R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Perused the records.
2. The petitioner-society challenges the order dated 8-3-1999, passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai, under Section 21-A of the Maharashtra Co-operative Societies Act, 1960, hereinafter called as "the said Act", and the order dated 3-10-2000, passed by the revisional authority under the said Act, dismissing the revision application against the order of the Divisional Joint Registrar. By order dated 8-3-1999 the Divisional Joint Registrar had directed de-registration of the petitioner-society in exercise of powers under Section 21-A of the said Act. Hence the present petition.
3. The impugned orders are sought to be challenged, firstly, on the ground that there was no show cause notice issued, in spite of specific direction by this Court in that regard, before proceeding to hear the matter under Section 21-A of the said Act, and secondly, the finding regarding misrepresentation and suppression of facts while obtaining registration of the society is perverse and contrary to the materials on record and the decision for de-registration has been passed not in consonance with the provisions of law but for extraneous reasons and, therefore, the impugned orders are bad in law.
4. Drawing attention to the order dated 6-3-1995, passed in Writ Petition No. 384 of 1995 by this Court, the learned Advocate for the petitioners submitted that there was specific direction for issuance of a show cause notice before hearing the parties and yet the proceedings were initiated under Section 21-A without issuing any such notice and in that regard attention was also drawn to the order dated 17-9-1997, passed by the Principal Secretary (Co-operation and Marketing). Reliance is sought to be placed in the unreported decision of the learned single Judge of this Court in the matter of Poonam Chambers "B" Wing Commercial Premises Co-operative Society Limited and Ors. v. State of Maharashtra and Ors., Writ Petition No. 950 of 2000, delivered on 12-6-2003. The learned Assistant Government Pleader, however, on the other hand, has submitted that the provisions of law contained in Section 21-A of the said Act undoubtedly requires hearing to be given to the parties and accordingly the petitioners were heard in the matter and in any case in the absence of any prejudice being shown by the petitioners for non-issuance of the show cause notice and further they having participated in the proceedings under Section 21-A, without any objection in that regard being pursued, it is too late in the day to make grievance about absence of show cause notice to the petitioners.
5. It cannot be disputed that the order of de-registration will have civil consequences and therefore before passing any order regarding de-registration of the society, the principles of natural justice are required to be complied with and even though there may not be specific provision in the said Act requiring issuance of the show cause notice, normally before proceeding to take any such action, issuance of a show cause notice will be an appropriate action. However, the modalities of complying with the principles of natural justice are not restricted only to the issuance of the show cause notice and they can be complied with even without issuance of the show cause notice in a given case and certainly the case in hand can be said to be one of such cases. It is not in dispute that the proceedings for de-registration in the matter had commenced with the issuance of notice dated 2-3-1990. Undoubtedly, consequent to the said notice there were proceedings in the Court and there was specific direction to deal with the issue of exemption granted in relation to the minimum required number of persons for formation of a co-operative society to the petitioners prior to proceeding with the matter by issuing a show cause notice. It is also a matter of record that by order dated 17-9-1997, consequent to the said direction by this Court, the lower authorities decided to restrict the action in relation to de-registration under Section 21-A of the said Act without adjudicating or modifying the order relating to grant of exemption. Apparently, the scope of the enquiry under Section 21-A of the said Act was restricted to the matter, excluding the issue of exemption, and the grounds for such proceedings under Section 21-A were already made known to the petitioners by notice dated 2-3-1990. It is also a matter of record that the petitioners participated in the proceedings before the authorities in relation to the hearing under Section 21-A and they were also heard in the matter by the revisional authority against the order passed by the Divisional Joint Registrar. The learned A.G.P. is justified in contending that in the absence of any prejudice being disclosed on account of failure on the part of the respondent to issue a specific show cause notice subsequent to the order dated 17-9-1997 by the Principal Secretary (Co-operation and Marketing), challenge to the impugned orders on the said ground is to be held to be devoid of substance. The decision of the learned single Judge in Writ Petition No. 950 of 2000 (supra) does not speak of absolute necessity of issuance of a show cause notice for the purpose of initiation of proceedings under Section 21-A of the said Act. It only speaks about hearing to be granted before taking any decision under the said provision of law. Being so, the first ground of challenge is to be rejected.
6. As regards the second ground of challenge, undoubtedly, the Divisional Joint Registrar has ordered the de-registration of the petitioner-society on the ground that the promoters had suppressed information that the Police Commissioner, Maharashtra (Mumbai) was the tenant of 12 tenements of the building and that the tenancy rights of the Maharashtra Police Commissioner were not disclosed and that they had provided incorrect information and misled the registration officer and got the aforesaid society registered. The revisional authority on its part has refused to interfere in the said order on the ground that the Chief Promoter and the other six members who had submitted the proposal for registration of the society were in fact the nominees of the Commissioner of Police and they were not tenants and in spite of the said fact the proposal disclosed that they were the tenants of the respective flats and that an impression was given to the Registrar's office that the said tenants have purchased their respective tenanted premises and were seeking registration of the society as a tenants-co-partnership society and such societies are generally contemplated under the Maharashtra Housing and Are, a Development Act, 1976, hereinafter called as "the MHADA Act". It has also been noted that the District Deputy Registrar under his letter dated 22-6-1989 had clearly stated that the applicants were the tenants and the landlord had sold the flats to them and it has been further noted that the concerned premises were already rented to the Commissioner of Police and therefore the sale is illegal.
7. Section 6 of the said Act deals with the conditions for registration of a society. Sub-section (1) thereof provides that no society, other than a federal society, shall be registered under the said Act, unless it consists of at least ten persons or such higher number of persons as the Registrar may, having regard to the objects and economic viability of a society and development of the cooperative movement, determine from time to time for a class of societies, each of such persons being a member of a different family, who are qualified to be members under this Act, and who reside in the area of operation of the society. The expression "member of a family" has been explained to mean wife, husband, father, mother, son or unmarried daughter. Section 7 deals with the power to exempt societies or class of societies from conditions as to registration, and it provides that notwithstanding anything contained in the said Act, the State Government may, by general or special order, exempt any society or class of societies from any of the requirements of the said Act as to registration, subject to such conditions, if any, as it may impose. Section 8 deals with the subject of application for registration. Sub-section (1) thereof provides that for the purpose of registration, an application shall be made to the Registrar in the prescribed form and shall be accompanied by four copies of the proposed bye-laws of the society and such registration fee as may be prescribed in that behalf. Different registration fees may be prescribed for different classes of societies, regard being had to the service involved in processing an application for registration. It also provides that the person by whom, or on whose behalf, such application is made, shall furnish such information in regard to the society, as the Registrar may require. Sub-section thereof provides that the application shall be signed - (a) in the case of a society other than a federal society by at least ten persons, each of such persons being a member of a different family, who are qualified under the said Act, and (b) in the case of a federal society, by at least five societies. It further provides that no signature to any application on behalf of the society shall be valid, unless the person signing is a member of the committee of such a society and is authorised by the committee by resolution to sign on its behalf the application for registration of the society and its bye-laws; and a copy of such resolution is appended to the application. Section 9(1) provides that if the Registrar is satisfied that a proposed society has complied with the provisions of the said Act and the rules or any other law for the time being in force, or policy directives issued by the State Government under Section 4, and that its proposed bye-laws are not contrary to the said Act or to the rules, he shall within two months, from the date of receipt of the application register the society and its bye-laws. The other sub-sections of Section 9 provides for the consequences resulting from failure on the part of the registering authority to take appropriate decision within the specified time from the date of filing of the application, as also includes the deeming provision in relation to registration of a society. Section 2(19)(a) of the said Act defines a "member" to mean a person joining in an application for the registration of a co-operative society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, associate or sympathiser member, which expressions have been defined in Sub-clauses (b), (c) and (d) respectively of Section 2(19) of the said Act.
8. The Rule 4(1) of the Maharashtra Co-operative Societies Rules, 1961, hereinafter called as "the said Rules", deal with the subject of application for registration and registration fee and provides that every application for registration of a society under Section 8 shall be made in Form 'A' in Marathi, Hindi or English, and shall, subject to the provisions of Sub-section (2) of Section 8 and Sub-rules (2) and (3), be signed by the applicants and shall, in addition to four copies of the proposed bye-laws of the society, be accompanied by - (a) a list of persons who have contributed to the share capital, together with the amount contributed by each of them, and the entrance fee paid by them; (b) a certificate from the Bank or Banks stating the credit balance therein in favour of the proposed society; (c) a scheme showing the details explaining how the working of the society will be economically sound and where the scheme envisages the holding of immovable property by the society, the description of such property proposed to be purchased, acquired or transferred to the society; and (d) such other documents as may be specified in the model bye-laws, if any, framed by the Registrar. Clause (a) of Sub-rule (1) of Rule 4 specifies the registration fees for different classes of society. Rule 5(1) of the said Rules provides that on receipt of an application under Rule 4 the Registrar shall enter particulars of the application in the register of applications to be maintained in Form 'B', give a serial number to the application and issue a receipt in acknowledgment thereof. Rule 7 provides that where any society does not furnish the information in regard to the society as required by the Registrar or fulfil any of the conditions laid down in the Act or the said Rules, the Registrar may refuse to register the society. Rule 8(1) empowers the Registrar to require a society to make bye-laws in respect of the various particulars enumerated from the Clause (a) to Clause (g) to the said Rule and it includes the terms and qualifications for admission to membership.
9. The Form 'A' prescribed under the Rule 4(1) of the said Rules requires the applicant to furnish the information in relation to the name of the proposed society, its address, whether the liability is limited or unlimited, its area of operation, the objects of the society, the amount of preliminary expenditure incurred by the promoters till the date of the application, and estimate of expenditure likely to be incurred by them thereafter with a view to getting the society registered, language in which the books and accounts of the society will be kept and the particulars of the applicant. The particulars of the applicant which are to be disclosed include the full name of the applicants, whether they are individuals or corporate bodies, their age, nationality and profession as well as place of residence, amounts subscribed to share capital, information as to whether any other signatory of the application is a member of the family of the applicant/s, and in case of representative of society, whether he is a member of the committee of such society. The Form also provides for the meaning of the expression "member of family" to mean a wife, husband, father, mother, grandfather, grand-mother, step-father, step-mother, son, daughter, step-son, stepdaughter, grand-son, grand-daughter, brother, sister, half brother, half sister, and wife or brother or half brother. It also requires the applicant to enclose along with the application the bank balance certificate, list of persons who have contributed to the share capital together with the amount contributed by each of them and the entrance fee to be paid by them, the scheme showing the details as to how the working of the society will be economically sound, and where the scheme envisages the holding of immovable property by the society, giving description of the immovable property proposed to be purchased, acquired or transferred to the society, a copy of the resolution authorising a member of the committee of the registered society to sign the application on behalf of the society, and a copy of the document authorising any person to sign the application on its behalf issued by a firm, company or other corporate body, a society registered under the Societies Registration Act, 1860 or public trust registered under any law for the time being in force relating to registration of public trusts.
10. The above provisions of law relating to the registration of a cooperative society apparently disclose that for the purpose of filing of an application for registration of a society, they require at least ten persons who are not the members of the same family and essentially to be of different families and being residents of the area of operation of the society and on fulfilment of those requirements, such ten persons or any such higher number of persons may file an application giving the above referred particulars to the Registrar for registration of a society. It is pertinent to note that the information which is required to be disclosed in the application by such persons nowhere requires that such persons should be the occupants or the tenants of the flats or the premises in relation to which the society is sought to be formed by such persons. In other words, the requirement in relation to disclosure of the information at the time of filing of the application for registration of a society under the said Act and the rules made thereunder does not require the applicants to disclose the nature of occupation of the premises in respect of which the society is sought to be formed. Bearing in mind this position in law in relation to the information to be disclosed by the applicants for the purpose of registration of a society, the rival contentions in the matter are to be considered.
11. As already seen above, the de-registration has been ordered solely on the ground that there has been suppression of information regarding the tenancy of the premises in favour of the Police Commissioner of Maharashtra and claim of tenancy of the respective flats in favour of the applicants thereby creating an impression in the mind of the registering authority that the applicants were the tenants and wanted to purchase their respective tenanted premises to form a tenants-co-partnership society, as is generally contemplated under the MHADA Act. At the outset, it is to be noted that it was not the case of the registering authority, either at the time of grant of registration or at the time of deciding the proceedings under Section 21-A of the said Act, that the petitioners had represented to the registering authority that they were the tenants of the respective flats or that any impression in the mind of the registering authority was created that they being the tenants, they wanted to purchase the respective flats to form a tenants-co-partnership society, as is generally contemplated under the MHADA Act. Indeed one is at a loss to ascertain on what basis the revisional authority could have come to the said finding when it was not the case of the registering authority itself. Apparently, the revisional authority has not only acted arbitrarily but has exercised his jurisdiction illegally. The decision of the lower authority to order de-registration was only on the basis that the information regarding the tenancy rights in favour of the Police Commissioner of Maharashtra in relation to the premises in question, and that the applicants had no right to those premises was not disclosed to the registering authority and the registration was obtained by suppression of the said facts. In other words, while the lower authority decided the matter under Section 21-A of the said Act on the basis of suppression of facts, the revisional authority decided the same on the basis of the alleged impression created in the mind of the registering authority on the basis of alleged misrepresentation by the applicants that they were the tenants in respect of their respective flats. The copy of the original application for registration made available by the learned Advocate for the respondents nowhere discloses that the applicants had ever claimed to be the tenants of the premises in question. Undoubtedly, what was stated by them in the application along with which Form 'A' was submitted, was that they are the occupants of the respective flats and they propose to purchase and own the said flats for self-occupation. The said statement nowhere gives any indication of claim of tenancy in respect of the respective flats and that therefore there was no occasion for the registering authority to have the impression that the applicants were the tenants of the respective premises and that therefore they were seeking the registration of the society as a tenants-co-partnership society on the line with those contemplated under the MHADA Act. The finding in that regard by the revisional authority is absolutely perverse and cannot be sustained.
12. As regards the finding of the lower authority about the suppression of information pertaining to the tenancy rights of the Police Commissioner in the premises in question, neither the statutory provisions of law referred to above, nor any materials placed before this Court disclose any obligation being cast upon the applicants to disclose the tenancy rights in relation to the premises with reference to which the application is made for formation and registration of society. Undoubtedly, the Chief Promoter and six others were occupying the said premises being the allottees on account of they being in the police service and the premises were under lease with the Police Commissioner of Maharashtra. However, since the information which was required to be furnished by the applicants at the time of seeking the registration of the society, nowhere required to disclose any such fact, it is not understood how the authority could jump tothe conclusion that there was suppression of the said fact. A fact can be said to be suppressed when the fact is either directly or indirectly relevant or material or in some manner necessary to be considered by the authority while taking decision on the application filed for registration of the society. Once it is clear that the fact as to who is in occupation of the premises and in what capacity is not relevant for the decision on such application, the finding of the lower authority regarding suppression of the said information cannot be sustained. Since the applicants were not required to disclose the said information in accordance with the provisions of law, mere non-disclosure of the said fact, by no stretch of imagination, can be termed as suppression of fact or information. Besides, nothing prevented the registering authority from asking the applicants to furnish specific information in relation to the nature of the occupation of the premises by the applicants and to furnish the documentary evidence in that regard, since such power is vested in the registering authority under Section 8(1) of the said Act. Being so, the said finding is also liable to be set aside.
13. The learned A.G.P., however, referring to the application which was filed by the applicants along with the application form, strenuously argued that reference to the promoter-members as the occupants of the respective flats misled the authorities to assume that they were the occupants as tenants of the respective premises. As already seen above, it is not necessary for the applicants to disclose the capacity in which the applicants are in occupation of the respective premises. Being so, merely because the applicants had claimed to be the occupants of the respective flats, there was no occasion for the registering authority either to get misled or to accuse the applicants of having suppressed the relevant fact. Undoubtedly, the applicants are required to be residents of the area of operation of the society. Being so, the applicants are necessarily required to disclose their place of residence and in that regard if the applicants had claimed to be the occupants of the respective flats while disclosing their respective place of residence, it cannot be said that they had suppressed the relevant material or that they had misled the registering authority.
14. Attention was also drawn to the definition of the term "occupier" in the MHADA Act. In terms of Section 2(25) of the MHADA Act, the term includes (a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable; (b) an owner in occupation of, or otherwise using, his land or building; (c) a rent-free tenant or any land or building; (d) a licensee in occupation of any land or building; and (e) any person who is liable to pay to the owner damages for the use and occupation of any land or building. Referring to the said definition which primarily discloses the occupier to mean a tenant or a licensee, and the applicants were mere allottees on account of their service conditions, it was sought to be argued on behalf of the respondents that the use of the word "occupants" in the letter accompanying the application must have certainly misled the authorities to construe the applicants being the tenants or licensees in relation to the premises in question. The argument is totally devoid of substance. The definition of the term "occupier" in the MHADA Act is for the purpose of the MHADA Act. The application for registration was definitely not under the provisions of the MHADA Act but it was under the said Act. Neither the said Act defines the term "occupier" nor it is the requirement of the law that the person has to be the occupier of the premises for the purpose of tiling of application for registration of the society. Being so, once it is clear that the application was not for the purpose of formation of the society in accordance with the provisions of law contained in the MHADA Act, the registering authority had no occasion to construe the said word "occupier" to mean in accordance with the provisions of the MHADA Act.
15. The learned A.G.P. has also placed reliance in the unreported decision of the Division Bench in the matter of Vasant Narayan Sardal v. The State of Maharashtra and Ors., Writ petition No. 689 of 1998, delivered on 18-4-1998. That was a case where, undisputedly, the proposed society of the tenants was formed and request was made to the Government to acquire the building under Chapter VIIIA of the MHADA Act. That is not the case in hand. The law is well-settled regarding the ratio of a decision to be applied to subsequent cases. In order to understand the ratio of a judgment, it is necessary to know the facts of the case and the point which arises for consideration in that case. The observations made in the decision in Vasant Narayan Sardal v. The State of Maharashtra and ors. (supra) were in the facts of the said case wherein the society was essentially formed in terms of the provision contemplated under the MHADA Act and-not for the purpose of registration under the said Act. Being so, applying the ratio laid down by the Apex Court in the Union of India and Ors. v. Dhanwantidevi and Ors., , the decision in Vasant Naryan
Sardal's case can be of no help to the respondents to justify the impugned decisions.
16. Reference is made by the learned A.G.P. to the decision of the Division Bench of this Court in S. R. B. Gaikwad v. The Union of India and Ors., and attention was drawn to para
13 thereof, while contending that the petitioners are trying to reap the benefit of their own mischief in the matter. As already observed above, the petitioners had approached the registering authority with all the necessary required information in the matter, and based on the said information the registration of the society was granted, The decision to revoke the registration has been arrived at on totally extraneous grounds, as has been rightly contended on behalf of the petitioners. The case before the Division Bench in S. R. B, Gaikwad v. The Union of India and Ors. (supra) was under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the observations therein were on the basis of the provisions of the said Public Premises Act and not in relation to the said Act. Being so, the said decision is of no help in the matter in hand.
17. For the reasons stated above, the impugned orders cannot be sustained and are liable to be set aside and accordingly are hereby quashed and set aside. The petition succeeds. The rule is made absolute in terms of prayer Clauses (a) and (b)(i) with no order as to costs.