Case: Everest Apartments Co-Operative Housingsociety Ltd Vs. State Of Maharashtra &amp; Ors

1. In this appeal by special leave we are not concerned with the merits of the controversy between the appellant and the fourth respondent, who are the contesting parties, because only two short questions of law arise for our decision. The appellant is a registered Co-operative Housing Society, registered under the Maharashtra Co-operative Societies Act, 1960 (XXIV of 1961). The Society was promoted by two individuals for the construction of a block of flats in Bombay. Shivdasani (respondent 4) claims to have paid the entrance fee, share money and other demands and complains that his membership was wrongly rejected by the Society. The Society denies these statements and the claim. We are not concerned with the details of this dispute. What we are concerned with is this: On being informed of the rejection of his application for membership, Shivdasani filed an appeal under S. 23 (2) of the above Act, which was heard and decided in his favour by the District Deputy Registrar, Co-operative Societies, Bombay. The Society filed an application before the State Government for revision purporting to be under S. 154 of the Act. This application was rejected. The Society was intimated this result by the Under Secretary to the Government of Maharashtra (Agriculture and Co-operative Department) and the communication (CAR/1064/426690/C-42, 17th May 1965) was asam directed to state that following the hearing to you by the Deputy Secretary of this Department on 10th March 1965, in connection with the subject noted above, a note was received in this Department from Shri M. G. Mani, Advocate wherein it was claimed that though an order was final under S. 23 (3) of the Maharashtra Co-operative Societies Act, 1960, Government had inherent revisionary powers under S. 154 of the said Act to entertain in such representations against such an order. I am to inform you that the matter has been examined by Government and to state that in such cases orders given under S. 23 (3) are final and Government has no revisional jurisdiction in such a matter.Yours faithfully,Sd./- (D. A. Ekbote),Under Secretary toSociety filed a petition under Arts. 226 and 227 of the Constitution in the High Court of Bombay which was also rejected (S.C.A. 1027/65, 30th June 1965). The High Court passed a short and laconic order whichright in declaring no jurisdiction. It is wrong to say that respondent had withdrawn the application voluntarily. Attitude of the Society unjust. Admittedly the promoters were members of Everest Co. and they wanted Rs. 3,000 from each one for themselves.Societies are not meant for self aggrandizement.No ground tois against the last order that the present appeal has been brought and the first question is whether the Government is right in law in declining to interfere because it has "no revisional jurisdiction in such a matter The answer to this question depends upon the construction of S. 154 of the Act but before we attempt it, we shall say something about the Act and the provisions applicable to this case.

Court's reasoning:
5. There is no doubt that S. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under S. 149 (9) of the Act The exception was considered necessary because the legality or the propriety of an order having once been considered, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under S. 154 in all cases with one exception only and that the finality of the order under S. 23 (3) does not restrict the exercise of the power. The word final in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no jurisdiction in this case for it obviously had.6. There remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words "on an application of a party which occur in S. 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case.7. The order of the High Court in these circumstances overlooked that the Government had denied to itself a jurisdiction which it undoubtedly possessed by considering that the finality of the order under Section 23 (3) precluded action under S. 154. The High Court ought to have issued a mandamus to Government to deal with the application before it within its jurisdiction under S. 154. That mandamus shall now issue tomaking this admission he is clearly right. The Act has provided for appeals in other sections and the decision on appeal is stated to be final. Yet the power of superintendence is given to the State Government in general terms in respect of any inquiry or proceeding with only one exception, namely, the proceedings of the Maharashtra State Tribunal, when the Tribunal calls for and examines the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed. By mentioning one specific exception to the general power, the Act has indicated an intention to include every other inquiry or proceeding within the action by Government as contemplated by S. 154.