Prakash Nagpal Vs Deepak K. Nagpal and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 O.O.C.J.

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 WRIT PETITION NO.908 OF 2004

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 Prakash Nagpal ...Petitioner
 v/s.

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 Deepak K. Nagpal & Ors. ...Respondents

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 Mr.Y.R.Naik for the Petitioner.

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 Mr.A.Y.Sakhare, Sr.Counsel for the Respondent No.1.

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 Mr.A.Sayyed, AGP for Respondents Nos. 3 to 6.

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 CORAM: D.K.DESHMUKH, J

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DATED:5TH JULY, 2006

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P.C.:

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 1. By this petition the Petitioner challenged the
 order dated 13-8-2003 passed by the Dy.Registrar,

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 Co.operative Societies under Section 79 of the
 Maharashtra Co.operative Societies Act (hereinafter
 referred to as the "Act") directing the Co.operative
 Society namely "The Cuffe Parade Persepolis Premises
 Co.operative Society Ltd. to split the share
 certificate issued by the Society in relation to Flat
 No.192 into two share certificates, one in relation
 to Flat No.192-A and other in relation Flat No.192-B.
 Reason that is given by the Deputy Registrar for
 making this order is an order passed by this Court
 dated 3-7-1990.

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 2. The order is challenged by the Petitioner on the
 ground that under the provisions of Section 79 of the
 Act the Deputy Registrar does not get power to make
 an order directing the Society to split the share
 certificate issued by it. It is also submitted that
 though the Deputy Registrar refers to the order made
 by this Court for issuing the direction, in fact,
 there is no such order made by this court. The order
 dated 3-7-1990 is in fact a consent decree passed in
 civil suit by this Court. Perusal of the order dated
 3-7-1990 passed in Appeal No.200 of 1990 arising out
 of Suit No.2599 of 1986 shows that the order was made
 by the Division Bench of this Court and in that

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 appeal by consent of parties the Division Bench
 passed the consent decree in terms of the consent
 terms filed by the parties. By those consent terms
 the parties agreed to divide the Flat in the building
 of the Co.operative Society.

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 3. It is, therefore, apparent that there is no
 direction contained in the order passed by this court
 for division or splitting of the share certificate.

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 4. Reliance is placed by the learned Counsel
 appearing for the Respondent No.1 on the consent
 decree. The learned Counsel appearing for the
 Respondent No.1 submitted that in view of the conduct
 of the Petitioner of entering into the consent terms
 and thereafter permitting the society to seek opinion
 of the legal adviser in the matter disentitles the
 Petitioner to interference in his favour at the hands
 of this Court in its extra ordinary jurisdiction.

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 5. In my opinion, however, if the court finds that
 the order that has been impugned in the petition is
 an order made without the jurisdiction, then this
 petition will have to be entertained by this court
 even at the instance of the Petitioner. The order

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 itself says that it has been made under the
 provisions of Section 79 of the Act. Sub-section 1
 of Section 79 of the Act is relevant. It reads as
 under:-

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 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.

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 6. Perusal of the above section shows that the power
 is conferred by this provision on the Registrar to
 issue directions to the society (i) to keep proper
 books of accounts; (ii) to furnish such statements
 and returns as the Registrar may direct; and (iii)
 to produce such records before the Registrar;

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 Sub-section (1) of Section 79 does not empower the

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 Registrar to issue any direction to the society in
 relation to issuance of share certificate. To my
 mind, therefore, it is clear that Section 79 does not
 empower the Registrar at all to issue the direction
 which is issued by the order impugned in the
 petition.

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 7. Thus, I find that the order made by the Deputy
 Registrar which is impugned in the petition is an
 order made patently without jurisdiction. That the
 legal adviser of the society opined that the society
 can split the share certificate, if such splitting is
 approved by the Registrar, in my opinion, is not
 relevant. Basically what is to be seen is whether
 the Registrar had the jurisdiction and power to make
 the order which is impugned in the petition.

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 8. I find, after having gone through the provisions
 of Section 79 of the Act, that the Deputy Registrar
 had no such power and therefore the order is patently
 without jurisdiction and therefore is liable to be
 set aside. Rule in the petition is, therefore, made
 absolute in terms of prayer clause (a) with no order
 as to costs.

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Prakash Nagpal v. Deepak K. Nagpal and Ors.

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Prakash Nagpal v. Deepak K. Nagpal and Ors.

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