1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 2820 OF 2002
WITH
CIVIL APPLICATION NO 1572 OF 2006
Deviprabha Nanasaheb Deshmukh'
Age 54 years, Occ. Household,
R/o. "Akanksha" Kranti Nagar,
Navgan College, Road, Beed
District Beed ...Petitioner
Versus
1. Laxminagar Co-operative Housing
Society Ltd., Savedi, Tq. and Dist.
Ahmednagar,
Through its Liquidator
2. Mrs. Indira Waman Pandale,
Age, Kinge Gate, Near Brahman
Haud, Ahmednagar
3 Shri Namdeo s/o Trimbak Dahatonde,
Age major, R/o. C/o. Residential
High School, Laltaki, Ahmednagar
4 Assistant Registrar,
Co-operative Societies,
Ahmednagar
5 Divisional Joint Registrar,
Co-operative Societies,
Nashik Division, Nashik
6 The State of Maharashtra
(Copy to be served on G.P.
High Court, Bench at Aurangabad) ...Respondents
.....
Mr. T.G. Gaikwad h/f Mr. V.D. Salunke, advocate for the petitioner
::: Downloaded on - 09/06/2013 14:51:53 :::
2
Mr. M.A. Tripathi h/f Mr. V.G. Shelke, advocate for respondent No.3
Mr. M.L. Dharashive, AGP for respondent Nos. 4 to 6.
.....
CORAM: S. S. SHINDE, J.
DATED: 3RD AUGUST, 2009
ORAL JUDGMENT:-
1 This petition is filed challenging the judgment and order passed
by the Secretary, Co-operation Department i.e. respondent No.6,
dated Nil passed by respondent No.6 in revision petition No. Rev.
27/2001/CR-35/15-C.
2 The brief facts of the case, as narrated in the petition, are as
under:-
It is the case of the petitioner that she is member of respondent
No.1 Society. The said society came to be registered on 4.11.1972.
Accordingly, the petitioner has deposited an amount of Rs.150/- as
against the share. The petitioner purchased three shares of Rs.50/-
each. Respondent No.1 society issued share certificate No.346 in
favour of the petitioner. It is the further case of the petitioner that the
petitioner has followed the bylaws of the society and paid amounts
from time to time. However, the society respondent No.1 in its special
general meeting dated 26.7.1992 passed resolution No.7 and
::: Downloaded on – 09/06/2013 14:51:53 :::
3
cancelled the membership of the petitioner. The society had also
issued letter dated 2.8.1992 thereby informing the petitioner that her
membership is cancelled and sent a cheque for an amount of Rs.
10,178/- to the petitioner. It is further case of the petitioner that letter
dated 2.8.1992 issued by respondent No.1 is nothing but an expulsion
of the petitioner from the society, which is required to be done under
Section 35 of the Maharashtra Co-operative Societies Act 1960
(hereinafter for the sake of brevity referred to as the “said Act”).
It is further case of the petitioner that from time to time
representations were made to the Government authorities mentioning
therein that the resolution passed by respondent No.1 society
expelling the present petitioner as member of the society is in
contravention of Rule 3 of the Maharashtra Co-operative Societies
Rules 1961 (hereinafter for the said of brevity referred to as the “said
Rules”). However, no cognizance was taken by the authorities. In the
meanwhile, liquidator came to be appointed on respondent No.1
Society. The petitioner made representation on 9.3.1999 to the
Liquidator requesting to consider her claim and decide the right of the
petitioner. However, no action was taken by the liquidator.
It is further case of the petitioner that meanwhile, respondent
No.1 society has created record to show that the plot which was
alloted to the petitioner has transferred to respondent No.3. It is further
::: Downloaded on – 09/06/2013 14:51:53 :::
4
case of the petitioner that expulsion of the petitioner as member was
without giving an opportunity to the petitioner to put forth her case and
said resolution is without approval of the Assistant Registrar.
It is further case of the petitioner that she filed appeal No. 41 of
1999 before respondent No.5 under Section 152 of the said Act
challenging the resolution expelling her as member of the respondent
No.1 society. The Divisional Joint Registrar, Co-operative Societies by
judgment and order dated 20.1.2000, allowed the appeal filed by the
present petitioner.
3 Respondent No 3 herein filed revision before the State
Government being aggrieved and dissatisfied with the judgment and
order dated 20.1.2000 in appeal No. 41 of 1999. The Revisional
authority has set aside the judgment and order passed by the
Divisional Joint Registrar, Co-operative Society in appeal. Hence, this
petition, filed by the petitioner.
4 On perusal of the compilation of the petition, it appears that
respondent No.3 has filed reply to the petition on 26.9.2003. This
matter was heard by this court for admission on 28.1.2003 and Rule
was issued in the petition. Hearing of the petition was expedited.
Interim relief in terms of prayer clause “C” was granted. Today, the
matter is taken up for final hearing.
::: Downloaded on – 09/06/2013 14:51:53 :::
5
5 Learned counsel for the petitioner submits that the judgment and
order passed by the Divisional Joint Registrar is passed after perusal
of the record and the documents the same is well reasoned judgment
and the said judgment and order is set aside by the Revisional
authority, without calling record of the case. It is further submitted that
the petitioner is a member of the society and she has deposited entire
amount of membership, which was required to be deposited in
accordance with the bylaws. It is further submitted that by way of
resolution without affording opportunity to the petitioner, no
membership can be cancelled. According to the learned counsel, the
resolution passed by respondent No.1 society is in utter disregard to
the provisions of Section 35 of the said Act, since no notice or
opportunity of hearing was afforded to her before resolution was
passed. It is further argued that while entertaining revision there is no
compliance of Rule 26 r.w. Rule 29 of the said Rules, which
contemplates that any resolution passed by the Society expelling
member should be approved by the Assistant Registrar. It is further
argued that the order passed in revision by the State Government is
without jurisdiction, the Revisional powers under Section 154 of the
said Act are vested with the State Government. The Business Rules
are framed under Rule 166 of the Constitution of India and powers to
decide the appeal or revision are delegated to the Minister on behalf of
the Governor of Maharashtra. Under Rule 6 of the said Rules those
::: Downloaded on – 09/06/2013 14:51:53 :::
6
powers are delegated to the cabinet Minister and therefore, the said
powers delegated under Article 166 of the Constitution of India, cannot
be exercised by the Secretary. Learned counsel further invited my
attention to the judgment delivered by the Full Bench in the case of
Sheikh Mohamed Fatemohamed and etc. Vs. Raisuddin
Aximuddin Katil and others reported in AIR 2000 Bombay 353 to
contend that the order passed by the Secretary in revision is without
jurisdiction. It is further argued that the administrator who was
appointed to look after the affairs of the respondent No.2 society had
no power to grant or cancel the membership. In respect of his
contention, learned counsel placed reliance on the judgment of this
court in the case of Ballumal A. Jaisingh Vs. M/s. J.J. Builders and
others, reported in 2003 (3) Mh. L. J. 238. Learned counsel has
taken me through the contents of the pleading in the petition and the
annexures thereto as well as the order passed by the revisional
authority. He submitted that the point of limitation was not raised by
other side before the appellate authority. Learned counsel for the
petitioner ultimately submits that the writ petition deserves to be
allowed.
6 Learned counsel appearing for respondent No. 3 has invited my
attention to the provisions of Section 152 of the Societies Act and
more particularly sub Section 3 of Section 152 and submitted that if the
petitioner was aggrieved by the resolution passed by respondent No.1
::: Downloaded on – 09/06/2013 14:51:53 :::
7
Society, expelling the petitioner, the appeal should have been filed
within two months from the date of resolution. He further submits that
even if it is admitted that the petitioner was not aware about passing of
resolution, even then there was communication dated 2.8.1992 by
respondent No.1 to the petitioner about her expulsion as member as
per the resolution No.7 passed by the general body meeting held on
26.7.1992. The petitioner has replied the letter dated 2.8.1992 by her
representation dated 17.8.1992. On the basis of the Exh. E and Exh.
F, counsel for the respondent submits that it is not the case of the
petitioner that the petitioner had not informed about passing of the
resolution dated 26.7.1992. Learned counsel for the respondent
submits that the letter addressed by petitioner itself indicate that the
petitioner was aware of passing of the said resolution dated 26.7.1992.
Therefore, according to the respondents, the petitioner should have
filed appeal within two months at least from 2.8.1992 or 17.8.1992.
Learned counsel invited my attention to the provisions of Section 153
of the Societies Act and submitted that the authority has no power to
condone the delay unless application is filed as required under Section
153 of the Societies Act for condonation of delay. The judgment and
order passed in appeal is silent about the delay in filing the appeal.
The appeal should not have been entertained by the Divisional Joint
Registrar since it was time barred and no application was preferred by
the petitioner to that effect before the appellate authority. Learned
counsel further submits that the petition is totally silent about filing any
::: Downloaded on – 09/06/2013 14:51:53 :::
8
application for condonation of delay as required under Section 153 of
the Societies Act. Therefore, learned counsel for the respondent
submits that the order passed by the revisional authority has been
rightly passed when the appeal cannot be entertained, which is filed
beyond time, without application for condonation of delay. There was
no question of further adjudication of the said appeal. Learned
counsel further submits that the appellant was hopelessly time barred
and same was filed in 1999 though cause of action arose in 1992.
7 Learned AGP submits that non filing of application for
condonation of delay in filing the appeal and entertaining the appeal by
the appellate authority, goes to the root of the matter and therefore,
once the appeal was time barred, there was no question of further
adjudication by the appellate authority of the said appeal in the
absence of application of condonation of delay, as required under
Section 153 of the said Act. Learned AGP further submits that even
the point that the resolution passed by the general body of respondent
No.1 Society was without notice and without hearing the petitioner
should have been taken in appeal, if the appeal would have been filed
within time but in the instant case the appeal was filed in the year 1999
challenging the resolution which was passed in July, 1992, therefore,
the Revisional authority is perfectly justified in entertaining the revision
and setting aside the order passed by the appellate authority.
::: Downloaded on – 09/06/2013 14:51:53 :::
9
8 After hearing learned counsel appearing for the petitioner,
learned counsel for respondent No.2 and learned AGP for respondent
State, I am of the considered view that the Divisional Joint Registrar
should have followed the provisions of Sub-section (3) of Section 152
of the said Act, which reads thus:-
“152(3) An appeal under sub-section (1) or (2) shall be
filed within two months of the date of the communication of the
order or decision.”
Sub-Section 3 of Section 152 mandates that the appeal
under sub section (1) of (2) shall be filed within two months from the
date of communication of the order or decision. Further section 153 of
the said Act provides that appeal may be filed against any decision or
order within specified period, the appellate authority may admit the
appeal after expiry of such period, if the appellant satisfied the
appellate authority that they had sufficient cause for not preferring the
appeal within the said period.
9 In the instant case, the Divisional Joint Registrar, though
exercised powers of appeal has not followed provisions of sub section
(3) of Section 152 and the provisions of Section 153 of the said Act.
There is no single word in the judgment passed by the Divisional Joint
Registrar about any application filed for condonation of delay or he has
::: Downloaded on – 09/06/2013 14:51:53 :::
10
considered the same as per the provisions of sub-Section (3) of
Section 153 of the Societies Act.
The authority who has conferred the valuable powers of appeal
cannot be said to be ignorant about the substantial provision of statute
and cannot bypass the express provisions and decide the matter on
merits unless satisfied itself that appeal is within time limit prescribed
by the statute. The judgment and order passed by the Divisional Joint
Registrar in utter disregard to sub-section (3) of Section 152 and
Section 153 of the Societies Act goes to the root of the matter.
10 The petitioner may have good case on merits as contended by
the learned counsel appearing for the petitioner, however, the appeal
filed by the petitioner herein should not have been entertained by the
appellate authority on merits ignoring that there was stipulation of two
months for filing of appeal from the date of communication of order or
decision.
11 The Secretary in revision has rightly entertained the point raised
by respondent No.3 that the appeal filed by the petitioner herein was
hopelessly time barred, there was no application filed by the petitioner
for condonation of delay, the Divisional Joint Registrar has ignored the
provisions of sub section (3) of Section 152 and 153 of the said Act.
The Secretary has come to the definite conclusion that the appellate
::: Downloaded on – 09/06/2013 14:51:53 :::
11
authority was not empowered to entertain the appeal which was
hopelessly time barred in absence of application for condonation of
delay or any prayer to that effect as contemplated under Section 153
of the Societies Act.
12 The learned counsel for petitioner relying on the judgment of Full
Bench of this court in the case of Sheikh Mohamed Fatemohamed
and etc. (supra) has tried to contend that Secretary is not
empowered to entertain the revision. On careful perusal of the Full
Bench judgment, it appears that the Full Bench has considered the
delegation of powers to entertain the appeal and not of revision. This
court had occasion to consider this point in the case of Purna Co-
operative Sugar Factory and Anr. Vs. Jaiparakash s/o Shankarlal
Mundada and others, reported in 2003 CTJ 484 and after
considering the Full Bench judgment as well as other judgments in
para 22, this Court has held that,
“The language used in Section 152 and Section 154 is
totally different. Sub-Section (4) of Section 154 clearly provides
for delegation of power of the State, to be exercised also by an
officer of the rank of Secretary to Government. There is no
provision in Section 152, akin to the provision contained in sub-
section (4) of Section 154.”
Therefore, in the result this Court held that the Secretary was
::: Downloaded on – 09/06/2013 14:51:53 :::
12
justified in entertaining the revisional powers under Section 154 of the
Maharashtra Co-operative Societies Act therefore, in view of the
judgment cited supra, which has considered even the judgment of the
Full Bench and came to the conclusion that under sub section 4 of
Section 154 of the said Act the State Government can delegate the
revisional powers to the Secretary, therefore, the submission of the
learned counsel for the petitioner that the Secretary who had
entertained revision in this case had no jurisdiction to entertain the
same is liable to be rejected.
13 Taking over all view of the matter, since the appeal filed by the
petitioner herein before the Divisional Joint Registrar was filed in the
year 1999 which was delayed almost by seven years and which was
without any application for condonation of delay should not have been
entertained. The Divisional Joint Registrar ignoring the provisions of
sub Section (3) of Section 152 and Section 153 of the Societies Act,
has entertained the appeal giving total go bye to the said provisions.
For filing appeal before any authority or quashi judicial authority,
statutory limitations are prescribed and therefore, even registration of
appeal and entertaining the same on merits itself was not proper in
absence of application for condonation of delay and without
observance of Section 153 of the Societies Act.
This Court had occasion to consider the provisions of Section 30
::: Downloaded on – 09/06/2013 14:51:53 :::
13
of the Arbitration Act 1940 in the case Ballumal A. Jaisingh (supra)
and has considered the point that whether in absence of proper
application to condone the delay whether the court has jurisdiction to
condone the delay? The Court after appreciating the facts involved
therein has held that the court is prevented from taking cognizance of
any matter if it is barred by limitation. The court can exercise the
jurisdiction in which the application to that effect is made and in
absence of the application, the court will have no jurisdiction to take up
the matter and consequently the court has no power to condone the
delay.
14 Therefore, viewed from any angle the order passed by the
Revisional authority does not call for any interference in the writ
jurisdiction and the same is confirmed. The writ petition is dismissed.
Rule discharged. Interim relief is vacated.
15 Civil application No.1572 of 2006, in view of dismissal of writ
petition, does not survive and the same is accordingly disposed of.
*****
::: Downloaded on – 09/06/2013 14:51:53 :::