of Rs.5 Lakhs. The Respondent No.1, in his
turn, informed the Society that he had paid under
protest the outstanding non-occupancy charges and also
given interest free deposit of Rs.5 lakhs and sought
permission of the Society to give flat on leave and
licence basis.
. On 2.6.2000 the Petitioner No.1 received a
letter dated 9.2.2000 purported to have been issued by
the Respondent No.2 stating therein that a complaint has
been filed by the Respondent No.1 regarding the
non-occupancy charges in excess of the amount permitted
under the Government Circular dated 9.3.1995. It was
stated that the hearing of the complaint was fixed on
11.2.2000. The Petitioner No.1 by its letter dated
18.6.2000 informed the Respondent No.2 that the
aforesaid letter was received on 2.6.2000 and pointed
out that the State Government had confirmed in several
Writ Petitions that the said Circular will not be
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implemented and accordingly the Respondent no.2 was
called upon not to take any steps pursuant to the said
Circular dated 9.3.1995. However, inspite of this
aspect, the Dy. Registrar Cooperative Societies
proceeded with hearing of the matter in absence of the
Petitioners and came to the conclusion that the Circular
dated 9.3.1995 would prevail and passed order
accordingly. The appeal was preferred against the said
order before the Joint Registrar, who refused to Stay
the order pending the appeal. The Joint Registrar
confirmed the order passed by Dy. Registrar holding
that the Circular dated 9.3.1995 issued by the
Government under Section 79A of the said Act would
prevail and dismissed the appeal. Hence the Petition
came to be filed.
5. I have perused the affidavit in reply as well as
the compilation filed by the parties.
. The learned counsel for the Petitioners
submitted that the orders passed by the concerned
authorities dated 21.7.2000 and 30.12.2000 were illegal
and liable to be struck down. It was also contended
that the Circular dated 9.3.1995 was also arbitrary,
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illegal and unreasonable and therefore, could not be
acted upon and thus the order passed on the basis of
impugned Circular is bad in law. The force of the
Circular is also challenged on the ground that it is
illegal and discriminatory.
6. In the impugned Circular dated 9.3.1995 it was
stipulated that non-occupancy charges should not be more
than one time of the service charges and if a member had
given his tenement to family members mentioned in the
Circular no non-occupancy charges would be charged. In
other words, it is the case of the Respondent No.1 that
he is not liable to pay non-occupancy charges more than
one time of service charges and therefore, the demand
made by the Petitioners consequent its resolution was
illegal. In this regard, it must be noted that the view
taken by the Dy. Registrar as well as Joint Registrar
is to the effect that the Society cannot take stands
contrary to the Government Circular dated 9.3.1995
issued by the Government under Section 79-A of the said
Act. The learned counsel for the Respondent No.1 in
this regard sought to put reliance on the order passed
by the Single Judge of this Court in the case of Matru Matru Matru
Ashish Co-op. Housing Society Ltd. vs. Bhavana Ashish Co-op. Housing Society Ltd. vs. Bhavana Ashish Co-op. Housing Society Ltd. vs. Bhavana
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Maternity Home and Ors. reported in 2004 (2) Bom. C.R.
Maternity Home and Ors. reported in 2004 (2) Bom. C.R. Maternity Home and Ors. reported in 2004 (2) Bom. C.R.
864 864 wherein it was categorically held that even though 864
there was contract to pay higher charges, it would not
entitle the Society to claim amounts contrary to the
directions issued by the competent authority. In other
words, it was held that the statutory restrictions or
directions imposed by the State will have to be followed
by the Cooperative Societies under Section 79A of the
Act. It is to be noted that the judgment in Matru Matru Matru
Ashish (supra) Ashish (supra) was appealed against, however, the Ashish (supra)
Division Bench of this Court concurred with the findings
recorded by the learned Single Judge and dismissed the
appeal with observation that the Society would not be
allowed to claim non-occupancy charges from its members
contrary to the directions issued by the competent
authority. The Special Leave Petition was preferred
against the judgment of the Division Bench also
dismissed by the Apex Court. In view of this position,
I do not have any doubt whatsoever that the ratio laid
down by this Court in the case of Matru Ashish (supra) Matru Ashish (supra) Matru Ashish (supra)
has to prevail in order to hold that the Society cannot
claim amount contrary to the directions issued by the
competent authority. The learned counsel for the
Petitioners submitted that the facts involved in the
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case of Matru Ashish were totally different and
therefore, the ratio laid down in the said order cannot
be applicable to the present case. I prefer to disagree
with this submission and hold that the ratio of the said
order is to the effect that the Society is bound by the
directions issued by the competent authority’s Circular
under Section 79 of the said Act and therefore, the
Society has no escape from such directions.
7. In this matter the situation has changed in view
of the position that the State Government has
reconsidered the earlier Circular and has issued fresh
Circular as noted above dated 1.8.2001 directing that
non-occupancy charges would not be more than 10% of the
service charges to be assessed by the Society and
therefore, in my consider view, subsequent Circular
helds fit at the time of final adjudication of this
matter. The Rule issued therein has to prevail to
govern the dispute. The learned counsel for the
petitioners submitted that the State Government thought
it fit to issue subsequent Circular withdrawing earlier
Circular itself shows that the earlier Circular was
illegal and ultra vires. In my considered view, we
cannot jump to any such conclusion only because the
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State Government has thought it fit to review its
earlier decision and in the interest of cooperative
societies and in general reviewed the decision and
issued subsequent Circular. In this regard the learned
counsel for the Petitioners sought to put reliance on
the ruling of the Apex Court in the case of The State of The State of The State of
Maharashtra & Ors. vs. Karvanagar Sahakari Griha Maharashtra & Ors. vs. Karvanagar Sahakari Griha Maharashtra & Ors. vs. Karvanagar Sahakari Griha
Rachana Sanstha Maryadit & Ors. reported in JT 2000 (8) Rachana Sanstha Maryadit & Ors. reported in JT 2000 (8) Rachana Sanstha Maryadit & Ors. reported in JT 2000 (8)
SC 68 SC 68 in order to buttress his argument that the SC 68
directions issued by the State under Section 79-A cannot
be held to be illegal when those are found to be
detrimental to the public or members of the society.
The Apex Court has observed that the directions in
public interest cannot be issued so as to prejudicial to
the interest of the society. What is in the interest of
the society is primarily for the society alone to decide
and not for an outside agency to say. Directions by
Registrar or State Government ought to satisfy the
requirement of the interest of the society. In my
consider view, there cannot be two opinions with regard
to the ratio laid down by the Apex Court. However,
perusal of the entire judgment reflects totally
different set of facts, wherein issue of
commercialisation of Society property was involved when
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there was specific provision not to make use of the flat
for any commercial purpose, and therefore, it was held
that interest of the Society was required to be
considered as paramount against the directions issued by
the State allowing commercial use of the flats which
were earlier purely residential. In these
circumstances, I hold that the ratio laid down by the
Supreme Court in the said case is not applicable to the
preset set of facts. This is especially so, when it is
quite apparent that the exorbitant non-occupancy charges
are seen to be assessed on Respondent No.1 by the
Petitioner Society, and those are clearly contrary to
the directions issued by the State Government under
Section 79A of the said Act by virtue of Circular dated
9.3.1995.
8. The learned counsel for the Petitioners also
sought to submit that the enquiry held by the Dy.
Registrar was in their absence and in fact notice of the
date of hearing was served upon them after the order
came to be passed. However, that aspect was also raised
in the appeal before the Joint Registrar as can be seen
from the record and the Joint Registrar has taken that
aspect into account and dismissed the appeal.
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9. For the reasons recorded above, the Circular
dated 9.3.1995 cannotbe held to be illegal and
therefore, no interference is called for under Writ
Jurisdiction of this Court with regard to the said
Circular dated 9.3.1995 which is already withdrawn by
the State Government and substituted by Circular dated
1.8.2001. In the result there is no merit in the
Petition and it stands dismissed with no order as to
costs. Rule stands discharged.
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2005:BHC-OS:17678
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.560 OF 2001
1. Twin Star Venus Co-op. Housing )
Society Ltd. Venus Apartments, )
87, Cuffe Parade, Mumbai 400 005. )
2. Pravinchandra H. Nanavati )
Secretary of the Petitioner No.1 )
Society, Venus Apartment, 87, )
Cuffe Parade, Mumbai 400 005. )..Petitioners
Versus
1. G.N.Sainani )
Indian Inhabitant, Member of )
Petitioner no.1 Society, presently )
residing at B, 5/34 MIG, Gandhi )
Nagar, Bandra (E), Mumbai 400 051. )
2. The Deputy Registrar, )
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Cooperative Societies Mumbai (A-Ward))
Malhotra House, 6th floor, Opp.GPO )
Fort, Mumbai 400 001. )
3. The Divisiional Joint Registrar )
C.S. M.d. (Appeals), Malhotra House )
6th floor, Opp. G.P.O. Mumbai 400 001)
4. State of Maharashtra )
(Service) through the Govt. Pleader )
High Court, (O.S.), Mumbai. )..Respondents
Mr.M.M.Bagadia for Petitioner.
Mr.N.K.Mudnaney with Ms R.V.Bagve for Respondent No.1
Mr. Milind More, AGP for Respondent No.2
CORAM : P.V.KAKADE, J.
DATE : 5TH DECEMBER, 2005
ORAL JUDGMENT :
1. Heard the learned counsel for the Petitioners as
well as for the Respondents.
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2. This Petition filed Under Article 226 of
Constitution of India by the Petitioners impugning the
directions issued by Respondent no.4 dated 9.3.1995 by
way of Circular submitting that it is ultra vires,
illegal and contrary to law and consequently sought
quashing and setting aside the impugned Order dated
21.7.2000 passed by the Respondents with regard to the
activities of the concerned parties.
3. The Petitioner No.1 is a Society, duly
registered under the Maharashtra Cooperative Societies
Act, 1960. The Petitioner No.2 is the Secretary of the
Petitioner No.1 Society. The Respondent Nos.2 and 3 are
Officers appointed by Respondent no.4 under the said
Act. The Respondent No.1 is the member of Petitioner
No.1 Society. The Petitioners have submitted that the
Circular issued on 9.3.1995 passed by Respondent No.4 is
purported to exercise the powers vested under Section
79-A of the Maharashtra Cooperative Societies Act, 1960
(hereinafter referred to as "the said Act") and the
consequential order passed by the Respondent Nos.2 and 3
under Section 97 of the said Act. The impugned Order
/Circular dated 9.3.1995, according to the Petitioner,
is ex-facie, ultra vires, discriminatory, arbitrary and
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unreasonable and therefore, has to be struck down.
. In this regard it must be noted that at the time
of admission of this Petition, along with other similar
Petitions, order was passed to the effect that the
liberty was given to apply soon after the Government of
Maharashtra took decision on the Circular dated
9.3.1995. This order came to be passed in view of the
fact that at the time of admission of this petition, it
was submitted on behalf of the State that the process of
reconsideration of Circular dated 9.3.1995 was in effect
and therefore, liberty was given to apply after the
decision was taken. Now as the situation stands today,
the State Government has in fact reconsidered the
earlier impugned Circular dated 9.3.1995 substituting it
by new Circular dated 1.8.2001 issuing directions to the
effect that the earlier Circular dated 9.3.1995 was
cancelled from the date of issuance of new Circular i.e.
1.8.2001. It was also directed that Non-occupancy
charges would be assessed not more than 10% of the
service charges by the Society excluding the Municipal
Charges. It was further directed that no non-occupancy
charges would be levied on the members if the tenements
are occupied by the relatives mentioned in the said
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Circular. This Circular was made applicable to all
residential and commercial Cooperative Societies.
Therefore, it is needless to mention that the entire
scenario has changed since the time when the Petition
was filed and hence the Petition is finally being heard
on merits.
4. On this background, it would be worthwhile to
look into the allegations made by the Petitioners
against the respondents. It is the case sought to be
made on behalf of the Petitioners that the Respondent
No.1 is a Member of Petitioner No.1 Society and allotted
Flat No.181 in building belonging to Petitioner No.1
Society. As per the bye-laws of the Society the object
of the Society inter alia, is to manage, administer and
maintain its building in accordance with the Cooperative
principles and enforce obligation of the members of the
Society, inter se; bye-laws of the Society. It also
provides that the Society shall collect from members by
way of monthly, quarterly or other periodical or ad hoc
sums as may be decided from time to time by the Managing
Committee to be used for meeting the charges and
expenses for maintenance and the upkeep of the building.
Although it was obligatory on the part of the members to
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occupy their respective flats, bye-laws No.45 of the
Society provides that a member with the previous
permission in writing of the Managing Committee can give
a flat on Leave and Licence basis or Caretaker basis
subject to the conditions set out therein and subject to
the payments of non-occupancy charges to the Society at
such rate as is decided by the general body from time to
time. On 29.9.1997 Respondent Oo.1 addressed a letter
to the Society seeking permission to give his flat to
ANZ Grindlays Bank on leave and licence basis and agreed
and undertook to pay the non-occupancy charges at the
rate fixed by the Society during the period mentioned in
the said agreement. The said permission was granted by
the Society by its letter dated 1.10.1997 subject to the
terms set out therein and on payment of non-occupancy
charges at the rate of 7500/= per month. However,
inpsite of the said undertaking to give along with
charges, the Respondent No.1 failed and neglected to pay
the non-occupancy charges and by a letter dated
12.5.1998 the Respondent No.1 purported to contend that
the levy of non-occupancy charges in contravention of
the Government Circular and the same cannot be collected
from the Respondent No.1.
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. This is the bone contention between the parties.
By letter dated 12.3.2000 the Society called upon the
Respondent No.1 to pay outstanding arrears of
non-occupancy charges amounting to Rs.4,92,741/= and
also called upon the Respondent No.1 to give interest
free deposit of Rs.5 Lakhs. The Respondent No.1, in his
turn, informed the Society that he had paid under
protest the outstanding non-occupancy charges and also
given interest free deposit of Rs.5 lakhs and sought
permission of the Society to give flat on leave and
licence basis.
. On 2.6.2000 the Petitioner No.1 received a
letter dated 9.2.2000 purported to have been issued by
the Respondent No.2 stating therein that a complaint has
been filed by the Respondent No.1 regarding the
non-occupancy charges in excess of the amount permitted
under the Government Circular dated 9.3.1995. It was
stated that the hearing of the complaint was fixed on
11.2.2000. The Petitioner No.1 by its letter dated
18.6.2000 informed the Respondent No.2 that the
aforesaid letter was received on 2.6.2000 and pointed
out that the State Government had confirmed in several
Writ Petitions that the said Circular will not be
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implemented and accordingly the Respondent no.2 was
called upon not to take any steps pursuant to the said
Circular dated 9.3.1995. However, inspite of this
aspect, the Dy. Registrar Cooperative Societies
proceeded with hearing of the matter in absence of the
Petitioners and came to the conclusion that the Circular
dated 9.3.1995 would prevail and passed order
accordingly. The appeal was preferred against the said
order before the Joint Registrar, who refused to Stay
the order pending the appeal. The Joint Registrar
confirmed the order passed by Dy. Registrar holding
that the Circular dated 9.3.1995 issued by the
Government under Section 79A of the said Act would
prevail and dismissed the appeal. Hence the Petition
came to be filed.
5. I have perused the affidavit in reply as well as
the compilation filed by the parties.
. The learned counsel for the Petitioners
submitted that the orders passed by the concerned
authorities dated 21.7.2000 and 30.12.2000 were illegal
and liable to be struck down. It was also contended
that the Circular dated 9.3.1995 was also arbitrary,
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illegal and unreasonable and therefore, could not be
acted upon and thus the order passed on the basis of
impugned Circular is bad in law. The force of the
Circular is also challenged on the ground that it is
illegal and discriminatory.
6. In the impugned Circular dated 9.3.1995 it was
stipulated that non-occupancy charges should not be more
than one time of the service charges and if a member had
given his tenement to family members mentioned in the
Circular no non-occupancy charges would be charged. In
other words, it is the case of the Respondent No.1 that
he is not liable to pay non-occupancy charges more than
one time of service charges and therefore, the demand
made by the Petitioners consequent its resolution was
illegal. In this regard, it must be noted that the view
taken by the Dy. Registrar as well as Joint Registrar
is to the effect that the Society cannot take stands
contrary to the Government Circular dated 9.3.1995
issued by the Government under Section 79-A of the said
Act. The learned counsel for the Respondent No.1 in
this regard sought to put reliance on the order passed
by the Single Judge of this Court in the case of Matru Matru Matru
Ashish Co-op. Housing Society Ltd. vs. Bhavana Ashish Co-op. Housing Society Ltd. vs. Bhavana Ashish Co-op. Housing Society Ltd. vs. Bhavana
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Maternity Home and Ors. reported in 2004 (2) Bom. C.R.
Maternity Home and Ors. reported in 2004 (2) Bom. C.R. Maternity Home and Ors. reported in 2004 (2) Bom. C.R.
864 864 wherein it was categorically held that even though 864
there was contract to pay higher charges, it would not
entitle the Society to claim amounts contrary to the
directions issued by the competent authority. In other
words, it was held that the statutory restrictions or
directions imposed by the State will have to be followed
by the Cooperative Societies under Section 79A of the
Act. It is to be noted that the judgment in Matru Matru Matru
Ashish (supra) Ashish (supra) was appealed against, however, the Ashish (supra)
Division Bench of this Court concurred with the findings
recorded by the learned Single Judge and dismissed the
appeal with observation that the Society would not be
allowed to claim non-occupancy charges from its members
contrary to the directions issued by the competent
authority. The Special Leave Petition was preferred
against the judgment of the Division Bench also
dismissed by the Apex Court. In view of this position,
I do not have any doubt whatsoever that the ratio laid
down by this Court in the case of Matru Ashish (supra) Matru Ashish (supra) Matru Ashish (supra)
has to prevail in order to hold that the Society cannot
claim amount contrary to the directions issued by the
competent authority. The learned counsel for the
Petitioners submitted that the facts involved in the
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case of Matru Ashish were totally different and
therefore, the ratio laid down in the said order cannot
be applicable to the present case. I prefer to disagree
with this submission and hold that the ratio of the said
order is to the effect that the Society is bound by the
directions issued by the competent authority’s Circular
under Section 79 of the said Act and therefore, the
Society has no escape from such directions.
7. In this matter the situation has changed in view
of the position that the State Government has
reconsidered the earlier Circular and has issued fresh
Circular as noted above dated 1.8.2001 directing that
non-occupancy charges would not be more than 10% of the
service charges to be assessed by the Society and
therefore, in my consider view, subsequent Circular
helds fit at the time of final adjudication of this
matter. The Rule issued therein has to prevail to
govern the dispute. The learned counsel for the
petitioners submitted that the State Government thought
it fit to issue subsequent Circular withdrawing earlier
Circular itself shows that the earlier Circular was
illegal and ultra vires. In my considered view, we
cannot jump to any such conclusion only because the
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State Government has thought it fit to review its
earlier decision and in the interest of cooperative
societies and in general reviewed the decision and
issued subsequent Circular. In this regard the learned
counsel for the Petitioners sought to put reliance on
the ruling of the Apex Court in the case of The State of The State of The State of
Maharashtra & Ors. vs. Karvanagar Sahakari Griha Maharashtra & Ors. vs. Karvanagar Sahakari Griha Maharashtra & Ors. vs. Karvanagar Sahakari Griha
Rachana Sanstha Maryadit & Ors. reported in JT 2000 (8) Rachana Sanstha Maryadit & Ors. reported in JT 2000 (8) Rachana Sanstha Maryadit & Ors. reported in JT 2000 (8)
SC 68 SC 68 in order to buttress his argument that the SC 68
directions issued by the State under Section 79-A cannot
be held to be illegal when those are found to be
detrimental to the public or members of the society.
The Apex Court has observed that the directions in
public interest cannot be issued so as to prejudicial to
the interest of the society. What is in the interest of
the society is primarily for the society alone to decide
and not for an outside agency to say. Directions by
Registrar or State Government ought to satisfy the
requirement of the interest of the society. In my
consider view, there cannot be two opinions with regard
to the ratio laid down by the Apex Court. However,
perusal of the entire judgment reflects totally
different set of facts, wherein issue of
commercialisation of Society property was involved when
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there was specific provision not to make use of the flat
for any commercial purpose, and therefore, it was held
that interest of the Society was required to be
considered as paramount against the directions issued by
the State allowing commercial use of the flats which
were earlier purely residential. In these
circumstances, I hold that the ratio laid down by the
Supreme Court in the said case is not applicable to the
preset set of facts. This is especially so, when it is
quite apparent that the exorbitant non-occupancy charges
are seen to be assessed on Respondent No.1 by the
Petitioner Society, and those are clearly contrary to
the directions issued by the State Government under
Section 79A of the said Act by virtue of Circular dated
9.3.1995.
8. The learned counsel for the Petitioners also
sought to submit that the enquiry held by the Dy.
Registrar was in their absence and in fact notice of the
date of hearing was served upon them after the order
came to be passed. However, that aspect was also raised
in the appeal before the Joint Registrar as can be seen
from the record and the Joint Registrar has taken that
aspect into account and dismissed the appeal.
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9. For the reasons recorded above, the Circular
dated 9.3.1995 cannotbe held to be illegal and
therefore, no interference is called for under Writ
Jurisdiction of this Court with regard to the said
Circular dated 9.3.1995 which is already withdrawn by
the State Government and substituted by Circular dated
1.8.2001. In the result there is no merit in the
Petition and it stands dismissed with no order as to
costs. Rule stands discharged.
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