Bombay High Court
Awamma Nagappa Horti vs Channa Sanyukta Sheti Sahakari Sanstha ... on 28 November, 2016
Author: M. S. Sonak
Bench: M. S. Sonak
skc JUDGMENT-WP-1980-05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1980 OF 2005
Smt. Awamma Nagappa Horti
since deceased through legal heir
1A. Shri P. Nagappa Horti, since minor
through guardian Shri Satyappa
Shidsmall Maled .. Petitioners
vs.
Channa Sanyukta Sheti Sahakari
Sanstha Ltd. & Ors. .. Respondents
Mr. Umesh R. Mankapure with Mr. Vinod Sangvikar for Petitioners.
Ms Manjiri Parasnis for Respondent No. 1.
ig CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 22 November 2016
Date of Pronouncing the Judgment : 28 November 2016
JUDGMENT :-
1] The petitioner (now through legal representatives) challenges judgment and order dated 20 December 2004 made by the Divisional Joint Registrar, Co-operative Societies, Kolhapur, by which the Revisional Authority has set aside judgment and order dated 17 March 2003 made by the Assistant Registrar who had directed the respondent no. 1 society to hand over possession of the suit property to the original petitioner, no sooner, her resignation as a member of the society stands accepted.
2] The original petitioner Smt. Awamma Horti was the owner of
property bearing Gat Nos. 236/5B, 327/5B and 238/4B
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admeasuring about 5 Ha and 90 R (suit property). In or about the year 1969, she became a member of the respondent no. 1 society and leased out the suit property to the society for alleged term of 25 years. Upon expiry of the lease term, Awamma Horti demanded the return of the suit property to her. Since, the suit property was not restored to her, she raised a dispute before the Co-operative Court, Sangli, under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (said Act), which came to be numbered as co-operative case no. 217 of 1984.
3] By judgment and order dated 4 June 1991, the Cooperative Court granted substantial reliefs applied for by Awamma Horti.
However, in appeal nos. 353 and 428 of 1991 instituted by the respondent no. 1 society, the Maharashtra State Cooperative Appellate Court by judgment and order dated 4 October 2000 set aside judgment and order dated 4 June 1991 made by the Cooperative Court, Sangli, mainly on the ground that the dispute raised by said Awamma Horti was premature, since, she had not submitted her resignation prior to raising of the dispute and therefore, no cause of action could be said to have arisen for her to raise the dispute. Awamma Horti did not challenge the judgment and order dated 4 October 2000 made by the Cooperative Appellate Court, thereby accepting the position that the dispute raised by her 2/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 ::: skc JUDGMENT-WP-1980-05 in the first instance was premature.
4] Awamma Horti, thereafter, pursued the matter with regard to the acceptance of her resignation as member of the respondent no.
1 society, but with no success. It is the case of the respondent no. 1 society that the suit property was barren land and the same was substantially developed by the society at a considerable expense. It is the case of the society that in terms of the bye-laws as well as agreement between the parties, should Awamma Horti desire the return of the suit property, she has to pay for the development undertaken by the society and since, she is in arrears, there was no question of accepting resignation or restoring the suit property to her. At this stage, we are really not concerned with the merits of such defence.
5] Awamma Horti, upon being unsuccessful in persuading the respondent no. 1 society to accept her resignation and restoring the suit property, this time, filed an application before the Assistant Registrar of Co-operative Societies seeking directions to the respondent no. 1 society to accept her resignation and to restore the suit property to her. Such application is not on record.
6] The Assistant Registrar of Co-operative Societies by his order
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/ communication dated 17 March 2003 substantially granted Awamma Horti reliefs applied for by her. Thereupon, the respondent no. 1 society instituted revision application no. 368 of 2003 before the Divisional Joint Registrar (Revisional Authority). The Revisional Authority by impugned judgment and order dated 20 December 2004 has allowed the revision application and set aside the Assistant Registrar's order dated 17 March 2003 holding that the Assistant Registrar lacked jurisdiction in the matter and the proper remedy available to Awamma Horti was to raise a dispute under Section 91 of the said Act before the Cooperative Court.
7] Mr. Mankapure, learned counsel for the petitioners submits that in the first round of litigation, the Cooperative Court had held that unless the resignation of Awamma Horti is accepted, the dispute under Section 91 of the said Act is premature. The respondent no. 1 society, is neither accepting the resignation of Awamma Horti for any justifiable reasons nor is the society releasing the suit property, even though, the tenure of the lease has long expired. Mr. Mankapure submitted that the demand for development charges by the society is patently illegal and in any case highly exaggerated. He submitted that the respondent no. 1 society, mainly comprises of relatives of the chairman and it is only Awamma Horti who was non relative. He submits that the society is 4/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 ::: skc JUDGMENT-WP-1980-05 virtually exploiting Awamma Horti and now her legal representatives, in as much as attempts were made by the society to even mortgage the suit property for the purposes of raising loans on behalf of the society. He submits that on basis of technicalities, respondent no. 1 society is bent upon holding on to the suit property and further, exploiting the same in the meanwhile.
8] Mr. Mankapure, has also filed written submissions urging that the society has not developed the suit property but is raising frivolous and exaggerated demands only with a view to hold on to the suit property, which, it is not otherwise entitled to do. Mr. Mankapure also submitted that the lease was initially for a period of 5 years but the term was extended to 25 years by practicing fraud and overwriting. Mr. Mankapure submits that even after the expiry of 25 years, the society, is not returning the suit property to the petitioners.
9] Mr. Mankapure, by reference to Section 25 of the said Act submits that a person ceases to be a member of a society on his resignation from the membership thereof being accepted or on his death or removal or expulsion from the society. He submits that Section 35 of the said Act empowers the Registrar of Co-operative Societies to consider the issue of expulsion of a member. He 5/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 ::: skc JUDGMENT-WP-1980-05 submits that though, it is not expressly provided in Section 35 of the said Act, issue of validity of resignation, can always be gone into by the Assistant Registrar and therefore, the Assistant Registrar had jurisdiction to make the order dated 17 March 2003 and the view taken by the Assistant Registrar is an equitable one.
10] On the other hand, Ms. Manjiri Parasnis, learned counsel for the respondent no. 1 society whilst disputing the contentions raised by and on behalf of the petitioners submitted that the disputes raised by Awamma Horti, are covered by the provisions of Section 91 of the said Act and therefore, the jurisdiction lies with the Cooperative Court and not with the Assistant Registrar. She submitted that as long as resignation of Awamma Horti was not accepted by the respondent no. 1 society she continued to be a member of the society and even the dispute with regard to non acceptance of her resignation or the release of the suit property, are all disputes governed under Section 91 of the said Act. She submitted that in the first round, the dispute was not entertained as being premature because Awamma Horti had not even submitted her resignation before raising the dispute under Section 91 of the said Act. By now, she submitted, the resignation has already been tendered and the issue as to whether the same was rightly rejected or not, is clearly a dispute covered under section 91 of the said Act.
6/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 :::skc JUDGMENT-WP-1980-05 By adverting to the provisions of Section 91 of the said Act, she submitted that the legal representative of late Awamma Horti, also claim through Awamma Horti and therefore the dispute stands covered under Section 91 of the said Act. For these reasons, Ms. Parasnis submitted that the Revisional Authority was right in setting aside the Assistant Registrar's order dated 17 March 2003, on the ground that the Assistant Registrar lacked jurisdiction to either entertain or decide a dispute under Section 91 of the said Act.
11] The rival contentions now fall for determination.
12] At the outset, it is made clear that this court, at this stage, is not evaluating the relative merits or otherwise of the disputes between the parties. Therefore, although much can be said about the actions of the respondent no. 1 society obviously, this is not the occasion to say or comment upon the same. There is however merit in the submission of Ms Parasnis that the disputes raised by Awamma Horti and which are now continued by her legal representatives clearly constitute a dispute in terms of Section 91 of the said Act. As long as the resignation of Awamma Horti was not accepted, she continued to be a member of the respondent no. 1 society. Upon the demise of Awamma Horti, this remains a dispute between legal representatives of Awamma Horti or persons 7/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 ::: skc JUDGMENT-WP-1980-05 claiming through Awamma Horti and the society. The dispute relates to the business of the society therefore, the dispute, as contended by Ms Parasnis is clearly covered under Section 91 of the said Act. There is no question of such dispute being either premature at this stage or being barred by any principle of res judicata on account of the orders made in the first round. This is now a ripe dispute covered under Section 91 of the said Act.
13] The Assistant Registrar who made the order dated 17 March 2003 lacked jurisdiction to entertain or decide a dispute under Section 91 of the said Act. Such dispute is required to be adjudicated and decided by the Co-operative Court. The Revisional Authority has also held that the dispute is one covered by Section 91 of the said Act and consequently the Assistant Registrar lacked jurisdiction to entertain the same. There is accordingly no case made out to interfere with the decision of the Revisional Authority.
14] Mr. Mankapure's contention on basis of reading Sections 25 and 35 of the said Act, unfortunately cannot be accepted. Section 25, no doubt provides that a person ceases to be a member of the society upon his resignation being accepted by the society. Section 35 of the said Act, however, relates to the issue of expulsion of a member, which is quite different and distinct from the issue of 8/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 ::: skc JUDGMENT-WP-1980-05 acceptance or non acceptance of the resignation of a member. In this case, Awamma Horti had submitted her resignation, which was not accepted by the society. The situation therefore is quite reverse to that which obtains in the case of expulsion of a member from the membership of the society. Section 35 is not attracted to a case of this nature. Besides, Section 35, makes reference to Registrar of Co-operative Societies and not Assistant Registrar of Co-operative Societies. Even assuming that there is some delegation of power in favour of the Assistant Registrar, clearly, the issue raised by the petitioner, does not attract provisions of Section 35 of the said Act.
15] As contended by Mr. Mankapure, it does appear that technicalities and perhaps, improper advise have resulted in the petitioner and her legal representatives being denied, proper adjudication with regard to their disputes. Awamma Horti has already expired. Lease granted by her to the society, at least prima facie, has already expired. The legal representatives are neither paid any money by respondent no. 1 society for the use of the suit property nor is the suit property being restored to them. If therefore, the petitioners i.e. legal representatives of Awamma Horti raise a dispute before the competent Cooperative Court within a period of six weeks from today, the competent Cooperative Court is directed to dispose of the same in accordance with law and on its own merits 9/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 ::: skc JUDGMENT-WP-1980-05 as expeditiously as possible and within a period of six months from the date of its institution.
16] It is made clear that the observations, if any, made in this judgment are only prima facie and the Cooperative Court need not be influenced by them. The dispute, if instituted, by the petitioners, is to be decided on its own merits and in accordance with law.
17] Since, there are already orders made in some other proceedings restraining the respondent no. 1 society from selling, transferring, alienating or in any other manner dealing with the suit property, orders in this regard are not being made. In the absence of such protection, this Court was quite inclined to make some orders, which would operate until the disposal of the dispute before the Cooperative Court.
18] With the aforesaid observations and liberty, Rule is discharged.
19] All concerned to act on basis of authenticated copy of this order.
(M. S. SONAK, J.) Chandka 10/10 ::: Uploaded on - 29/11/2016 ::: Downloaded on - 30/11/2016 00:48:45 :::