Bombay High Court
Vilas Vishnu Jadhav And Anr vs The State Of Maharashtra Through ... on 15 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:28747
32wp8732-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8732 OF 2021
Vilas Vishnu Jadhav and Anr. ... Petitioners.
Versus
The State of Maharashtra
Through Secretary and Ors. ... Respondents.
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Mr. Sandeep R. Waghmare a/w. Mr.Rohit Pawaskar, for the Petitioners.
Mr. Nitin P. Deshpande, for the Respondent Nos.5 to 7.
Mr. Rohit Pawaskar, for Respondent No.8.
Ms. V.S. Nimbalkar, AGP for the Respondent-State.
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Coram : Sharmila U. Deshmukh, J.
Date : July 15, 2024 P. C. :
1. Heard.
2. By this Petition, the challenge is to the order dated 7 th July, 2020 passed by the Respondent No.2 and the order dated 9 th September, 2020 passed by the Respondent No.3 under Section 79A (3) of the Maharashtra Cooperative Societies Act,1960 (for short, "MCS Act"). By the impugned order, the Petitioners have been disqualified from being a member of the Society or to continue to be the member of the society for period of six years from the date of order.
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32wp8732-21
3. The facts of the case are that complaint dated 9 th January, 2020 came to be filed by the Respondent Nos.5 to 7 alleging non-
compliance of the Government Resolution dated 4 th July, 2019 pertaining to redevelopment. The complaint was adjudicated by the Respondent No.2 and it was held that the Petitioners have not complied with the Government Resolution dated 4 th July, 2019 and thus, the order under Section 79A (3) of the MCS Act came to be passed.
4. Learned counsel appearing for the Petitioners would firstly point out that the complaint was earlier closed by the Respondent No.2 by holding that he does not have the jurisdiction to decide the complaint and subsequently by order dated 7 th July, 2020, the Respondent No.2 has disqualified the Petitioners from being a member or continuing to be a member of the society which is in clear violation of the provisions of under Section 79A (3) of the MCS Act, which provides for disqualification of the member from membership of the Managing Committee and not from being member of Society. He would further submit that the non-compliance alleged is of the Government Resolution dated 4th July, 2019 which provides for guidelines in respect of the redevelopment process to be adopted by the society, which are directory in nature as held by the Single Judge of this Court in the case of Kamgar Swa Sadan Co-operative Housing 2 of 5 32wp8732-21 Society Ltd. vs. Divisional Joint Registrar, Co-operative Societies & Ors. [2019(2) Bom.C.R.188], which dealt with the guidelines of 3rd January, 2009 and the Guidelines of 4th July, 2019 are in supersession of the earlier guidelines of 3 rd January, 2009. He submits that the guidelines having been held directory, the provisions of Section 79A (3) are inapplicable and therefore there could not be any finding of breach of those guidelines.
5. Per contra, Mr. Deshpande, learned counsel for the Respondent Nos.5 to 7 would submit that the guidelines of 4 th July, 2019 are not directory but mandatory and the necessary compliance is required. He submits that the guidelines were brought in supersession of the guidelines of 3rd January, 2009, as it was found that there was several malpractices while undergoing the redevelopment process of the Society. He submits that the non-compliance of these directives would attract the provisions of Section 79A (3) of the MCS Act.
6. In rejoinder, Mr. Waghmare, would submit that in fact, redevelopment process thereafter was not proceeded further by the Society.
7. Considered the submissions and perused the record.
8. By the impugned order of 7th July, 2020 and 9th September, 3 of 5 32wp8732-21 2020, the powers under Section 79A (3) of the MCS Act has been exercised disqualifying the Petitioners from being a member of the Society. It is apparent that the same is a typographical error as in the findings, the Respondent No.2 has held that the Petitioners would not continue to remain as the member of the Managing Committee. The operative part of the impugned order is not in consonance with the findings and therefore has to be read as being disqualified from being a member of the Managing Committee. The only reason why the Petitioners are held to be disqualified is non-compliance with the guidelines of the Government Resolution of 4th July, 2019.
9. Perusal of the said Government Resolution would indicate that the same has been issued in supersession of the guidelines of 3 rd January, 2009. The guidelines of 3 rd January, 2009 came up for consideration before this Court in the case of Kamgar Swa Sadan Co-operative Housing Society Ltd. (supra), wherein this Court held that the Government Resolution of 3rd January, 2009 is not mandatory but is directory and for the non-compliance thereof, there could not be rendered any findings of breach of those directives issued by the State Government under Section 79A (3) of MCS Act. The decision has been rendered in the context of the Government Resolution of 3 rd January, 2009 which dealt with the process of redevelopment and the Government Resolution of 4th January, 2019 also deals with the 4 of 5 32wp8732-21 process of redevelopment and are issued in supersession of the Government Resolution dated 3rd January, 2009. Nothing has been pointed out from the Government Resolution dated 4 th July, 2019 which would deviate from the finding rendered by the learned Single Judge in Kamgar Swa Sadan Housing Society Ltd. (supra) in the context of the Government Resolution dated 3 rd January, 2009 and can be considered as mandatory. The Coordinate Bench has already held that the Government Resolution of 3rd January, 2009 is directory as no consequence for non-compliance has been pointed out and thus, Section 79A (3) of the MCS Act is not attracted. I am respectfully bound by the said judgment.
10. The Government Resolution of 4th January, 2019 is not mandatory as no consequences are provided for its non-compliance similar to the Government Resolution of 3 rd January, 2009, the Petitioner cannot suffer disqualification under Section 79A (3) of the MCS Act for its non-compliance. In view thereof, the impugned order dated 7th July, 2020 and 6th September, 2020 are hereby quashed and set aside.
11. Writ Petition stands allowed in the above terms.
[Sharmila U. Deshmukh, J.] 5 of 5 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 22/07/2024 19:29:26