1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4930 OF 1991 Mohanlal Bhagwan Pandey, Room No.1, Ground Floor, Apurva Co-op. Hsg. Soc. Ltd., Nepean Sea road, Bombay  400 036 ... Petitioner Versus 1. Apurva Co-op. Hsg. Soc. Ltd., 6, Nepean Sea Road, Bombay  400 036. 2. The Divisional Joint Registrar, of Co-operative Societies, Malhotra House, Opp. G.P.O., Bombay  400 001. 3. The Dy. Registrar of Co-operative Societies, Malhotra House, Opp. G.P.O., Bombay  400 001. ...Respondents Mr. P.G. Karande for the Petitioner. Mr. R.M. Nakhawa i/b. Mr. Vasant Dhawan for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATED : 7TH JULY, 2009. ORAL JUDGMENT : 1. The Petition has been filed to challenge the order passed by the Maharashtra State Co- 2 operative Appellate Court in Appeal No.116 of 1991 which has been passed against the order of the Deputy Registrar, Co-operative Societies, D Ward, Bombay dated 22 nd/23rd May, 1990. 2. The petitioner claims that he is in possession of a self contained tenement bearing Room No.1 in the respondent No.1-Society. He contends that he is a member of the Society, despite which the share certificate has not been issued to him by the Society. According to the petitioner, he has been occupying the premises and has been inducted into the room pursuant to consent terms arrived at between himself and the builder who was the promoter of the Society. These consent terms were filed in R.A.D. Suit No.996 of 1981 before the Small Causes Court. According to the petitioner, he has also paid the contribution of Rs.251/- towards shares of the Society. He claims that he became a promoter member of the respondent No.1-Society. The petitioner contends that despite having complied with all the necessary formalities, the 3 respondent No.1-Society has failed to issue him a share certificate. In the circumstances, the petitioner entered into correspondence with the Society. It appears that the respondent No.1- Society consistently refused to enroll him as a member of the Society. 3. An application was filed by him before the Deputy Registrar on 22nd May, 1989 under Section 23(1A) of the Maharashtra Co-operative Societies Act (hereinafter referred to as the said Act ) for a direction to the respondent No.1-Society to issue a share certificate to him. It appears that the Deputy Registrar issued a show cause notice on 29th June, 1989 to the respondent No.1- Society calling upon them to explain the reasons for not accepting the petitioner as a member of the Society and consequently issuing him a share certificate in his name. This show cause notice was replied by the respondent No.1-Society on 8th August, 1989 indicating that the petitioner was not entitled to be a member of the Society and therefore no share certificate has been issued 4 to him. It was also mentioned that the petitioner was occupying a room which is adjacent to the garage and not a flat in the Society. The Society contended that since their by-laws permitted only flat owners to be members of the Society, the petitioner could not be issued the share certificate. 4. It appears thereafter that on 4th December, 1989 the Deputy Registrar by his order directed the respondent No.1-Society to include the name of the petitioner as a member of the Society. Since the Society did not comply with this direction, a notice was issued to the Society under Section 79(1) of the said Act. Being aggrieved by the decision taken by the Deputy Registrar to issue such a notice, the respondent No.1-Society preferred Revision Application No. 51 of 1990. That Application was dismissed as it was not maintainable on 5th March, 1991. The respondent No.1-Society then preferred an Appeal before the Maharashtra Co-operative Appellate Court being Appeal No.116 of 1991. The Appeal 5 has been allowed and the order dated 22nd/23rd May, 1990 issued by the Deputy Registrar, D Ward, Bombay and consequential orders have been set aside. The Maharashtra Co-operative Appellate Court held that the powers under Section 79(1) were administrative in the nature and could be exercised only in certain circumstances. The Appellate Court, therefore, held that the order of the Deputy Registrar was passed without jurisdiction and set it aside. 5. The learned Advocate for the petitioner submits that since the respondent No.1-Society has breached the order dated 4th December, 1989 by which it was directed to enroll the petitioner as a member of the Society, the Deputy Registrar had issued a notice under Section 79(1) of the said Act. He contends that while doing so, the Deputy Registrar has referred to the order of 4th December, 1989 and has directed the respondent No.1-Society to issue a share certificate in the name of the petitioner. He submits further that powers under 6 Section 79(1) of the said Act can be exercised by the Registrar to enforce performance of any order passed by the Registrar. 6. The learned Advocate for the respondent No.1-Society contends that there is no infirmity in the order passed by the Maharashtra Co- operative Appellate Court. According to him the order has been passed since the Deputy Registrar had exceeded the powers vested in him under Section 79(1) of the said Act for implementing an order. He points out that Section 79(1) of the said Act can be invoked only with respect to matters with regard to monies received and expended by the Society, receipt and expenditure of all sales and purchases of goods by the Society, assets and liabilities of the Society and statements and the terms on record of the Society which may have been directed to be produced by the Registrar. According to the learned Advocate enrolling a person as a member of the Society would not fall within the scope of Section 79(1) of the said Act and therefore 7 the Appellate Court had rightly set aside the order. He relies on the Judgment of the Division Bench of this court, in the case of Rajaram Bapu Patil Sahakari Sakhar Karkhana Ltd. & Anr. vs. Commissioner of Sugar & Ors. [2006 (5) Bom.C.R. 537], to contend that the Deputy Registrar, under Section 79 of the aforesaid Act, cannot direct addition of new members to the Society. 7. A perusal of the order passed by the Appellate Court, no doubt, indicates that it has been passed against the order issued by the Deputy Registrar under Section 79(1) of the said Act on 23rd March, 1990. Section 79(1) of the Maharashtra Co-operative Societies Act reads as follows :- 79(1). Registrar s power to enforce performance of obligations.- (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, 8 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. 8. In my opinion, the aforesaid provision do not give any scope to the Deputy Registrar to pass orders under Section 79(1) of the said Act for implementing orders other than those mentioned in the aforesaid Section. The Deputy Registrar therefore cannot issue any orders under this Section for implementation of an order directing enrollment of a member. Therefore, in my opinion, the order passed by the Appellate Court cannot be faulted in these circumstances. 9 9. However, undisputedly, the order dated 4th December, 1989 passed by the Deputy Registrar directing the respondent No.1-Society to accept the petitioner as a member of the Society and consequently to issue him a show cause notice still holds the field. That order has not been challenged by the Society. In this view of the matter, the petitioner may take such steps as advised for implementation of the order dated 4th December, 1989. 10. The Petition is dismissed. Rule discharged. 11. No order as to costs. .......