1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.295/2009 1) Mr. Madan Chindarkar, 2) Mr. Vasant Pednekar, 3) Mr. Ganpatrao Palekar, 4) Smt. Julekha Bi, All residents of The Primary Teachers Cooperative Housing Society, Tonca, Caranzalem, Goa. .......... Petitioners. V/s. 1. The Registrar of Cooperative Societies & Ex-Officio Joint Secretary, Government of Goa, Office of the Registrar of Co-op. Societies, Panaji, Goa. 2. Shri P. S. Sawant, The Administrator of the Primary Teachers Housing Co-operative Society Limited, having its registered Office Near High Court Building, at Altinho, Panaji, Goa. 3. State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Goa. 4. Shri Gopal Desai, 5. Shri Balcrishna Pai, 6. Shri Srinivas Kamat, 2 7. Smt. Maria Fernandes; and 8. Smt. Jumana Bhatia, All r/o. The Primary Teachers Cooperative Housing Society, Tonca, Caranzalem, Goa. .......... Respondents. Mr. V. A. Lawande, Advocate for the petitioner. Mr. G. Shirodkar, Government Advocate for respondents No.1 and 3. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. S. Lotlikar, Advocate for respondents No.4 to 8. CORAM :- S.B. DESHMUKH & U. D. SALVI, JJ. DATE :- 25 th September, 2009 . ORAL JUDGMENT : (Per S.B. DESHMUKH, J.) 1. We have heard the learned Counsel Mr. V. A. Lawande, who appears for the petitioners, Government Advocate Mr. G. Shirodkar, who appears for the respondent Nos. 1 to 3, and learned Senior Counsel Mr. S.D. Lotlikar along with Advocate Mr. P. Lotlikar, who appears for the respondent Nos. 4 to 8. 3 2. Rule, made returnable forthwith. Learned Counsel for the respective respondents, waive rule notice on behalf of respective respondents. We have heard the learned Counsel for the respective parties at great length and for final disposal of the writ petition. 3. A brief resume of the relevant facts, to appreciate contentions and submissions advanced on behalf of the parties, would suffice. a) The Primary Teachers Housing Co-operative Society Limited, Tonca Caranzalem, Goa (hereinafter called as “Housing Co-operative Society” for short), is a registered housing co-operative society. b) the housing co-operative society, at the relevant time, was having about 15 members. c) Special General Body Meeting of the Housing Co-operative Society was called on 05/03/2006; at 9.30 a.m. d) Special General Meeting allegedly was held under the Chairmanship/ Presidentship of the then Chairman, Mr. Nagesh Kerkar. About 14 members out of 15 members are claimed to have attended the Special General Body Meeting. 4 e) Special General Body of the Housing Co-operative Society was scheduled for electing new/ f resh executive body. f) Representative of the Registrar of Co-operative Societies was present for the meeting. g) Some members to the Managing Committee were elected. h) Minutes/ Proceedings of the Special General Meeting were recorded. i) Assistant Registrar Co-operative Societies addressed a letter dated 5th March, 2007 to the Registrar, apprising the episode or happenings of Special General Meeting dated 5th March, 2007. j) Registrar Co-operative Societies passed Order dated 14-07-2008 under Section 71(1)(a) of the Goa Co-operative Societies Act. k) Shri Madan Chindarkar and others filed Writ Petition No: 646/2007 in this High Court. This petition is still pending. The petitioners are challenging the election process and appointment of the respondent Nos. 4 to 8 as members of the managing committee vide election process held on March 29,2009 (the impugned election). According to the petitioners, these elections purported to have been initiated by the respondent No.2 as per the provisions of Maharashtra Cooperative Societies Act, 1960 and the Goa Cooperative Societies Act, 2001 and Rules framed thereunder. 5 4. The petitioners have sought a writ of mandamus for quashing and setting aside the entire elections held on March 29, 2009 by the Administrator. They have also sought a declaration that the said election is illegal, null and void. There are other prayers also made by the petitioners. This petition seems to have been filed by the petitioners somewhere on 27.4.2009. The record and proceedings in Writ Petition No. 646/07 is available and, in fact, tagged with this writ petition itself. In view of the Bombay High Court, Appellate Side Rules, 1960, Writ Petition No.646/07 pertains to the learned Single Bench of this Court. Accordingly, said writ petition falls for consideration before the learned Single Judge of this Court. The present petitioners are also the Petitioners in Writ Petition No.646/07. In that writ petition, respondent No.1 is the Registrar of Co-operative Societies and Ex-Officio, Joint Secretary, Government of Goa. Mr. P. S. Sawant, Administrator of the Primary Teachers Housing Co- operative Society Limited is respondent No.2 and State of Goa, through its Chief Secretary, is respondent No.3. With the leave of this Court, five private persons are joined as respondents No.4 to 8. Those respondents No.4 to 8 are also party respondents in this Writ Petition No.295/2009. In Writ Petition No.646/2007, the petitioners have 6 sought a writ of certiorari for quashing and setting aside of the order dated 6.12.2007 and July 14, 2008, passed by respondent No.1, i.e. Registrar of Co-operative Societies. In that writ petition, the show cause notice dated 5.10.2007 issued by respondent No.1 is also impugned. There are also other prayers made by the petitioners in that writ petition. Writ Petition No.646/07 was taken up before this Court for admission hearing on 20.12.20007. After hearing the learned Counsel for the petitioners and Government Advocate Shri G. Shirodkar for respondents No. 1 and 3, time was granted to take instructions. Notice was directed against respondent No.2. Learned Single Bench of this Court, further passed an order “No fresh elections shall be held until the next date”. The matter was then adjourned after vacation (Christmas vacation of 2007). Leave to produce translated copies of documents was also granted. This Writ Petition No.646/07 was before the learned Single Bench of this Court on 29.7.2008. On that day, the learned Single Bench of this Court issued notice to respondent No.2 returnable on 7.8.3008. Leave to amend the petition was granted i.e. for challenging the order dated 14.7.08. Ex parte stay dated 20.12.2007 was continued until next date. On 7.8.2008, learned Single Bench of 7 this Court, continued the order passed on 20.12.2007, till the adjourned date i.e. 21.8.2008. By order passed by the learned Single Judge of this Court on 8.10.2008 in Writ Petition No.646/07, interim order dated 20.12.2007 has been continued until further orders. Hearing of the petition was adjourned to 20.11.2008. On 20.11.2008, learned Single Bench of this Court, at the request of the respondents No.4 to 7 in that writ petition, adjourned the hearing to 4.12.2008. The writ petition was heard by the learned Single Judge of this Court on 12.12.2008 and order was reserved. On 17.12.2008, learned Single Bench of this Court pronounced the order. Learned Single Bench of this Court in that matter did not agree with the request of the petitioners to dispose of the petition finally. However, liberty to the petitioners to renew their request for final disposal at the admission stage was granted and the hearing of the petition was adjourned to 12.1.2009. Thus said Writ Petition No: 646/2007 is still pending in this court. 5. We have, thus, referred to all the orders passed by the learned Single Bench of this Court in Writ Petition No.646/07. 8 6. Before, adverting to the submissions of the Counsel appearing for the respective parties, we may notice few provisions of the Goa Co-operative Societies Act, 2001 (“the Act of 2001” for short). The Act of 2001 operates within the territory of State of Goa. Section 2 of this Act provides definitions. We are referring to few definitions which are relevant for consideration to resolve the controversy which arises in this writ petition. “Board of directors” means the governing body or the committee of management of a society, by whatever name called, in which the management of the affairs of a society is vested in view of Section 2(6) of the Act of 2001. “Bye-laws” means bye-laws prescribed under the Rules and registered under the Act and include registered amendments of such bye-laws, in view of Section 2(7) of the Act of 2001. Definition of “co-operative housing society” is available under Section 2(13) of the Act of 2001. “General body” as defined under Section 2(21) in relation to a primary society, means all the members of the primary society and in relation to federal society and apex society, means all the delegates of the members societies and includes a representative of general body constituted under Section 60 of the Act. 9 Chapter VII of the Act of 2001 deals with management of Societies. Under Section 59 of the Act of 2001, it has been provided that management of every society shall vest in board of directors, constituted in accordance with the Act, Rules and Bye-laws which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the bye-laws. Sub-section (2) of Section 59 provides that the term of office of the board of directors elected after commencement of the Act of 2001 shall be 5 years from the date of its inception. There is a proviso to this sub-section (2) of Section 59 which we have noticed. Section 58 of the Act of 2001 specifies that final authority of every society shall vest in the general body of members, in general meeting summoned in such manner as may be specified in the bye-laws. In substance, the general body of the society, in view of Section 58 of the Act of 2001 is supreme and/or final authority of every co-operative society. Day today affairs of the Society vests with the board of directors, constituted in accordance with Act of 2001, rules and bye-laws of the society. 7. We may notice one more Section i.e. Section 77A of the Maharashtra Co-operative Societies Act, 1960, which was in operation 10 in the State of Goa earlier to the Act of 2001. Incidentally, it has been submitted before us by the Advocate for the petitioners that the Act of 2001 has been made enforceable in the State of Goa in the month of January, 2008. The Act of 2001 has suffered amendment to Section 71. The Act of 2001, prior to amendment, provided Section 71. It was titled as “Removal of directors and appointment of Administrator”. This earlier section has been amended which amendment has been brought on statute from 20.3.2009. Section 71, as was in existence in the Act of 2001 made enforceable from January, 2008, reads as follows : “ Removal of directors and appointment of Administrator – (1) (a) If the Board of directors of any society makes default or is negligent in the performance of the duties imposed on it by this Act, or the rules or bye-laws or commits any act which is prejudicial to the interest of the society or has ceased to discharge its functions and the business of the society has or is likely to come to a standstill, then the Registrar, at the request of hundred members or 10 % of the total number of members of the society, whichever is less, may by an Order, remove the board of directors and appoint a board of administrators consisting of not more than three persons, who may or ma0y not be members of the 11 society, to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, may be extended by a further period not exceeding three months, so however that the total period shall not exceed nine months in the aggregate subject to the provisions of sub-section (6). (b) Where any director on the board of directors of a society commits the acts mentioned in clause (a) above, the Registrar, at the request of hundred members or 10 % of the total number of members, whichever is less, or by resolution passed with a two third majority of the board of directors of the society, shall remove such director from the board. (c) In the case of a society having Government share capital exceeding 50 % of the total paid up share capital of the society, the Registrar shall have the power, in cases mentioned under clauses (a) and (b) above, to act suo motu and appoint a board of administrators as mentioned in clause (a) above for a period of one year, which period, at the discretion of the Registrar, may be extended for a further period not exceeding one year, or to remove the director or directors in cases under clause (b); 12 Provided that no order shall be passed by the Registrar under clauses (a) and (b) above without giving an opportunity to the board of directors or director, as the case may be, to file objection, if any, within 15 days from the receipt of notice from the Registrar....” This Section 71 has been substituted by subsequent amendment, which is brought on statute with effect from 20.3.2009. There is no dispute that the amendment was brought on statute on 20.3.2009. 8. In Writ Petition No. 646/07, as noted in the foregoing paragraph, order passed by the Registrar of Co-operative Societies under Section 77A of the Maharashtra Co-operative Societies Act, 1960, dated 6.12.2007 is impugned. For ready reference, we are reproducing herein below Section 77A, sub-section (1)(b) of the said Act : “77A. Appointment of member of committee, new committee or Administrator, where there is failure to elect member, to constitute committee or where committee does not enter upon office (1) Where the Registrar is satisfied that, - (a).... 13 (b) the term [or extended term as the case may be] of the committee of any society or of any of its members has expired or for any other reason election is held and there is a failure to elect all or any of the members required to fill the vacancies... In Writ Petition No.646/07, one more order passed by the Asst. Registrar of Co-operative Societies, Central Zone, Panaji, which is at Exhibit “M” at page 75 is challenged. This order seems to have been passed by the Asst. Registrar, purportedly under Section 75(1) of the Maharashtra Co-operative Societies Act, 1960, as then applied to the State of Goa. The Asst. Registrar of Co-operative Societies, had authorized and directed Mr. P. S. Sawant, Senior Auditor of Cooperative Societies to convene the Annual General Body Meeting of the Primary Teachers Cooperative Society, Panaji on or before 30.3.2007. We have further perused the order passed by the Registrar of Coop. Societies, Panaji, Goa (page 79), passed under Section 71(1)(a) of the Act of 2001, extending the term of the Administrator appointed vide Order No.21-4-05-HSG-CZ-RCS dated 6.12.2007, for a further period of six months, with effect from 14.3.2008. The Administrator was further directed to constitute a new managing 14 committee, in accordance with the byelaws of the society, before expiry of his term. 9. In this writ petition, we are called upon to decide/determine the question as to whether the Administrator appointed by the Registrar under Section 71(1)(a) of the Act of 2001, or under Section 77-A, sub- section (1) and (b) of the Maharashtra Cooperative Societies Act, 1960 can hold the election of Board of Directors beyond his tenure as an Administrator of the Society in question ? 10. Mr. Lotlikar, learned Senior Advocate appearing for the respondents No.4 to 8 raised an objection to the maintainability of the petition itself, under Article 226 and 227 of the Constitution of India. He has pointed out Section 83 of the Act of 2001 to contend that for settlement of disputes, the forum has been provided and the petitioners, if feel aggrieved, may seek redressal of their grievance before that forum. According to him, the alternate and efficacious remedy made available is not resorted to and this petition, therefore, is not maintainable. Alternate remedy available to the petitioners, is the ground of objection raised on behalf of the respondents. The second 15 submission is non-maintainability of the writ petition on account of involvement of disputed questions of facts, which require evidence and/or investigation. 11. Advocate on behalf of the petitioners submitted that Writ Petition No. 646/07 challenges the appointment of the Administrator, made by the Registrar of Co-operative Societies, initiated under Section 77-A of the Maharashtra Co-operative Societies Act by order dated 6.12.2007 and order dated 14.7.2008, passed by the Registrar of Co- operative Societies under Section 71(1)(a) of the Act of 2001. We are not oblivious of the fact that both these orders are subject-matter of challenge in Writ Petition No.646/2007, which pends with the learned Single Bench of this Court. We are not recording any opinion regarding legalities, correctness of the orders passed by the Registrar, either under Section 77-A of the Maharashtra Cooperative Societies Act dated 6.12.2007 or under Section 71(1)(a) of the Act of 2001 darted 14.7.08. The fact remains that the day today affairs of the Society vested with the Board of Directors or the managing committee of the Society, are being vested with the Administrator, appointed initially by the order passed by the Registrar of Cooperative Societies under Section 77-A of the 16 Maharashtra Cooperative Societies Act dated 6.12.2007 and, subsequently, by order dated 14.7.2008 passed by the Registrar of Cooperatives Societies under Section 71(1)(a) of the Act of 2001. Both these order are self speaking orders. The tenure of the Administrator appointed by first order dated 6.12.07 is embodied in that order itself, so is the case with the another order made by the Registrar of Cooperative Societies dated 14.7.2008 under Section 71(1)(a) of the Act of 2001. The Administrator was appointed and authorised to look after the affairs of the Society in question for the limited period. In the first order dated 6.12.2007 made by the Registrar of Cooperative Societies under Section 77-A of the Maharashtra Cooperative Societies Act, Mr. P. S. Sawant, Senior Auditor, was appointed as an Administrator for initial period of 3 months from the date of taking over charge of the society. The Administrator was further directed to take necessary steps to hold elections of the Managing Committee within the stipulated period. These two orders i.e. Orders dated 6.12.2007 and 14.7.2008, if read together, would reveal that the Administrator appointed, Mr. P. S. Sawant, Senior Auditor, gets a period of 9 months for taking steps for holding elections of the managing committee and/or board of directors. The date of taking over charge of the affairs of the society by the 17 Administrator could not be informed to the Court by the parties before this Court. However, Advocate for the petitioners points out from the order dated 14.7.2008, (page 789 of Writ Petition No.646/07) that six months' extension was granted by the Registrar from 14.7.2008. Further, if we take 6.12.2007, as the date on which order under Section 77-A of the Maharashtra Cooperative Societies Act was passed by the Registrar, as the date on which presumably charge was taken over, the period of 3 months comes to an end on 5.3.2008. Six months' extension from that date, in view of the order dated 14.7.2008 if considered, comes to an end on 5.8.08. However, in the order dated 14.7.2008, the Registrar has specifically mentioned that six months period is extended from 14.3.2008. If this is considered, in that case, extension comes to an end on 13.9.2008. In any case, from 6.12.2007, the Administrator can be said to be legally operating in the field upto 13.9.2008. Steps for holding elections and/or exercise of holding elections should have been completed by the Administrator on or before 13.9.2008. 12. At this stage, Mr. Shirodkar points out the proviso to sub- Section (6) of Section 71 of the Act of 2001. Advocate appearing for 18 the petitioners submitted that Section 71 of the Act of 2001 (unamended and it was in operation till January, 2008) titles as “Removal of directors and appointment of Administrator”. Under sub-section (1)(a), the Administrator gets maximum period of 9 months, in the aggregate, subject to the provisions of sub-section (6). We have also considered the submissions of Advocate Shri Shirodkar and the Advocate appearing for the petitioner Shri Lawande. In our view, Section 71(1)(a) and sub-section (6) with its proviso, needs to be read together. Section 71(1)(a), at the end, provides that the total period of the Administrator including the extended period, shall not be more than 9 months, in its totality. The language employed here is important. Removal of directors and appointment of Board of Directors, consisting of not more than 3 persons who may or may not be the members of the Society to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, may be extended by further period not exceeding 3 months in the aggregate, subject to the provisions of sub-section (6). Conjoint reading of sub- section (1)(a) of Section 71 and sub-section (6) with its proviso, in our view, could not give more time to the Administrator in the Office of Society than 9 months. Proviso to sub-section (6) cannot be read to 19 extend the period of Administrator beyond 9 months confined and/or specified under sub-section (1)(a) of Section 71 of the Act of 2001. In other words, the proviso cannot enlarge the period of Administrator to look after the affairs of the Society beyond the period of 9 months. Incidentally, it is to be noticed that the persons and/or the members who are entering the office of the Bord of Directors of the Society ordinarily are elected in view of the provisions of the Act, Rules and byelaws of the Society in question. They are holding the elective office. But, then in case of Administrator, ordinarily, is a public servant, appointed by the Registrar, if the Registrar chooses not to appoint any members of the Society as Administrator or the Members of the Board of Directors. The appointment of the Administrator by the Registrar is with specific objectives and for a specified period of time. In our view, if Section 71, as a whole is read, in its proper perspective, this period of the Administrator can be reasonably considered to be a period of 9 months, only. 13. In the case on hand, the date of election is not in dispute. Such election of the Board of Directors, was allegedly held by the Administrator, on 29.3.2009, far beyond the extended period by the 20 Registrar. On the date of holding such election, in our view, the Administrator was not holding the power, jurisdiction and authority to hold elections of the society, in question. 14. Mr. Lotlikar, learned Senior Counsel appearing for respondents No.4 to 8, in support of his submission pertaining to alternate remedy, relied upon a Judgment of the Hon'ble Supreme Court in the case of Hindustan Co-op. Housing Building Society Ltd. vs. Registrar, Co-operative Societies & Anr., reported in 2009(3) ALL MR 436. With the assistance of the learned Senior Advocate, we have gone through the Judgment of the Hon'ble Supreme Court, facts of which have been narrated in paragraph 3 of the report. In the said decision, Hon'ble Supreme Court has quoted Rule 25 of the Delhi Co- operative Societies Rule, 1973. On the background and in the facts obtaining in that case, the Hon'ble Supreme Court, in para 8 observed that the said Rule is of paramount importance. It is on this background, the Hon'ble Supreme Court, in para 15 of the report, observed that the Counsel for the appellant is right that normally when a statutory remedy is available, the same should be availed. We have considered the submissions of the learned Senior 21 Counsel in this case. We have perused Section 83 of the Act of 2001. We have taken into account facts available in the case on hand. Alternate remedy is not an absolute for exercise of power under Articles 226 and 227 of the Constitution. Hon'ble Supreme Court in Mohammed Ishaq vs. S.