Gujarat High Court
Lokeshbhai Vishnubhai Patel vs Patidar Co-Operative Housing Society ... on 13 June, 2024
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23417 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 13434 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 23418 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 16601 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ?
4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ LOKESHBHAI VISHNUBHAI PATEL & ORS.
Versus PATIDAR CO-OPERATIVE HOUSING SOCIETY LIMITED & ORS. ================================================================ Appearance in Special Civil Application No.23417 of 2017:
ADVOCATE NOTICE SERVED for the Petitioner(s) No. 3 MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR ARVIND YADAV AND MR MIT S THAKKAR(11223) for the Petitioner(s) No. 1,2,4 MR PS CHAMPANERI(214) for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2,3 Appearance in Special Civil Application No13434 of 2023:
MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR ARVIND YADAV AND MR MIT S THAKKAR(11223) for the Petitioner(s) No. 1-5 MR MIHIR J THAKORE, SENIOR ADVOCATE WITH MR PS CHAMPANERI (214) AND MR CHINTAN P CHAMPANERI for the Respondent(s) No. 2 MR MEET M THAKKAR, AGP for the Respondent No.1 NOTICE SERVED BY DS for the Respondent(s) No. 3,4 Page 1 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Appearance in Special Civil Application No.23418 of 2017:
MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR ARVIND YADAV AND MR MIT S THAKKAR(11223) for the Petitioner(s) No. 1,2.1,3 MR PS CHAMPANERI(214) for the Respondent(s) No. 1 MR DIPAN DESAI for the Respondent(s) Nos.12.1 to 12.9 Appearance in Special Civil Application No16601 of 2023:
MR CHINTAN P. CHAMPANERI for the Petitioner MR MEET M THAKKAR, AGP for the Respondent No.1 & 2, MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR ARVIND YADAV AND MR MIT S THAKKAR(11223) for the Respondent(s) Nos. 4 to 8 NOTICE SERVED BY DS for the Respondent(s) No.3 ================================================================ CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 13/06/2024 COMMON CAV JUDGMENT With the consent of learned advocates appearing for the respective parties, the captioned petitions are taken for up final disposal.
2. Issue Rule, returnable forthwith. In Special Civil Application nos.23417 of 2017, 23418 of 2017 and 13434 of 2023, Mr P. S. Champaneri, learned advocate, Mr C. P. Champaneri, learned advocate, Mr Meet M. Thakkar, learned Assistant Government Pleader and Mr Dipan Desai, learned advocate waives service of notice of Rule on behalf of respective respondents in the respective writ petitions and in Special Civil Application no.16601 of 2023, Mr Mit S. Thakkar, learned advocate and Mr Meet M. Thakkar, learned Assistant Government Pleader waives service of notice of Rule on behalf of respective respondents.
3. The issue; the challenge and the grievances raised in the captioned writ petitions are interconnected and to an extent overlapping; therefore, owing to the commonness, all the writ petitions are heard analogously and are being disposed of by this common judgment.Page 2 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined
4. The gist of challenge in the respective writ petitions, is set out hereunder for ready reference:-
Re: Special Civil Application no.23417 of 2017 and Special Civil Application no.23418 of 2017
(a) Challenge is to the common judgment and order dated 15.06.2016 passed by the Board of Nominees as well as the common judgment and order dated 21.09.2017 passed by the Gujarat State Co-operative Tribunal (hereinafter referred to as 'the Tribunal'). By way of the above-referred common judgment dated 15.06.2016, the Board of Nominees had dismissed the Lavad Suit no.1154 of 2005 and Lavad Suit no.707 of 2010 filed by the petitioners.
(b) Suit no.1154 of 2005 by the members, was filed seeking declaration that Patidar Co-operative Housing Society (hereinafter referred to as 'the society') may not permit the members from using the allotted plot and land and the superstructure put up, for any other purpose, other than residential as well as declaring the resolution dated 21.08.2005 as illegal.
(c) While in the Suit no.707 of 2010, the petitioners had prayed for the relief that any resolution passed in the Special General Meeting dated 21.09.2010 pursuant to the agenda notice dated 10.09.2010 be declared as illegal, unauthorized and void and permanent injunction against the implementation of any resolution that may have been passed in special general meeting dated 21.09.2010 and any permission for use of the property in the society other than residential use.
(d) The Suits were dismissed and the judgment was carried by Page 3 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined way of an Appeal no.17 of 2016 and Appeal no.18 of 2016 before the Tribunal, and it dismissed the appeals vide order dated 21.09.2017 and hence, captioned writ petitions.
Re: Special Civil Application no.13434 of 2023
(a) Challenge is to the order dated 14/15.05.2014 passed by the District Registrar, Co-operative Societies, Porbandar allowing the society's proposal for amendment of its bye-laws. Said order was made subject to the final outcome of the pending Lavad Suit no.1154 of 2005 and Lavad Suit no.707 of 2010. Status quo was also directed to be maintained as per common order dated 12.05.2010 passed by the Division Bench in Letters Patent Appeal no.39 of 2008 and another.
(b) The order dated 14/15.05.2014 was challenged by way of appeal under section 153 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as the 'Act of 1961') before the Additional Registrar. In view of the delay, Misc. Application no.42 of 2016 was filed seeking condonation of delay.
(c) Vide order dated 22.06.2018, Misc. Application no.42 of 2016 seeking condonation of delay of 26 months was not entertained by the Additional Registrar (Appeals) which, was subject matter of challenge by way of Revision Application no.98 of 2018. The revision application came to be rejected by the Deputy Secretary (Appeals), Agriculture, Farmer Welfare & Co-operation Department vide order dated 17.02.2023. Being aggrieved that the Special Civil Application no.13434 of 2023 has been filed.
Re: Special Civil Application no.16601 of 2023 Society is aggrieved by the direction issued by the authorities, making it subject to the outcome of the captioned writ petitions Page 4 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined being Special Civil Application nos.23417 of 2017 and 23418 of 2017. Hence, the society, inter alia, is challenging the order dated 17.02.2023 passed by the Revisional Authority, confirming the order passed by the Additional Registrar in Misc. Application no.42 of 2016, insofar as, it has been made subject to the outcome of Special Civil Application nos.23417 of 2017 and 23418 of 2017.
5. The issue and the challenge, inter alia, can be segregated into three parts; namely, (i) challenge to the resolution dated 21.08.2005 permitting the commercial construction as well as resolution dated 21.09.2010 proposing the amendment in the bye- laws by introducing bye-law nos.2 and 2A allowing the construction of the flats, etc. (ii) approval of the bye-laws by the District Registrar and making the same subject to the outcome of the Lavad Suit no.1154 of 2005 and Lavad Suit no.707 of 2010, and (iii) rejection of the request to condone the delay of 26 months in filing appeal whereby, the challenge was made to the order dated 14/15.05.2014 of the Registrar.
6. Factual events concerning and relatable to the challenge are as under:-
Re.: Resolution dated 21.08.2005 permitting commercial construction 6.1 On 21.08.2005, resolution was passed in the Special General Meeting, allowing commercial construction including construction of flats in the society. The said resolution was challenged before the Board of Nominees and vide order dated 22.06.2006, ad-interim relief earlier granted vide order dated 20.09.2005 was confirmed, till the final disposal. The said order, was subject matter of challenge before the Tribunal and it by passing two orders dated 10.05.2007 and 13.06.2007, allowed the revision applications of the applicant Page 5 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Shri Sharadbhai Rami and the society respectively and the order dated 22.06.2006 was quashed and set aside.
6.2 Two writ petitions being Special Civil Application no.13633 of 2007 (Balmukund Atmaram Patel & Anr. vs. Sharadbhai Premaji Rami & Ors.) and Special Civil Application no.18549 of 2007 (Balmukund Atmaram Patel & Anr. vs. Patidar Cooperative Housing Soc. Ltd.) were filed before this Court. Vide order dated 29.10.2007, both the orders, dated 10.05.2007 and dated 13.06.2007 were quashed and set aside. As a result, order dated 22.06.2006 passed by the Board of Nominees stood restored.
6.3 Letters Patent Appeal no.39 of 2008 as well as Letters Patent Appeal no.40 of 2008 were filed before this Court and vide order dated 12.05.2010, both the appeals came to be disposed of. The division bench, in view of the general consensus amongst the parties, recorded that the order dated 22.06.2006 passed by the Board of Nominees prohibiting further commercial use of the properties shall not come in the way of those members, who have been using such premises for commercial use prior to 22.06.2006.
6.4 Thereafter, the society in its Special General Meeting dated 21.09.2010 amended the bye-laws enabling commercial construction/activities in the society, which led to the filing of Lavad Suit no.707 of 2010. On 18.11.2010, interim order came to be passed by the Board of Nominees granting injunction. Vide common judgment and order dated 15.06.2016, both the Lavad Suit no.1154 of 2005 and Lavad Suit no.707 of 2010 were dismissed, inter alia, on the ground that since the District Registrar has approved the bye-
laws, the prayers would not survive.
6.5 Against the said order dated 15.06.2016 passed by the Board of Nominees, Appeal nos.17 of 2016 and 18 of 2016 were preferred Page 6 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined before the Tribunal. By common judgment dated 21.09.2017 appeals, were dismissed, observing that in view of the bye-laws having been approved, the dispute has gone out of the jurisdiction of the Board of Nominees and the common judgment and order dated 15.06.2016, does not require interference. Being aggrieved, the petitioners have filed the captioned writ petitions being Special Civil Application nos.23417 of 2017 and 23418 of 2017.
Re.: Resolution dated 21.09.2010 proposing amendment of the bye-laws, permitting commercial construction.
6.6 Another challenge is to the proceedings concerning the bye- laws. As noted above, resolution dated 21.09.2010 was passed in the Special General Meeting, resolving to amend the bye-laws, enabling commercial construction/activities in the society. The resolution was sent to the District Registrar, Co-operative Societies. It so happened that on 18.11.2010, Board of Nominees ordered injunction restraining the society from acting in furtherance of the resolution passed in Special General Meeting dated 21.09.2010. It appears that on 16.11.2010/19.11.2010, the Registrar, Co-operative Societies passed an order approving the society's proposal to amend the bye-laws as passed vide resolution dated 21.09.2010.
6.7 Allegations, inter alia, were made that date of 19.11.2010 was interpolated to 16.11.2010 so as to overcome the injunction granted by the Board of Nominees on 18.11.2010. Special Civil Application no.16616 of 2010 was preferred before this Court, challenging the order dated 16.11.2010 approving amendment in the bye-laws. The writ petition was disposed of by quashing and setting aside the said order dated 16.11.2010 directing new incumbent, i.e. Registrar, Co- operative Societies, Ahmedabad (City) to decide the proposal of the society, seeking amendment of the bye-laws afresh.
Page 7 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined 6.8 Accordingly, by order dated 14/15.05.2014, the District Registrar, Co-operative Societies allowed the society's proposal for amendment of the bye-laws, subject to final outcome of the pending Lavad Suit no.1154 of 2005 as well as Lavad Suit no.707 of 2010, coupled with the direction, directing the parties to maintain status quo as per the common order dated 12.05.2010 passed in Letters patent Appeal nos.39 of 2008 and 40 of 2008. An appeal was filed before the Additional Registrar under section 153 of the Act of 1961. Since there was a delay, together with appeal, Misc. Application no.42 of 2016 was filed seeking condonation of delay, which came to be rejected on 22.06.2018. Revision Application no.98 of 2018 filed, challenging the decision of the Additional Registrar dated 22.06.2018, also came to be rejected by the Deputy Secretary (Appeals), Agriculture, Farmer Welfare & Co-operation Department vide order dated 17.02.20023. Being aggrieved that the petitioners have filed the captioned writ petition being Special Civil Application no.13434 of 2023.
7. Mr Mihir H. Joshi learned Senior advocate assisted by Mr Arvind Yadav with Mr Mit S. Thakkar, learned advocates while taking this Court to the convenience compilation submitted that in the Special General Meeting of the society it was resolved to allow commercial construction including construction of flats in the society. The resolution was subject matter of Lavad Suit no.1154 of 2005 wherein, interim relief was granted in favour of the members. Aggrieved, the Tribunal was approached which, allowed the application filed by the society and against which, writ petitions being Special Civil Application no.13633 of 2007 and 18549 of 2007 were filed, which came to be allowed by the learned single Judge. The Letters Patent Appeals before the Hon'ble Division Bench came to be disposed of in view of the general consensus between the parties allowing the construction to be completed but the property Page 8 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined was not permitted to be put to any commercial use till the final disposal of the suit.
7.1 It is submitted that subsequently, on 21.09.2010, in the Special General Meeting a resolution was passed, approving the amendment of bye-laws, enabling commercial construction and out of 21 members, 13 members were present, 12 voted in favour of the amendment and 1 against the amendment. As a result, Lavad Suit no.707 of 2010 was filed challenging the resolution dated 21.09.2010 and the Board of Nominees, passed an order dated 18.11.2010, restraining the society from acting in furtherance of the resolution dated 21.09.2010. On the other hand, the District Registrar passed an order approving the amendment to the bye- laws; however, the date 19.11.2010 was interpolated to 16.11.2010 with a view to escaping from the injunction granted by the Board of Nominees. This Court, in the petition filed by the petitioners directed the Registrar to take a fresh decision by the another incumbent.
7.2 It is submitted that before the lavad suits could be decided, the District Registrar, Porbandar, approved the bye-laws; however, the same was made subject to the final outcome of the lavad suits as well as the status quo granted by the Division Bench of this Court. While the Board of Nominees, subsequently, dismissed both the lavad suits on the ground that the Registrar has allowed the amendment and it no longer remains a dispute under section 96 and the remedy would be to file an appeal under section 153 of the Act of 1961. The petitioners therefore, immediately, filed an appeal before the Additional Registrar (Appeals), challenging the order dated 14/15.05.2014 together with an application seeking condonation of delay which came to be rejected, so also the appeal by the Tribunal. It is submitted that the Registrar could not have made its order subject to the outcome of the lavad suit and the Page 9 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Board of Nominees, could not have said that the suit, has been rendered infructuous. The Board of Nominees ought to have gone into the contentions and merits and taken a decision. Such a course adopted by both the authorities is erroneous and incorrect.
7.3 It is next submitted that section 13 provides for amendment of bye-laws of the society by the Registrar. The Registrar if is satisfied that the amendment so forwarded is not contrary to the Act or the Rules, he may register the amendment. Therefore, the scope of the inquiry is limited. Moreover, as per the proviso, no order refusing an amendment can be passed without giving the society an opportunity of being heard. The proposal and the amendment is submitted by the society and if the Registrar grants it, there is no room of hearing. Opportunity is to be offered to the society only when the Registrar, refuses the approval and is between the society and the Registrar. Moreover, section 153 of the Act of 1961 provides for an appeal and is not truncated to the society; however, a member is given a limited right to challenge only on the ground of the bye-laws being contrary to the Act and the Rules. It is submitted that reading of section 13 provides that the Registrar cannot ascertain the validity of the resolution, as to whether it is properly passed or not and is outside the scope of section 13 and consequently, section 153 that is, appeal. It is further submitted that the scope of inquiry under section 153 will be the same as under section 13 of the Act of 1961, that is contrary to the Act and the Rules. It is therefore, that the petitioner has challenged the resolution when they were simply the resolutions and it will be open to the petitioners to challenge the resolutions on every ground inasmuch as, section 96 of the Act of 1961 provides for a vast area of challenge.
Page 10 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined 7.4 It is further submitted that Rule 6 of the Rules of 1965 permits the bye-laws to be altered or abrogated by a resolution passed at a general meeting of the society, provided that due notice is given in accordance with the bye-laws to the members of the society; the resolution is passed by not less than two thirds of the members present, and voting at the general meeting at which a quorum shall be present etc. Therefore, the above-referred eventualities, are necessary to be observed and when there is a breach of the above requirements that the members can raise a grievance against passing of the resolution.
7.5 It is further submitted that if the member has any grievance against passing of the resolution, the member can very well challenge the said action before the board of nominee under the provision of section 96 of the Act of 1961, which provides for a filing of the suit as regards any dispute, touching the business of the society. It is submitted that if the dispute is touching the business of the society and is between the members and the society, it would be covered under section 96 of the Act of 1961. It is next submitted that petitioners are bound to challenge the resolution to establish their case that the resolution is invalid; whereas, the said challenge cannot be laid before the Registrar under the provisions of section 13 of the Act of 1961 for, Registrar cannot say that the resolution is validly passed or not.
7.6 It is submitted that section 13 vis-a-vis section 96 of the Act of 1961, would operate in two different fields. Order passed under section 13 can be challenged under section 153 and under section 155 of the Act of 1961, i.e. the line of challenge provided which, would be restricted only if the bye-laws are contrary to the Act of 1961 and the Rules of 1965. On the other hand, challenge can be laid by the members under section 96 and thereafter under sections Page 11 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined 101 and 102 of the Act of 1961. It is submitted that therefore, the Registrar could not have made it subject to the outcome of the lavad suit and the Board of Nominees could not have dismissed the suit rendering it infructuous only on the ground that the bye-laws were approved.
7.7 It is next submitted that the Additional Registrar as well as the Deputy Secretary (Appeals), could not have rejected the application seeking condonation of delay, when the petitioner was pursuing the remedy diligently. Neither of the authorities have gone into the merits of the matter and rejected the application, making it subject to. The Additional Registrar, has not entertained the application and made it subject to the outcome of the suits etc. and the Deputy Secretary (Appeals), inter alia, rejected the application on the ground that the appeal was preferred after a delay of 26 months.
7.8 Reliance is placed on the judgment of this Court in the case of Surat District Cooperative Bank Limited vs. State of Gujarat reported in 2016 (0) AIJEL-HC-234045. It is submitted that this Court, while holding that the decision of the Registrar can always be challenged by a member by preferring an appeal under section 153 of the Act of 1961 on the ground that the amendment in the bye-laws, is contrary to the provisions of the Act of 1961 and the Rules of 1965, has observed about necessity to challenge the resolution passed amending the bye-laws, and hence, if the member is aggrieved, there has to be a challenge to the resolution under section 96 of the Act of 1961.
7.9 Reliance is also placed on the judgment of this Court in the case of Karmacharinagar Cooperative Housing Society Ltd. vs. State of Gujarat reported in 2013 (3) GLR 2682. While considering the provisions of section 13, it has been held and observed that the function of the Registrar is only to see, as to whether the Page 12 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined amendment proposed in the bye-laws, is in confirmity with the Act of 1961 and the Rules of 1965. In paragraph 24, it has been recorded that the members, if do not challenge the resolution, cannot resist the amendment in the bye-laws. It is therefore, submitted that if the member, is not satisfied, he has to challenge the resolution on the available grounds.
7.10 Reliance is also placed on the judgment in the case of Banaskantha District Cooperative Union Ltd. vs. State of Gujarat reported in 2011 (2) GLR 1707. The approval to the amendment, was assailed by the members by preferring an appeal on the ground that mandatory requirements of section 13 of the Act of 1961 and Rule 6 of the Rules of 1965 had not been complied with. This Court, inter alia, has held that the individual members if is aggrieved by proposed change, which according to him is contrary to law, he can file an appeal as provided under section 153 of the Act of 1961 and therefore, what is required to be looked into by the authorities is whether the bye-law is in consonance with the Act or not. The appeal envisaged under section 153 of the Act of 1961 is an appeal against the order made under section 13 of the Act of 1961, but that in itself cannot be so construed as opening of the entire scope of examining the issue with regard to non-compliance of other provisions. It is submitted that this Court, has held that the resolution if any, could have been challenged before the appropriate forum, meaning thereby, under section 96 of the Act of 1961.
7.11 Further reliance is placed on the judgment in the case of Harekrishna K. Vadhwani vs Vasupujya Smruti Co-op. Housing Society Ltd., Vibhag-1 reported in 2004(1) GLR 221. The grievance, was raised by a member against division of the society into three. This Court, held and observed that as per the scheme of the Act, final decision vests in the general body of the society. When the Page 13 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined general body of the society, by majority has taken the decision, it cannot be said that the division is bad because, the petitioner had no opportunity to object. This Court, was therefore, of the view that if the member had any grievance against the decision of the general body of the society, proper course for the member was to challenge the said decision under section 96 of the Act. While concluding, it is submitted that hence, the orders passed by the authorities, are illegal and bad and deserve to be quashed and set aside.
8. Per contra, Mr Mihir J. Thakore, learned Senior Advocate appearing with Mr C.P. Champaneri, learned advocate for the respondent society submitted that section 13 of the Act of 1961, provides for the amendment to the bye-laws of the society and for the purpose of the registration of amendment of the bye-laws, a copy of the resolution, passed in the manner prescribed at the general meeting of the society, is to be forwarded to the Registrar.
"Prescribed", is defined to mean as prescribed under the Rules and the relevant, would be Rule 6 of the Rules of 1965 which, inter alia provides for giving due notice of any proposal to make, alter or abrogate, in accordance with the bye-laws to the members of the society and passing of the resolution by not less than two-third of the members present and voting at the general meeting etc. Sub- section (2) of section 13 of the Act of 1961, provides for the role of the Registrar to test whether it is in confirmity with the Act and the Rules and as per the proviso, no order refusing to register the amendment shall be passed, except after giving the society an opportunity of being heard. Therefore, hearing is to be given to the society which, would be an administrative act.
8.1 It is submitted that clauses (a) and (b) of sub-section (1) of section 153 of the Act of 1961 deal with the appeal to lie against the Page 14 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined order or decision under section 13 of the Act of 1961, if made or sanctioned or approved, by the authorities as indicated therein and the revisional powers are available under section 155 of the Act of 1961. It is submitted that considering these provisions, this Court, in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. vs. K.V. Acharya, Deputy Registrar and Member of Board of Nominees & Anr. reported in 1997 (2) GLR 1492 held that the provisions have laid down a procedure for amendment of the bye-laws of a society. It has been categorically held that when the Act has laid down a specific provision for challenging or disputing the amendment of the bye-laws, a suit before the Registrar (Nominees) will not be tenable because, that will not amount to a dispute as contemplated by section 96 of the Act of 1961.
8.2 Reliance is placed on the judgment of the Bombay High Court in the case of Keshavlal Kalidas Chawan vs. The State of Bombay reported in (1954) 57 BomLR 220. It is submitted that the Division Bench, was dealing with similar provisions contained in the Bombay Cooperative Societies Act, 1925 (hereinafter referred to as the "Bombay Act"). Contention was raised that since there was a dispute between the member and the society, touching the business, it was obligatory upon the Registrar to refer the dispute under section 54 of the Bombay Act. The Division Bench, held and observed that the dispute, which arose was with regard to the power of the Registrar to register the amendment under section 16 and that section 54 does not contemplate a reference to arbitration when there is a dispute between a member and the Registrar. It has been held and observed that it is not as if the petitioner is without remedy. If the Registrar goes wrong, section 64 gives him the right of appeal against the decision of the Registrar.Page 15 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined 8.3 It is submitted that considering the judgment of the learned single Judge in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), so also the judgment of the Bombay High Court in the case of Keshavlal Kalidas Chawan (supra), the only authority which can look into the amendment in the bye-laws, is the Registrar and the Board of Nominees, will have no jurisdiction. The judgments clearly spell out that section 96 remedy is not available to the members and the remedy, which is available is to file an appeal under section 153 of the Act of 1961. It is further submitted that the judgment of the Bombay High Court, it being prior to the year 1960, so also the judgment of the learned single Judge in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra) covered the issue and therefore, reliance placed on the judgments by the petitioners, would be misplaced.
8.4 It is next submitted that the observations made in the cases of Banaskantha District Cooperative Union Ltd. (supra), Harekrishna K. Vadhwani (supra) and Karmacharinagar Cooperative Housing Society Ltd. (supra), are only passing observations i.e. obiter and not the issue or ratio of the judgment. The judgments, say about challenge to the resolution before the appropriate forum and which, is also the contention raised by the petitioners; however, Registrar has to test the resolution, which is passed by the majority. It is submitted that therefore, members will have a right to file an appeal under section 153 of the Act of 1961 against the decision of the Registrar and nothing would go before the Board of Nominees under section 96 of the Act of 1961. Also, the judgments are per incuriam as the judgments do not find reference to the judgments of Bombay High Court and learned single Judge.
8.5 It is further submitted that as per section 73 of the Act of 1961, final authority of the society vests in the general body and Page 16 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined when the bye-laws are approved by the general body, objection by the member, would be immaterial and would be bound by the bye- laws. Reliance is placed on the judgment of the Apex Court in the case of Daman Singh & Ors. vs. State of Punjab, reported in (1985) 2 SCC 670. It is submitted that similar provision of Punjab Co- operative Societies Act was considered and the Apex Court, has held and observed that once a person becomes a member of a cooperative society, he loses his individuality qua the society, and he has no independent right except those given to him by the statute and the bye-laws. He must act and speak through the society, or rather, the society alone can act and speak for him qua rights or duties of the society as a body. Further reliance is placed on the judgment of the Apex Court in the case of State of UP & Anr. vs. C.O.D, Chheoki Employees' Co-op. Society Ltd., reported in (1997) 3 SCC 681. It has been held and observed that a member of the society has no independent right qua the society and it is a society that is entitled to represent as a 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 bye-laws, and is subject to its operation.
For similar proposition, further reliance is placed on the judgment of the Apex Court in the case of Zoroastrian Co-operative Housing Society Ltd. & Anr. vs. District Registrar Co-operative Societies (Urban) & Ors. reported in (2005) 5 SCC 632.
8.6 While referring to the bye-laws of the society, it is submitted that the object of the society, was to carry on the trade of building and of buying, selling, hiring, letting and developing land in accordance with the cooperative principles etc. Bye-law no. 80 provides for alteration of the bye-laws. It states that no bye-law shall be made, altered or abrogated unless, (a) a proposal to do so has been communicated to the members 10 days before hand, (b) Page 17 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined the resolution is passed by not less than 2/3rd of the members present and voting at the general meeting, and (c) making of, alteration or abrogation is approved and registered by the Registrar. Therefore, the alteration of the bye-laws is provided upon fulfillment of the said three requirements.
8.7 It is submitted that in the meeting of 21.09.2010, resolution was passed, proposing amendment in the bye-laws. It is submitted that the petitioner has filed the Lavad Suit no.707 of 2010 before the Board of Nominees. Nowhere in the plaint, it is alleged that the resolution is improperly or illegally passed. Declaration is sought, citing the orders passed by the Division Bench and the suit being sub-judice before the Board of Nominees. However, there is nothing in the orders, restraining the society from passing any resolution amending the bye-laws.
8.8 It is submitted that it is only after hearing all the parties that the bye-laws have been approved vide order dated 14/15.05.2014; however, the same was made subject to the suits pending before the Board of Nominees. It is submitted that the first suit was rendered infructuous in view of the amendment in the bye-laws, second suit itself was not maintainable. It is submitted that applying the provisions of Order 41 Rule 22 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code') it would be permissible for the respondent to raise the contention which was very much raised before the authorities and was not accepted. It is next submitted that the appeal was preferred against the order approving the bye-laws after a period of more than two years. The order was supposed to be challenged within 60 days, i.e. by 14.07.2014, whereas, the appeal was filed on 02.08.2016, i.e. after more than two years. It is submitted that merely because the order dated 14/15.05.2014 was made subject to the final disposal of the Page 18 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined suits, it does not mean that the petitioners should not have filed an appeal.
8.9 It is submitted that the proposal was submitted by the society in the year 2010 and was approved by the Registrar in the year 2014 and hence, there is no reason not to enforce the bye- laws. It is therefore, urged that the petitions do not warrant interference and hence, be dismissed.
9. Mr Chintan P. Champaneri, learned advocate appearing for the petitioner in Special Civil Application no.16601 of 2023, submitted that when the respondent authority was not convinced with the explanation offered by the applicants, in furtherance of the delay and having rejected the application, no further directions could have been issued. Even the revision application against the order, has been rejected with similar such condition which, could have been avoided by the authorities. It is therefore urged that the said orders, to that limited extent, deserve to be quashed and set aside.
10. Mr P. S. Champaneri, learned advocate appearing for one of the respondents, submitted that sections 27 to 33 of the Act of 1961, are the rights available to the members, which are limited. Chapter VII of the Act of 1961 is with respect to the "Management of Societies" and section 73 envisages that subject to the provisions in the Act and rules, the final authority of every society shall vest in the general body. It is submitted that the challenge can be only of the meeting, it being not convened as per the bye-laws. It is also submitted that Article 43B of the Constitution of India clearly states the democratic principle and hence, majority rules and if the resolution is passed by majority of 12 : 1, the members cannot be said to be an aggrieved party. Considering the challenge, there is no substance and petition deserves to be dismissed.
Page 19 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined
11. Mr Meet M. Thakkar, learned Assistant Government Pleader, while supporting the orders, submitted that no error, can be said to have been committed by the authorities in passing the orders. All what the authorities have done, has made it subject to the outcome of the writ petitions pending before this Court. Hence, no interference is warranted. Mr Dipan Desai, learned advocate, on behalf of the members in majority, has adopted the submissions made by the learned counsel appearing for the society.
12. Mr Mihir Joshi, learned Senior Advocate, in rejoinder, submitted that there appears to be an inherent contradiction in the submissions made, considering the fact that if the member cannot challenge the resolution of the governing body and it has to accept it, then how the member would file an appeal. It is submitted that section 73 of the Act of 1961, if it is considered to be supreme, then there is nothing left for the member to raise any objection. It is submitted the rights under the Act and the bye-laws, do not get subsumed and if the member has a right of appeal, the member is not rising above the source. It is submitted that the member has a right under section 96 of the Act of 1961 and if the right exists, reliance placed on the judgments in the case of Daman Singh & Ors. (supra) and State of UP & Anr. (supra), is misplaced.
12.1 It is submitted that it is also sought to be argued that the remedy under section 153 of the Act of 1961 being available to the member, remedy under section 96 of the Act of 1961, is implicitly barred. It is submitted that one has to go by the language of the provisions of sections 96, 153 and 13 of the Act of 1961. Clearly, the provisions operate in different fields, disputes and in a different context and in a given case, both would be available to the member and one cannot exclude the other. If the legislature provides two remedies, there is no proposition that the member cannot take Page 20 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined recourse to both, i.e. under section 96 and under section 153 of the Act of 1961. Two remedies are provided and members can be put to an option, i.e. to file suit under section 96 or an appeal under section 153 of the Act of 1961. If the remedy of section 153 is available, then, section 96 remedy is equally available.
12.2 It is submitted that section 96 of the Act of 1961, starts with a non-obstante clause. It provides that any dispute touching the constitution, management or business of the society, shall be referred either by any of the parties to the dispute to the registrar. The parties thereto are the members of the society, who would be covered under section 96 of the Act of 1961. How the constitution or the bye-laws of a society be, is certainly the management or the business of the society. Section 96 of the Act of 1961 as it stands is of a widest amplitude. A dispute or a resolution to amend the bye- laws is not foreclosed or excluded from the ambit of section 96. Therefore, the contention that section 96 of the Act of 1961, is excluded, is incorrect.
12.3 It is next submitted that section 13 of the Act of 1961, does not give any room to the members. Opportunity of hearing is only if the Registrar has refused the amendment of the bye-laws and that too, to the society. It is further submitted that section 13 of the Act of 1961 says about the satisfaction and not the adjudication and therefore, it is only an administrative satisfaction by the registrar. The inquiry and the decision comes in under the scheme when the registrar does not want to register the amendment, it is then, he has to overrule the objection of the society under section 13(2) of the Act of 1961 after issuing notice to the society and then appeal would lie. Registrar would not adjudicate about the procedure. The members, need a first hearing and thereafter, the remedy in the appeal. Appellate remedy cannot be a remedy of first time Page 21 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined adjudication. Something has to be done for the members to be given a right of appeal. It is submitted that if the Registrar is satisfied, that the amendment so forwarded, is not contrary to the Act, the rules, he may register the amendment and he is not concerned with what preceded the amendment before him. It is further submitted that the registrar, only considers the substance of the amendment. Distinction, has to be drawn between the resolution and the amendment for, the amendment is the one which is approved by the resolution and the resolution is available for challenge under section 96 of the Act of 1961.
12.4 It is submitted that section 96 of the Act of 1961 refers about the disputes which is between the member and member, member and society as indicated therein. Whereas, as per the scope of section 13, dispute is not between the members vis-a-vis the Registrar but the dispute is between the society and the Registrar which can't come under section 96. Under section 13, members have no locus and it is difficult to fathom as to how it can be expanded in appeal. Even in the appeal, the scope would be limited as to whether the amendment is contrary to the Act, the Rules and the bye-laws. Hence, area of operation of section 96 and section 13 of the Act of 1961, is completely different.
12.5 It is submitted that all the judgments, namely, Harekrishna K. Vadhwani (supra), Surat District Cooperative Bank Limited (supra) and Banaskantha District Cooperative Union Ltd. (supra), clearly suggest that if the member has not challenged the resolution, the member will have no right to file an appeal as well. It is further submitted that the findings of the Court, are that without challenging the resolution, you cannot go under section 153. It is submitted that the findings of the Courts, cannot be construed to be an obiter and the ratio has been laid down which was necessary for Page 22 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined the determination of the lis. The law, therefore, is clearly contrary to what is contended by the respondents that there is a right available to the members under section 153 of the Act of 1961 to file an appeal and an appeal under section 96 of the Act of 1961 would not be maintainable. It is further submitted that, in fact, there is a specific reference of section 96 and therefore, the same is the ratio of the said judgment; whereas, the judgment of the learned single Judge in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra) completely misses the provision of section 96 which provides the dispute between the members and the society.
12.6 It is submitted that reliance placed on the judgment in the case of Keshavlal Kalidas Chawan (supra) would be of no help. The language contained in section 13 of the Act of 1961 vis-a-vis the language contained in section 16 of the Bombay Act, is different. It is section 16, which motivated the judgment by the Division Bench of the Bombay High Court.
12.7 As against this, there is a direct judgment of the Bombay High Court in the case of Omprakash Gowardhandas Singhania vs. G. V. Koimattur reported in AIR 1967 Bombay 7. It has been held that the dispute before the Registrar under section 91 of the Maharashtra Cooperative Societies Act, 1960 would be maintainable and the Registrar's nominee will have jurisdiction. The order of the Assistant Registrar rejecting the application to refer the matter to arbitration under section 91 of the Act was set aside and the Assistant Registrar, was directed to entertain the reference.
12.8 While adverting to the factual aspects, it is submitted that two suits were filed and objection is raised against its maintainability. So far as the first suit is concerned, the challenge was to the legality of the resolution permitting commercial construction and it had nothing to do with the amendment and therefore, the Board of Page 23 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Nominee could not have said that the suit has become infructuous. If the resolution was illegal, it ought to have been set aside and the same, could not have been validated as approval of the bye-laws will not validate the resolution. Considering the fact that the bye-law is invalid till registered and operates prospectively, the approval in 2010 does not validate the resolution of 2005. It is submitted that so far as the second lavad suit is concerned, the Board of Nominees, has rejected the same on the ground that it had jurisdiction till it was a resolution and on approval it has lost the jurisdiction, which opinion is contrary to the provisions of section 96 of the Act of 1961, as the suit was very much competent when it was filed. It is further submitted that contention is also raised as regards applicability of Order 41 Rule 22 of the Code; however, Order 41 Rule 22, cannot be raised, after skipping one stage, it ought to have been raised in appeal. It is also submitted that the grievance on behalf of the member is that once it was made subject to the lavad suits and had the members succeeded, bye-law would not apply and therefore, challenge was not necessitated, and the delay was bona fide. Inasmuch as, there was no reason available to the member to give up the challenge and persist the challenge before the Board of Nominees. It is hence urged to allow the writ petitions.
13. In response, Mr Mihir H. Thakore, learned Senior Advocate, in support of his contention that judgments of the Bombay High Court prior to the year 1960 are binding, has placed reliance on the judgment in the case of Anand Municipality vs. Union of India reported in AIR 1960 Gujarat 40 wherein, the issue was whether the Gujarat High Court is bound by the decisions of the Bombay High Court delivered before 01.05.1960. The full bench answered it holding that the decisions of the High Court of Bombay given prior to the appointed day, i.e. 01.05.1960, are binding on the High Court of Gujarat. Reliance is also placed on the judgment in the case of Page 24 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined State of Gujarat vs. Gordhandas Keshavji Gandhi reported in AIR 1962 Guj. 128. The question for consideration was the binding nature of the judicial precedents of the Bombay High Court prior to 01.05.1960 on the High Court of Gujarat. It has been held and observed that the decisions of the Bombay High Court given prior to the appointed date, i.e. 01.05.1960 have as much binding force and effect as if, they were the decisions given by the Gujarat High Court itself. Further reliance is placed on the judgment in the case of Bhikhabhai Nanabhai Patel vs. Chimanlal Maganlal Shah reported in AIR 1953 Bom. 437 wherein, view has been taken that the learned single Judge cannot defer from or doubt the decision of a division bench, more particularly, when the decision of the division bench, was not overruled.
13.1 Reliance is placed on the judgment in the case of State Of Bihar vs. Kalika Kuer @ Kalika Singh & Ors. reported in (2003) 5 SCC 448, wherein the Apex Court, has held that the decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction, which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. Reliance is also placed on the judgment in the case of Mary Pushpam vs. Telvi Curusumary & Ors. reported in 2024 SCC OnLine SC 9.
13.2 In support of the submission that obiter is not binding, reliance is placed on the judgment in the case of Mohandas Issardas & Ors. vs. A.N. Sattanathan & Ors. reported in AIR 1955 Bom. 113 wherein, concept of "obiter dictum" has been considered in length and inter alia, it has been held that "obiter dictum" is an expression Page 25 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined of opinion on a point which is not necessary for the decision of a case. Two questions may arise before the Court for its determination; the Court, may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion on the question which was not necessary to decide the case would be only an 'obiter dictum'. Further reliance is placed on the judgment in the case of Director of Settlements, A.P. & Ors. vs. M.R. Apparao & Anr. reported in (2002) 4 SCC 638. It has been held and observed that an 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it, but not arising in such manner as to require a decision.
13.3 Reliance is also placed on the judgments in the case of Jayant Verma & Ors. vs. Union of India & Ors. reported in (2018) 4 SCC 743 and State of Gujarat & Ors. vs. Utility Users' Welfare Association & Ors. reported in (2018) 6 SCC 21 wherein, it has been held and observed that in order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. Further reliance is placed on the judgment in the case of Kotak Mahindra Bank Limited vs. A. Balakrishnan & Anr. reported in (2022) 9 SCC 186.
13.4 It is further submitted that the judgment in the case of Banaskantha District Cooperative Union Ltd. (supra); is concerned, the learned single Judge has opined that the resolution could have been challenged by a member before the appropriate forum. Similarly, in Harekrishna K. Vadhwani (supra); learned single Judge, Page 26 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined in paragraph 9, has opined that if the member had any grievance against the decision of the general body of the society, proper course was to challenge the said decision under section 96 of the Act. In Karmacharinagar Cooperative Housing Society Ltd. (supra), it has been observed about the non-challenge to the resolution by taking any legal proceedings. It is therefore submitted that the above-referred judgments, are given in ignorance of the principles laid down in the case of Keshavlal Kalidas Chawan (supra) so also the judgment in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), and hence, are per incuriam.
14. Heard the learned counsel appearing with learned advocates for the respective parties and considered the documents made available on the record.
15. The facts and the details of each of the writ petitions, have been narrated in the opening paragraphs and therefore, to avoid the repetition, the same are not referred to at this stage.
16. Submissions and counter submissions have been made by the learned counsel appearing in the captioned proceedings. Plethora of judgments have been cited in support of various submissions made. The issues, broadly therefore, for the determination of this Court, are set out, discussed and dealt with hereinbelow:
(i) Scope and ambit of section 13 vis-a-vis section 96 of the Act of 1961; and
(ii) Whether the remedy in connection with the amendment in the bye-laws would be by way of an appeal under section 153 and revision under section 155 of the Act of 1961 ?; and
(iii) In view of the principle laid down in the judgments in the case of Keshavlal Kalidas Chawan (supra) and Vadodara Dist. Co-Page 27 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined op. Milk Producers Union Ltd. (supra), whether the proceedings challenging the resolution passed by the general body of the society would be tenable under section 96 of the Act of 1961 ?;
(iv) Whether the judgments in the cases of (i) Harekrishna K. Vadhwani (supra); (ii) Banaskantha District Cooperative Union Ltd. (supra); (iii) Karmacharinagar Co-operative Housing Society Limited (supra); and (iv) Surat District Cooperative Bank Limited (supra), are per incuriam as the judgments in the case of Keshavlal Kalidas Chawan (supra) as well as Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), have not been considered and referred to ?;
(v) Whether the observations in the judgments to the effect that the resolution can be challenged by the members under section 96 of the Act of 1961 and in absence of any such challenge, no grievance can be raised in the appeal under section 153 of the Act of 1961, are passing observations and obiter ?;
(vi) Whether the authorities should have decided the proceedings independently and without making it subject to other proceedings pending before another authority ?;
(vii) Whether in view of the explanation offered, the delay should have been condoned by the Additional Registrar (Appeals) and Deputy Secretary (Appeals) respectively ?
17. The issue nos. (i), (ii) and (iii) being interconnected are dealt with together. Similarly, issue nos.(iv) and (v) being interconnected are dealt with together. Issue nos.(vi) and (vii), being on merits, are dealt with together.
Page 28 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Re.: (i) Scope and ambit of section 13 vis-a-vis section 96 of the Act of 1961; (ii) Whether the remedy in connection with the amendment in the bye-laws would be by way of appeal under section 153 and revision under section 155 of the Act of 1961 ?; and (iii) In view of the principle laid down in the judgments in the case of Keshavlal Kalidas Chawan (supra) and Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), whether the proceedings challenging the resolution passed by the general body of the society would be tenable under section 96 of the Act of 1961 ?
18. In connection with the above issues, certain provisions of the Act of 1961 and the Rules of 1965, are required to be taken note of.
19. Section 2 is a section containing definitions. Sub-section (15) of section 2 defines the term 'prescribed' to mean prescribed by rules and reads as under:
"2(15) "prescribed" means prescribed by rules"
Sub-section (18) of section 2 of the Act of 1961, defines the term 'rules' to mean rules made under the Act of 1961 and for the case on hand, the Rules of 1965.
20. Chapter II of the Act of 1961 deals with the Registrar and Registration. Section 13 of the Act of 1961, is a provision governing the amendment of bye-laws of societies and the same, reads thus:
"13. Amendments of bye-laws of societies.- (1) No amendment of the bye-laws of a society shall be valid until registered under this Act. For the purpose of registration of an amendment of the bye-laws, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the Registrar.
(2) If the Registrar is satisfied that the amendment so forwarded is not contrary to this Act or the rules, he may register the amendment:Page 29 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Provided that no order refusing an amendment shall be passed except after giving the society an opportunity of being heard.
Provided further that the application for registration of amendment of bye-laws of a society shall be disposed of within sixty days from the date of its receipt.
(3) When the Registrar registers an amendment of the bye-
laws of a society, he shall issue to the society copy of the amendment certified by him, which shall be conclusive evidence of its registration.
(4) Where the Registrar refuses to register an amendment of the bye-laws of a society, he shall communicate the order of refusal, together with his reasons therefor, to the society."
21. Sub-section (1) of section 13 envisages that no amendment of the bye-laws of society shall be valid until registered under the Act and for the purpose of registration, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the Registrar. Therefore, the amendment of the bye-laws of society would be valid only if it is registered. For the purpose of registration, the amendment shall have to be passed, in the manner prescribed, at a general meeting of the society. Furthermore, the provisions of sub-section (2) of section 13 of the Act of 1961, deals with the role of the Registrar and registration of the amendment. The satisfaction to be arrived at by the Registrar, is with respect to the areas, namely, that the amendment is not contrary to the Act and the Rules. If they are not so, the Registrar, may register the amendment. Proviso speaks about passing of the order refusing registration of the amendment, after giving the society an opportunity of being heard. The time schedule is provided under second proviso and according to which, the application for registration of the amendment of the bye-laws shall be disposed of within sixty days from the date of its receipt. Sub-section (3) of section 13 of the Act of 1961 is the provision when the Registrar registers the bye-laws in which case, copy of the Page 30 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined amendment certified by him is to be issued to the society which shall be the conclusive evidence of its registration. While sub- section (4) of section 13 of the Act of 1961 deals with an eventuality of refusal of the registration of an amendment of the bye-laws by the Registrar. The order of refusal together with the reasons therefor is to be communicated to the society, by the Registrar.
22. Notably, for the purpose of registration of amendment of the bye-laws as per sub-section (1) of section 13 of the Act of 1961, it is incumbent upon the society to submit the amendment passed, in the manner prescribed, at a general meeting of the society. As discussed hereinabove, prescribed means prescribed by the rules, i.e. the Rules of 1965.
23. Thus, relevant would be Rule 6 of the Rules of 1965, which reads thus:
"6. Amendment of bye-laws.- (1) Bye-laws may be made, altered or abrogated by a resolution passed at a general meeting of the society:
Provided that-
(a) due notice of any proposal to make, alter or abrogate the bye-laws is given in accordance with the bye-laws to the members of the society;
(b) the resolution is passed by not less than two thirds of the members present, and voting at the general meeting at which a quorum shall be present or at an adjourned general meeting at which if a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall form quorum a copy of the resolution is forwarded to the Registrar within the period of two months from the date of the meeting:
(c) a copy of the existing bye-law or bye-laws so marked as to show the alternations proposed to be made, and four copies of the proposed amendments signed by the chairman of the society, shall be attached to the copy of the resolution along with a copy of the notice and other information required by the Registrar.Page 31 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined (2) The Registrar shall dispose of the application within sixty days from the date of the receipt of the application."89
24. Rule 6 of the Rules of 1965 says that bye-laws may be made, altered or abrogated by a resolution passed at a general meeting of a society. Proviso provides for certain steps to be observed. Clause
(a) of sub-rule (1) of Rule 6 of the Rules of 1965 says about due notice of any proposal to make, alter or abrogate the bye-laws is given in accordance with the bye-laws to the members of the society; meaning thereby, notice is to be given to the members in accordance with the bye-laws. Clause (b), inter alia, provides for passing of the resolution by not less than two-thirds of the members present, and voting at the general meeting at which a quorum shall be present. A copy of the resolution is to be forwarded to the Registrar within the period of two months from the date of the meeting. Sub-rule (2) of Rule 6 of the Rules of 1965 states that the Registrar shall dispose of the application within sixty days from the date of the receipt of the application.
25. The mode and manner in which the amendment in the bye- laws is to be carried out, is clearly provided in sub-section (1) of section 13 read with Rule 6 and further read with the bye-laws and the bye-law concerned is provided in Chapter XIX of the bye-laws of the society. Bye-law no.80, says about requirement to be observed while making, altering or abrogating the bye-laws. The same, reads thus:
"80. No by-law shall be made; altered or abrogated unless--
(1) a proposal to do so has been communicated to all members ten days beforehand;
(2) the resolution is passed by not less than two- thirds of the members present and voting at the General Meeting; and (3) the making, alteration or abrogation is approved and registered by the Registrar."Page 32 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
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26. As per bye-law no. 80, making, altering etc. of the bye-law is permissible, unless the proposal to do so has been communicated to all the members ten days beforehand. Another requirement is about passing of the resolution by not less than two thirds of the members present and voting at the general meeting and making, alteration or abrogation is approved and registered by the Registrar. Reading the above referred provisions, clearly suggest that the scheme of the Act, the Rules and the bye-laws, provides for an inbuilt mechanism with respect to the manner of passing the amendment, the amendment of the bye-laws; registration and its effect.
27. The language of section 13 of the Act of 1961 itself provides that for registration of amendment of the bye-laws, the copy of the amendment passed has to be, in the manner prescribed. The manner prescribed, would include the Rules, that is, Rule 6 of the Rules of 1965 and which also covers within its ambit the bye-laws for, due notice has to be issued in accordance with the bye-laws of the society. Therefore, section 13 of the Act of 1961 covers within its sweep various aspects indicated therein. Pertinently, if the Registrar refuses to register the bye-laws of a society, it will be the society which will be the aggrieved party; however, member opposing the amendment in the bye-laws, would not have any grievance to be raised. It is only when the amendment of the bye- laws of a society is approved by the Registrar that the dissenting member will have grievance and then, if is aggrieved, can challenge the same in the appeal, inter alia, on grounds namely, that the passing of the amendment of the bye-laws is contrary to the Act, the Rules and the bye-laws. It is also sought to be argued that there cannot be a first time adjudication in appeal under section 153 of the Act of 1961 and that there has to be an adjudication by the Registrar. It is to be noted that everything would be open before the Page 33 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Registrar and on the basis of the record made available by the society, that the Registrar has to arrive at a satisfaction. The satisfaction of the Registrar would be very much there and therefore, the said contention does not merit acceptance. It is further sought to be argued that the Registrar would not ascertain the validity of the resolution as to whether it is properly passed or not and is outside the scope of section 13. Pertinently, when section says that the amendment so forwarded shall not be contrary to the Act, Rules and bye-laws, it would include within its sweep the procedural aspects also, as provided in the Rules and the bye-laws and therefore, it is incorrect to say that the Registrar would not see what preceded the amendment before him.
28. At this stage, relevant would also be the provision of section 73 of the Act of 1961 in Chapter VII titled 'Management of Societies'. It says that final authority of every society shall vest in the general body of members in general meeting subject to the provisions of the Act and the Rules. Section 73 of the Act of 1961, reads thus:
"73. Final authority of society.- Subject to the provisions in this Act and rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the bye-laws:
Provided that, where the bye-laws of a society provide for the election of delegated of such members, the authority may vest in the delegates of such members elected in the prescribed manner, and assembled in general meeting."
29. The proposition is well settled that once the person becomes a member of the co-operative society, he loses the individuality qua the society and he has no independent right except those given to him by the statute and the bye-laws. It is also well settled that the member must act and speak through the society or rather the society alone can act and speak for him qua the rights and duties of a society as a body. It is equally true that final authority of the Page 34 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined society, subject to the provisions of the Act and the Rules, vests in the general body of the members in the general meeting. In the case of Daman Singh (supra) it has been held that once the person becomes a member of the co-operative society loses his individuality qua the society and he has no independent right except those given to him by the statute and the bye-laws. He must act and speak through the society or the society alone can act and speak for him qua rights or duties of the society as a body. In the case of State of UP & Anr. (supra), the Apex Court has held and observed that a member of a society has no independent right qua the society and it is the society that is entitled to represent as a corporate aggregate. Also in the case of Zoroastrian Co-operative Housing Society Ltd. & Anr. (supra), the Apex Court has held and observed that the rights of the members merge in the rights of the society and are controlled by the Act and the bye-laws of the society. Therefore, when the final authority, vests in the general body of the members in the general meeting and if the resolution is passed by majority, grounds of challenge available to the member are difficult to fathom except that resolution is contrary to the Act, the Rules and the bye-laws.
30. Furthermore, section 96 of the Act of 1961, would also be relevant to decide the issue and it reads thus:
"96. Disputes.- (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society shall be referred in the prescribed form either by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if the parties thereto are from amongst the following :-
(a) a society, its committee, any past committee, any past or present office, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society;Page 35 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
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(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;
(c) a person, other than a member of the society, who has been granted a loan by the society, or with whom the society has or had transactions under the provisions of section 46, and any person claiming through such a person ;
(d) a surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society 46, whether such a surety is or is not a member of the society;
(e) any other society, or the Liquidator of such a society.
(2) When any question arises whether for the purposes of sub- section (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.
Explanation I. - For the purposes of this sub-section, a dispute shall include -
(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, without such a debt or demand be admitted or not ;
(ii) a claim by a surely for any sum or demand due to him from the principal borrower in respect of a loan by a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not ;
(iii) a claim by a society for any loss caused to it by a member, past member, or deceased member, by any officer, past officer or deceased officer by any agent, past agent or deceased agent, or by any servant, past servant or deceased servant, or by its committee, past or present whether such loss be admitted or not ;
(iv) a refusal or failure by a member, a past member or a nominee heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it for breach of conditions of the assignment.
Explanation II. - For the purposes of this section, the expression "agent" includes in the case of a housing society, an architect, engineer or contractor engaged by the society."
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31. Section 96 in Chapter IX of the Act of 1961, titled 'procedure for deciding the suits', starts with a non-obstante clause. It envisages that notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society shall be referred in the prescribed form either by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if the parties thereto are from amongst as provided in clauses (a) to (e). Sub-section (2) provides that when any question arises that the matter referred to for a decision is a dispute or not, the question shall be considered by the Registrar whose decision, shall be final.
32. Also, the provisions of section 96 of the Act of 1961, does not envisage reference of a dispute to the Registrar if the dispute is between the Registrar and the member. The issue, is no longer res integra. At this stage, the judgment of the Bombay High Court in the case of Keshavlal Kalidas Chawan (supra) is worth referring to. The petitioner therein, was employed as a worker in the textile mill so also a member of the Ahmedabad Majoor Sahkari Bank Limited. As per the existing bye-law, all the textile workers residing in the city of Ahmedabad or the District Ahmedabad were entitled to become a member. By moving an amendment at the general meeting of the society, the right to join the society was limited only to those textile workers who were members of Majoor Mahajan Sangh. Resolution was passed and amendment was sanctioned by the Registrar. The petitioner being a worker appealed to the State Government which was dismissed against which, the High Court was approached. Two fold prayers were prayed for, namely, quashing of the order passed by the Registrar or in alternative, to refer the dispute, under section 54 of the Bombay Act, to arbitration. Since the paragraphs in the Page 37 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined judgment are not numbered, they are reproduced hereinbelow as shown therein:
"The petitioner is employed as a worker in a textile mill at Ahmedabad. He is also a member of opponent No. 4 which is the Ahmedabad Majoor Sahkari Bank Ltd. Under by-law 4 of this society all the textile workers residing in the city of Ahmedabad or the district of Ahmedabad were entitled to become members. An amendment was moved to this by-law at the general meeting of the society and by this amendment the right to join the society was limited only to those textile workers who were members of the Majoor Mahajan Sangh, a trade union functioning in Ahmedabad. This resolution was passed on September 28, 1952, and the amendment was sanctioned by the Registrar on July 18, 1953, The petitioner appealed to Government against the order of the Registrar sanctioning this amendment and the appeal was dismissed on October 15, 1953, and the petitioner has come before us, and the relief which he seeks is to quash the order passed by the Registrar sanctioning the amendment, or in the alternative to compel the Registrar to refer a dispute, which he says exists between him and the Society touching the constitution of the Society under Section 54 of the Co-operative Societies Act, to arbitration.
Now, the result of the amendment is in no way to contravene this provision because the amendment does not permit any person to become a member who does not reside in Ahmedabad, nor does it permit any person to become a member who is not a textile worker. What the amendment does is to restrict the membership to a section of the persons who carry on a particular occupation, and there is nothing in Section 7 to prevent the co-operative society amending its by-laws to this effect, nor is there anything in Section 16 which could prevent the Registrar from giving his approval to an amendment so passed by the general meeting of the society. Whether such an amendment should be passed, or not, whether it is good policy to deprive the right of enjoying the membership of this society to textile workers who do not belong to the Majoor Mahajan Sangh, is entirely a different question. That is a question of the internal management of the society and the best person to decide whether it is good policy or not is the society itself and not this Court. Therefore, if it is within the competence of the society to restrict the membership and if it is within the competence of the Registrar to give his approval to such an amendment, the grievance made by Mr. Gokhale is a grievance as to the merits of the amendment which cannot be inquired into by the Court. In our opinion it is unnecessary to consider what are the powers of the Registrar under the expression "otherwise directs," because that contingency would only arise at the time of registration.Page 38 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined The next contention urged by Mr. Gokhale is that there was a dispute between the petitioner and the society touching the business or the constitution and it was obligatory upon the Registrar to refer that dispute under Section 54 of the Act. In our opinion, the only dispute which really arises is the dispute with regard to the power of the Registrar to register the amendment under Section 16, and Section 54 does not contemplate a reference to arbitration when there is a dispute between a member and the Registrar. It is not as if the petitioner is without a remedy if the Registrar goes wrong, because Section 64 of the Act gives him the right of appeal against the decision of the Registrar, a right which the petitioner has exercised.
It is then urged by Mr. Gokhale that it is open to him to agitate the dispute with regard to the merit of the amendment and that dispute should be referred to arbitration. Now, the reference contemplated by Section 54 must be a reference where there must be a dispute which must be capable of adjudication and the resulting award must be capable of being enforced. It is difficult to understand how the arbitrators can decide as to the merits of the amendment which can only be properly decided by the general body itself. Assuming the arbitrators take the view that the amendment was not a proper amendment and the by-law should not have been amended as it has been amended, it is difficult to understand how the arbitrators could enforce their view. It is not suggested that by an award given by the arbitrators they could call upon the general body to revoke the amendment or compel the Registrar to withdraw his approval."
33. The Court, pointed out that whether amendment should be passed or not or whether it is good policy to deprive the right of enjoying the membership of the society to textile workers who do not belong to the Majoor Mahajan Sangh, was question of the internal management of the society and the best person to decide whether it is good policy or not, is the society itself and not the Court. Contention was also raised that there was a dispute between the petitioner and society touching the business of the constitution and it was obligatory upon the Registrar to refer the dispute under section 54 of the Bombay Act. It is noted that the dispute would only be with regard to the power of the Registrar to register the amendment under section 16 and section 54 of the Bombay Act does not contemplate a reference to arbitration when there is a Page 39 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined dispute between the member and the Registrar and that the member is not without a remedy for, if the Registrar goes wrong, section 64 of the Bombay Act gives a right of appeal against the decision of the Registrar. Notably, the provision of section 16 is more or less in pari materia with the provisions of section 13 and section 54 of the Bombay Act, is almost identical to the provisions of section 96 of the Act of 1961. Therefore, the Division Bench of the Bombay High Court, in no uncertain terms, has held that the dispute which arises is the dispute with regard to the power of the Registrar to register the amendment under Section 16, and Section 54 does not contemplate a reference to arbitration when there is a dispute between a member and the Registrar. Also, if the Registrar goes wrong, the member has a right to file an appeal against the decision of the Registrar under section 64.
34. Similarly, in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), the issue revolved around the decision taken to amend the bye-laws pertaining to the election of the Board of the Trustees. Member society filed a lavad suit and obtained an interim injunction against the society to discuss and resolve the proposed amendment. The said order of interim injunction was subject matter of challenge before this Court. Contention was raised that the Registrar has no jurisdiction to entertain the suit in view of the provisions of sections 13, 153, 155 and 96 of the Act of 1961. The learned single Judge, considering the provisions of section 13 and 14 of the Act of 1961 as well as the Rules, opined that it is the jurisdiction of the general body of the society to resolve for passing of any bye-laws or amendment of any bye-laws. The jurisdiction or power of the general body could not be controlled or disputed by any authority except the Registrar of Co-operative Societies and he can interfere with the proposed amendment of the bye-laws or passing of the bye-laws by exercising the powers under section 13 Page 40 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined of the Act of 1961 and the Rules framed thereunder. It is held that sections 13 and 14 of the Act of 1961 have laid down a procedure or method for amendment and if the society is following the said procedure then, it cannot be restrained by filing a suit or proceeding before the Registrar's Nominee for considering the said amendment of the bye-laws in general body meeting. It has been further held that sections 13, 14 and 153 of the Act of 1961, has the provision for preferring an appeal against the order of the Registrar and therefore, when the Registrar has passed an order either allowing or rejecting the amendment of the bye-laws, the said order is appealable as provided under section 153 of the Act of 1961 and a revision before the State Government under section 155 of the Act of 1961. When a specific provision for challenging or disputing the amendment of the bye-laws is provided, a suit before the Registrar's Nominee may not be tenable because that will not amount to a dispute as contemplated by section 96 of the Act of 1961. Relevant paragraph 6 reads thus:
"6. The real dispute of the matter is as to whether the respondent No. 1 Registrar's Nominee had jurisdiction to entertain suit which filed before him by the respondent No. 2. It is an admitted fact that the Board of the Directors of the present petitioner has taken a decision to have certain amendments in their bye-laws and after taking such a decision in the meeting of the Board of the Directors, it was decided to put those proposed amendments in the bye-laws for the approval in the General Meeting of the petitioner No. 1 - society. The respondent No. 2 has filed the suit seeking an injunction against the petitioner to restrain the petitioner to have the discussions and decision on proposed amendment of bye-laws. It is the claim of the petitioner that such a proceeding before Registrar's Nominee is not tenable. The claim of the petitioner will have to be taken into consideration in the background of the various provisions of the Gujarat Co-operative Societies Act, 1961. Sections 13 and 14 of the Gujarat Co-operative Societies Act, 1961 are running as under:
13. (1) No amendment of the bye-laws of a society shall be valid until registered under this Act. For the purpose of registration of an amendment of the bye-laws, a copy of the amendment passed, in the manner prescribed, at Page 41 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined a general meeting of the society, shall be forwarded to the Registrar.
(2) If the Registrar is satisfied that the amendment so forwarded is not contrary to this Act or the rules, he may register the amendment:
Provided that no order refusing to register the amendment shall be passed except after giving the society an opportunity of being heard.
(3) When the Registrar registers an amendment of the bye-laws of a society, he shall issue to the society a copy of the amendment certified by him, which shall be conclusive evidence of its registration.
(4) Where the Registrar refuses to register an amendment of the bye-laws of a society, he shall communicate the order of refusal, together with his reasons therefor, to the society.
14. (1) If it appears to the Registrar that an amendment of the bye-laws except in respect of the name or objects of a society is necessary or desirable in the interest of such society, he may call upon the society, in the prescribed manner, to make the amendment within such time as he may specify.
(2) If the society fails to make the amendment within the time so specified, the Registrar after giving the society an opportunity of being heard and with the prior approval of the State Co-operative Council, may register the amendment, and shall thereupon issue to the society a copy thereof certified by him. With effect from the date of the registration of the amendment in the manner aforesaid, the bye-laws shall be deemed to have been duly amended accordingly; and the bye-laws as amended shall be binding on the society and its members.
If the above provisions of Sections 13 and 14 are considered, then it would be quite clear that the amendment to bye-laws of a society will not become valid until they are registered under the Act. For the purpose of registration the society which proposes to have amendment of the bye-laws will have to forward the proposed amendment to the Registrar and the Registrar on being satisfied that the amendment is not contrary to the provisions of the Act or the Rules will have to pass an order of either registering or not registering them as the amended bye-laws. The sections further provides that in case if the Registrar wants to reject the said proposed amendment of bye-laws, then he must give an opportunity of being heard to Page 42 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined the society which has proposed the amendment in the bye-laws. If the provisions of the Gujarat Co-operative Societies Act as well as the Rules thereunder are taken into consideration, then it would be quite clear that it is the jurisdiction of the General Body of the Co-operative Society to resolve for passing of any bye-laws or amendment of any bye-laws. The said jurisdiction or power of the General Body of the Co-operative Society could not be controlled or disputed by any authority except the Registrar of Co-operative Societies. The Registrar, Co-operative Societies can interfere with the proposed amendment of the bye-laws or passing of the bye-laws by exercising powers under Section 13 of the Gujarat Co-operative Societies Act and the rules framed therein. These Sections 13 and 14 of the Co-operative Societies Act have laid down a procedure or a method for amendment of the bye-laws of society. If a society is following the said procedure; then the society could not be restrained by filing a suit or a proceeding before the Registrar's Nominee from considering the said amendment of the bye-laws in the General Body Meeting. Besides provisions of Sections 13 and 14, Section 153 of the Gujarat Co-operative Societies Act, 1961 is making a provision for preferring an appeal against the order of the Registrar. Therefore, when the Registrar has passed an order either allowing or rejecting the amendment of the bye-laws, the said order is appealable as provided by Section 153 of the Gujarat Co-operative Societies Act. Then Section 153 makes a further provision of a revision before the State Government. Thus, when the Gujarat Co-operative Societies Act, 1961 had laid down a specific provision for challenging or disputing the amendment of the bye-laws, a suit before the Registrar's Nominee will not be tenable because that will not amount to a dispute as contemplated by Section 96 of Gujarat Co-operative Societies Act. Therefore, the suit filed by the respondent No. 2 before the Registrar's Nominee - respondent No. 1 is not tenable in law in view of the provisions of Section 96 read with Sections 13, 153 and 155 of the Gujarat Co-operative Societies Act, 1961. Therefore, in view of the said provisions, the respondent No. 1 Registrar's Nominee ought not to have entertained any suit to restrain any co-operative society from discussing the amendment in their bye-laws in the General Body Meeting. This point of jurisdiction of the respondent No. 1 is quite clear in view of the clear provisions of the Act and there is no necessity to allow the proceeding in question to go before the Registrar's Nominee."
35. It is clear that if the Registrar has passed an order under section 13 of the Act of 1961 either allowing or rejecting the amendment of the bye-laws, the order is appealable as provided under section 153 of the Act of 1961 and when there is a specific Page 43 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined provision for challenging or disputing the amendment to the bye- laws, a suit before the Registrar's nominees will not be tenable because that will not amount to a dispute as contemplated by section 96 of the Act of 1961. Therefore, the sequence available would be section 13 and thereafter, appeal under section 153 and thereafter, revision before the State Government under section 155 of the Act of 1961. It is sought to be argued by the learned counsel for the petitioners that the learned single Judge in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra) has missed the issue of section 96 of the Act of 1961. The said contention does not merit acceptance for, in paragraph 6, there is a detailed discussion regarding the scope of sections 13 and 14 vis-a-vis the scope of section 96 of the Act of 1961. Clearly, the distinction is drawn and therefore, to say that the learned single Judge has completely missed the provisions of section 96 of the Act of 1961, would be incorrect.
36. In view of the principle laid down in the judgment in the case of Keshavlal Kalidas Chawan (supra) and the judgment in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), this Court, is of the considered opinion that against the order of the Registrar, approving the amendment in the bye-laws under section 13, the remedy available would be to file an appeal under section 153 with a further revision under section 155 of the Act of 1961. With respect to the resolution passed by the general body, it not being a dispute as contemplated under section 96 of the Act of 1961, the proceedings before the Board of Nominees would not be maintainable.
37. Adverting to the principle that the judgments of Bombay High Court prior to 01.05.1960 are binding on the High Court of Gujarat, reference to the judgments in the case of Anand Municipality vs. Page 44 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Union of India (supra) as well as State of Gujarat vs. Gordhandas Keshavji Gandhi (supra) would be apt. In the judgment in the case of Anand Municipality (supra), the issue was whether the High Court of Gujarat, is bound by the decisions of the Bombay High Court delivered before 01.05.1960. The Full Bench, considering the provisions of Bombay Re-organization Act, 1960, opined that the decisions of the High Court of Bombay given prior to the appointed date i.e. 01.05.1960, are binding on the High Court. It is thereafter, a Division Bench of this Court, since found it difficult to accept the views expressed by the Full Bench, requested for referring the question to another Full Bench for reconsideration of the matter. The matter, was thereafter, decided by the Special Full Bench in the case of State of Gujarat vs. Gordhandas Keshavji Gandhi (supra). As per the majority, the question was answered by holding that the decisions of the High Court of Bombay given prior to 01.05.1960 have as much binding force and effect as if they were the decisions given by the Gujarat High Court itself. Relevant paragraphs 27 and 28 read thus:
"27. The aforesaid cases of the Courts of Rangoon, Madhya Pradesh, Kerala and Mysore can be easily distinguished. The territories of Gujarat State have been wholly carved out of the former State of Bombay and the whole of the jurisdiction which is being exercised by the Gujarat High Court was being exercised by the Bombay High Court prior to the appointed day in the territories which now form part of the State of Gujarat. The Gujarat High Court is a successor to the Bombay High Court. The Gujarat High Court is a court of equal rank and status with the Bombay High Court prior to the appointed day and even as a matter of sound practice, in order to avoid conflict of authority and to secure certainty, uniformity and continuity in, the administration of justice the principles applicable to decisions of courts of co-ordinate jurisdiction in our view must be extended to the decisions of the Bombay High Court given prior to 1st May 1960.
28. Our answer to the question referred to this Special Full Bench is that the decisions of the Bombay High Court given prior to the appointed day, i.e., to 1st May 1960, do not constitute "any law in force immediately before the appointed Page 45 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined day' within the meaning of Section 87 of the Bombay Re- organisation Act, 1960. We hold that the decisions of the High Court of Bombay given prior to 1st May 1960 have as much binding force and effect as if 'they were-the decisions given by the Gujarat High Court itself. A decision of a single Judge of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a single Judge of the Gujarat High Court; a decision of a Division Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Division Bench of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Full Bench of the Gujarat High Court."
38. Therefore, it is well settled proposition of law that any decision given by the High Court of Bombay prior to 01.05.1960, would be binding upon the High Court of Gujarat. Hence, the judgment of Division Bench of the Bombay High Court in the case of Keshavlal Kalidas Chawan (supra) is very much binding on the High Court of Gujarat.
Re.: Whether the judgments in cases of (i) Harekrishna K. Vadhwani (supra); (ii) Banaskantha District Cooperative Union Ltd. (supra); (iii) Karmacharinagar Co-operative Housing Society Limited (supra); and
(iv) Surat District Cooperative Bank Limited (supra), are per incuriam as the judgments in the case of Keshavlal Kalidas Chawan (supra) as well as Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra), have not been considered and referred to ?; and Whether the observations in the judgments to the effect that the resolution can be challenged by the members under section 96 of the Act of 1961 and in absence of any such challenge, no grievance can be raised in the appeal under section 153 of the Act of 1961, are passing observations and obiter ?;
39. It is argued by the learned counsel for the petitioner that the judgments; namely, (i) Harekrishna K. Vadhwani (supra); (ii) Banaskantha District Cooperative Union Ltd. (supra); (iii) Page 46 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Karmacharinagar Co-operative Housing Society Limited (supra); and
(iv) Surat District Cooperative Bank Limited (supra), cannot be said to be an obiter and the ratio has been laid down which was necessary for the determination of the lis.
40. As against this, submission is made by the learned counsel appearing for the respondents that the judgments of the Division Bench of the Bombay High Court and learned single Judge of this Court having not been considered, the above referred judgments are per incuriam. Also, the observations made that the resolution has to be challenged before filing an appeal in the said judgments, are passing observations and not the ratio, as it was never an issue for determination and hence, obiter and not binding on this Court.
41. Before delving into the said issue, the judgments, are required to be considered.
42. In the case of Harekrishna K. Vadhwani (supra), the issue, revolved around the division of the co-operative society into three co-operative societies. Resolution was passed by the general body resolving to divide the society into three societies and the division came be sanctioned by the Assistant District Registrar. Appeal preferred against the said decision came to be allowed on the ground that the proper procedure was not followed and notices were not issued as per sub-section (2) of section 17 of the Act of 1961. It is thereafter, revision was filed before the State Government. The State Government, since was convinced, quashed and set aside the order of the Additional Registrar and confirmed the order of the Assistant District Registrar. Member, filed a writ petition raising a grievance that the notice was not issued for division. Therefore, the issue revolved around the challenge to the order permitting the division and since the contentions were raised, the learned single Judge pointed out that "the members in the capacity as a share Page 47 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined holder do not have financial interest in the properties of the society but in matter of division or amalgamation, it is the decision or wish of the majority of the members to prevail and not the individual member." It held and observed that "merely because an individual member is objecting such division, the will of the majority of the members cannot be allowed to be nullified." As an extension to the said observation, in paragraph 9, it is observed that "when the general body of the society has taken a decision and even if the petitioner had any grievance against the decision of the general body of the society, the proper course for the petitioner was to challenge the said decision under section 96 of the Act of 1961." As discussed hereinabove, the said observation, were not in issue for deciding the controversy.
43. In the case of Banaskantha District Cooperative Union Ltd. (supra), the order under challenge, was passed in appeal whereby, the order of the District Registrar allowing the amendment was quashed and set aside. In the annual general meeting of the society, resolution was passed resolving to amend the bye-laws and the proposal was sent to the Registrar for its approval which, was granted vide order dated 26.03.2010 and was accepted by the society; however, an individual member preferred an appeal under section 153 of the Act of 1961 raising a contention that the bye-laws as proposed, ought not to have been approved as mandatory requirement of section 13 of the Act of 1961 and Rule 6 of the Rules of 1965 have not been complied with. Grievance raised by the individual member, was with regard to non-compliance of the provisions of section 13 of the Act of 1961 and specifically, provisions of Rule 6 of the Rules of 1965. This Court, in paragraph 11, has observed that, "in case, if the resolution of the society is not in consonance with the scheme of the Act or prevalent law then the remedy is also provided under the Act." It has also been observed Page 48 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined that "individual member, if is aggrieved by the approval to the proposed bye-law in a modified form, then he has remedy for mustering support of the members and urging the managing committee to challenge the same and even, he can file an appeal as provided under section 153 of the Act of 1961." It has also been held that individual has a limited right to file an appeal against the amendment which is, absolutely contrary to the law. The issue as regards maintainability of the appeal by an individual member under section 153 of the Act of 1961 has been left open. While examining the aspect that the individual member did not protest when the resolution came to be passed, it has been observed that the resolution could have been challenged by him in appropriate forum. The issue before the learned single Judge, was the order passed in appeal under section 153 of the Act of 1961 and as to whether the appeal would be maintainable. Whether the appeal would lie under section 96 of the Act of 1961 at the behest of the member, was not an issue.
44. In the case of Karmacharinagar Co-operative Housing Society Limited (supra), resolution was passed proposing to amend the bye- laws in the annual general meeting. According to the petitioner therein, decision ought to have been taken within sixty days; however, the same was not taken and during the pending proceedings for registration of the amendment in the bye-laws, upon application being filed, the members of the societies were joined as respondents. The issue therefore before this Court was the order passed allowing the member society to be joined in the proceedings pending before the Registrar with respect to the amendment in the bye-laws. Since the contention was raised that the amendment is to be passed within sixty days, the scope of section 13 of the Act of 1961 was discussed and this Court, held and observed that "considering the scheme of section 13 of the Act of Page 49 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined 1961, hearing to the individual member except the society is not contemplated as the Registrar is not to take any adverse decision affecting the right of any individual members." While discussing the right of the member, it was pointed out that "once the person becomes the member of a co-operative society, he loses the individuality and he has no independent right except those given to him by the statute and the bye-laws." It has also been observed that "rights of the member are abridged in the society and once the society takes a collective decision in the general body meeting by passing a resolution, unless such resolution is challenged and is declared bad in law and set aside, each member is bound by such a resolution." The learned single Judge in the very said paragraph, left the issue open by observing "Be that as it may." The learned single Judge in the said judgment took note of the judgment in the case of Banaskantha District Cooperative Union Ltd. (supra) and recorded that the members, if do not challenge the resolution, cannot resist the amendment in the bye-laws. The issue in question, was only the right of the respondent nos.3 and 4 therein, the individual members to participate in the proceedings before the Registrar and the aspect of challenge to the resolution, was not the subject matter.
45. The judgment in the case of Surat District Cooperative Bank Limited (supra) also requires a brief mention. Special general board meeting decided to amend the bye-laws by passing a resolution by majority of the members. The same, was forwarded to the District Registrar for its approval and registration. Simultaneously, other amendment was proposed in the election roll, inter alia, for delimitation of the constituency. The amendment was approved by the District Registrar. An appeal was filed under section 153 of the Act of 1961. The Additional Registrar interfered with the order of the District Registrar and remanded the matter to the District Registrar for taking a decision afresh. In the writ petition filed against the Page 50 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined order of the District Registrar, contention was raised that the resolution passed by the society for amendment in the bye-laws have not been challenged and in absence of any challenge, the members have no right to challenge the decision of the District Registrar approving the bye-laws. Contention was raised by the respondent that simply because resolution passed by the petitioner is not challenged is no ground to say that they were not entitled to challenge the decision of the District Registrar by filing appeal on the grounds available in law. It was also sought to be argued that section 153 of the Act of 1961 nowhere restricts a member of the society from filing an appeal, if he has not objected to the resolution passed by the society. This Court, while making a passing reference stated that though there is no challenge to the passed amendment in the bye-laws, decision of the Registrar can always be challenged by a member by preferring an appeal under section 153 of the Act of 1961 on the ground that the amendment in bye-laws would run contrary to the Act and the Rules and the appeal preferred by the members, was held to be maintainable. Therefore, in this judgment, except in paragraph 6 and that too in the opening line, there is no reference or discussion about challenge to the resolution and taking resort to section 96 of the Act of 1961 against the resolution.
Re.: Per incuriam:
46. For the sake of completeness, it would be profitable to advert to the aspect of the decision being per incuriam. It is noteworthy that a decision given in ignorance of a previous decision of its own Court or of a coordinate jurisdiction, which covered the issue, can be considered to be a decision per incuriam.
47. In the case of State of Gujarat vs. Gordhandas Keshavji Gandhi (supra), the special full bench, while considering the issue of binding nature of the decision of the High Court of Bombay on Gujarat High Page 51 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Court has considered that one Division Bench should follow decision of another Division Bench of the same High Court. Similarly, a learned single Judge should follow the decision of another single Judge of the same High Court. In paragraph 8, it has been observed thus:
"8. The rule that a Court should follow the decision of another Court of co-ordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's Jurisprudence, 11th Edn. at pages 199 to 217.
(1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reserved or overruled by a higher Court.
(2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.
(3) A precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher Court.
(4) A Court is not bound by its own previous decisions that are in conflict with one another. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later Court.
Although the later Court is not bound by the decision so given per incuriam, this does not mean that if is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule if that where there are previous inconsistent decisions of its own the Court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later.
(5) Precedents sub silentio, are not regarded as authoritative. A decision passes sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind.
(6) Decisions of equally divided Courts we not considered binding.
A rule based on judicial decorum and legal propriety which requires a court to follow the decision of another Court of co- ordinate jurisdiction however firmly established cannot be raised to the level of a law in force so as to come within the ambit of the expression "law in force'' in Section 87 of the Bombay Re-organisation Act, 1960. In our view, a decision of a Page 52 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined single Judge of a High Court which may be authoritative for some courts in the State and which is liable to be followed by another judge of the same High Court sitting singly only on the basis of judicial comity and which is not binding on a Division Bench of the same High Court and which is liable to be overruled by such Division Bench and by the Supreme Court cannot be regarded as a 'law in force'. Similarly the decision of a Division Bench of a High Court which is liable to be followed by another Division Bench of the same High Court only on the basis of judicial Comity and which is liable to be rendered ineffective by a Full Bench of the same High Court and which is liable to be overruled by the Supreme Court cannot be regarded as "law in force". In Our view, it would be straining the language of the legislature to regard the same as law in force'."
It has been held that the Court should follow the decision of another Court of coordinate jurisdiction; however, it is subject to the exceptions and one of the exceptions is that the court is not bound by its own previous decisions that are in conflict with one another. If the later decision is in conflict with the earlier, it is given per incuriam and is not binding on a later court.
48. In the case of State of Bihar vs. Kalika Kuer @ Kalika Singh & Ors. (supra), the Apex Court, has examined as to in what circumstances, a decision can be considered to have been rendered per incuriam. Halsbury's Laws of England (4 th Edn.) Vol.26 has been referred to wherein, it has been stated thus:
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction while covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force . A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties , or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority . Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake."Page 53 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024
NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Paragraph 8 would also be relevant and reads thus:
"8. In State of U.P. and Another Vs. Synthetics and chemicals Ltd., this court observed: (SCC pp.162-63, para 40) "40. `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'. (Young versus Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."
Re.: Obiter dictum:
49. Besides, it has also been argued that the observation that the members without challenging the resolution passed by the general body or the special general body, cannot file an appeal is obiter and not the ratio of the said judgment and that obiter is not binding. Obiter as is now well settled it is an expression of opinion at a point which is not necessary for a decision of a case. It is submitted that obiter dicta of the Supreme Court is binding which is the highest Court in India, but obiter dicta of the judgment of the High Court is not binding on the High Court.
50. In the case of Mohandas Issardas & Ors. (supra), it has been held and observed that 'obiter dictum' is an expression of opinion on a point which is not necessary for the decision of a case. The definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. It has been discussed and explained that two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of Page 54 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined the case would be the 'ratio decidendi'; the opinion on the question which was not necessary to decide the case would be only an 'obiter dictum'. Paragraphs 5 and 6, read thus:
"5. Before we turn to the Judgment of the Supreme Court, it is necessary to have our minds clear as to what is an 'obiter dictum' which has a binding effect upon a Court. It Is rather significant to bear in mind that In England an 'obiter dictum' has no binding effect either upon a coordinate Court or upon a subordinate Court. An 'obiter dictum', especially of an eminent judicial tribunal like the Privy Council or the House of Lords, would undoubtedly be entitled to the highest respect. But a Judge in England would not feel that he would be bound by an opinion expressed by the higher tribunal. In India, we have -- perhaps advisedly -- made a departure from the principle operating in England with regard to 'obiter dicta'. At a time when the Judicial Committee of the Privy Council was the highest judicial tribunal in the Empire, as it then was, the Courts in India felt that it would be in the interests of judicial uniformity and judicial discipline if not only they accepted the decisions of the Privy Council, Which indeed were binding upon them, but also accepted the 'obiter dicta' of the Privy Council as binding upon them.
The feeling was that, if the Privy Council expressed an opinion on a point which, although not necessary for decision, clearly indicated the opinion formed by the Privy Council on a question of law, then the Courts in India should accept that as an authoritative pronouncement on the particular aspect of the law and treat that pronouncement as binding, The Supreme Court has now taken the place of the Privy Council and we would like to say unhesitatingly that we must show the same respect for the 'obiter dicta' of the Supreme Court that we did for those of the Privy Council. The Supreme Courts, is the highest Judicial tribunal in India to-day and it is as much necessary in the interests of judicial uniformity and judicial discipline that all the High Courts must accept as binding the 'obiter dicta' of the Supreme Court in the same spirit as the High Courts accepted the 'obiter dicta' of the Privy Council.
6. But the question still remains as to what is an 'obiter dictum' given expression to by the Supreme Court which is binding upon the Courts in India. Now, an 'obiter dictum' is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both Page 55 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'.
Mr. Palkhivala's contention is that an 'obiter dictum' is any definite opinion expressed by the higher tribunal whether the point arose before it or not. Mr. Palkhivala has attempted to make a distinction between an opinion and a definite opinion. He says that, if the higher Court says that a certain view may be possible, then It is not a definite expression of opinion, but of the tribunal definitely expresses its opinion, and not merely tentatively, then it is unnecessary for us to consider whether any points arose for determination before the higher authority, and the mere expression of opinion itself, provided it is definite, would become an 'obiter dictum', and, in India, binding upon the Courts if the 'obiter dictum' is that of the Supreme Court. In our opinion, that argument appears to be entirely untenable.
The very reason why the Courts in India agreed to be bound by the 'obiter dicta' of the Privy Council was that the highest judicial authority in the Empire had applied its mind to a question of law which arose before it for its determination; and however unnecessary it was for it to decide that question, having expressed an opinion on that point it became an authoritative pronouncement on that question of law, and the Privy Council, by deciding that question of law, set its seal of approval upon that question of law. It cannot be suggested that the doctrine of 'obiter dicta' was so far extended as to make the Courts bound by any and every, expression of opinion either of the Privy Council or of the Supreme Court, whether the question did or did not arise for the determination of the higher judicial authority."
51. Therefore, clearly, obiter dictum is an expression of opinion on a point which is not necessary for the decision of the case and the ratio decidendi, would be the determination of the question which was necessary for the case.
52. Reference would also be apt to the judgment in case of Director of Settlements, A.P. vs. M.R. Apparao (supra) wherein, it has been held and observed that what is binding is the ratio of the decision and not any finding of facts. An 'obiter dictum' as distinguished from a 'ratio decidendi' is an observation by Court on Page 56 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined a legal question suggested in a case before it but not arising in such manner as to require a decision. Paragraph 7, reads thus:
"7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See Narinder Singh v. Surjit Singh and Kausalya Devi Bogra v. Land Acquisition Officer). We have to answer the first question bearing in mind the aforesaid guiding principles. We may refer to some of the decisions cited by Mr. Rao in elaborating his arguments contending that the judgment of this Court dated 6-2-1986 cannot be held to be a law declared by the Court within the ambit of Article 141 of the Constitution. Mr. Rao relied upon the Page 57 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined judgment of this Court in the case of Pandit M.S.M. Sharma vs. Shri Sri Krishna Sinha, wherein the power and privilege of the State Legislature and the fundamental right of freedom of speech and expression including the freedom of the press was the subject matter of consideration. In the aforesaid judgment it has been observed by the Court that the decision in Gunupati Keshavram Reddy vs. Nafisul Hasan relied upon by the counsel for the petitioner which entirely proceeded on a concession of the counsel cannot be regarded as a considered opinion on the subject. There is no dispute with the aforesaid proposition of law."
53. The Apex Court, in the case of State of Gujarat vs. Utility Users' Welfare Association & Others (supra), in order to determine the ratio decidendi has applied 'The Inversion Test' propounded, inter alia, by Eugene Wambaugh, a Professor at The Harvard Law School. It has been pointed out that the inversion test is used to identify the ratio decidendi in the judgment. While considering the idea in the word of professor Wambaugh, in paragraph 114, it has been held and observed that in order to test whether a particular proposition of law is to be treated as a ratio decidendi of the case, the proposition is to be inversed i.e., to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. The test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. Paragraphs 113 and 114, read thus:
"113. In order to determine this aspect, one of the well- established tests is "The Inversion Test" propounded inter alia by Eugene Wambaugh, a Professor at The Harvard Law School, who published a classic text book called "The Study of Cases" in the year 1892. This text book propounded inter alia what is known as the "Wambaugh Test" or "The Inversion Test" as the means of judicial interpretation. "The Inversion Test" is used to identify the ratio decidendi in any judgment. The central idea, in the words of Professor Wambaugh, is as under:
"In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the Page 58 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined proposition a word reversing its meaning. Let him then inquire whether, if the court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also."
114. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. "In order that an opinion may have the weight of a precedent", according to John Chipman Grey, "it must be an opinion, the formation of which, is necessary for the decision of a particular case."
54. In view of the enunciation of law, as discussed hereinabove and applying the same, in none of the judgments, the co-ordinate benches have considered the binding judgment of the Division Bench of the High Court of Bombay in the case of Keshavlal Kalidas Chawan (supra) as well as judgment of this Court in the case of Vadodara Dist. Co-op. Milk Producers Union Ltd. (supra). Therefore, the observations made in the above referred judgments about the challenge to the resolution by the members before the Board of Nominees would be a passing observations and not binding.
55. Having answered the issues hereinabove, and proceeding further, the merits and the orders under challenge, are discussed and dealt with hereinbelow:
Re.: Whether the authorities should have decided the proceedings independently and without making it subject to other proceedings pending before another authority ?; and Page 59 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined Whether in view of the explanation offered, the delay should have been condoned by the Additional Registrar (Appeals) and Deputy Secretary (Appeals) respectively ?
56. The Resolution no.1 dated 21.08.2005 was passed in the Special General meeting whereby, the application seeking permission for commercial construction was considered. 12 members were in favour of granting permission for commercial construction and to appoint the Committee to frame bye-laws, whereas, 5 members have accorded their dissent, 2 of whom were represented by their representatives. The dissenting members i.e. the petitioners preferred a lavad suit no.1154 of 2005, inter alia, challenging the Resolution no.1 dated 21.08.2005 permitting commercial construction and use.
57. Application Exhibit 6 was filed seeking injunction, inter alia, praying for two fold reliefs. As per paragraph 8(A) of application Exhibit 6, the petitioners, sought injunction against the society that no steps be taken in furtherance of the Resolution no.1 dated 21.08.2005 and the plots and residential bungalows shall not be used for any other purpose other than the residential purpose. Restraint order was also prayed for restraining any transfer and sale so also handing over of the possession. Prayer was also prayed for restraining the society for granting any permission except the residential purpose etc. Vide order dated 20.09.2005, ad-interim injunction was granted in terms of paragraphs 8(A) and 8(B) of application Exhibit 6 and after hearing the parties, the Board of Nominees passed an order dated 22.06.2006 confirming the same. Board of Nominees was of the opinion that the society is a housing society and the object was to facilitate the housing purpose for its members in a peaceful environment. The Board of Nominees was also of the opinion that the society is bound by its bye-laws and in Page 60 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined absence of any amendment in the bye-laws, the bye-laws cannot be altered by merely passing a Resolution. Clearly, the Board of Nominees was of the opinion that since the bye-laws of the society were for housing purpose, facilitating the housing to its members; it could not be changed or amended, permitting commercial construction in absence of any bye-laws permitting such use.
58. Perceptibly, the said order was challenged initially before the Tribunal and the Tribunal has passed orders dated 10.05.2007 and 13.06.2007 against which, writ petitions were filed. Both the writ petitions came to be allowed quashing and setting aside the orders passed by the Tribunal and restoring the order dated 22.06.2006 passed by the Board of Nominees. The learned single Judge has observed that merely on the basis of resolution, user of the land of the society cannot be changed. The said judgment was subject matter of challenge in Letters Patent Appeal no.39 of 2008 and allied matters and on the basis of the general consensus arrived at between the parties, the Division Bench clarified that the order dated 22.06.2006 shall not come in the way of those members who have been using the premises for commercial use since prior to 22.06.2006. The relevant excerpts of the order read thus:
"Previously, this Court had on 24th December 2009 provided that no members of the co-operative society can start fresh commercial activities in their respective flat, bungalow, plot but the said interim order will not affect those who were already involved in the commercial activities since prior to the said date. However, it was further provided that in the mean time those premises which are used for commercial activities since prior to 22nd June 2006 will not be disturbed but they will not alter or renovate their respective premises without prior permission of the Court. After some discussion at the Bar, learned counsel appearing for the parties agreed that the order dated 22nd June 2006 passed by the Board of Nominees preventing any commercial use of the properties, may apply prospectively and may debar fresh use of premises / property being put to commercial use. It was agreed that till the suit is disposed of, those persons who have been carrying on the Page 61 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined commercial activities in the premises since prior to 22 nd June 2006 may not be disturbed.
On behalf of the original plaintiffs, a statement has also been filed to this effect in each of the appeal.
In view of the general consensus, no further order is necessary to be passed in these appeals but suffice it to record that the order dated 22nd June 2006 passed by the Board of Nominees shall prohibit any further commercial use of the properties in the said society but will not come in the way of the those members who have been using such premises for commercial use since prior to 22nd June 2006.
In partial modification of the order dated 24 th December 2009, it is provided that the persons carrying on the commercial use of the properties prior to 22nd June 2006 may carry on such renovation of the properties without disturbing the basic structure of the property in question.
On behalf of the appellant in Letters Patent Appeal Nos.41 and 42 of 2008, it was pointed out that in one of the plots, construction was going on. It is clarified that in view of order dated 22nd June 2006, construction may be completed, but the property shall not be put to any commercial use till final disposal of the suit. It is also clarified that we have not expressed any opinion as regards the merits and demerits of the pending disputes between the parties before the Board of Nominees and the pending suit shall be decided in accordance with law unmindful of any observations by this Court in this order or in the orders under challenge in these appeals passed by the learned Single Judge. Learned Judge shall dispose of the suit as expeditiously as possible."
59. After disposal of the Letters Patent Appeal no.39 of 2008 and allied matters, agenda notice for Special General meeting was issued on 10.09.2010 for meeting to be held on 21.09.2010. In the meeting dated 21.09.2010, the society passed a Resolution approving the amendment of the bye-laws enabling commercial construction and out of 21 members, 13 members remained present; 12 voted in favour of amendment and 1 opposing the amendment. The said Resolution was again a subject matter of challenge by the petitioners by filing lavad suit no.707 of 2010, inter alia, praying that the Resolution passed in the meeting convened on 21.09.2010, is illegal and bad and the same, be declared as void Page 62 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined and invalid. The petitioners also prayed for injunction against the society or any members not to take any further steps apropos the Resolution dated 21.09.2010. Application Exhibit 6 came to be allowed by the Board of Nominees by passing an order dated 18.11.2010. The society was restrained from taking any steps in connection with the Resolution dated 21.09.2010. The said order was also subject matter of challenge before the Tribunal and it passed an order dated 12.04.2012. Once again, a writ petition being Special Civil Application no.6571 of 2012 was filed before this Court which came to be disposed of vide order dated 19.06.2012 and the Board of Nominees was directed to hear and decide the lavad suits at the earliest with a clarification that the observations made by the Tribunal were tentative in nature and the Board of Nominees shall not be influenced by the observations made by the revisional authority. The order dated 12.04.2012 passed by the Tribunal was not disturbed.
60. It is thereafter, vide judgment dated 15.06.2016, both the lavad suits came to be dismissed. Objection was raised about the maintainability of the suits which came to be overruled and the Board of Nominees observed that by passing of the Resolution dated 21.09.2010, by majority, would be a dispute between the members and the society and the appeal, would be maintainable; however, Board of Nominees, after referring the proceedings and the order passed by this Court dated 28.04.2011 in Special Civil Application no.16616 of 2010 and also taking note of the approval of the bye- laws by the Registrar, concluded that the prayers in the suits, cannot be accepted.
61. Against the order passed by Board of Nominees, the petitioners preferred revision before the Tribunal and both the applications came to be dismissed by the Tribunal by passing an Page 63 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined order dated 21.09.2017. The Tribunal, considering the provisions of sections 13 and 14 of the Act of 1961, coupled with Rule 6 of the Rules of 1965 opined that both the meetings namely, meeting dated 21.08.2005 and meeting dated 21.09.2010, have been convened legally wherein, the members have participated. In the meeting dated 21.09.2010, the Resolution has been passed for amending the bye-laws which, is in consonance with the provisions of section 13 of the Act of 1961 and Rule 6 of the Rules of 1965 which, was thereafter submitted for its approval to the Registrar. The Tribunal, also took note of the fact that in the Special General meeting, resolution has been passed by the majority i.e. 12:1 which, is as per the provisions of Rule 6 of the Rules of 1965. The judgments in the case of Keshavlal Kalidas Chawan (supra) so also Vadodara Dist. Co- op. Milk Producers Union Ltd. (supra) have also been taken note of. It also observed that society has not restrained the petitioners from using their properties as a residential. Also, when the society in question is in the corporation area of Ahmedabad, and it having converted into a commercial zone and considering the development from time to time, and the wish of the members for using their properties as a commercial, the amendment in the bye-laws have been made and when the bye-laws have been approved, the petitioners can raise objection by filing an appeal. The Tribunal, concluded that the dispute ceases to be a dispute under section 96 of the Act of 1961. With this, the Tribunal, therefore, rejected the revision application.
62. Notably, the challenge before the Board of Nominees, was the resolutions passed by the society permitting the commercial constructions and amending the bye-laws. In view of the discussion in the above referred paragraphs, clearly, the suits before the Board of Nominees were not maintainable.
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63. At this stage, it would also be relevant to deal with the challenge to the orders dated 22.06.2018 and 17.02.2023 as well. The members have challenged the Resolution dated 21.09.2010 by filing a lavad suit no.707 of 2010 whereas, the society, submitted an application to the District Registrar, seeking approval. Allegations of tampering were made of the date of prior the order and in the writ petition being Special Civil Application no.16616 of 2010, this Court, directed the new incumbent to decide the proposal of the society which came to be decided vide order dated 14/15.05.2014. The District Registrar approved the bye-laws no.2 and 2(A).
64. The petitioners have raised objections that when the stay was granted by the Board of Nominees and in contravention of the stay granted, the Registrar has no jurisdiction to approve the amendment to the bye-laws of the society. Objection was also raised that as per the order dated 28.04.2011 passed in Special Civil Application no.16616 of 2010, the learned single Judge directed to take into consideration, inter alia, various orders of the Court and relevant material and decide it in accordance with law. Raising an objection, reference was made of lavad suit no.1154 of 2005 and the injunction granted vide order dated 22.06.2006 so also the proceedings before this Court by way of a writ petition and the Letters Patent Appeal, it was argued that as per the order dated 22.06.2006, the society can neither put the property to the commercial use nor put up any construction and when the suit, was to be decided, the society could not have taken any steps affecting the merits of the suit. It was also argued that the agenda notice dated 10.09.2010, could not have been issued calling for the Special General meeting on 21.09.2010. It was also stated that the copy of the agenda notice was received by the members and upon receipt, on 21.09.2010 objections were lodged. It was also contended that the fundamental object i.e. residential purpose has been affected Page 65 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined and if commercial construction is permitted, the members would be subjected to harassment, nuisance etc.
65. Above referred were the objections raised before the Registrar. The Registrar while passing the order, was of the opinion that the society has proposed the change in the object considering the regulations framed by the Ahmedabad Municipal Corporation and Ahmedabad Urban Development Authorities permitting the commercial construction and/or license and permission to the members. While considering the provisions of section 13 of the Act of 1961 with Rule 6 of the Rules of 1965, the Registrar noted that the agenda notice has been issued for convening Special General meeting on 21.09.2010 which is in consonance with bye-law no.80 of the bye-laws. Out of 21 members, 13 remained present and the Resolution no.3 was passed by the majority of 12:1. Registrar was therefore of the opinion that the steps have been taken in accordance with the provisions of section 13 of the Act of 1961 and Rule 6(1)(a)(b) of the Rules of 1965. Observing thus, Registrar approved the proposal seeking amendment in bye-laws by incorporating bye-law no.2 and 2(A); however, considering the proceedings before this Court and the orders passed thereon, the Registrar made it subject to the final order that may be passed in lavad suit no.1154 of 2005 and lavad suit no.707 of 2010 so also directed maintenance of the status quo as per the order dated 12.05.2010 passed in Letters Patent Appeal no.39 of 2008 and others.
66. Perceptibly, the principal contention raised by the petitioners members was that in view of the pendency of the lavad suits and the orders passed by this Court, the amendment in the bye-laws, could not have been passed and approved by the Registrar. It is not the case of the petitioners that there is any contravention of the Page 66 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined provisions of the Act, the Rules or the bye-laws and when the Resolution no.3 dated 21.09.2010 has been passed by the majority and when the Registrar, found it in confirmity with the scheme of the Act, the Rules and the bye-laws, it cannot be said that the Registrar has committed an error in passing the order dated 14/15.05.2014.
67. Besides, petitioners did not take any steps and it is only after above referred common judgment passed in lavad suit no.1154 of 2005 and lavad suit no.707 of 2010 dismissing the suits that appeal was filed before the Additional Registrar (Appeals), Co-operative Societies together with an application seeking condonation of delay. The explanation offered in support of the delay, was that since the order was made subject to the outcome of the suits, no steps were taken; however, the members were diligent and not indolent as they were persisting the remedy before the Board of Nominees. The explanation offered was also that the appeals have been filed against the order of the Board of Nominees before the Tribunal and appeals have also been dismissed and against which, writ petitions have been filed before the Hon'ble High Court. With this, request was made to condone the delay. As against this, the objection was raised by the society to the effect that the limitation provided for filing the appeal against the order of the Registrar is 60 days and beyond 60 days, appeals could not have been filed and the delay should not be condoned.
68. Application before the Additional Registrar (Appeals) came to be rejected which was challenged before the Deputy Registrar (Appeals) who, passed a detailed order dated 17.02.2023 rejecting the revision application. While rejecting the application, it considered the provisions of section 153 of the Act of 1961. It also observed that application ought to have been filed within two Page 67 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined months whereas, it has been filed on 02.08.2016 against the order dated 14/15.05.2014 i.e. almost after a delay of 26 months. While not interfering the order of the Additional Registrar (Appeals), the revision application came to be rejected.
69. The explanation coming forth is that since the proceedings were pending before the Board of Nominees, that no steps were taken. Except this, no sufficient explanation is offered justifying the delay of 26 months in filing the appeal. Clearly, two proceedings were independent and distinct of each other and if the petitioners were aggrieved by the said order, they should have been vigilant enough to have taken prompt steps and not waited for the disposal of the suits pending before Board of Nominees inasmuch as, in the lavad suits, subject matter of challenge were resolutions dated 17.09.2005 and 21.09.2010 passed by the society. Whereas, before the learned Registrar, the issue, was as regards approval of the bye- laws passed in the Special General meeting dated 21.09.2010. In absence of any explanation offered, it cannot be said that the orders passed by the Additional Registrar (Appeals) and Deputy Secretary (Appeals) are erroneous or illegal.
70. In view of the above discussion, the orders do not warrant any interference and the petitions are hereby dismissed except Special Civil Application no.16601 of 2023. Rule is discharged in Special Civil Application nos.23417 of 2017, 23418 of 2017 and 13434 of 2023. While concluding, it is required to be noted that the Registrar, had made the order dated 14/15.05.2014 subject to the outcome of the writ petitions and the Deputy Secretary (Appeals) made it subject to outcome of the pending proceedings before this Court. Since the writ petitions are not entertained, no further orders are required to be passed in this behalf and Special Civil Application Page 68 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024 NEUTRAL CITATION C/SCA/23417/2017 CAV JUDGMENT DATED: 13/06/2024 undefined no.16601 of 2023, stands disposed of accordingly, Rule is made absolute. No order as to costs.
Further order:
1. After the pronouncement of the judgment, Mr Mihir Joshi, learned senior counsel appearing with Mr Arvind Yadav and Mr Mit S. Thakkar, learned advocates for the petitioners has requested for stay of the operation and implementation of the common CAV judgment for a period of four weeks which request, is strongly resisted by Mr Chintan P. Champaneri and Mr Dipan Desai, learned advocates appearing for the respondent on the ground that the resolutions by majority have been passed in the year 2010 and the same, be permitted to be implemented and the stay, as prayed for, may not be granted.
2. Accepting the request of Mr Mihir Joshi, learned senior counsel appearing with Mr Arvind Yadav and Mr Mit S. Thakkar, learned advocates for the petitioners, the operation and implementation of the common CAV judgment, is stayed for a period of four weeks from today.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL / BINOY PILLAI Page 69 of 69 Downloaded on : Mon Jun 17 20:45:47 IST 2024