Sunil Gadade & Ors. v. Divisional Joint Registrar & Ors.

1. Heard learned Advocate Mr. Kanade for the Petitioner, learned AGP for the Respondent Nos. 1 to 3 and learned Counsel Mr. D.S. Mhaispurkar, for the Respondent Nos. 4 & 5.

2. The Petitions question the Order dated 10.03.2022 (page

36) passed by the Divisional Joint Registrar, Cooperative Societies, Konkan Division, holding that the order of the Respondent No.3/District Deputy Registrar (“DDR”) dated 16.9.2021 directing registration of the society, was not assailable in an Appeal under Section 152 of Maharashtra Cooperative Societies Act 1960 (“MCS Act”) on the ground that the original direction to register the society was passed by the Competent Authority under the first proviso to Section 10(1) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ( "MOFA").

3. The learned Advocate for the Petitioner contends that once a society was registered in exercise of power under Section 9 of the MCS Act by the DDR, the affairs of such society would be governed by the MCS and not by MOFA, in light of which an Appeal under Section 152 challenging the registration would be maintainable.

4. Learned Advocate Mr. Mhaispurkar for Respondent Nos. 4 and 5 as well as learned AGP for Respondent Nos. 1 to 3 in support of the impugned order contend that the same would amount to a challenge to the order of the Competent Authority under the first proviso to Section 10(1) of the MOFA on account of which only Writ Petitions would be maintainable.

5. Section 10(1) and first proviso to the same of MOFA, which are material are reproduced as under:

6. Sub-section (1) of Section 8 of the MCS Act provides for filing of an application for the purposes of registration of a society, which has to be done in the prescribed form, which is to be accompanied by four copies of the proposed bye-laws of the society; the prescribed registration fees as applicable for the class of society under which registration is sought. Sub-section 2 of Section 8 provides as to how many persons/societies are to sign the application under Section 8(1) for the registration of the society. Section 9 of MCS Act then mandates the satisfaction of the Registrar regarding the compliance with the MCS Act and Rules framed thereunder or any other law for the time being in force or policy directives issued by the State Government and the proposed bye-laws are not contrary thereto, and after recording his sanctification to register the society.

7. Thus once such an order is passed, under Section 9 of the MCS Act, the action of the DDR/Respondent No.3 in registering the society in exercise of his powers under Section 9 of the MCS Act, would be exercise of jurisdiction under the MCS Act and thus would be amenable to a challenge in the manner as provided under the MCS Act and not otherwise.

8. This is also for the reason that the order of the competent authority under MOFA is merely a direction for the registration of the society, however the actual exercise of jurisdiction for registration is exercised by the DDR under Section 9 of the MCS Act.

9. That being the position, the impugned order which holds that an Appeal under Section 152 of the MCS Act is not maintainable cannot be sustained and is hereby quashed and set aside. It is held that an Appeal under Section 152 of the MCS Act against an order under Section 9, directing registration of the society, in pursuance to the directions of the competent authority under the first proviso to Section 10(1) of MOFA would be maintainable before the Respondent No.1.

10. The Petitions are accordingly allowed in the aforesaid terms. No costs.

11. The parties shall appear before Respondent No.1 on 01.07.2024 without any further notice being required to be issued for hearing, who shall decide the Appeal as expeditiously as possible. (AVINASH G. GHAROTE, J.)