1 WP No.1068/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1068 of 2011 WITH WRIT PETITION NO.1406 of 2011 Arihant Co-operative Housing Society Ltd. ... Petitioner versus State of Maharashtra and others ... Respondents ... Mr.V.C. Ghosalkar for the petitioner in both the petitions. Mr. R.M.Patne AGP for respondent no.1 to 4 in WP No.1068/11 and respondent nos.1 to 3 in WP No.1406/11. Mr.P.S.Dani for the respondent no.5 in both the petitions. CORAM : D.G. KARNIK, J DATED : 25th July 2011 P.C. 1. Both the petitions arise out of an application made by respondent no.5 for being admitted as a member of the petitioner society and hence they are disposed of by this common order. 2. The respondent no.5 having purchased a flat from an existing member of the petitioner society made an application to the petitioner society for being admitted as a member. On rejection of 2 WP No.1068/11 his application for membership, the respondent no.5 filed an appeal to the Registrar against the decision of the society refusing him the admission to the membership. The Dy. Registrar of the co-operative society (exercising the delegated powers of the Registrar) hearing the appeal under section 23 of the Maharashtra Co-operative Societies Act, 1960 (for short “the Act”) allowed the appeal by his order dated 31 July 2008 and directed the petitioner society to admit the respondent no.5 as a member of the society. As the order was not complied with by a further order dated 14 March 2008 passed under section 79(1) of the Act, the Dy. Registrar directed the society to make the necessary corrections in the records of the society before 31 March 2008. That order was also not complied with. Hence by an order dated 30 April 2008 passed under section 79(2) of the Act, the Dy. Registrar appointed Mr.R.S. Jadhav, a co- operative Officer, Grade-II, to take the necessary action of making entries in the records of the petitioner society. That order is impugned in writ petition no.1406 of 2011 which is filed on 11 February 2011. 2. In the mean while, the petitioner society filed a revision against the order of the Dy. Registrar passed under section 23(2) of the Act directing it to admit respondent no.5 to it’s membership. The revision application was dismissed by the Registrar on 9 October 2009. A second revision against the order of the Registrar is said to be pending before the Government. However, no stay has been granted by the Government for execution of the orders passed by the lower authorities. 3 WP No.1068/11 3. Despite the order dated 30 April 2008 appointing Mr.R.S.Jadhav, co-operative officer Grade-II for making the necessary entries in the records of the society he was not able to do so as the records were not made available to him by the society. On the report of Mr.Jadhav dated 8 March 2010 to that effect the Dy. Registrar issued an order under section 80 of the Act to the Tahsildar exercising the powers of the Executive Magistrate for giving of a direction to a police officer, not below the rank of a sub- inspector, to enter and search where the records of the society were kept and hand them over to Mr.Zanje, Assistant Co-operative Officer. The order dated 8 March 2010 passed under section 80 was challenged by the petitioner for filing of a revision petition no.179 of 2010 before the Divisional Joint Registrar. By an order dated 28 January 2011, the Divisional Joint Registrar dismissed the revision application. That order is challenged in writ petition no.1068 of 2011. 4. Mr.Dani, learned counsel appearing for respondent no.5 raised a preliminary objection for entertaining the writ petition no. 1406 of 2011 on the ground that petitioner was guilty of delay and latches. He submitted that the order impugned therein was passed on 14 October 2009 and the writ petition was filed on 11 February 2011 i.e. after lapse of one year and four months. Per contra, learned counsel for the petitioner submitted that since the petitioner had challenged the initial order dated 31 July 2008 passed under section 23 of the Act in a revision it had chosen not to challenge the subsequent consequential orders earlier and there was no delay and latches on its part. In my view, the explanation is not satisfactory. 4 WP No.1068/11 In any event, the fact that the petitioner had challenged the initial order is no ground for petitioner not to challenge the impugned order for a period of nearly 16 months. The petition is liable to be dismissed on this ground. Even otherwise, I am satisfied that the writ petition is liable to be dismissed on merits. 5. Learned counsel for the petitioner submitted that there is no provision under the Act for execution and enforcement of the order passed by the Registrar or his delegate under section 23(2) of the Act. He submitted that if the Registrar passes an order directing a society to admit a person as a member and the society does not give effect to the order, no remedy is provided to the Act for its execution and enforcement. The actions taken by the Registrar and/or his delegates purporting to exercise powers under section 79(2) and 80 of the Act are all without jurisdiction and therefore, all the orders need to be set aside. I am unable to agree for the reasons indicated below. 6. Section 79 of the Act confers a power on the Registrar to enforce his orders passed under the Act. Sub-section (1) of section 79 of the Act says that the Registrar may direct any society or a class of societies to keep proper books of accounts regarding the receipts and expenses, its assets and liabilities and to furnish the statements and returns and to produce such records as he may require from time to time. Sub-section (2) of section 79 of the Act says that where any society is required to take any action under the 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 within the time 5 WP No.1068/11 prescribed by the Act, Rules or the bye-laws, the Registrar may himself or through a person authorised by him take such action and recover the expenses from the society as arrears of land revenue. Sub-section (2) of section 79 specifically confers a power of the Registrar to require any society to take any action under this Act which it is required to take under the Act, the Rules or the bye- laws. Once an order under section 23 of the Act is passed, the society is bound to comply with the order and if it fails to do so, the Registrar can take an action under section 79(2) of the Act. In the present case, the action was taken by the Registrar (Dy.Registrar as the nominee of the Registrar) firstly directing the society to comply with the order passed in appeal under section 23 of the Act and to make necessary entries about the membership of the society and on failure to do so, a further order was passed appointing an officer in the co-operative department to carry out the necessary entries. The society however failed to produce its records before the officers and thus disobeyed not only the initial order under section 23(2) but also a further direction issued for compliance. In the circumstances, the Registrar was entitled, nay in my opinion required, to take action under section 79(2) of the Act. The action taken by the Registrar in issuing direction to his nominee and officer of the co- operative department and to make the necessary entries in the records of the society to give effect to an order under section 23(2) cannot be said to be an order without jurisdiction or contrary to the provisions of section 79(2) of the Act. On non obeyance of the order under section 79(2) the Registrar further had a power to take action under section 80 and the action of the Registrar (by Dy.Registrar exercising his delegated powers) cannot be said to be 6 WP No.1068/11 without jurisdiction. The contention of the petitioner that the orders were without jurisdiction and contrary to the provisions of the Act has no merit and the submission is rejected. There is no merit in the petition which is accordingly rejected. 7. After this order was pronounced in the open court, learned counsel for the petitioner prays that the interim order dated 15 February 2011 passed in Writ Petition no.1068 of 2011 may be continued for two weeks to enable the petitioner to take appropriate action. It is accordingly ordered that interim order dated 15 February shall remain in force for a period of two weeks. (D.G.KARNIK, J)