Quashed

Veer Vinodkumar Dadhia and Ors. v. Park Darshan Co-Operative Housing Society Ltd. and Ors.

Bombay HC23 Oct 2023WP/5204/2022

Case brief

AI extract

What is this about?

The High Court held that the Divisional Joint Registrar lacked jurisdiction to set aside an order granting deemed membership to flat purchasers on the ground of defaulters. The quashing order restored the Deputy Registrar's action, while clarifying that the Society may still pursue recovery of dues separately.

What did the court decide?

Impugned appeal order of 13.07.2021 is quashed and set aside; earlier order of 15.12.2020 is restored; authorized officer ordered to comply.

Veer Vinodkumar Dadhia and Ors. Vs Park Darshan… — Cooperative Societies | Bombay HC (2023)

¶1

WP 5204-2022.doc

¶2

Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶3

WRIT PETITION NO. 5204 OF 2022

¶4

Veer Vinodkumar Dadhia & ors.

¶5

.Petitioners

¶6

Vs.

¶7

Park Darshan Co-operative Housing Society Ltd. & .Respondents ors.

¶8

Mr. M. M. Vashi, Senior Advocate a/w. Ms. Panthi Desai i/b. M/s. M. P. Vashi & Associates, for the Petitioners Mr. Jitendra H. Oak, Advocate, for the Respondents Mr. A. P. Vanarase, AGP, for the Respondent – State

¶9

CORAM : MADHAV J. JAMDAR, J. DATE : 23.10.2023

¶10

P. C.

¶11

Heard Mr. Vashi, learned Senior Counsel for the

¶12

Petitioners, Mr. Oak, learned counsel for the Respondents and Mr. Vanarase, learned AGP for the Respondent – State.

¶13

The Petitioners who are the fat purchasers in Respondent No. 1 – Society are challenging the legality and validity of the order dated 13.07.2021 passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai in Appeal No. 68 of 2021. By the said impugned order dated 13.07.2021, the said Appeal No. 68 of 2021 fled by the Society has been allowed by setting aside the order dated 15.12.2020 passed by the Deputy Registrar, Co-operative

¶14

1 of 5

¶15

WP 5204-2022.doc

¶16

Societies, K/W-ward, Mumbai under Section 79(1)(b)/Amended section 154B-27(2)(1)(2) of the Maharashtra Co-operative Societies Act, 1960 ( “M. C. S. Act” ).

¶17

By order dated 12.09.2018, the Deputy Registrar, Co-operative Societies by exercising powers under Section 22(2) of the M. C. S. Act held that the respective Petitioners have become deemed members of the said Society and consequential directions were given by the Deputy Registrar, Co-operative Societies, K/W-Ward, Mumbai. The said order was challenged by fling separate Revision Applications by the Society and the said Revision Applications have also been dismissed by order dated 07.05.2019 passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai. Both the authorities have held that admittedly, the respective Petitioners are purchasers of the fats and therefore, they are entitled for the membership of the Society.

¶18

As the Society was not following the said order, the fat purchasers fled the Applications under Section 79(1)(b)/ Amended section 154B-27(2)(1)(2) of the M. C. S. Act, 1960 seeking that the Registrar may himself or through a person authorized by him take such action or execute said orders at the

¶19

2 of 5

¶20

WP 5204-2022.doc

¶21

expense of the society and such expenses shall be recoverable from the responsible offcer of the society as if it were arrears of

¶22

land revenue. The said Section 154(1)B-27 reads as under :-

¶23

154B-27. Obligation of society to take action and Registrar’s power to enforce

¶24

(1) If any society is required to take action for performance of its obligations, responsibilities and duties as provided in this Act, rules and bye-laws or to execute the orders issued by the State Government or by the Registrar , from time to time, and such actions are not taken or such orders are not executed, the Registrar suo motu or on an application may issue directions to take such action or actions or execute such orders .”

¶25

The Deputy Registrar, Co-operative Society, K/W Ward, Mumbai by order dated 15.12.2020 appointed Mr. Dhananjay Desai, Certifed Auditor as authorized offcer for taking steps to give membership to the said fat purchasers. The said order was challenged by the Society by fling Appeal No. 68 of 2021. In the said Appeal, the Divisional Joint Registrar set aside the order dated 15.12.2020 passed by the Deputy Registrar, Co-operative Society on the ground that the said fat purchasers are the defaulters. However, it is to be noted that the order dated 15.12.2020 passed by the Deputy Registrar was passed by exercising powers under Section 154(2) of the M. C. S.

¶26

3 of 5

¶27

WP 5204-2022.doc

¶28

Act by which the authorized offcer under the M. C. S. Act has been appointed to execute the said order dated 12.05.2018 as confrmed by order dated 02.05.2020 granting deemed membership in favour of the fat purchasers. By order dated 15.12.2020, only an authorized offcer has been appointed to give effect to the said order granting deemed membership. Therefore,

¶29

in Appeal challenging such type of order, the Divisional Joint Registrar could not have passed the order of setting aside the order dated 15.12.2020 on the ground that the members are the defaulters. In the order recognizing that the fat purchasers have become deemed members, it has been specifcally observed by the authority that the issue regarding recovery of the amount as per the Development Agreement executed by the Society and the Developer is totally different aspect than the issue of granting membership. In any case, while taking action for execution of order granting membership, the executing authority cannot go behind the order which is to be executed and pass such order which will have effect of nullifying the order granting deemed membership. Thus, the impugned order is passed without jurisdiction and the same is not in accordance with law.

¶30

Accordingly, the Writ Petition is allowed by passing the following operative order :-

¶31

4 of 5

¶32

WP 5204-2022.doc

¶33

O R D E R

¶34

(i) The order dated 13.07.2021 passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai in Appeal No. 68 of 2021 is quashed and set aside and the order dated 15.12.2020 passed by the Deputy Registrar, Co-operative Society, K/W Ward, Mumbai is restored;

¶35

(ii) The authorized offcer appointed by order dated 15.12.2020 shall comply with the directions given in the said order within a period of three months from today;

¶36

(iii) However, it is clarifed that the Respondent No. 1 – Society can take action in accordance with law for recovery of the dues, if any, from the respective Petitioners. All the contentions in that behalf are expressly kept open.

¶37

The Writ Petition is disposed of in above terms with

¶38

no order as to costs.

¶39

(MADHAV J. JAMDAR, J.)

¶40

5 of 5

Veer Vinodkumar Dadhia and Ors. v. Park Darshan Co-Operative Housing Society Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Veer Vinodkumar Dadhia and Ors. v. Park Darshan Co-Operative Housing Society Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nitin Mahesh Kukreja Vs Barkha Alias Devika Nitin Kukreja

Rahul Govindsing Patil Vs Priyanka Rahul Patil

Shri. Shankar Shivling Jangam Vs the Joint Charity Commissioner Kolhapur

Shri. Doodhnath D. Varma Vs Shri. Imtiaz Ashfaque Ahmed and Ors.

Liyakat Haniff Sayyed Vs the Honble Minister for Revenue State Gov. Maha.

Veer Vinodkumar Dadhia Vs Park Darshan Co-Operative Housing Society Ltd. through Its Chairman Laxman M. Chavan and Ors.