Bombay High Court
Mahalaxmi Railway Karmachari Sahakari ... vs Anil Son Of Wamanrao Gawande And Anr. on 18 June, 2002
Equivalent citations: (2002)104BOMLR20
Author: D.D. Sinha
Bench: D.D. Sinha
JUDGMENT D.D. Sinha, J.
1. Heard Mr. Palil, learned Counsel for the petitioner and Mr. Mardikar, learned Counsel for the respondent No. 1. Rule made returnable forthwith by consent of the parties.
2. The learned Counsel for the petitioner states that the petitioner is a Co-operative Society registered under the Maharashtra Co-operative Societies Act, 1960. It is a Housing Society and is sub-classified as "Tenant Co-partnership Co-operative Housing Society" There are in all 106 members. The Society purchased the land for allotment of plots to its members. The respondent No. 1 was admitted as a Member of the Society and one plot was allotted to him. As per the Resolutions passed by the General Meetings as well as Managing Committee Meetings of the Society, every member had to pay development charges, maintenance charges, Nazul taxes etc., to the Society.
3. The learned Counsel for the petitioner further contended that the Society accordingly made demands by issuing notices to the respondent No. 1. However, the respondent No. 1 failed to make requisite payment though several opportunities were given to him for this purpose and, therefore, in the General Body Meeting of the Society held on 16.12.1990, a Resolution was passed by the Society whereby the allotment of plot made in favour of respondent No. 1 was cancelled as well as respondent No. 1 was expelled from the membership of the society. The learned Counsel for the petitioner further contended that the respondent No. 1, being aggrieved by the action of the petitioner-Society, filed a Dispute bearing No. 198 of 1992 before the Co-operative Court, Amravati, challenging the Resolution of his expulsion and sought a declaration that he is a member and the said Resolution is null and void.
4. It is further contended by the learned Counsel for the petitioner that on 8.8.2000, the Co-operative Court dismissed the dispute mainly on the ground that such dispute does not fall within the scope of Section 91 of the Maharashtra Co-operative Societies Act. Being aggrieved by the decision of the Co-operative Court, the respondent No. 1 filed an appeal before the Member, Maharashtra State Co-operative Appellate Court, Mumbai, Bench at Nagpur. The Appellate Court heard the appeal and vide Judgment, dated 31.8.2001, set aside the Judgment and order passed by the Co-operative Court, dated 8.8.2000. Being aggrieved by the same, the petitioner has filed the present Writ Petition.
5. The learned Counsel for the petitioner contended that this Court in case of K. V. Sundaram and Anr. v. Raj Rajeshwari Co-op. Housing Society Ltd. 1980 Mh. L.J. 4 : 1980 C.T.J. 130 considered this aspect and finally held that the issue, in question, does not fall within the ambit of Section 91 of the Co-operative Societies Act and the remedy to challenge the Resolution of expulsion is to be followed as per the manner provided by Section 35 and the further provisions relating to appeal and revision. The learned Counsel, therefore, contended that the impugned order passed by the Lower Appellate Authority is bad in law and may be set aside.
6. Mr. Mardikar, the learned Counsel for the respondent No. 1, on the other hand, contended that in the General Body Meeting of the Society, which was held on 16.12.1990, the question of expulsion of respondent No. 1 was not on the agenda of the meeting and, therefore, the same could not have been considered by the General Body on that day before informing the petitioner in respect of the same and, therefore, the petitioner did not have a notice in this regard. The learned Counsel further contended that the respondent No. 1, therefore, approached the Co-operative Court under Section 91 and challenged the Resolution, dated 16.12.1990, passed by the petitioner-Society. Mr. Mardikar further contended that the procedure, which is adopted for the purpose of expulsion by the society in view of the above referred facts, is not proper. The same is violative of the principles of natural justice and, therefore, the Co-operative Court does have jurisdiction to adjudicate upon this aspect of the matter and supported the impugned order passed by the Lower Appellate Court.
7. Similarly, Mr. Mardikar further contended that though the Resolution is sent to the Registrar, Co-operative Societies, for approval in view of provisions of Section 35 of the Act way back in 1991, till this date there is nothing on record to show that the same is approved or disapproved by the Registrar. This has resulted in grave injustice to the petitioner.
8. Considered the contentions canvassed by the respective Counsel. Perused the provisions of Section 35 of the Maharashtra Co-operative Societies Act as well as the above referred Judgment of the Division Bench passed by this Court. The relevant undisputed facts, which are involved in the present case, are as follows :-
In the General Body Meeting of the petitioner-Society held on 16.12.1990, the Society passed a Resolution whereby the allotment of the plot made in favour of the respondent No. 1 by the Society was cancelled and the respondent No. 1 was expelled from the membership of the Society. The said Resolution was forwarded to the Registrar for his approval on 1.11.1991 by the Society as contemplated by the proviso to Sub-section (1) of Section 35 of the Co-operative Societies Act. The short question, which needs to be considered in the present Writ Petition, is whether in case of Resolution of expulsion passed by the Society against a member of the Society, the dispute in this regard is maintainable under Section 91 of the Co-operative Societies Act or the validity of such Resolution of expulsion needs to be considered by the Registrar in the manner provided under Section 35 of the Act.
9. The Division Bench of this Court in case of K. V. Stindaram and Anr. v. Raj Rajeshwari Co-op. Housing Society Ltd., (supra) was faced with the similar situation wherein the identical issue was involved. After due adjudication, the Division Bench of this Court in para 23 of the above referred judgment has observed thus :-
On a fair and harmonious construction of the relevant provisions referred to earlier, we are, therefore, of the view that the matter relating to the validity of the Resolution of expulsion will not fall within the provisions of Section 91 and that the validity can only be challenged in the manner provided by Section 35 and the further provisions relating to appeal and revision against the order under Section 35.
In view of the provisions of Section 35 of the Co-operative Societies Act, Registrar, undoubtedly, is entitled to go into the merits of the matter in order to find out whether the conduct for which the member is sought to be expelled from the membership is of such a nature that it had brought disrepute to the Society, or the act, which is committed, or the act, in respect of which the member was required to be expelled, was, in fact, detrimental to the interest of the Society, The proviso to Section 5 makes it clear that no Resolution shall be valid unless the member concerned is given an opportunity of representing his case to the General Body and it is approved by the Registrar in view of the powers vested under this provision and in a given case, the Registrar can even refuse to grant approval to the Resolution, if, in the opinion of the Registrar, the same is passed de hors of the proceedings provided under Section 35 of the Act.
10. Similarly, the aggrieved party is entitled to appeal under section 152 of the Act against the decision of the Registrar. It, therefore, follows that though Section 91 does not expressly exclude the proceedings under Section 35 of the Societies Act, however, the proceedings under Section 91 and Section 35 are distinct and independent and their appellate channels are also distinct and separate and, therefore, by necessary implication the proceedings under Section 35 stand excluded from the ambit of Section 91 of the Societies Act.
On the backdrop of the above referred law and facts, there is no manner of doubt that as far as the expulsion of the member is concerned, the dispute in this regard under Section 91 is not maintainable and, therefore, for the reasons stated hereinabove the impugned order passed by the Lower Appellate Authority is bad in law and cannot be sustained. In that view of the matter, Writ Petition is allowed. The impugned order is set aside. No order as to costs.
It is needless to mention that the respondent No. 1 is entitled to approach the Registrar in order to find out the progress of the proceedings of the Resolution, which was sent for approval and if he is aggrieved by the action of the Registrar, he is entitled to take further appropriate steps as per the provisions of the Co-operative Societies Act.