Maharashtra Co-operative Societies Act| Deputy Registrar Cannot Adjudicate Member's Complaint U/S 83; May Only Use Them As Information For Suo Motu Action: Bombay High Court
The Court set aside an enquiry order passed solely on basis of single member's complaint without independent application of mind; held Deputy Registrar committed same error twice on remand.
Justice Sandeep V. Marne, Bombay High Court
The Bombay High Court has held that while a Deputy Registrar of Co-operative Societies may take cognizance of a complaint made by a single member as a source of information for exercising suo motu powers under Section 83 of the Maharashtra Co-operative Societies Act, 1960, treating such a complaint as a source of information is a concept entirely distinct from adjudicating the complaint and rendering a decision on it, a power that Section 83 does not confer on the Deputy Registrar.
The Court held that the principle permitting the Deputy Registrar to act on a complaint from a single member or even a third party cannot be overstretched to mean that the Registrar can adjudicate such complaint and render a decision thereon.
The Court further held that where the Deputy Registrar has merely reproduced the contents of a member's complaint without any independent assessment of the material before him, and has communicated a disposal of the complaint to the complainant, such an order reflects exercise of adjudicatory power outside the statutory scheme of Section 83 and is not a valid exercise of suo motu jurisdiction.
Justice Sandeep V. Marne observed, “…instead of exercising suomoto powers under Section 83 by undertaking independent assessment, the Registrar has essentially adjudicated the complaint of Respondent No.3. The Deputy Registrar does not possess adjudicative power under Section 83 to decide the complaint made by a member. The statutory scheme is such that if a requisition is made by 1/5th members, the Deputy Registrar has no option but to order inquiry on account of use of the word 'shall'. However, when members less than 1/5th or any outsider or a third person makes a complaint about functioning of the Society, though the Deputy Registrar is not prevented from taking cognizance of such complaint for exercise of suo-moto power, he must make independent assessment of the matter and then proceed to order conduct of enquiry. Consideration of complaint as a source information for exercise of suomoto power is a concept distinct and different from the concept of adjudicating the complaint and making a decision thereon”.
Senior Advocate G.S. Godbole appeared for the petitioner and Y.S. Kochare, ‘B’ Panel Counsel appeared for the respondent.
The petitioner, Raghuleela Megamall Kandivali (West), a cooperative society of unit occupiers in a commercial mall, was subjected to an enquiry ordered by the Deputy Registrar under Section 83 of the MCS Act acting on a complaint filed by a single member, Respondent No. 3. The first such order dated April 13, 2018 was set aside by the Divisional Joint Registrar on the ground that the Deputy Registrar had not acted suo motu.
The matter was remanded. In the remanded proceedings, the Deputy Registrar passed a fresh order dated March 02, 2019, once again acting solely on the same complaint. This order was confirmed by the Divisional Joint Registrar on March 09, 2020, which the Society challenged in the present writ petition.
The Court found that even under the heading "Opinion" in the fresh order, the Deputy Registrar had merely reproduced or summarized the contents of the complaint. Further that he had communicated the disposal to the complainant with a remark that the complaint was being disposed of, a clear indicator that the Deputy Registrar had adjudicated the complaint rather than independently assessed material to form a suo motu opinion.
“…Section 83 of the MCS Act does not confer adjudicatory powers on the Deputy Registrar. The principle recognised by this Court in Janhit Nagari Sahakari Pat Sansth Maryadit, Pune, Jeevan Niwas Co-operative Housing Society Ltd and Jayprakash Sahakari Griha Rachana Sanstha Mrt about permissibility for Deputy Registrar to take cognizance of complaint cannot be overstretched to mean that Registrar can ‘adjudicate’ such complaint and render a 'decision' thereon”.
The Court noted that the Deputy Registrar had committed the same error on remand as he had in the original proceedings, and that the Divisional Joint Registrar had confirmed the order despite its own earlier finding that the Deputy Registrar had not acted suo motu.
“…the Divisional Joint Registrar, in previous round of proceedings, had specifically recorded a finding that ordering enquiry on the basis of complaint of Respondent No.3 was not suo-moto exercise of power by the Deputy Registrar. Though not required, the Divisional Joint Registrar had erroneously remanded the proceedings before the Deputy Registrar. Since Petitioner-Society did not question correctness of order of remand, it is not necessary to delve deeper into that aspect. Suffice, it to observe that in the remanded proceedings, the Deputy Registrar once again committed the same folly and acted squarely on the basis of complaint of Respondent No.3 for ordering enquiry under Section 83”, the Bench observed.
Accordingly, both the orders were set aside and the writ petition was allowed.
Cause Title: Raghuleela Megamall Kandivali (West) v. Divisional Joint Registrar, Co-operative Society and Others WP-2980 OF 2021
Appearances:
Petitioner: G.S. Godbole, Senior Advocate, Nilkanth Bhadrashete, Raghavendra Mehrotra, Irfan A. Shaikh and M.J. Shaikh Lawkhart Legal Advocates and Legal Consultants.
Respondents: Y.S. Kochare, B Panel Counsel, Anima Mishra, Anuj Singh, Advocates.