Bombay High Court
Uttam Jagannath Lungare vs The State Of Maharashtra on 21 April, 2014
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
WP/1546/2001
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1546 OF 2001
Uttam Jagannath Lungare,
Age 64 years, Occ. Retired Teacher,
R/o "Paripurti Niwas",
Khadkeshwar, Aurangabad. ..Petitioner
Versus
1. The State of Maharashtra.
2. The Secretary,
Cooperation and Textile Department,
Mantralaya, Mumbai - 32.
3. The Divisional Joint Registrar,
Cooperative Societies, Aurangabad.
4. The Taluka Deputy Registrar,
Cooperative Societies, Aurangabad.
5. Gurujan Cooperative Housing
Society, Ltd. Tilaknagar, Osmanpura,
Aurangabad through its Chairman
Dr. P.K.Amrutkar, Age 65 years,
Occ. Retired Doctor.
6. Bhimrao Shankarrao Gheware,
Age 45 years, Occ. Service,
7. Dr.Pralhad Kishanrao Amrutkar,
Age 65 years, Occ. Retired Doctor.
8. Nagappa Manmatappa Sangekar
Age 69 years, Occ. Service,
9. Avinash Bhaskarrao Malose
Age 40 years, Occ. Service,
10. Gangadhar Tukaram Deogaonkar
Age 52 years, Occ. Service,
11. Ram Baswant Ghote Patil,
Age 45 years, Occ. Service,
12. Dilip Kishanrao Patil
Age 52 years, Occ. Business,
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WP/1546/2001
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13. Shivmurli Shankarrao Gheware,
Age 43 years, Occ. Business,
14. Subhash Ghanshyam Patil,
Age 35 years, Occ. Service,
15. Pramod Shriniwasrao Deokar,
Age 37 years, Occ. Business,
16. Smt. Vaijanti H. Sutar,
Age 37 years, Occ. Housewife,
Respondents 6 to 16 are r/o
Gurujan Cooperative Housing
Society Ltd., Tilaknagar,
Osmanpura, Aurangabad. ..Respondents
...
Shri S.S.Choudhari h/f Shri D.N.Suryawanshi, Advocates for petitioner,
Shri V.H.Dighe, AGP for respondents 1 to 4 and
Shri S.R.Barlinge, Advocate for respondents 5 to 7.
...
CORAM : RAVINDRA V. GHUGE, J.
Reserved on: April 9, 2014
Pronounced on: April 21, 2014
JUDGMENT:-
1. Heard learned Advocates for the respective parties.
2. By an order dated 25th April 2001, this Court had admitted this petition and had granted interim relief in terms of prayer clause (D) which reads thus; -
"(D). Pending hearing and final disposal of this Writ Petition, the resolution dated 4.4.1999 passed by respondent No. 5, the judgment and order dated 28.6.1995,12.10.1999 and 22.1.2001 passed by respondent No. 4, 3 and 2, in case No. 2/99, in appeal ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 3 No. 154 99 and in the revision No. RVA/2779/CR-400/15-C respectively, please be stayed."
3. So, the petitioner herein was protected by the orders of this Court for the last about 13 years.
4. The petitioner claims to be a founder member of the respondent No. 5 Society. His membership was cancelled by the said Society under section 35 of the Maharashtra Cooperative Societies Act, 1960 {"Act of 1960".) Respondent No. 1 is the State of Maharashtra. Respondent No. 2 is a Secretary for Co-operation and Textile Department of the State of Maharashtra. Respondent No. 3 is the Divisional Joint Registrar, Cooperative Societies, Aurangabad. Respondent No. 4 is the Taluka Deputy Registrar, Cooperative Societies, Aurangabad. Respondent Nos. 6 to 16 are the members of the respondent No.5 Cooperative Society who have voted against the petitioner, resulting in the expulsion of the petitioner from the Cooperative Society.
5. The respondent No.5 Society was formed in 1968. The petitioner and other members have paid the amounts towards the purchase of land in 1969 and obtained receipts from the Chief Promoter of the Society.
Eventually, the Society was registered in October 1971. The petitioner gave a declaration that he and his family do not have any plot or house in the operational area.
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6. The petitioner was initially allotted the plot No. 6 in the respondent 5 Society. As he found the said plot to be unsuitable to him, he sold the same to Dr.Khanna and purchased the plot No. 5 to the extent of half portion from the Northern side from the founder member Shri H.N. Podar, vide registered sale deed No. 7839, dated 8th August 1988. Both the transactions are approved by respondent 5 Society by its resolutions in the year 1988.
7. The petitioner submits that he was issued with a show cause notice dated 29th of January 1991 by respondent 5 Society. 11 charges were levelled against him. He submitted his explanation to the show cause notice on 15 March 1999. The petitioner denied all the charges levelled upon him. The said charges were levelled after a lapse of about 10 to 15 years. It is contended that the said show cause notice prima facie is illegal and unsustainable.
8. Respondent No. 5 Society issued an agenda-cum-notice dated 17th of March 1999 for convening a special general body meeting, which was scheduled on 4.4.1999. The said notice dated 17th of March 1999 does not specify that there would be a discussion on expulsion of the petitioner under section 35 of the Act of 1960. As per the said notice of meeting, the special general body meeting was held on 4th April 1999 and the resolution was passed by a majority of 11:4 members in favour of the expulsion of the petitioner as member of the Society. The petitioner was not heard in the said meeting when the resolution dated 4th April 1999 ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 5 was passed for expelling him as a member.
9. The petitioner initiated legal proceedings in the form of a dispute before the learned Judge, Cooperative Court, Aurangabad to the extent of the entitlement of the plot. In the meanwhile, respondent 5 Society submitted the resolution dated 4th April 1999 for approval under section 35 of the 1960 act to respondent No. 4. The petitioner appeared in the said proceedings. The record of the Society was not called for by respondent No. 4. It was pointed out by the petitioner that rule 28 and 29 of the Maharashtra Cooperative Societies Rules 1961 ("Rules of 1961") have been violated. However, respondent No. 4 granted approval to the expulsion of the petitioner by its order dated 28th June 1999.
10. The petitioner, therefore, challenged the order of respondent No. 4, by filing an Appeal No. 154 of 1999 before the Honourable Divisional Joint Registrar of Cooperative Societies, Aurangabad Division. By its judgment and order dated 12 December 1999, the revision of the petitioner was dismissed.
11. Aggrieved by the judgment of respondent No. 3, the petitioner preferred Revision No. 400 of 1999, before the Honourable Minister for Co-operation and Textile Department, State of Maharashtra. By its judgment and order dated 23rd of January 2001, the respondent No.2, Secretary of the Department of Cooperation and Textile State of Maharashtra, dismissed the revision petition of the petitioner.
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12. Being aggrieved by the above referred impugned orders, the petitioner has preferred this Writ Petition. The petitioner has tried to explain away the charges levelled upon him. He contended that the lady Mrs. Ranjana Musale, who had deposited an amount of Rs.4760/-, was not allotted a plot. There was no false declaration that the petitioner did not hold a plot in his name as he indeed did not hold such a plot. He further contended that the allegation that he sold a vacant portion of a plot by introducing a subject at the spur of the moment in a meeting, is also unsustainable. I do not intend to deal with these contentions in light of the order that I intend to pass in this petition based on the record and the oral submissions of the learned advocates the representing the litigating parties in this petition.
13. Learned Advocate for the petitioner has basically drawn my attention to the show cause notice dated 29th of January 1999. He had submitted his reply to the said notice on 15th March 1990. On 17th of March 1999 the notice for convening a meeting on 4th of April 1999 was issued along with the agenda of the meeting. According to the petitioner, there was no item/subject on the agenda as regards the expulsion of the petitioner as is required under section 35 of the Act of 1960.
14. It is noteworthy that section 35 of the act of 1960 reads as follows:-
" 35. Expulsion of members.- (1) A society may, by resolution passed by a majority of not less than three-fourths of the members ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 7 entitled to vote who are present at a general meeting held for the purpose expel a member for acts which are detrimental to the interest or proper working of the society:
Provided that, no resolution shall be valid, unless the member concerned is given opportunity of representing his case to the general body, and no resolution shall be effective unless it is approved by the Registrar.
(2) No member of a society who has been expelled under the foregoing sub-section shall be eligible for re-admission as a member of that society, or for admission as a member of any other society, for a period of one year from the date of such expulsion:
Provided that, the Registrar may, on an application by the society and in special circumstances, sanction the re-admission or admission, within the said period, of any such member as a member of the said society or of any other society, as the case may be."
15. The petitioner has, therefore, contended that a Society may pass a resolution by a majority of not less than three fourth of the members, entitled to vote and who were present in the meeting for the purpose of expelling a member for acts which are detrimental to the interest of proper working of the Society. It is further contended that no such charge has been proved against the petitioner.
16. The petitioner has then drawn my attention to rule 28 and 29 of the rules of 1961, which read as under; -
"28. Expulsion of Members:- Any member who has been persistently defaulting payment of his dues or has been failing to comply with the provisions of the by-laws regarding sales of his ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 8 produce through the society, or other matters in connection with his dealings with the society or who, in the opinion of the committee, has brought disrepute to the society or has done other acts detrimental to the interest or proper working of the society may, in accordance with the provisions of sub-section (i) of Section 35, be expelled from the society. Expulsion from membership may involve forfeiture of shares held by the member.
29. Procedure for expulsion of members:- (1) Where any member of a society proposes to bring a resolution for expulsion of any other member, he shall give a written notice thereof to the Chairman of the society. On receipt of notice or when the committee itself decides to bring in such resolution, the consideration of such resolution shall be included in the agenda for the next general meeting and a notice thereof shall be given to the member against whom such resolution is proposed to be brought, calling upon him to be present at the general meeting to be held not earlier than a period of one month from the date of such notice and to show cause against expulsion to the general body of members. After hearing the member, if present, or after taking into consideration any written representation which he might have sent, the general body of members shall proceed to consider the resolution.
(2) When a resolution passed in accordance with sub-rule (1) is sent to the Registrar or otherwise brought to his notice, the Registrar may consider the resolution and after making such enquiries as he may deem fit, give his approval and communicate the same to the society and the member concerned. The resolution shall be effective from the date of such approval. "
17. The petitioner, therefore, contends that Rule 29 is a mandatory ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 9 provision and needs to be followed without an exception. It is, therefore, contended by the petitioner that the respondent Society has issued a notice to him but such a notice is not contemplated in law. The notice has to be of a special general meeting to be convened for discussing the issue of expulsion of a member and the said notice must, therefore, indicate that the member would be subjected to a discussion for expulsion from the Society. Moreover, such a notice should give at least one month to the member to prepare himself and either remain present in the meeting and defend himself or submit a written explanation to be placed in the said meeting. It is, therefore, contended that the action of the respondent Society is bad in law. It is further contended that the impugned orders passed by the respondent 4, respondent 3 and respondent 2 authorities are legally unsustainable, perverse and deserve to be quashed and set aside.
18. Shri S.R. Barlinge, learned advocate on behalf of of the respondent 5 Society has strenuously submitted that a show cause notice dated 29th of January 1991 was indeed served upon the petitioner. Subject of expulsion and imputations levelled against him are clearly mentioned. The petitioner did not submit his reply within the time allocated to him in the said notice. Respondent 5 Society waited in anticipation of a reply from the petitioner. He did submit his reply on 15th March 1999. After considering the said reply with due circumspection, the Society found it fit and proper to call for the general body meeting to discuss and decide the subject of expulsion of the petitioner as a member of the Society.
::: Downloaded on - 23/04/2014 23:33:48 :::WP/1546/2001 10 Therefore the notice dated 17th of March 1999 was issued. Serial No. 3 in the subjects on the agenda clearly indicates that the show cause notice issued to the petitioner was placed for discussion in the meeting.
19. As such, it was further contended that since the petitioner was given 55 days to submit his reply, the show cause notice dated 29th of January 1999 necessarily needs to be construed to mean a notice on the proposal to expel the petitioner as a member of the Society. By notice dated 17th of March 1999, he was simply informed that the meeting would be convened on 4th of April 1999 to discuss the show cause notice and take a decision. These facts, therefore, need to be construed to mean proper compliance of Rule 29 of the Rules of 1961. It is further contended that the Rules are a hand maid to justice and not mandatory in nature.
20. It is further submitted by the respondent Society that serious charges were levelled against the petitioner and the continuance of such a member of the Society was considered to be seriously detrimental to the interests of the Society. The fact that 11 members out of the 15 members present, voted in favour of expelling the petitioner, 3 members voted in favour of the petitioner and 1 member did not vote. It is, therefore, contended that this clearly indicates that the Resolution was passed by a three fourth majority and that also indicates the views of each member of the said Society. It is, therefore, submitted that a view that failure to give 30 days notice for holding the general body meeting renders the resolution unsustainable, ought not to be taken as it would amount to a ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 11 technical approach. It is, therefore, prayed that the impugned order of approval by respondent No. 4 and the judgments of respondent No. 3 and respondent No. 2 are legally sustainable.
21. I have given an anxious consideration to the submissions of the learned advocates for the petitioner, respondent 5 Society and the learned AGP for the state authorities. With their able assistance, I have gone through the entire petition paper book. I have looked into the show cause notice dated 29th of January 1999, reply of the petitioner dated 15th of March 1999, the notice of the meeting and the agenda dated 17th of March 1999, the resolution dated for April 1999 and the impugned orders.
22. In a judgment delivered by this Court in the case of Narayan etc. etc. Vs. Assistant Registrar, Cooperative Societies (AIR 1994 Bombay 239), this Court, while deciding the said case concluded in paragraph 3 that the language of Rule 29 is very clear that where the Society proposes to expel a member from the membership, not only that the member shall be individually served with the notice, which will contain an agenda of the said proposed general body meeting but the said meeting has to be held not earlier than a period of one month from the date of such notice. The language of Rule 29 is mandatory and as such the meeting in which is the resolution of expulsion of these members was passed is itself rendered illegal. The Assistant Registrar who granted approval of this expulsion was bound under section 35 of the act of 1960 to consider this aspect as the said approval by the Registrar provided under section 25(1) of the Act is ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 12 not an empty formality. This Court, therefore, set aside the approval of the Assistant Registrar and the judgment of the Divisional Joint Registrar while allowing the petition.
23. The learned Division Bench of this Court in the case of Bhaskar Laxman Rane Vs. Shri Gurudev Nityanand Cooperative Housing Society [1998 (3) Mh.L.J.127] has concluded that the notice of meeting contemplated by Rule 29 in the matter of expulsion of member referable to Section 25 of the Act of 1960 has to be served on the member against whom resolution is proposed to be passed, at least one month prior to the date of the meeting. The words, " general meeting to be held not earlier than a period of one month from the date of such notice in rule 29 of the rules of 1961 in the matter of expulsion of member" have to be construed to mean not earlier than a period of one month from the date of service of such notice. Purpose of the notice contemplated in Rule 29 is to give an adequate opportunity to the member, who is sought to be expelled on serious grounds. The resolution is based on such grounds and which casts a stigma on the member concerned. He is also disqualified from becoming a member of that Society or for admission as a member of any other Society for a period of one year from the date of expulsion. This results in serious consequences on the member concerned. Such a meeting held in violation of the mandatory provisions of sub-rule (1) of Rule 29 of the Rules of 1961 would be bad in law. Any business transacted at such a meeting would be bad in law.
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24. In the judgment of the Division Bench of this Court in the case of Bhaskar (supra), it was further held that a combined reading of the provisions of section 35 of the Act of 1960 and Rules 28 and 29 of the Rules of 1961, leave no room for doubt that expulsion is a serious matter.
While dealing with the question as to whether Rule 29 could be said to be mandatory in nature, the Division Bench concluded in paragraph 31 as under:-
" ..... We are, therefore, inclined to take the view that the petitioner was served with the notice dated 18th September 1986 on 23rd September 1986, the meeting held on 19th October 1986 was, therefore, held in violation of the mandatory provisions of sub-rule (1) of Rule 29 of the Rules of 1961 and would, in our opinion, be bad in law. It would, therefore, follow that any business transacted at such a meeting would be bad in law'....."
25. Similarly, as held by the Apex Court in the case of Ram Ram Narain Medho Vs. the State of Bombay [1958 (6) BLR 811], if the language of the enactment is clear and unambiguous, it would not be legitimate for the Court to add any word thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the Legislature. The intention of the legislature is to be gathered only from the words used by it and no such liberties can be taken by the Court for effectuating a supposed intention of the legislature.
26. It is for these reasons that I am not inclined to accept the contention of Shri Barlinge, learned Advocate that the notice dated 29th of ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 14 January 1999 should be construed to be a notice for expulsion in the meeting convened on 4th of April 2004, so as to give effect to the intent and object of the legislature that the member sought to be expelled should be given 30 days notice prior to his expulsion. So also, the said notice does not indicate that the respondent Society was convening a general body meeting to consider the proposal to expel the petitioner.
Similarly, the notice dated 17th of March 1999 indicates, at item No. 3, that one of the items on the agenda is to discuss and think about the show cause notice issued to the petitioner. Even this notice, by which a meeting was convened on 4th of April 1999, does not indicate that the initiation for discussion and decision was the expulsion of the petitioner.
27. In the case of Kolhapur Zilla Sahakari Doodh Utpadak Sangh Maryadit Vs. State of Maharashtra and others [2008 (2) MAH. L.J.231], the Division Bench of this Court concluded that notice dated 11th October 2005 of the general body meeting dated 11th November 2005 was received between 12th October and 18th of October 2005. The Division Bench had therefore, upheld the view taken by the learned Single Judge that the resolution of expulsion passed in such a general body meeting was not legal and valid as 30 days' clear notice was not given by the appellant to respondent Nos. 5 to 65. It was also concluded in the said judgment that, as there was no compliance of section 25 of the Act read with Rules 28 and 29 of the Maharashtra Cooperative Societies Rules, 1961 which are mandatory, the entire order is vitiated. As such, in my view Rule 29 of the rules of 1961 can be held to be mandatory in nature in light of the ::: Downloaded on - 23/04/2014 23:33:48 ::: WP/1546/2001 15 judgment of this Court in the cases of Narayan, Bhaskar and Kolhapur Zilla Sahakari (supra).
28. It is in the light of the above that this Writ Petition succeeds. I therefore, partly allow this Writ Petition. The impugned resolution and orders set out in prayer clause (C) of paragraph 24 of the petition are quashed and set aside. Nevertheless, I hold that respondent 5 - Society cannot be precluded from complying with Section 35 of the Act of 1960 and Rules 28 and 29 of the Rules of 1961, while adopting appropriate steps afresh as against the petitioner. It may be noted that this Court has not dealt with the charges levelled upon the petitioner since this petition succeeds on account of the failure of respondent 5 - Society in complying with Rule 29 while passing the resolution expelling the petitioner as a member of the Society.
29. The Writ Petition is therefore partly allowed and rule is made absolute in the above terms. No order as to cost.
(RAVINDRA V. GHUGE, J.) ...
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