Madras High Court
Mr Syed Munir Hoda I.A.S vs Mrs Bader Sayeed on 8 October, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08/10/2012 CORAM THE HON'BLE MR. JUSTICE K.CHANDRU Application Nos.4305 to 4308 of 2012 and Original Application Nos.37 and 38 of 2012 in C.S.No.26 of 2012 Application No.4305 of 2012 --------------------------- MR SYED MUNIR HODA I.A.S. (RET SAPNA 39 11TH AVENUE ASHOK NAGAR CHENNAI 83 VS MRS BADER SAYEED W/O DR.ZAHEER AHMED SAYEED, G1, PALMWOODS, 9, SESHADRI ROAD, ALWARPET, CH - 18. MR.HAMEED AHMED SAYEED S/O LATE RASHEED AHMED SAYEED, B-205, ATRIUM APARTMENTS, KALAKSHETRA ROAD, CH - 20. Application No.4306/2012 ------------------------ MR SYED MUNIR HODA I.A.S. (RET SAPNA 39 11TH AVENUE ASHOK NAGAR CHENNAI 83 VS MRS BADER SAYEED W/O DR.ZAHEER AHMED SAYEED, G1, PALMWOODS, 9, SESHADRI ROAD, ALWARPET, CH - 18. MR.HAMEED AHMED SAYEED S/O LATE RASHEED AHMED SAYEED, B-205, ATRIUM APARTMENTS, KALAKSHETRA ROAD, CH - 20. Application No.4307/2012 ------------------------ THE SOUTHERN INDIA EDUCATION TRUST, MADRAS (SIET), REP BY ITS SECRETARY T.RAFEEQ AHMED COLLEGE AVENUE, NEW NO.54, K.B.DASAN RD, TEYNAMPET, CH - 18. MOOSA RAZA CHAIRMAN, SIET, NEW NO.54, K.B.DASAN ROAD, TEYNAMPET, CH- 18. T.RAFEEQ AHMED COLLEGE AVENUE, NEW NO.54, K.B.DASAN ROAD, TEYNAMPET, CH - 18. FAIZUR REHMAN SAYEED S/O BASHIR AHMED SAYEED, SADHR GARDENS, 1 BASHEER AHMED ST., ALWARPET, CH - 18. DR. M.S. MEHKARI CORRESPONDENT FBMHS SCHOOL FOR GIRS DYSLEXIA CENTRE CHENNAI 18 MRS. YASMIN AMED I.A.S RETD . PROF A MOHAMMED HARRIS 39-A MUKANTHAL ST PURASAWAKKAM CHENNAI 7 DR A.M. JALEEL . MR IMTIAZ PASHA . VS MRS BADER SAYEED W/O DR.ZAHEER AHMED SAYEED, G1, PALMWOODS, 9, SESHADRI ROAD, ALWARPET, CH - 18. MR.HAMEED AHMED SAYEED S/O LATE RASHEED AHMED SAYEED, B-205, ATRIUM APARTMENTS, KALAKSHETRA ROAD, CH - 20. Application No.4308/2012 ------------------------ THE SOUTHERN INDIA EDUCATION TRUST, MADRAS (SIET), REP BY ITS SECRETARY T.RAFEEQ AHMED COLLEGE AVENUE, NEW NO.54, K.B.DASAN RD, TEYNAMPET, CH - 18. MOOSA RAZA CHAIRMAN, SIET, NEW NO.54, K.B.DASAN ROAD, TEYNAMPET, CH- 18. T.RAFEEQ AHMED COLLEGE AVENUE, NEW NO.54, K.B.DASAN ROAD, TEYNAMPET, CH - 18. FAIZUR REHMAN SAYEED S/O BASHIR AHMED SAYEED, SADHR GARDENS, 1 BASHEER AHMED ST., ALWARPET, CH - 18. DR. M.S. MEHKARI CORRESPONDENT FBMHS SCHOOL FOR GIRS DYSLEXIA CENTRE CHENNAI 18 MRS. YASMIN AMED I.A.S RETD . PROF A MOHAMMED HARRIS 39-A MUKANTHAL ST PURASAWAKKAM CHENNAI 7 DR A.M. JALEEL . MR IMTIAZ PASHA . VS MRS BADER SAYEED W/O DR.ZAHEER AHMED SAYEED, G1, PALMWOODS, 9, SESHADRI ROAD, ALWARPET, CH - 18. MR.HAMEED AHMED SAYEED S/O LATE RASHEED AHMED SAYEED, B-205, ATRIUM APARTMENTS, KALAKSHETRA ROAD, CH - 20. ORDER
Application Nos.4305 and 4306 of 2012 were filed by the 6th defendant in the suit to vacate the common interim order dated 19.01.2012 made in O.A.Nos.37 and 38 of 2012 in C.S.No.26 of 2012. Similarly, Application Nos.4307 and 4308 of 2012 were filed by the 1st defendant society to vacate the very same interim order dated 19.1.2012.
2.O.A.Nos.37 and 38 of 2012 were filed by two applicants, who are plaintiffs in C.S.No.26 of 2012 for the grant of an interim injunction restraining respondents 6 to 13 from acting as members of the general body of the first respondent's society and for an interim injunction restraining the 6th respondent from acting as a member of the executive council of the first respondent society.
3.When the matter came up, the first defendant society apprehending the institution of a suit had filed caveats in Caveat Petition Nos.64, 65 and 66 of 2012 before this court and it was lodged on 10.01.2012. However, when the applications for interim injunction came up on 19.01.2012, this court held that any decision taken in the executive council meeting to be held on 21.01.2012 or on any other subsequent date insofar as it relates to the induction of the 6th respondent as the Secretary of the executive council of the first respondent society shall not be implemented until further orders. Challenging the order passed in O.A.Nos.37 and 38 of 2012, two appeals were filed by the first respondent society before the division bench being O.S.A.Nos.287 of 2012 and 337 of 2012.
4.O.S.A.No.287 of 2012 challenging an order dated 19.01.2012 came to be dismissed by a division bench by an order dated 03.08.2012. The division bench held in paragraphs 3 to 5 as follows :
"3.A reading of the order shows that there is absolutely no bar on the part of the appellant-society from conducting the executive council meeting either on 21st Jan., 2012 or any other subsequent day, but it is only stated that if any resolution is passed in respect of induction of the 6th respondent by the executive council, the society shall not implement the same until further orders.
4.It is not in dispute that the appellant-society has been carrying on its trust activities and meetings of the executive council are being held. In the absence of any bar imposed by the impugned order on the executive council of the appellant-society from conducting the meeting, there is absolutely no grievance for the appellant. However, we only make it clear that it is always open to the executive council to take a decision, if it is the case of the executive council that the existing secretary is not in existence as such and it deems necessary for the purpose of appointing a secretary, if the executive council meeting is convened and if in the said meeting, the 6th defendant is chosen to be the Secretary by the executive council, it is always open to the appellant to move the learned Judge for further orders informing the same to the learned Judge.
5.In the circumstances, we do not see any reason to interfere with the order of the learned Judge. Accordingly, with the above observations, this appeal is dismissed. Consequently, connected miscellaneous petition is closed."
5.In view of the dismissal of O.S.A.No.287 of 2012, O.S.A.No.337 of 2012 also was dismissed for the very same reasons. It was thereafter these four applications came to be filed by the first and sixth respondents.
6.Heard the arguments of Mr.N.Vijay Narayan, learned Senior Counsel leading Mr.B.Senthilnathan, learned counsel appearing for the applicants/ defendants and Mr.G.Rajagopal, learned Senior Counsel for Mr.S.Thiruvenkataswamy, learned counsel appearing for the plaintiffs.
7.The prayer in the suit filed by the plaintiffs was for declaration that the induction of defendants 6 to 13 as members of the general body of the first defendant society in the meeting dated 7.10.2011 was illegal and for consequential permanent injunction restraining defendants 6 to 13 from acting in any manner as general body members of the first defendant society and for a declaration that co-option of the 6th defendant as the executive council member of the first defendant society on 21.11.2010 was illegal and for consequential permanent injunction restraining the 6th defendant from acting as the executive council member of the first defendant society.
8.In the applications filed by the plaintiffs, it was stated that the first plaintiff was the Joint Secretary of the first respondent society and she was the daughter of one of the founders of the Southern India Education Trust. She is also an executive council member. She received a proposal to induct certain persons as general body members vide a supplementary agenda received from the Secretary of the first respondent on 14.09.2011 with reference to the meeting scheduled to be held on 20.09.2011. No details regarding the members to be inducted in the general body were provided to the applicants even after details were requested by the applicants. The second applicant who is one of the executive council member, had requested the third respondent for details of names of members and details regarding the number of applications that were pending as well as the details of persons proposed to be inducted in the general body along with their bio-data. The second respondent had sent a communication stating that there was no provision in the first respondent society nor there was any practice or precedent whereby such details were circulated to the members. The second and third respondents by separate letters had informed that the meeting to be held on 20.09.2011 was postponed and that a new date will be communicated later. Thereafter, on 30.09.2011, a communication was received by the applicants that the meeting was to be held on 07.10.2011 and that an agenda was enclosed, but no details regarding the members to be inducted were circulated. The non disclosure of such details was seriously objected to by the Treasurer of the first respondent society vide letter dated 03.10.2011 addressed to the third respondent.
9.On 04.10.2011, the applicants and other members of the executive council were served with caveat applications lodged before this court. The executive council meeting was held on 07.10.2011. The applicants had questioned the authority of the third respondent to send caveats and that the applicants were insulted. Hence they walked out of the meeting under protest. Thereafter, respondents 6 to 13 were inducted as members of the general body. The respondents 6 to 13 were in no manner connected in the field of education. They were proposed and seconded by the 4th and 5th respondents. The respondents 6 to 13 are friends of 4th and 5th respondents in the social circle and were inducted as members of general body on this ground alone. Their induction was done without any discussion, but it was done in complete violation of fair play and without any transparency. The applicants were curious as to why persons of extremely old age and without experience in the field of education were inducted as general body members of an educational institution, which was not answered by respondents 1 to 5. The second defendant, who was a retired IAS Officer, was attempting to increase his strength in the general body by admitting retired IAS Officers as members. Various applications received from the eminent women members of the society were not even placed before the council.
10.The 6th respondent had a very controversial and irregular career when he was serving as a member of administrative service and that it was not in the interest of the institution to make him as a member. The first respondent society is a prestigious minority institution catering to the welfare of the Muslim community. The applicants are deeply interested in the welfare and proper functioning of the first respondent society. Already proceedings are pending against 4th and 5th respondents before this court. The first respondent society has been restrained from appointing the 4th respondent to any new post in the first respondent society vide order dated 20.7.2010 made in W.P.No.480 of 2010. When the 4th and 5th respondents are functioning under serious cloud, inducting the respondents 6 to 13, who were proposed by the 4th and 5th respondents, as members of the general body will seriously prejudice the functioning and administration of the first respondent institution. Further, the attempt by the respondents inducting respondents 6 to 13 as members of the general body lacks bona fide. It was made to sideline the members of the founder's family and to avoid them from having any voice. In the subsequent executive council meeting held on 21.11.2011, the 6th respondent was also co-opted as the executive council member without consulting any other member of the executive council in a wholly autocratic and arbitrary manner. It is under these circumstances, the applications came to be filed for interim injunction.
11.In the applications for vacating the interim injunction, the Secretary of the first respondent society had stated that the power of management of the society vests with the executive council which consist of not less than 7 and not more than 15 Muslim members. Under Rule 7 of the Memorandum of Association, the interim vacancies of membership or office bearers in the executive council shall be filled up by the remaining members of the E.C by co-option by following the majority rule. At present, the executive council has 15 members including the office bearers. Under Rule 1 of the Rules and Regulations of the society, the membership of the society is open to all persons of the age group 21 and above, who subscribe to the aims and objects of the society and agree to abide by the rules. Under Rule 3, the admission to membership shall ordinarily be on an application signed by the applicant and duly proposed by one member and seconded by another member of the society. It is within the power of the executive council to co-opt any person to the executive council and that the 6th respondent was co-opted as the executive council member under Rule 7(iii) read with Rule 22 of the Rules and Regulations for filling up the vacancies which arose on account of death of Mrs.Jahanara Hussain, an executive council member. Unless the action taken by the executive council is ultra vires to rules and regulations of the society, the court cannot interfere with the functioning of the day-today affairs of the society.
12.The allegation that no details were given in the agenda regarding the members to be inducted was denied. Providing the details regarding the names of new members sought to be inducted to both general body and executive council was never the practice. All information was made available to executive council members only at the time of executive council meeting and this was the practice for the last 60 years. But, however, in view of the letter of the Treasurer of the society, dated 03.10.2011, as a matter of courtesy, the details were provided by the Secretary on 06.10.2011. Filing of caveat was done by the Secretary and not in his capacity as an executive council member. The meeting was conducted on 07.10.2011 in a fair and transparent manner. Since in the past, members were approaching the court, it is necessitated to file a caveat. The induction of respondents 6 to 13 as general body members was done at the executive council meeting. The forms and applications received from those respondents were placed along with cheque of Rs.10,000/- from each of them. Their names were proposed by one member and seconded by another member. There was also debates and discussion on the topic and only thereafter the respondents were inducted. The respondents 6 to 13 were highly educated and qualified persons. They were either proposed or seconded by two members in strict compliance of the rules. The profiles of the respondents with copies marked to all E.C members including the two plaintiffs clearly shows that respondents 6 to 13 were highly educated and having expertise over their respective fields. The allegation that they were extremely old age cannot be a reason as they were highly educated ad had enormous experience in their field. The age cannot be a bar of their becoming members of the general body. It was within the discretion of the E.C. to reject or accept any members to the society. The allegation made against the 6th respondent that he had controversial career was denied. The 6th respondent was suspended by the State Government vindictively and false charge were framed against him, which was cancelled by the Government of India, which reinstated him in service. There was sufficient representation for women members in the general body.
13.The objections raised by the plaintiffs were emanated from the minority members of the general body. The writ petition earlier filed against the 4th respondent, who is the son of late Justice Basheer Ahmed Sayeed, who was the founder of the society and the 5th respondent who is the second cousin of the first respondent, was with malafide intention. The writ petition filed by them in W.P.No.480 of 2010 was dismissed by this court on 03.08.2012. The founder of the society late Justice Basheer Ahmed Sayeed had only 6 legal heirs. He had 4 sons and 2 daughters. Of the 6, 5 were members of the executive council and the general body for more than 22 years. The legal heirs of the late Founder of the society have been adequately represented in the executive council and also in the general body.
14.The 6th respondent is a retired IAS Officer and is a distinguished bureaucrat and also the former Home Secretary of the State of Tamil Nadu. It is the discretionary right of the society to choose or appoint its Secretary in accordance with the byelaws. The first applicant / first plaintiff has been frequently resorting to court process seeking for repeated injunction to paralyze the functioning of the society. She was obliged to resign as the Correspondent of the college in the year 1998 due to her having lost the confidence of the overwhelming majority of the executive council members due to her highhandedness and autocratic conduct. Further, she has been stalling the democratic functioning of the society through litigation. Her only intention was to become the Secretary of the society and to wrest control of it by means of resorting to litigation. The present suit is a classic example of the same. Hence the vacate interim injunction application is filed.
15.In the counter affidavit filed by the 6th respondent, he had given his career history as the member of the Indian Administrative Service and various posts held by him during his tenure. He also denied the allegations made against him regarding the controversial career and enclosed in the typed set the order passed by the Government of India revoking the suspension made by the State Government and the subsequent order of the State Government dropping further action relating to disciplinary action initiated against him and also treating the period of suspension as duty for all purposes. He further stated that the first applicant / first plaintiff has hardly any interest in the society and during the year 2000 to 2011 , of the 12 general body meetings, she had attended only one meeting in the year 2010. Out of 35 executive council meetings held from 2006 to 2012, she had attended only 6 meetings. Making her husband as the member of the executive council also failed as he could not secure votes in his favour.
16.Before proceeding to deal with the issue on hand, two facts will have to be cleared. Firstly, in the adjourned meeting dated 07.10.2011, the applicants/ defendants had enclosed only the covering letter as well as the index of the agenda for the meeting, but did not include the entire agenda circulated. The item No.9 of the agenda held for the meeting dated 07.10.2011 was for the induction of new members into the general body of the society and it was mentioned in page 28 of the agenda. It contained the names of persons, the positions held by them as well as their addresses and phone numbers and the nature of services they were doing. Therefore, the applicants / plaintiffs was not correct in stating that no details regarding the induction of members was given in the meeting to be held on 07.10.2011.
17.Secondly, the minutes of the meeting held on 07.10.2011 was produced by the applicants/ plaintiffs in the typed set, which shows that the first applicant / first plaintiff had abruptly walked out of the meeting requesting that her dissent should be recorded. The second applicant / second plaintiff also had walked out. The minutes itself was produced by the applicants / plaintiffs and it is necessary to extract the following passages from the minutes :
"Mrs.Bader Sayeed however insisted that the meeting should not proceed in the presence of Secretary who she had alleged had lost the confidence of the Executive Council. "He should therefore resign", she asserted. The Chairman desired to know under which rule or clause of the Memorandum/Articles she was demanding the resignation of the Secretary and why he should leave when he enjoyed the full trust and confidence of a majority of the members of the Executive Council. Mrs.Bader Sayeed responded that she did not propose to explain the rules and law as it will not be "understood" by the Chairman. The Chairman stated that as he had served the Government for almost half-a-century and had administered four districts as District Magistrate, he was capable of understanding if there was any rule or law under which the Secretary should be asked to leave the meeting.
Thereupon, Mrs.Bader Sayeed abruptly stood up and said that she was walking out of the meeting in protest and her dissent should be recorded.
Mr.Sirajuddin Sayeed and Mr.Hameed Ahmed Sayeed too got up to leave and said their dissent too should be recorded.
The Chairman said that their dissent will be so recorded. Thereafter, all the three Executive Council members left the meeting.
The Executive Council took note of this and endorsed the Secretary action in filing the caveats, and recorded its full confidence in the action of the Secretary and Chairman."
18.It was thereafter, the other items were taken up and item No.9 relating to induction of new members was made. The executive council had resolved to enroll the respondents 6 to 13 as members of the executive council. Though the applicants / plaintiffs had challenged the subsequent decision taken in the executive council meeting held on 21.11.2011, they did not attend the meeting and have also not enclosed the minutes of the meeting in the documents accompanying the plaint. Though they have questioned the induction of 6th respondent as the executive council member in the meeting held on 21.11.2011, in the original prayer the date was shown as 21.11.2010. In the meeting held on 21.11.2011, the subject relating to co-option of the member to the executive council was discussed as item No.4 and it reads as follows :
"4.TO CO-OPT A MEMBER TO THE EXECUTIVE COUNCIL IN THE PLACE OF LATE MRS.JAHANARA HUSSAIN.
Chairman called for proposals to co-opt a member in place of late Mrs.Jahanara Hussain.
Mr.Sirajuddin Sayeed proposed the name of Dr.Zaheer Ahmed Sayeed, and gave his opinion on the suitability of Dr.Sayeed. There was no seconder for this proposal.
Mr.Habibullah Badsha proposed the name of Mr.Syed Munir Hoda. Mr.Faizur Rahman Sayeed seconded the proposal.
The above proposals were put to vote.
There was no vote cast in favour of Dr.Zaheer Ahmed Sayeed.
The following five members voted in favour of Mr.Syed Munir Hoda.
1.Mr.Moosa Raza.
2.Mr.Habibullah Badsha
3.Mr.T.Rafeeq Ahmed
4.Mr.Faizur Rahman Sayeed and
5.Dr.M.S.Mehkari Since Mr.Syed Munir Hoda had secured the majority of votes, Chairman declared Mr.Syed Munir Hoda is co-opted as member of the Executive Council with effect from 21.11.2011 in the vacancy caused by the demise of late Mrs.Jahanara Hussain.
Mr.Sirajuddin Sayeed did not participate in the voting."
19.In the plaint filed in the suit, there was no challenge to the minutes of meeting held either on 07.10.2011 or 21.11.2011. On the contrary, in the subsequent executive council meeting held on 21.01.2012 which was 2 days after the interim order was granted, the minutes of the earlier meeting held on 21.11.2011 was confirmed. In that meeting, the two applicants / plaintiffs were present very much. Therefore, having not challenged the proceedings held on those two days and on the subsequent date, it can be presumed that the record of the meetings held on 07.10.2011, 21.11.2011 and 21.1.2012 represent the correct state of facts. The grievance was only with respect to the method of induction of respondents 6 to 13 as well as the co-option of the 6th respondent as a member of the executive council. This court do not find any procedural irregularity had taken place in the induction of respondents 6 to 13. No rules and regulations and memorandum of association of the society has been violated in their induction. The decision of the executive council was done by voting by majority and no illegality, prima facie, had taken place in the action initiated by the first respondent society. The applicants/ plaintiffs are not entitled for any relief at this interim state as no prima facie case has been made out and the balance of convenience is not for the grant of any interim order.
20.The second allegation made in the affidavit was based upon the interim order said to have been obtained by the first applicant / first plaintiff in W.P.No.480 of 2010 on 20.7.2010. A copy of the order was enclosed in the typed set, wherein in M.P.No.3 of 2010 in W.P.No.480 of 2010, on 20.7.2010 this court had extended the interim injunction restraining the society from appointing 4th and 5th respondents (who are cited as 3rd and 4th respondents in the W.P.) to any other post pending the writ petition. But as rightly pointed out by the learned Senior Counsel Mr.Vijay Narayan, the writ petition itself was dismissed and the interim injunction was vacated. The first applicant / first plaintiff in that writ petition had sought for an appointment of a committee as per the Vishaka's judgment to enquire into the allegations made against respondents 4 and 5, alleging that serious allegation of sexual harassment committed by them against the staff members of the college and school. This court while dismissing the writ petition on 03.08.2012 found that the writ petition filed to enquire into anonymous and pseudonymous complaints without any credible evidence to support the allegations was not maintainable and no roving enquiry can be ordered by this court under Article 226 of the Constitution of India. Therefore, the basis of averments made in paragraph 12 of the original applications disappears. This court also do not find any illegality in filing caveat by the society apprehending any ex parte order may be obtained against them.
21.In interfering with the functioning of the private society, the role of the court is held to be very limited. In this context, it is necessary to refer to a judgment of the Supreme Court in T.P. Daver v. Lodge Victoria reported in (1964) 1 SCR 1 = AIR 1963 SC 1144 and in paragraphs 4,5 and 8, it was observed as follows :
"4.The source of the power of associations like clubs and lodges to expel their members is the contract on the basis of which they become members This principle has been restated by Lord Morton in Bonsor v. Musicians' Union [1956 AC 104]. There, one Bonsor who became a member of a trade union, was expelled. In that context Lord Morton observed:
When Mr Bonsor applied to join the respondent union, and his application was accepted, a contract came into existence between Mr Bonsor and the respondent, whereby Mr Bonsor agreed to abide by the rules of the respondent union, and the union impliedly agreed that Mr Bonsor would not be excluded by the union or its officers otherwise than in accordance with the rules. This contractual origin of the rule of expulsion has its corollary in the cognate rule that in expelling a member the conditions laid down in the Rules must be strictly complied with. In Maclean v. Workers' Union2 the contractual foundation of the power is described thus:
In such a case as the present, where the tribunal is the result of rules adopted by persons who have formed the association known as a trade union, it seems to me reasonably clear that the rights of the plaintiff against the defendants must depend simply on the contract and that the material terms of the contract must, be found in the rules. Proceeding on that basis, the learned Judge observed:
It is certain, therefore, that a domestic tribunal is bound to act strictly according to its rules and is under an obligation to act honestly and in good faith. The same idea was expressed by the Calcutta High Court in Ezra v. Mahendra Nath Banerji3 thus:
where the rule provides in any particular respect that some condition must be fulfilled, then that condition must be strictly complied with, since the power of expulsion is itself dependent on the terms of the rule.
5.The next question is whether the doctrine of strict compliance with rules implies that every minute deviation from the rules, whether substantial or not, would render the act of such a body void. The answer to this question will depend upon the nature of the rule infringed; whether a rule is mandatory or directory depends upon each rule, the purpose for which it is made and the setting in which it appears.
8.The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a civil court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra."
22.The Supreme Court while dealing with the action of the cooperative society in deciding a particular issue regarding allotment to members, vide its judgment in Myurdhwaj Coop. Group Housing Society Ltd. v. Presiding Officer, Delhi Coop. Tribunal reported in (1998) 6 SCC 39 in paragraphs 10 and 14 had observed as follows :
"10..... It is not proper even for the courts to interfere with such a discretion, except when it is arbitrary, irrational, mala fide, against any statutory provisions or against orders having the force of law. ....
14.....The respondent's case is, she has not received any notice from the Society either of the default or laying down cut-off date for the payment, including notice dated 26-4-1986, further the decision of the General Body dated 6-1-1990 of relegating her or other such person to Phase II was not on the agenda. To this last argument, we do not find any merit. A general body can always with the approval of the house in the meeting of its members take up any other matter not covered by the agenda and on that account, no illegality could be held."
23.Though the plaintiffs have made several allegations regarding the credential of inducted members and also about the object for which the society was founded, in the absence of inducted members suffer from any disqualification of rules and regulations, this court cannot add any further qualification in their favour. The applicants / plaintiffs being the members of the society are also bound by the memorandum of association and rules and regulations. Once a person becomes a member of the society, he or she loses his or her individuality and that the person has no independent right except those given to him or her by the statutes and bylaws.
24.The Supreme Court in Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban) reported in (2005) 5 SCC 632 in paragraphs 17, 24 and 27 had observed as follows :
"17.......In State of U.P. v. C.O.D. Chheoki Employees' Coop. Society Ltd. [(1997) 3 SCC 681] this Court after referring to Daman Singh case2 held in para 16 that: (SCC p. 691) 16. Thus, it is settled law that no citizen has a fundamental right under Article 19(1)(c) to become a member of a cooperative society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.
24......The Committee is given full discretion in granting or withholding such sanction. Of course, in terms of the Act and the Rules, the refusal may be appealable before the authority under the Act and the Society may not be in a position to argue that its decision is final. But that does not mean that the authority under the Act is competent to ignore the bye-law relating to qualification to membership and direct the Society by exercising appellate or other power, to admit a person to membership who is not qualified to be a member, on the basis of its notion of public policy or fairness in dealing. These approved bye-laws, clearly, confer power on the Committee to reject the application for membership of a person who is not qualified in terms of the bye-law concerned and this cannot be interfered with on the basis of anything contained in the Act or the Rules. .......
27. Under the Contract Act, 1872, a person sui juris has the freedom to enter into a contract. The bye-laws of a cooperative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of that society. Even the formation of the society is based on a contract. This freedom to contract available to a citizen cannot be curtailed or curbed relying on the fundamental rights enshrined in Part III of the Constitution against State action. A right to enforce a fundamental right against State action, cannot be extended to challenge a right to enter into a contract giving up an absolute right in oneself in the interests of an association to be formed or in the interests of the members in general of that association. This is also in lieu of advantages derived by that person by accepting a membership in the society. The restriction imposed, is generally for retaining the identity of the society and to carry forward the object for which the society was originally formed. It is, therefore, a fallacy to consider, in the context of cooperative societies, that the surrendering of an absolute right by a citizen who becomes a member of that society, could be challenged by the said member by taking up the position that the restriction he had placed on himself by entering into the compact, is in violation of his fundamental right of freedom of movement, trade or right to settle in any part of the country. He exercises his right of association when he becomes a member of a society by entering into a contract with others regulating his conduct vis-`-vis the society, the members constituting it, and submerging his rights in the common right to be enjoyed by all and he is really exercising his right of association guaranteed by Article 19(1)(c) of the Constitution in that process. His rights merge in the rights of the society and are controlled by the Act and the bye-laws of the society."
25.In the light of the above legal precedents and the factual matrix involved, O.A.Nos.37 and 38 of 2012 will stand dismissed. A.Nos.4305 to 4308 of 2012 will stand allowed. However, there shall be no order as to costs.
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