WP.514, 515, 516, 522, 524 - 11. - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 514 OF 2011 AND WRIT PETITION No. 515 OF 2011 AND WRIT PETITION No. 516 OF 2011 AND WRIT PETITION No. 522 OF 2011 AND WRIT PETITION No. 524 OF 2011 Surendra Digamber Juvekar ...Petitioner Vs. Devtirth CHS Ltd. & Ors. ...Respondents *** Mr. K. S. Patil, for the Petitioner. Mr. Amber Joshi for Respondent Nos. 1 to 3. Mr. R. M. Patne, AGP for Respondent Nos. 4 & 5. *** CORAM: V. M. KANADE J. DATE : JANUARY 19, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner in all the petitions. All these petitions can be disposed of by a common order since the parties are same. Only respondent No.3 whose nomination has been accepted by the authorities is different. WP.514, 515, 516, 522, 524 - 11. - 2 - 2. The grievance of the petitioner is that respondent No.3 in these petitions was not eligible to file his nomination, in view of bye-law No. 118(iii), and in view of the orders passed by the Dy. Registrar, Cooperative Societies under Section 79 and 88 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the “Act”). He invited my attention to the said orders which are annexed at Exhibit “B” (Colly). It was submitted that the Scrutiny Officer had rightly rejected the nomination of respondent No.3 in each of these petitions, on the said ground. However, the Appellate Authority had accepted the nomination. It was submitted that it was not necessary for the Dy. Registrar to pass a separate order of disqualification or non-compliance in respect of the individual member of the Managing Committee, either under Section 79(1), 79(2) and 79(3) of the said Act and it was sufficient if the order was passed under any of the sub-sections of Section 79 of the Act, it would automatically amount to a disqualification, as envisaged under Bye-Law No. 118(iii). He submitted that in the instant case, the Registrar had given given 15 days time to the Managing Committee members to carry out repairs of the leakage in the flat of one Surendra Digambar Juvekar, the petitioner herein. It was submitted that this was, however, not done in spite of repeated notices being given. WP.514, 515, 516, 522, 524 - 11. - 3 - 3. On the other hand, the learned counsel appearing for respondent No.3 in each of these petitions submitted that until a specific order was passed under section 79(3) of the Act, it can be said that such a member had incurred disqualification. He submitted that no order was passed by the Registrar, under the said sub-clause (3). It is then submitted that these writ petitions were not maintainable. It was submitted that under section 152A of the said Act, appeal was provided only against the order of rejection of the nomination papers and no appeal could lie against the acceptance of the nomination papers. He submitted that on the same analogy, against the order of acceptance of nomination papers by the Appellate Authority, writ petitions were not maintainable. In support of the said submission, he relied on the Division Bench judgment of this Court in the case of – Maniklal Peerchand Lunawat vs. Rupee Cooperative Bank Ltd. [CDJ 1988 BHC 547]. 4. I have heard the learned counsel appearing on behalf of the petitioner and the learned AGP for the State, and also the learned counsel appearing on behalf of respondent No.3, in all the petitions. By consent of parties, rule is granted. Rule made returnable forthwith, taking into consideration the controversy raised in this case. 5. In my view, the submissions made by the learned counsel WP.514, 515, 516, 522, 524 - 11. - 4 - appearing for the petitioner cannot be accepted for the following reasons- . Respondent No.3 in each of these petitions was a member of the Managing Committee of the said Society. There was some grievance made by the Petitioner, regarding the leakage of his flat and he has made the application to the Dy. Registrar that the said leakage was not repaired by the Managing Committee. The Dy. Registrar, had therefore, asked the Managing Committee to repair the said flat within a particular period and thereafter repeated directions were given by him under Section 79 (2)(a) of the Act. It will be necessary to have a look at the relevant provisions of the bye-law No. 118(iii), which reads as under- “118. No person shall be eligible for being elected as member of the Committee or co-opted on it, if: (i) ... (Iii) ... (iii) he has been held responsible under Section 79 or 88 of the Act or has been held responsible for the payment of the costs of enquiry under Section 85 of the Act.” 6. In this case it is alleged that it has been held he has been disqualified by virtue or order passed under Section 79 of the Act. Section 79 of the Act reads as under- WP.514, 515, 516, 522, 524 - 11. - 5 - “79. (1) The Registrar may direct any society or class of societies, to keep proper books of accounts with respect to all sums of money received and expended by the society, and the matters in respect of which the receipt and expenditure take place, all sales and purchases of goods by the society, and the assets and liabilities of the society, and to furnish such statements and returns and to produce such records as he may require from time to time; and the officer or officers of the society shall be bound to comply with his order within the period specified therein. (2) Where any society is required to take any action under this Act, the rules, or the bye-laws, or to comply with an order made under the foregoing sub-section and such action is not taken- (a) within the time provided in this Act, the rules or the bye-laws, or the order, as the case may, or (b) where no time is provided, within such time, having regard to the nature and extent of the action to be taken, as the Registrar may specify by notice in writing, the Registrar may himself, or through a person authorised by him, take such action, at the expense of the society; and such expense shall be recoverable from the society as if it were an arrear of land revenue. (3) Where the Registrar takes action under sub- section (2), the Registrar may call upon the officer or officers WP.514, 515, 516, 522, 524 - 11. - 6 - of the society whom he considers to be responsible for not complying with the provisions of this Act, the rules or the bye- laws, or the order made under sub-section (1), and, after giving such officer or officers an opportunity of being heard, may require him or them to pay to the society the expenses paid or payable by it to the State Government as a result of their failure to take action, and to pay to the assets of the society such sum not exceeding twenty-five rupees as the Registrar may think fit for each day until the Registrar’s directions are carried out.” 7. Perusal of the section reveals that the section is divided in three parts. Sub-section (1) empowers the Registrar to give directions to the society which directions have to be complied; Sub-section (2) reveals that the said direction has to be complied either within the time, provided under the Act, the rule or the bye-laws or the order; and Sub-section (3) provides that when no time is provided as per the direction given by the Registrar in his order in writing. 8. Sub-clause (2) of Section 79 of the Act further provides that if there is non-compliance as per the directions under sub-clause (1), then the Registrar may himself or through a person authorized by him take such action at the expense of the society and such expenses shall be recoverable from the Society; Sub-clause (3) thereafter specifically WP.514, 515, 516, 522, 524 - 11. - 7 - lays down that after the action is taken under sub-section (2), the Registrar may either call upon the officer or the officers of the society whom he considers to be responsible for non-complying with the provisions of the Act, the rules or the bye-laws or the order made under sub-section (1) and after giving such officer or officers an opportunity of being heard, may ask him to make the payment of the expenses to the society and also ask him to pay the penalty. In the instant case, the Dy. Registrar had given a direction to the Managing Committee to repair the flat of the petitioner within a time bound period. The period was, however, extended from time to time by issuing fresh notices. It is an admitted position that the Registrar has not called upon the Society through any other person to show-cause for not repairing the flat of the petitioner, and consequently did not recover the said amount paid or payable from the Society. It is also an admitted position that no show- cause notice was issued to respondent No.3 in each of these petitions, asking him to show cause why such amount should not be recovered, and also an admitted position that no hearing has taken place, as required under sub-section (3). That being the position, in my view, there is no order passed by the Registrar under sub-section (3) holding respondent No.3 in each of these petitions as individually or jointly liable for non WP.514, 515, 516, 522, 524 - 11. - 8 - compliance of the said order. In my humble view, therefore, unless such a specific order is passed under Section 79(3) of the Act, it cannot be said that such a person has incurred a disqualification under the Bye-law No. 118(iii), so far as disqualification under Section 79 is concerned. 9. Though the bye-law merely refers to Section 79, it is obvious for the purpose of incurring disqualification, a specific order has to be passed either against the individual or the entire Managing Committee or all the officers of the Managing Committee, and therefore, merely because bye-law refers to order passed under Section 79, it does not mean that an order which is passed under Section 79(1) or (2), would automatically be treated as a disqualification under the said bye-law No. 118(iii). In the result, the submission made by the learned counsel for the petitioner, therefore, cannot be accepted. 10. In this view of the matter, there is no merit in the submissions made by the learned counsel for the petitioner. All the writ petitions are, therefore, dismissed. [ V. M. KANADE J.]