Case Note & Summary
The petitioner, Vithalnagar Cooperative Housing Society, challenged two orders dated 21.07.2010 and 27.07.2010 passed by the Divisional Joint Registrar, Cooperative Societies, Mumbai. The impugned orders rejected the society's objection and treated an application dated 10.01.2010 filed by Respondent No.2, Gautam Patel, as maintainable under Section 83 of the Maharashtra Cooperative Societies Act, 1960. The Registrar then forwarded the application to the Deputy Registrar to take appropriate decision expeditiously by invoking suo motu inquiry under Section 83. The core legal issue was whether an application for inquiry under Section 83 can be filed by a person who is not a member of the society on the date of filing. The Court noted that Respondent No.2 was admittedly not a member on 10.01.2010, and his membership was pending in other proceedings. The Court held that Section 83 requires an application to be made by at least one-third or one-fifth of the members of the society. Since the application was filed by a non-member, it was not maintainable. The Court further held that while the Registrar has suo motu powers to order an inquiry, such powers cannot be invoked based on an application by a non-member. The impugned orders were quashed and set aside. The Court directed that if the Registrar wishes to exercise suo motu powers, he may do so independently based on available material, but not on the basis of the non-member's application.
Headnote
A) Cooperative Societies - Inquiry under Section 83 - Maintainability of Application - Section 83 of the Maharashtra Cooperative Societies Act, 1960 - The Court considered whether an application for inquiry filed by a non-member could be treated as maintainable. The Court held that the application must be filed by at least one-third or one-fifth of the members of the society. Since the applicant was not a member on the date of application, the application was not maintainable. The Registrar's order treating it as maintainable and forwarding it for suo motu inquiry was quashed. (Paras 3-5)
Issue of Consideration
Whether an application for inquiry under Section 83 of the Maharashtra Cooperative Societies Act, 1960 filed by a person who is not a member of the society on the date of application can be treated as maintainable and can form the basis for the Registrar to invoke suo motu powers under Section 83.
Final Decision
The impugned orders dated 21.07.2010 and 27.07.2010 are quashed and set aside. The writ petition is allowed. No order as to costs.
Law Points
- Section 83 of the Maharashtra Cooperative Societies Act
- 1960 requires application by at least one-third or one-fifth of members for inquiry
- Suo motu inquiry by Registrar is permissible but cannot be based on application by a non-member
- Membership status must be determined as on date of application
Case Details
WRIT PETITION NO. 1609 OF 2010
Mr. Rohan Rajadhyaksha with Mr. Viral Amin i/by B. Amin & Co for the Petitioner, Mr. Rajiv Mane, Addl. Government Pleader for the Respondents 1 and 3, None for Respondent No.2.
Vithalnagar Cooperative Housing Society
1 The Divisional Joint Registrar, CSMD, 2 Gautam Patel, 3 The Deputy Registrar, Cooperative Societies
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Nature of Litigation
Writ petition challenging orders of the Divisional Joint Registrar under the Maharashtra Cooperative Societies Act, 1960.
Remedy Sought
The petitioner society sought quashing of the impugned orders dated 21.07.2010 and 27.07.2010 passed by the Divisional Joint Registrar.
Filing Reason
The Registrar treated an application filed by Respondent No.2, who was not a member of the society on the date of application, as maintainable under Section 83 and forwarded it for suo motu inquiry.
Previous Decisions
The Divisional Joint Registrar passed orders on 21.07.2010 and 27.07.2010 rejecting the society's objection and treating the application as maintainable.
Issues
Whether an application for inquiry under Section 83 of the Maharashtra Cooperative Societies Act, 1960 filed by a non-member is maintainable.
Whether the Registrar can invoke suo motu powers under Section 83 based on an application by a non-member.
Submissions/Arguments
The petitioner argued that Respondent No.2 was not a member on the date of application (10.01.2010) and therefore the application was not maintainable under Section 83.
The petitioner contended that the Registrar's order to initiate suo motu inquiry based on a non-member's application was illegal.
Ratio Decidendi
An application for inquiry under Section 83 of the Maharashtra Cooperative Societies Act, 1960 must be filed by at least one-third or one-fifth of the members of the society. A non-member cannot file such an application. The Registrar's suo motu powers under Section 83 cannot be invoked based on an application by a non-member.
Judgment Excerpts
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.
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, the impugned order cannot be sustained.
Procedural History
The petitioner society filed a writ petition in the High Court of Bombay challenging the orders dated 21.07.2010 and 27.07.2010 passed by the Divisional Joint Registrar, Cooperative Societies, Mumbai. The matter was heard on 29.01.2015 and 02.02.2015, and judgment was reserved and delivered on 04.02.2015.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: 83, 88
