Case Note & Summary
The petitioners, including Ashok Mahadevan and others, filed a writ petition under Article 226 of the Constitution before the Bombay High Court seeking a writ of prohibition against the Divisional Joint Registrar of Co-operative Societies (First Respondent) from proceeding with an application dated 15 March 2012 filed by Respondents 2, 3, and 6. The application sought sanction to prosecute the petitioners under Section 148 of the Maharashtra Co-operative Societies Act, 1960. The background of the dispute involves the Pilot Bunder Co-operative Housing Society, which was allotted a plot of foreshore land by the Collector for housing defence and civil services officers. A lease agreement was entered into on 7 March 1967, and a formal lease was executed on 10 August 1971 for 99 years. Membership was restricted to officers in service and equivalent civilian officers, and the licensee was restricted from transferring or assigning interest without the Collector's consent. The Third Petitioner, residing in Vishakapatnam, was admitted as a member and shares were transferred to him pursuant to a Managing Committee decision dated 12 June 2008, allegedly without prior permission of the Collector as required under Bye-law 17(c) and Lease condition 6(n). He purchased Flat No.8B in the Society's building 'Dolphin' from a member owner via a registered Sale Deed dated 6 August 2008. The application alleged that the Secretary of the Society, Capt. Raichand, addressed a letter dated 23 January 2009 to the Second and Third Petitioners stating that neither the transfer of shares nor the flat was permissible. The petitioners contended that the dispute was civil in nature, involving breach of contract and civil rights, and that criminal prosecution under Section 148 was not maintainable. The court, after hearing arguments, held that the dispute was essentially civil and that the Registrar lacked jurisdiction to grant sanction for prosecution. The court issued a writ of prohibition restraining the First Respondent from proceeding with the application for sanction, thereby quashing the proceedings.
Headnote
A) Co-operative Societies - Prosecution Sanction - Section 148 of the Maharashtra Co-operative Societies Act, 1960 - Jurisdiction - The court considered whether the Registrar could grant sanction to prosecute for alleged violations of bye-laws and lease conditions regarding transfer of shares and flat. Held that the dispute was essentially civil in nature, involving breach of contract and civil rights, and did not warrant criminal prosecution under the Act. The court issued a writ of prohibition restraining the Registrar from proceeding with the sanction application. (Paras 2-11) B) Constitutional Law - Writ of Prohibition - Article 226 of the Constitution of India - Abuse of Process - The court held that where a criminal prosecution is sought to be initiated for a dispute that is purely civil, the High Court can exercise its writ jurisdiction to prevent abuse of the legal process. The application for sanction under Section 148 was quashed as it lacked jurisdiction. (Paras 2-11)
Issue of Consideration
Whether the Divisional Joint Registrar of Co-operative Societies can proceed with an application for sanction to prosecute the petitioners under Section 148 of the Maharashtra Co-operative Societies Act, 1960, when the underlying dispute is essentially civil in nature.
Final Decision
The court allowed the writ petition and issued a writ of prohibition restraining the First Respondent, the Divisional Joint Registrar of Co-operative Societies, from proceeding with the application dated 15 March 2012 for sanction to prosecute the petitioners under Section 148 of the Maharashtra Co-operative Societies Act, 1960.
Law Points
- Section 148 of the Maharashtra Co-operative Societies Act
- 1960 requires previous sanction of Registrar for prosecution
- but such sanction cannot be granted for disputes that are essentially civil in nature
- criminal prosecution under the Act is not maintainable for matters involving breach of contract or civil rights
- High Court under Article 226 can issue writ of prohibition to prevent abuse of process.
