1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS. 364, 382, 390 AND 409 OF 2009 WRIT PETITION NO.364 OF 2009 1. Mr. John Rodrigues, Major, r/o Flat F-B-11 Block B La Shangrila Apartments, Coop. Housing Society Limited Miramar, Panaji Goa represented by His Power of attorney holder Smt. Pauline Rodrigues .. Petitioner Versus 1. Shangrila Apartments, Coop. Housing Society Limited Miramar, Panaji, Goa. 2. Cooperative Tribunal with office at Panaji. 3. Nominee of Registrar of Coop. Societies, North Goa Panaji with office Central Zone, Above Sahakar Bhandar, Near Municipal Market Panaji, Goa. .. Respondents WITH WRIT PETITION NO.382 OF 2009 Mr. Anthony Dennis Major, r/o Flat FB-8, Block B, Shangri-la Apartments, Co-op Housing Society Ltd. Miramar, Panaji, Goa. .. Petitioner. Versus 1. Shangrila Apartments, Coop. Housing Society Limited Miramar, Panaji, Goa. 2. Cooperative Tribunal with 2 office at Panaji. 3. Nominee of Registrar of Coop. Societies, North Goa Panaji with office Central Zone, Above Sahakar Bhandar, Near Municipal Market Panaji, Goa. .. Respondents WITH WRIT PETITION NO.390 OF 2009 Mrs. Luiza D'Souza, Flat No.FB-5, Block B, Shangri-La Apartments, Coop. Housing Society Limited, Miramar, Panaji, Goa .. Petitioner. Versus 1. The Shangrila Apartments, Coop. Housing Society Limited Miramar, Panaji, Goa. 2. Cooperative Tribunal with office at Panaji. 3. Nominee of Registrar of Coop. Societies, North Goa Panaji with office Central Zone, Above Sahakar Bhandar, Near Municipal Market Panaji, Goa. .. Respondents WITH WRIT PETITION NO.409 OF 2009 Mr. Rui Fernandes since deceased, Major, r/o Flat-B6, Block B La Shangrila Apartments, Coop. Housing Society Limited Miramar, Panaji, Goa Through 1(a) leslie Basil Fernandes A1F2Nalanda Rawanfond, Aquem Baixo Navelim Saalete Goa 3 1(b) Kennedy Fernandes S-4 Barreto Apartments Borchem Bhat Caranzalem-Goa 1(c) Lizbeth Mendonca c/o Roy Mendonca, 811-340 Mill Road, Etobicoke, On M9CIY8, Canada. .. Petitioners. Versus 1. The Shangrila Apartments, Coop. Housing Society Limited Miramar, Panaji, Goa. 2. Cooperative Tribunal with office at Panaji. 3. Nominee of Registrar of Coop. Societies, North Goa Panaji with office Central Zone, Above Sahakar Bhandar, Near Municipal Market Panaji, Goa. .. Respondents Mr. Ryan Menezes, Advocate for the petitioner/s in all Writ Petitions. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for respondent no.1 in all Writ Petitions. Mrs. Susan Linhares, Additional Government Advocate for respondent nos.2 and 3 in all Writ Petitions. Coram :- A. P. LAVANDE, J. Reserved on : 1 st December, 2010 Pronounced on : 23 rd December, 2010 ORDER : Heard Mr. Menezes, learned Counsel for the 4 petitioners, Mr. D'Costa, learned Senior Counsel for respondent no.1 and Mrs. Linhares, learned Additional Government Advocate for respondent nos. 2 and 3. 2. All these writ petitions are being disposed of by common order since the facts and the questions of law involved in all these writ petitions are almost identical. 3. In the year 1992, respondent no.1( society ) was incorporated and registered on an application of residents of building D in plot A in the property under Chalta No.1, P.T. Sheet No.120 City Survey Panaji. It is the case of the petitioners that the petitioners are occupying the flats in building B situated in the said property and in the said plot there are four buildings A, B, C and D constructed by M/s. Rinvin Builders. According to the petitioners, they being the occupants of the flats in building B, are not the members of the society, whereas according to respondent no.1, they are the members of the society and the occupants of the flats in all the four buildings are members of the said society. 4. Since the petitioners did not pay dues payable to the society, society raised the disputes under Section 91 of the The Maharashtra Co-operative Societies Act,1960 ('The 5 Act' for short). The Assistant Registrar after holding that there were 'disputes' under Section 91 of the Act, referred the disputes in all the four cases to the Nominee of the Registrar of Co-operative Societies ('Registrar's Nominee' for short) under Section 93 of the Act. Before the Registrar's Nominee, the petitioners contended that building B was not part of the society and as such, they were not liable for any amounts to the society. Except the petitioner in W.P. No.364/2009, the other petitioners did not lead any evidence, whereas the evidence was led on behalf of the society. The Registrar's Nominee allowed the claims of the society in all four the cases and directed the petitioners to pay different amounts claimed by the society with interest. The petitioners preferred appeals to the Co-operative Tribunal of Goa at Panaji, which have been dismissed by the Tribunal upholding the orders passed by the Registrar's Nominee. 5. By filing these petitions, the petitioners have challenged the orders passed by both i.e. Registrar's Nominee as well as of the Co-operative Tribunal on different grounds. Since the arguments advanced on behalf of the petitioners and society are almost identical in all the cases, I propose to pass this common order. 6 6. Mr. Menezes, learned Counsel appearing for the petitioners in all these petitions submitted that the society was registered only with regard to building D and as such, the petitioners cannot be termed as the members of the society and consequently, the disputes raised by the society against the petitioners are not maintainable. He further submitted that the Assistant Registrar has erred in treating the applications filed by the society as disputes and consequently, the Registrar's Nominee has erred in entertaining the disputes under the Act. Mr. Menezes further submitted that the materials on record clearly establish that the society was registered only in respect of building D and building B was never made part of the society and, therefore, both the impugned orders are liable to be set aside. Mr. Menezes submitted that merely because some of the petitioners were under mis-conception that building B was part of the society and sought membership, the same by itself would not be sufficient to term them as the members of the society nor does it create any right in favour of the society qua the petitioners. He further submitted that those petitioners, who became members were under belief that society is extended to building B, but the same would not be sufficient to confer the right on the society to claim different amounts from the petitioners, who are not the members of 7 the society. He further submitted that in the absence of something more tangible to show that society was extended to building B, the same, would not by itself extend society to building B. He further submitted that since no title has been created in favour of respondent no.1 in respect of building B by transferring proportionate undivided share of land, enrollment of the members by itself would not extend jurisdiction of respondent no.1 in respect of building B. He further submitted that letter dated 11th February, 2005 issued by Assistant Registrar that society is registered with 11 occupant members, consists of 38 members in building A, B, C and D would not advance the case of the society. He further submitted that the orders passed by the Assistant Registrar holding that there are disputes in terms of Section 91 of the Act and the fact that the same were not challenged by the petitioners, would not clothe the Registrar's Nominee with the jurisdiction to decide the disputes since the Registrar's Nominee has jurisdiction only to decide the disputes between the society and members. Placing reliance upon the judgment dated 7th July, 2009 passed by the Civil Judge, Senior Division, Panaji, which was delivered subsequent to the filing of the petitions, Mr. Menezes submitted that the same clearly supports the case of the petitioners. He further submitted that the impugned orders 8 passed in all the petitions, are patently without jurisdiction in as much as the petitioners are not the members of the society. 7. Per contra, Mr. D'Costa, learned Senior Counsel appearing for respondent no.1 supported the impugned orders and submitted that the Assistant Registrar after satisfying himself that there were disputes under the Act, referred the disputes in all the four cases to the Registrar's Nominee under Section 93 of the Act read with Rule 72. The said orders were not challenged by the petitioners and as such, have become final and, therefore, the Registrar's Nominee was justified in entertaining the disputes and passing the orders and consequently, the Co-operative Tribunal was also justified in entertaining the disputes and appeals. He, therefore, submitted that at no point of time, the petitioners have specifically challenged the orders passed by the Assistant Registrar holding that there were disputes between the petitioners and the society and as such, the petitioners are now not entitled to contend that there were no disputes in terms of Section 91 of the Act, more particularly having regard to the fact that the said orders has not even been challenged in the present petitions. Mr. D'Costa further submitted that the petitions though styled as 9 under Articles 226 and/ or 227 of the Constitution of India, the petitions are primarily under Article 227 and no case has been made out for interference with the impugned judgments and orders. 8. Mr. D'Costa further submitted that the materials on record clearly discloses that the petitioners were the members of the society and building B also formed part of the society. He further submitted that the petitioners in W.P. No.364/2009 and her husband are the transferee of original old member Shri Girish Karia as disclosed by share certificate. He further submitted that both of them even applied for membership in prescribed form and submitted letter to abide by the bye-laws and pay the dues and also obtained N.O.C. from the society to obtain a loan. Paulina Rodrigues, wife of the petitioner was also the member of the managing committee for some time and she resigned on 6th May, 2005. She had not even stated that she was misled to become a member of the society or of managing committee. Mr. D'Costa further submitted that petitioner in W.P. No. 382 himself applied for admission of the society after paying the share value and he was admitted as is evident from the share certificate and himself is plaintiff no.5 in the suit between society and builder as is evident from the copy of the 10 judgment produced by the petitioners themselves. He further submitted that the petitioner in W.P. No.390 of 2009 is a transferee of the original member Ms. Bertha Alvares as is evident from the share certificate and he even paid contribution as is evident from the auditor's report. He further submitted that the petitioner in W.P. No.409/2009 and his wife Noemia Fernandes are the transferee of original members Charlotte Alphonso and Edward Alphonso as is evident from the share certificate and the auditor's report clearly discloses that as occupant of flat No. B-6 he had paid membership fee and share capital. Mr. D'Costa, therefore, submitted that the conduct of the petitioners clearly disentitle them from seeking any extraordinary relief from this Court. 9. I have carefully considered the rival submissions and perused the record. 10. In so far as the argument of Mr. Menezes that neither Assistant Registrar nor Registrar's Nominee had jurisdiction to entertain the disputes since these were the 'disputes' between the petitioners and the society on the ground that the petitioners are not the members of the society is concerned, I find myself unable to agree with the 11 same. Pursuant to the orders passed by the Assistant Registrar that there were disputes between the Society and the petitioners, the disputes under Section 91 of the Act were referred to the Registrar's Nominee. Therefore, it was incumbent on the part of the petitioners to challenge the said orders at appropriate time. The petitioners have not challenged these orders and, therefore, I find myself unable to accept the submission of Mr. Menezes that neither Co- operative Tribunal nor Registrar's Nominee had any jurisdiction to entertain the disputes, therefore, the impugned orders are liable to be set aside. Moreover, There is abundant material on record to hold that the petitioners were the members of the society. The Co-operative Tribunal as well as the Registrar's Nominee placed reliance upon the letter dated 11st February, 2005 in which it has been specifically stated that the society consists of 38 members of Buildings A, B, C and D. Moreover, as rightly submitted by Mr. D'Costa, the petitioners themselves sought membership of the society and one of them even acted as the members of the managing committee. I do not find any merit in the submission of Mr. Menezes that they became member upon misconception that building B was part of the society. I also do not find merit in the submission of Mr. Menezes that since proportionate share in the land in respect of the building B 12 was not transferred in favour of the society the occupants of building B could not be termed as members of the society. The petitioners themselves having opted to become the members of the society now are cannot be heard to contend that they are not the members of the society. The petitioners cannot blow hot and cold. 11. Although the petitions have been styled as the petitions under Article 226 and/ or 227 of the Constitution of India, having regard the nature of the reliefs sought, I am of the considered opinion that the petitions are essentially under Article 227 of the Constitution of India. The jurisdiction under Article 227 is although wide extends to keeping the subordinate Tribunals within the limits of the authority, it is well settled that the power of judicial superintendence under Article 227 must be exercised sparingly to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors even of law. It cannot be said that both the authorities below have acted on evidence which is inadmissible or that the finding is not supported by any evidence at all. Both Co- operative Tribunal as well as Registrar's Nominee, upon appreciation of the materials before them, have arrived at a finding that the petitioners are the members and as such, are 13 liable to pay the dues claimed by the society. 12. In view of the above, I do not find any ground to interfere with the impugned judgments and orders. In my considered opinion, no case has been made out for exercise of jurisdiction under Article 227 of the Constitution of India. Hence, all the petitions are dismissed with no order as to costs. A. P. LAVANDE, J. SMA