1 app413.11group.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 413 OF 2011 IN NOTICE OF MOTION NO. 172 OF 2010 IN SUIT NO. 144 OF 2010 WITH NOTICE OF MOTION NO. 2071 OF 2011 IN APPEAL NO. 413 OF 2011 IN NOTICE OF MOTION NO. 172 OF 2010 IN SUIT NO. 144 OF 2010 M/s. Sumer Associates ...Appellants. Vs. Margaret Almeida & Ors. ...Respondents. WITH APPEAL NO. 411 OF 2011 IN WRIT PETITION NO. 1824 OF 2010 WITH NOTICE OF MOTION NO. 2069 OF 2011 IN APPEAL NO. 411 OF 2011 IN WRIT PETITION NO. 1824 OF 2010 M/s. Sumer Associates ...Appellants. Vs. 2 app413.11group.sxw ssm Anthony D’Sa & Ors. ...Respondents. WITH APPEAL NO. 487 OF 2011 IN NOTICE OF MOTION NO. 173 OF 2010 IN SUIT NO. 145 OF 2010 The Bombay Catholic Co-operative Housing Society Limited ...Appellants Vs. Mrs. Priti G. Mungrey & Ors. ...Respondents. WITH APPEAL NO. 488 OF 2011 IN WRIT PETITION NO. 1824 OF 2010 The Bombay Catholic Co-operative Housing Society Limited ...Appellants Vs. Anthony D’Sa & Ors. ...Respondents. WITH APPEAL NO. 489 OF 2011 IN NOTICE OF MOTION NO. 172 OF 2010 IN SUIT NO. 144 OF 2010 The Bombay Catholic Co-operative Housing Society Limited ...Appellants Vs. Craig Pereyra & Ors. ...Respondents. 3 app413.11group.sxw ssm WITH APPEAL NO. 493 OF 2011 IN WRIT PETITION NO. 1769 OF 2010 The Bombay Catholic Co-operative Housing Society Limited ...Appellants Vs. Jennifer Pegado & Ors. ...Respondents. WITH APPEAL NO. 412 OF 2011 IN WRIT PETITION NO. 1769 OF 2010 WITH NOTICE OF MOTION NO. 2073 OF 2011 IN APPEAL NO. 412 OF 2011 IN WRIT PETITION NO. 1769 OF 2010 M/s. Sumer Associates ...Appellants Vs. Jennifer Pegado & Ors. ...Respondents. WITH APPEAL NO. 414 OF 2011 IN NOTICE OF MOTION NO. 173 OF 2010 IN SUIT NO. 145 OF 2010 M/s. Sumer Associates ...Appellants 4 app413.11group.sxw ssm Vs. Mrs. Priti G. Mungrey & Ors. ...Respondents. WITH NOTICE OF MOTION NO. 2063 OF 2011 IN APPEAL NO. 414 OF 2011 IN NOTICE OF MOTION NO. 173 OF 2010 IN SUIT NO. 145 OF 2010 M/s. Sumer Associates ...Appellants Vs. Mr. Girish Mungrey & Ors. ...Respondents. WITH APPEAL (L) NO. 507 OF 2011 IN WRIT PETITION NO. 1824 OF 2010 Celine Castellino ...Appellant Vs. Anthony D’Sa & Ors. ...Respondents. WITH APPEAL (L) NO. 508 OF 2011 IN NOTICE OF MOTION NO. 173 OF 2010 IN SUIT NO. 145 OF 2010 William D’Souza & Ors. ...Appellants. Vs. Girish Mungrey & Ors. ...Respondents. 5 app413.11group.sxw ssm WITH APPEAL NO. 572 OF 2011 IN WRIT PETITION NO. 1769 OF 2010 Celine Castellino ...Appellant Vs. Jennifer Pegado & Ors. ...Respondents. WITH APPEAL NO. 573 OF 2011 IN NOTICE OF MOTION NO. 172 OF 2010 IN SUIT NO. 144 OF 2010 Gwendaline Lobo & Anr. ...Appellants. Vs. Margaret Almeida & Ors. ...Respondents. WITH APPEAL (L) NO. 469 OF 2011 IN WRIT PETITION NO. 1769 OF 2010 WITH NOTICE OF MOTION NO. 2221 OF 2011 IN APPEAL (L) NO. 469 OF 2011 IN WRIT PETITION NO. 1769 OF 2010 Francis Phillips & Ors. ...Appellants. Vs. Jennifer Pegado & Ors. ...Respondents. Mr. Rafiq Dada, Sr. Advocate with Mr. P.K. Dhakephalkar, Sr. Counsel 6 app413.11group.sxw ssm with Dr Birendra Saraf i/b M/s Kishor Thakordas and Co. for Appellants in Appeal Nos.411 to 414 of 2011. Mr Vijay Thorat, Sr. Counsel with Mr Chetan Kapadia, Mr I.Peter D’ Cruz, Mr A. Lokhandwala, Ms.Prachi Tatke i/b M/s . Lokhandwala and Co. for Appellants in Appeal (L) Nos. 507 and 508 of 2011 and Appeal No. 572 and 573 of 2011 and for Respondent No.16 in Appeal (Lodging) No. 469 of 2011. Mr N.H. Seervai, Sr. Counsel with Mr Vineet Naik, Mr C.D. Mehta, Mr Bhavik C. Mehta and Mr Lalan Gupta i/b M/s Dhruve Liladhar and Co. for Appellants in Appeal Nos. 487, 488, 489 and 493 of 2011. Mr Pradip Sancheti, Sr. Counsel with Mr Mukul Taly and Mr Shaikh Yusuf Ali i/b M/s S. Mohamedbhai and Co. for intervenor, Francis Phillips and Appellants in Appeal (Lodging) No. 469 of 2011. Mr Iqbal Chagla, Sr. Advocate with Mr. F.E. Devitre, Sr. Counsel i/b M/s Dastur Dadhich and Kalambi for Respondent Nos.33 and 34 in Appeal No.414 of 2011, Respondent Nos.15 and 16 in Appeal No.411 of 2011, Respondent Nos.27 and 28 in Appeal No.413 of 2011, Respondent Nos.17 and 18 in Appeal No.412 of 2011, Respondent Nos.17 and 18 in Appeal No. 572 of 2011, Respondent Nos. 32 and 33 in Appeal No. 487 of 2011, Respondent Nos. 27 and 28 in Appeal No. 573 of 2011, Respondent Nos.23 and 24 in Appeal (L) No.508 of 2011, Respondent Nos.14 and 15 in Appeal (L) No.507 of 2011 and for Respondent Nos. 18 and 19 in Appeal (L) No. 469 of 2011. Mr D.D. Madon, Sr. Counsel with Mr Aditya Thakkar i/b M/s Khare Legal Chambers for Respondent Nos.1 to 6 in Appeal Nos.414 of 2011 and Appeal (L) No.508 of 2011, Respondent Nos.1 to 9 in Appeal Nos. 411 of 2011 and Appeal (L) No.507 of 2011, Respondent Nos. 1 to 9 in Appeal No.487 of 2011, Respondent Nos. 1 to 6 in Appeal (L) No. 508 of 2011. Mr E.P. Bharucha, Sr. Counsel with Mr Robin Jaisinghani, Mr Farhan Dubhash, Mr Cyrus Bharucha i/b Ms Hetal Patel for Respondent Nos.1 to 9 in Appeal Nos.413 of 2011 and Appeal No. 573 of 2011, Respondent Nos.1 to 11 in Appeal Nos.412 of 2011 and Appeal No.572 of 2011, Respondent Nos. 3, 5, 6, 7A, 8, 9, 11 to 13 in 7 app413.11group.sxw ssm Appeal No. 489 of 2011, Respondent Nos.1 to 12 in Appeal No.493 of 2011 and for Respondent Nos. 1 and 12 in Appeal (L) No. 469 of 2011. Mr Rafique Dada, Sr. Counsel with Mr P.K. Dhakephalkar, Sr. Counsel and Dr Birendra Saraf i/b M/s Dhruve Liladhar and Co. for Respondent No.19 in Appeal No.572 of 2011, Respondent No.16 in Appeal (L) No.507 of 2011, Respondent No.29 in Appeal No.573 of 2011, Respondent No.25 in Appeal (L) No. 508 of 2011 and for Respondent No. 2 in Appeal (L) No. 469 of 2011. Mr. P.G. Lad, AGP for Respondent No. 10,11 and 12 in Appeal No. 411 of 2011 to 414 of 2011 and Respondent Nos. 13 to 15 in Appeal No. 489 of 2011 and 493 of 2011 and for Respondent Nos. 13, 14 and 15 in Appeal (L) No. 469 of 2011. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 29 AUGUST 2011. P.C. :- By these Appeals, orders passed by the learned Single Judge in relation to the same property are challenged. Therefore, these Appeals can be conveniently disposed of by a common order. Before the learned Single Judge there were two Writ Petitions, Writ Petition No. 1769 of 2010 and Writ Petition No. 1824 of 2010 challenging the order passed by the State Government in relation bifurcation of a Co- operative Housing Society by name the Bombay Catholic Co-operative Housing Society Limited (hereinafter referred to as “the Society”). 8 app413.11group.sxw ssm Before the learned Single Judge apart from these two Petitions a few notice of motions were filed. Notice of Motion No. 172 of 2010 was taken out in Suit No. 144 of 2010. Suit No. 144 of 2010 is filed by persons who were members of the Society seeking a decree of declaration that the general body resolution of the Society dated 6 December 2009 and the conveyance of the property of the Society dated 7th December 2009 are invalid and illegal. Notice of Motion No. 173 of 2010 was taken out by the Plaintiff in a Suit No. 145 of 2010 which was filed by another set of members of the same society claiming identical reliefs. There was also a Notice of Motion No. 148 of 2010 taken out in Suit No. 1 of 2008 that was filed by one Mr. B.Y. Chavan and another seeking certain reliefs against the same Society and the same land. The learned Single Judge by his order which is impugned in these Appeals in so far as the Writ Petitioners are concerned has allowed the Writ Petition and has set aside the order passed by the State Government. The consequence of the order of the learned Single Judge is that the order passed by the Divisional Joint Registrar in the proceedings initiated under Section 18 of the Maharashtra Co-operative Societies Act for division of the aforesaid co-operative Housing Society remanding the proceedings back to the original authority is maintained. Appeals have been filed challenging 9 app413.11group.sxw ssm that order of the learned Single Judge. In the Civil Suits including Civil Suit No. 1 of 2010 a preliminary objections to the maintainability of the Civil Suits were raised on the ground that for non compliance with the provisions of Section 164 of the Maharashtra Co-operative Societies Act, the suits are not maintainable, and also that because subject matter of the suits is covered by Section 91 of the Maharashtra Co-operative Societies Act, Civil Court does not have a jurisdiction to entertain the Civil Suits. The learned Single Judge, therefore, framed two preliminary issues and decided those preliminary issues mainly by his order dated 5th of May 2011 passed in Notice of Motion No. 148 of 2010 in Suit No. 1 of 2010. 2 The learned Single Judge held that the Suits are maintainable. The learned Single Judge, thereafter considered the Notice of Motions on merits and has directed the parties to maintain the status-quo. 3 Thus Appeals have been filed challenging the order passed by the learned Single Judge in the two Writ Petitions as also, Appeals have also been filed challenging the order passed by the learned Single Judge in the Notice of Motions taken out in the Suits where, by those orders, the learned Single Judge has held that the Suits are 10 app413.11group.sxw ssm maintainable and has granted interim order in favour of the Plaintiffs directing the parties to maintain status-quo. 4 Appeal No. 413 of 2011 is filed by M/s. Sumer Associates, a partnership firm challenging the order in the Notice of Motion No. 182 of 2010 in suit No. 144 of 2010. 5 Appeal No. 411 of 2011 is filed by M/s. Sumer Associates, challenging the order in Writ Petition No. 1824 of 2010. 6 Appeal No. 487 of 2011 is filed by the Co-operative Housing Society by name the Bombay Catholic Co-operative Housing Society Limited challenging the order of learned Single Judge in Notice of Motion No. 173 of 2010 directing the parties to maintain the status- quo. 7 Appeal No. 488 of 2011 is filed by the Bombay Catholic Co- operative Housing Society Limited challenging the order passed by the learned Single Judge in Writ Petition No. 1824 of 2010. 8 Appeal No. 489 of 2011 is filed by the Bombay Catholic Co- 11 app413.11group.sxw ssm operative Housing Society Limited challenging the order of the learned Single Judge in Notice of Motion No. 172 of 2010 in Suit No. 144 of 2010 directing the parties to maintain status-quo. 9 Appeal No. 493 of 2011 filed by the Bombay Catholic Co- operative Housing Society Limited challenging the order made by the learned Single Judge in Writ Petition No. 1769 of 2010. 10 Appeal No. 412 of 2011 is filed by M/s. Sumer Associates directing the order passed by the learned Single Judge in Writ Petition No. 1769 of 2010. 11 Appeal No. 414 of 2011 is filed by M/s. Sumer Associates challenging the order passed in Notice of Motion No. 173 of 2010 in Suit No. 145 of 2010 directing the parties to maintain the Status quo. 12 Appeal (L) No. 507 of 2011 is by Celine Castellino who was Respondent in Writ Petition No. 1824 of 2010. 13 Appeal (L) No. 508 of 2011 filed by William D’Souza and others challenging the order passed by the learned Single Judge in Notice of 12 app413.11group.sxw ssm Motion No. 173 of 2010 in Suit No. 145 of 2010 directing the parties to maintain status quo. 14 Appeal No. 572 of 2011 is filed by Celine Castellino challenging the order passed by the learned Single Judge in Writ Petition No. 1769 of 2010. 15 Appeal No. 573 of 2011 is filed by Gwendaline Lobo and Others challenging the order in Notice of Motion No. 172 of 2010 in Suit No. 144 of 2010 directing the parties to maintain status-quo. 16 The Appeals are admitted. By consent of the parties they are heard finally. 17 Appeal (L) No. 469 of 2011 is filed by Francis Phillips and Ors. Challenging the order passed by the learned Single Judge in Writ Petition No. 1769 of 2010 setting aside the order passed by the State Government and maintaining the order of Divisional Joint Registrar in Appeal. According to the Appellants permitting to intervene in that Petition. However as we propose to maintain the order of the learned Single Judge which is also challenged in other Appeals we need not 13 app413.11group.sxw ssm entertain this Appeal. 18 As observed above, the principal order on the preliminary issue as to the maintainability of the Suits was decided by the learned Single Judge by passing order in Notice of Motion No. 148 of 2010 taken out in Suit No.1 of 2010. That Appeal we have disposed of by a separate order. However, for deciding the Appeals in so far as the aspect of maintainability of the Civil Suit is concerned, we will be referring to that order. 19 Now first taking up the Appeals where the order passed by the learned Single Judge in the two Writ Petitions is challenged for consideration, the relevant facts are that proceedings under Section 18 of the Maharashtra Co-operative Societies Act were initiated for bifurcation of the aforesaid co-operative housing society. The proceedings once went up to the Supreme Court. They were remanded. On remand, there was an order for bifurcation of the said housing society, by the Deputy Registrar Co-operative Societies, West Ward Mumbai, on 28/11/2007. Appeals were filed against that order. Those Appeals were decided by the Divisional Joint Registrar, Co- operative Societies, Mumbai Division, Mumbai. The operative part of 14 app413.11group.sxw ssm the order reads as under- “1) The Appeal No. 246/2007 & Appeal No. 27 of 2008 are disposed of. 2) The impugned order dated 28/11/2007 passed by the Respondent Deputy Registrar, C.S.H./West Ward, Mumbai under Sec. 18(1) of the M.C.S. Act, 1960 read with Rule 17 of the M.C.S.Rules, 1961 is hereby quashed and set aside. 3) The case is remanded back to the Respondent Deputy Registrar C.S. H/W Ward, Mumbai for afresh consideration and decide the case in the lights the observations made hereinabove. 4) This order would not come into effect for a period of 4 weeks as directed by the Hon’ble High Court in order dated 06/03/2009 in Writ Petition No. 2808 of 2009. 5) No order as to cost.” 20 Both the Appeals were thus allowed. The order passed by the Deputy Registrar was set aside. The matters were remanded back to the Deputy Registrar for fresh consideration and decision in the light of the observations made in the Appellate order. Against the order of the Divisional Joint Registrar in Appeal, Revision Application under Section 154 of the Co-operative Societies Act was filed before the State Government by an association of tenants of the said housing society. The Applicant association filed a written application before the State Government for withdrawal of the Revision Application. 15 app413.11group.sxw ssm That Application was opposed by the society and others. The reason for opposing withdrawal of the Revision Application was that the society in its general body meeting had passed a resolution dated 6/12/2009 deciding to transfer entire the land in favour of M/s. Sumer Associates and pursuance to that resolution on 7/12/2009 conveyance of the property was executed and it was therefore submitted that now there is no need to bifurcate the society. The State Government made order in the Revision Application on 31 May 2011. Operative part of that order which reads as under:- “1. Applicant is allowed to withdraw Revision Application No. 713/2009. 2. Order dt. 29.09.2009 of the Defendant No.1 Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai quashing the order of division of Defendant No.2 Society, of the Deputy Registrar, Co-operative Societies, H/West Ward, Mumbai, dt. 28.11.2007 is hereby confirmed. 3. Order of the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai, dt. 29.01.2009 to the extent of issuing directions to the Deputy Registrar, Co-operative Societies, H/West Ward, Mumbai, for giving re-hearing afresh again, is hereby quashed. 4. No order as to the costs.” 21 The State Government allowed the revision, set aside the order 16 app413.11group.sxw ssm passed by the Divisional Joint Registrar insofar as it remands the proceedings back to the original authority. The submission of the Petitioners in the two Writ Petitions that were filed before the learned Single Judge challenging the order of the State Government was that the order of the State Government is without jurisdiction. In the Revision Application, the revision applicant had made an application to withdraw the revision, the State Government permitted the Applicant to withdraw the Revision Application and therefore the State Government could not have passed the order which we have quoted above. The learned Single Judge has accepted this contention and set aside the order passed by the State Government. The Revision before the State Government was filed under Section 154 of the Maharashtra Co-operative Societies Act. Sub-section (1) of Section 154 reads as under.- “154(1) The State Government or the Registrar, Suo motu or on an application, may call for and examine the record of any inquiry or proceedings of any matter, other than those referred to in sub- section (9) of section 149, where any decision or order has been passed by any subordinate officer, and no appeal lies against such decision or order, for the purpose of satisfying themselves as to the legality or propriety of any such decision or order, and as to the regularity of such proceedings. If, in any case, it appears to the State Government, or the Registrar, 17 app413.11group.sxw ssm that any decision or order so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may, after giving the person affected thereby an opportunity of being heard, pass such orders thereon as to it or him may seem just.” 22 Perusal of the above quoted provisions show that revisional jurisdiction is vested in the State Government against the order of the Registrar, Additional Registrar or Joint Registrar. The State Government can call for the record of any order against which an Appeal does not lie for the purpose of satisfying itself as to the legality or propriety of such decision or order and the State Government can exercise its power either on an application or even suo motu. In the present case, there are no suo motu proceedings initiated by the State Government. The revisional jurisdiction of the State Government was invoked by the association of tenants. Therefore, the moment the application made by the Applicant for withdrawal of the Revision Application was allowed the revision stood withdrawn then the State Government could not have decided the Revision Application on merits unless the State Government had decided to invoke its suo motu power. In the present case the State Government has not invoked its suo motu power because condition precedent for invoking suo motu power in that notice is given to all persons who are likely to 18 app413.11group.sxw ssm be adversely affected of the intention of the State Government to exercise suo motu power. In our opinion, therefore, the learned Single Judge was perfectly justified in interfering with the order of the State Government. That because the Society has passed the resolution in the General Body for transfer of the land and because that resolution has also been implemented there is no need to bifurcate the society is an argument or submission which is open to be advanced before the original authority. By the order which was impugned before the State Government, the Divisional Joint Registrar has merely remanded the proceedings back to the original authority for dealing with the matter in accordance with law. In our opinion therefore, the learned Single Judge was perfectly justified in setting aside the order passed by the State Government. The learned Single Judge has set aside the order of the State Government insofar as it sets aside the order of the Divisional Joint Registrar on the ground that after allowing the revision applicant to withdraw the revision, the State Government cease to have jurisdiction to make any order in that Revision Application. The consequence of the order of the learned Single Judge is that the order of the Divisional Joint Registrar passed in Appeal remains intact as a consequence the proceedings stand remitted back to the original authority for consideration and decision 19 app413.11group.sxw ssm in terms of the remand order of the appellate authority. It is obvious that when proceedings are taken up by the original authority for consideration all the contentions and issues which in law can be raised before him by the parties can be raised by the parties. The learned Single Judge in his order passed in the said Writ Petition has not expressed any final opinion on any question which the original authority is to consider in the proceedings pending before it. The Appeals where the order passed by the learned Single Judge on the Writ Petition is challenged are therefore dismissed. 23 Now, we take up the Appeals where order passed by the learned Single Judge in the Notices of Motion is challenged for consideration. The learned Single Judge had framed two preliminary issues. They read as under- “I) Whether the suit is maintainable in the absence of a notice under section 164 of the Maharashtra Co- operative Societies Act, 1960? II) Whether this Court has no jurisdiction to entertain this suit in view of sections 91 and 163 of the Maharashtra Co-operative Societies Act, 1960?” 24 We propose to take up for consideration second preliminary 20 app413.11group.sxw ssm issue framed by the learned Single Judge first. 25 The principal prayer in both the Civil Suits is prayer clause (a), which reads thus- “(a) for a declaration that the said Resolution dated 6th December, 2009 (Exhibit ‘K’ hereto) and the said Conveyance dated 7th December, 2009 (Exhibit ‘M’ hereto) are invalid, illegal and void ab initio and/or the same are voidable as against the Plaintiffs and the Tenant members of Defendant No.17 Association;” (a-i) That this Hon’ble Court be pleased to pass Order declaring Section 164 of Maharashtra Co-operative Societies Act, 12 violation of Article 14 of the Constitution of India and the same ought to be struck down.” 26 There was a special general body meeting of the Co-operative Society called. It was held on 6 December 2009. In that special general body meeting, a resolution was passed mainly deciding to convey the land belonging to the society to M/s. Sumer Associates. Pursuant to that resolution, conveyance of the land was executed in favour of M/s. Sumer Associates. 27 Civil Suit was filed by persons who are admittedly members of 21 app413.11group.sxw ssm the co-operative housing society challenging the resolution passed by the general body as also the conveyance which is executed by the Society in pursuance of the resolution of the general body. Section 91 of the Maharashtra Co-operative Societies Act reads as under:- “91. (1) Notwithstanding (anything contained) in any other law for the time being in force, any dispute touching the constitution, (election of the committee or its officers other than elections of committees of the specified societies including its officers), conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by