Gujarat High Court
Tekchand Jairamdas Thakkar - Since ... vs Chandrakant Bherumal Malani on 12 January, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/27/2017 ORDER DATED: 12/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 27 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 10520 of 1999
With
R/LETTERS PATENT APPEAL NO. 1502 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 7801 of 1993
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of
2023
In R/LETTERS PATENT APPEAL NO. 1502 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 7801 of 1993
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 1502 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 7801 of 1993
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TEKCHAND JAIRAMDAS THAKKAR - SINCE DECEASED
THROUGH HEIRS
Versus
CHANDRAKANT BHERUMAL MALANI & 2 other(s)
=================================================
Appearance:
MR DIPEN DESAI(2481) for the Appellant(s) No. 1,1.1,1.2
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 2,3
MR HRIDAY BUCH(2372) for the Respondent(s) No. 1
MR BS PATEL, SR ADVOCATE with MR CHIRAG PATEL, for
the Respondent(s) No. 1 in LPA No. 1502 of 2016
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NEUTRAL CITATION
C/LPA/27/2017 ORDER DATED: 12/01/2024
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P.
MAYEE
Date : 12/01/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL)
1. Heard the learned advocates for the parties and perused the record.
2. Delay condoned. There is no objection to the Civil Application (For Bringing Heirs) No. 1 of 2023 seeking for substitution of heirs and legal representatives of respondent No. 5 namely Chandrakant Bherumal Malani. The application is accordingly, allowed in spite of the objections placed by the office.
3. These Intra-Court appeals have been directed against the judgment and order dated 08.12.2016 passed by the learned Single Judge in setting aside the order dated 15.06.1993 passed by the District Registrar, Co-operative Societies, Mahesana as also the Page 2 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined order dated 09.07.1993 passed by the Collector, Mahesana. The appellant herein claimed allotment of a cabin constructed by the respondent - society namely Shri Sant Ratan Vijay Market Refugee Cabin Holders Cooperative Society Ltd. and plot bearing No. 60/1 (paiki) which was allotted to the society for the purpose of construction of cabins. The record indicates that 93 cabins were constructed by the society and allotted to its members. There is no dispute about the fact that the predecessor in interest of the respondent No. 5 herein namley Meghraj Mathurdas was one of the 93 members of the society. It is the case of the society that entire exercise of allotment of shops / cabins was completed in the year 1973.
4. It seems that the appellant herein had moved an application to be inducted him as a member of the society. The said application was rejected at the ends of the Chairman and a communication dated 03.12.1976 was sent to the appellant. The reasons given in the communication of the Chairman, Cooperative Societies are reproduced in paragraph '4' of the impugned judgment of the Page 3 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined learned Single Judge. It may be relevant to note that two brothers of the appellant herein were inducted as members of the society and they were allotted respective shops.
5. It is not in dispute that after rejection of his application by the Chairman vide communication dated 02.11.1976, the appellant did not raise any dispute before the society or any of the authorities under the Gujarat Cooperative Societies Act, 1961 (for short, "the Cooperative Societies Act, 1961") in the matter of his non-induction as a member of the society.
6. In the year 1992, an application was moved by the appellant directly to the District Collector, Mahesana. On the application dated 16.11.1992 moved by the appellant, the record indicates that the Collector sent a communication dated 26.05.1993 to the District Registrar, Cooperative Societies, Mahesana, content of which is recorded in the order dated 15.06.1993 passed by the District Registrar, subject matter of challenge before the learned Single Judge. The assertion in the letter of the Collector, from the Page 4 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined translated copy of the said communication at page '42/A' of the paper-book, are relevant to be noted herein under:
"As per the letter dated 26/5/93 by the Collector, Mehsana Sr. (1) above the relevant documents were directed to be sent to this office and ordered that, Mr. Tekchand Jeramdas Thakkar is eligible for allotment of the shop No. 65 in the Society and to grant him the membership, as per the following details it is proper. And in this regard for taking appropriate action and to make arrangement such that the shop No. 65 is allotted to Mr. Tekchand Jeramdas Thakkar, such directions are given to this office.
1. As stated by the Collector, Mehsana there are total 93 shops in the Society, of them other then Shop no. 65 all the shops are allotted, and with regard of not allotting the shop no. 65 is no court matter nor any consistent evidences or any stay orders evidences produced by the present Chairman."
7. From a perusal thereof, it is indicated that the Collector, Mahesana had directed the District Registrar to provide relevant documents and further ordered that the appellant is eligible for allotment of shop No. 65 in the society and further direction was to Page 5 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined grant membership to the appellant. It was directed to make necessary arrangements for allotment of the shop to the appellant herein. It is noted in the order dated 15.06.1993 of the District Registrar that Shop No. 65 was stated to be vacant at that point of time and the appellant was seeking allotment of the said shop, whereas the claim of the Chairman, Cooperative Societies, who had appeared before the Registrar, was that the Shop No. 65 was to be allotted to Meghraj Mathurdas, the predecessor in interest of respondent No. 5, who was one of the 93 members of the society at the relevant point of time. The District Registrar in the impugned order recorded that there was no resolution for allotment of the shop in question to Meghraj Mathurdas nor his name was entered in the allotment register. It was also recorded that there was no evidence produced by the Chairman in that regard. It was also noted that the original allottee namely Meghraj Mathurdas had died and his heir / respondent No. 5 namely Mr. Chandrakant Bherumal Shah was not appearing in the straight line heir nor there was any application made to the society. It is pointed out that the name of the respondent No. 5, as indicated in the order of the District Registrar, was a result of Page 6 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined typographical error and the correct name is Mr. Chandrakant Bherumal Malani, who was the grandson of the original member namely Meghraj Mathurdas.
8. Be that as it may, the fact remains that the District Registrar, on the directions given by the Collector vide communication dated 26.05.1993, had proceeded to examine the provisions of the Cooperative Societies Act, 1961 and by referring to Section 24 of the said Act had recorded that the appellant had time and again demanded membership from the Chairman of the society and as per his legal right, demanded to allot him a shop, which was overlooked. The office of the District Registrar vide letter dated 19.01.1993 had also directed to the society to take appropriate action with regard to the demand made by the appellant. Despite instructions given by the District Registrar, the Chairman of the society had deprived the appellant of his legal right of membership as also the allotment of the shop. The bye-laws of the society clearly suggest that the refugee cabin holders, whose cabins were removed by the competent authority from the footpath, were eligible to become members of the Page 7 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined society. He also proceeded to record that shop No. 65 was sought to be allotted by Chandrakant Bherumal Shah (correct name is:
Chandrakant Bherumal Malani) which was illegal as he was not competent. The conclusion had, thus, been drawn that the Shop No. 65 was to be allotted in favour of the appellant and in view of Section 24 of the Cooperative Societies Act, 1961, the appellant was entitled to become a member. It seems that in view of the said directions contained in the order of the District Registrar, the Collector, Mahesana, had passed the order dated 09.07.1993 putting the conditions of allotment of the shop in question in its order itself.
9. In these facts and circumstances of the case, the learned Single Judge has proceeded to record that the appellant had approached the society in the year 1976 for allotment of the shop and his application was rejected by a detailed order, relevant portion whereof had been reproduced in the judgment itself. It was noted that there is no provision in the Act under which appeal can be preferred before the Registrar against the decision of the Managing Committee, that too, after abnormal delay of of 20 years. Once the decision is taken in Page 8 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined the year 1976 and no further action was taken by the appellant till the year 1992, no appeal could have been preferred suddenly in the year 1992-93 and the District Registrar had committed illegality in entertaining the application and summoning the Chairman of the society. It was also noted that the Collector had also committed illegality in issuing directions to the District Registrar to induct the appellant as member of the society and allot him the shop in question. During the entire proceedings, the District Registrar had ignored the provisions of law and the order passed by the Collector is also in violation of the provisions of the Act.
10. It was also noted that during the entire proceeding, the claim of heirs of the original member namely Meghraj Mathurdas was not considered properly as the respondent No. 5 was not put to notice.
To these findings returned by the learned Single Judge, no plausible objection could be taken by the learned counsel for the appellant, inasmuch as, in the matter of rejection of the application of the appellant in the year 1976 to induct him as member. There is no dispute about the fact that after the rejection of the said application Page 9 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined by the Chairman, the appellant had approached the Collector in the year 1992. No appeal had been filed as per Section 22(2A), relied by the learned counsel for the appellant during the period of 17 years. In the year 1992, the application was moved directly to the Collector by the appellant. No appeal also at that point of time was preferred before the District Registrar as per Section 22(2A). The entire proceedings leading to the passing of the order dated 15.06.1993 by the District Registrar, Cooperative Societies had been initiated on the application dated 16.11.1992 moved by the appellant directly to the Collector. As noted herein above, the District Registrar, Cooperative Societies did not make any independent inquiry but proceeded simply on the directions contained in the letter of the Collector dated 26.05.1993. Reference to the communication issued by the District Registrar namely the letter dated 19.01.1993 giving instructions to the Chairman to induct the appellant as member of the society is also of no help to the appellant, inasmuch as, it is evident that for a period of 17 years, the appellant did not agitate the rejection of his application by the Chairman.
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11. Further, though the contention of the learned counsel for the appellant is that the Chairman, Cooperative Societies had no jurisdiction to reject his application in the year 1976, and as such, the order passed by the Chairman is liable to be ignored, but no fresh application was moved before the cooperative society by the appellant for being inducted as member of the society. The procedure for induction of the member in a society is governed by Section 22 of the Cooperative Societies Act, 1961, which prescribes that every person seeking admission as a member of the society, if duly qualified for membership of such society under the provisions of the Act, the Rules and the Bye-laws of the society, may make an application to the society for membership. On such application being made, the society shall take a decision and communicate the said decision within a period of three months from the date of receipt of the application. Sub-section (2A) of Section 22 further provides that any person aggrieved by the decision of the society under the above-noted Sub-section (2) may prefer an appeal to the Registrar within 60 days from the date of communication of the decision and such appeal shall have to be decided by the Registrar within a period Page 11 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined of 60 days.
12. From the facts noted herein above, it is more than evident that the appellant did not move any fresh application after rejection of his application in the year 1976 for being inducted as member of the society in accordance with the provisions of Sub-section (2) of Section 22. He straight away approached the District collector raising the grievances about non-induction as member of the society and non-allotment of shop No. 65, who did not have any jurisdiction to look into the question of membership of the appellant. As regards the provisions of the Section 24, the same refer to induction of a member as an open membership. Sub-section (1) of Section 24 provides that no society without sufficient cause refuse admission to membership to any person duly qualified therefor under the provisions of this Act, the Rules and the Bye-laws of such society. A reading of Section 24(1) of the Cooperative Societies Act, 1961 as also Section 22(2), makes it evident that induction of a member in the society is governed by the bye-laws of the society, which have not been brought before us. The claim of the appellant for being Page 12 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined inducted as open member of the society in accordance with Section 24(1), therefore, cannot be examined. We may note that the society in question was constituted to construct cabins over plot bearing survey No. 60/1 (paiki) and allot the same to its members. There were 93 members in original in the society and all those members were allotted respective shops as per the claim of the society before the District Registrar. It is, thus, difficult to accept that the appellant is entitled to be inducted as 94th member, over and above the total members inducted by the society initially for allotment of 93 cabins constructed by it over the plot allotted to it. However, all these issues have not been dealt with by the District Registrar before passing the order while giving direction to induct the appellant as a member. The Bye-laws of the society laying down the object and purpose, the constitution of the society and membership have not been looked into, nor have been placed before us.
13. This apart, there was dispute with respect to induction of the heir of the original member namely Meghraj Mathurdas on an application moved by respondent No. 5 after the death of Meghraj Page 13 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024 NEUTRAL CITATION C/LPA/27/2017 ORDER DATED: 12/01/2024 undefined Mathurdas in the year 1990 for being inducted as member of the society being his grandson. Before passing the order impugned dated 15.06.1993 on the directions issued by the Collector vide communication dated 26.05.1993, no notice was issued to the respondent No. 5. Before taking decision by the Deputy Collector that the respondent No. 5 was not entitled to become a member, not being in the straight line of heir, no opportunity of hearing was granted.
14. On all these aspects of the matter, we do not find any error in the findings returned by the learned Single Judge that the Collector and the District Registrar had no jurisdiction to deal with the issue of membership and straight away direct for allotment of the shop in question namely shop No. 65 to the appellant herein. For the reasons recorded herein-above, in addition to the reasoning given by the learned Single Judge, we dismiss the instant appeals being devoid of merits. Connected application shall stand disposed of, accordingly.
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14.1 In the end, the request made by the learned counsel for the appellant for extension of the interim order granted in these appeals, for a period of one month to facilitate the appellant to approach the apex Court, is hereby rejected.
[ Sunita Agarwal, CJ. ] [ Aniruddha P. Mayee, J. ] hiren /5 Page 15 of 15 Downloaded on : Tue Jan 16 20:36:33 IST 2024