Bombay High Court
Mr. Ranjit C. Kadam -Chairman New ... vs The Deputy Registrar, Co-Op. Soc. ... on 21 December, 2018
Author: R. G. Ketkar
Bench: R. G. Ketkar
WP13421_18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13421 OF 2018
Ranjit C. Kadam and others ... Petitioners
Vs.
The Deputy Registrar, Co-operative Societies,
Mumbai and others ... Respondents
Mr. Prashant P. Kulkarni for Petitioners.
Ms P. J. Gavhane, AGP for Respondents No.1, 4 and 5-State.
Mr. Rahul B. Vijaymane for Respondents No.2-I and 2-II.
Mr. Deepak T. Raut a/w. Ms Sushma S. Kulkarni for Respondent No.3.
CORAM : R. G. KETKAR, J.
DATE : DECEMBER 21, 2018 P.C. :
Heard Mr. Kulkarni, learned Counsel for the petitioners, Ms Gavhane, learned AGP for the respondents No.1, 4 and 5-State, Mr.Vijaymane, learned Counsel for the respondents No.2-I and 2-II and Mr. Raut, learned Counsel for the respondent No.3 at length.
2. Respondent No.1 - Deputy Registrar, Co-operative Societies, MHADA had issued notice dated 05.03.2018 to the petitioners to show cause why the Administrator should not be appointed on the New Dindoshi Garden Hill Co-op. Housing Society Limited (for short 'Society') in exercise of powers under Section 77-A of the Maharashtra Co-operative Societies Act, 1960 (for short 'Act'). The Society gave replies on 04.05.2018 and 10.05.2018. By order dated 04.06.2018, respondent No.1 appointed Board of Administrators comprising of -
(i) Narayansingh Chavhan, Chairman, (ii) Sunil Fatichandra Bajaj, Member and (iii) Amul Shivaji Patil for a period of three months or till such time the Committee is constituted, whichever is earlier.
3. Aggrieved by that decision, petitioners herein preferred appeal 1/6 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:59:14 ::: WP13421_18.doc under Section 152 of the Act before the Divisional Joint Registrar, Co- operative Societies, Mumbai Division, Mumbai (for short 'Divisional Joint Registrar'). By order dated 13.07.2018, the Divisional Joint Registrar dismissed the appeal. Aggrieved by these orders, petitioners instituted Revision Application before the Hon'ble Minister for Co- operation, Government of Maharashtra (for short 'Hon'ble Minister') on 19.11.2018. Petitioners also prayed for stay of the orders dated 04.06.2018 and 15.11.2018 pending the disposal of the Revision Application. As the Hon'ble Minister is not available for hearing the stay application, petitioners have instituted the present Petition.
4. The Petition was heard on 28.11.2018 when the matter was ordered to be listed for 'admission' on 03.12.2018 so as to enable Ms Gavhane to take instructions as to within what time, revision application filed by the petitioner before the Hon'ble Minister will be decided. Till next date, order dated 04.06.2018 passed by the Deputy Registrar, Co- operative Societies, Mumbai (for short 'Deputy Registrar') was stayed.
5. The Petition was thereafter heard on 03.12.2018. In the order dated 03.12.2018, statement of Ms Gavhane that endeavour will be made to decide the Revision Application within 8 weeks from fixing a suitable date of hearing by the Hon'ble Minister was recorded. In view thereof, notice was issued to the respondents No.2 and 3, returnable on 19.12.2018 and Humdast was permitted. In pursuance thereof, respondents No.2 and 3 have entered appearance. Mr. Deepak Raut was agreeable for issuing directions for disposal of the Revision Application within 8 weeks. He, however, strenuously opposed continuation of interim order. In view thereof, I have heard the learned Counsel appearing for the parties at length.
6. In support of this Petition, Mr. Kulkarni submitted that the 2/6 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:59:14 ::: WP13421_18.doc Managing Committee consists of 13 members. Respondent No.3 has alleged that 10 members out of 13 members of the Managing Committee have tendered resignations. He submitted that Bye Law 130 of the Model Bye-laws lays down that the resignation shall be effective from the date it is accepted by the Committee or on the expiry of the period of one month from the date of the receipt of the letter of resignation by the Chairman or the Secretary of the Society, whichever is earlier. He submitted that in the present case, the resignation is not received by the Chairman or the Secretary of the Society. The resignation is not accepted by the Committee. He, therefore, submitted that the Authorities below committed serious error in exercising power under Section 77-A of the Act and appointing the Board of Administrators.
7. He further submitted that in terms of Bye-law 131(e), the resignation is required to be placed before the General Body and such resignations become effective only from the date of acceptance by the General Body. In the present case, the resignations are not placed before the General Body. Even on this ground, the impugned orders are vitiated. He, therefore, submitted that the Hon'ble Minister may be directed to dispose of the Revision Application within 8 weeks and till such time, the impugned orders may be stayed.
8. On the other hand, Mr. Raut supported the impugned orders passed by the Deputy Registrar and the Divisional Joint Registrar. He submitted that out of 13 members of the Managing Committee, 10 members had addressed resignations to the Chairman of the Society. The said resignations were received by the Society and to that effect, seal and signature is given by the Society. He submitted that in terms of Bye- law No.114 as 10 members out of 13 members have tendered resignation, there is no coram for managing affairs of the Society. The Authorities below were, therefore, justified in appointing Board of 3/6 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:59:14 ::: WP13421_18.doc Administrators. He, therefore, submitted that no case is made out for granting stay during the pendency of the Revision Application.
9. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. It is not in dispute that there are 13 members in the Managing Committee of the Society. Respondent No.3 claims that 10 members of the Managing Committee have tendered resignations. Petitioners on the other hand contend that resignations are not received by either Chairman or the Secretary of the Society. A perusal of the resignation dated 04.01.2018 submitted by 10 members shows that it was received in the office of the Society on 13.01.2018. Mr. Kulkarni states that the Manager of the Society has accepted the resignations and has put signature acknowledging receipt of the resignations. Resignation also bears seal of the Society. Petitioners contend that as the resignations are not received either by the Chairman or the Secretary of the Society, they are not valid. Bye-law No.130 reads thus, "130. A member of the Committee may, by a letter, addressed to the Chairman of the Society, resign his Membership of the Committee. The resignation shall be effective from the date it is accepted by the Committee or on expiry of the period of one month from the date of the receipt of the letter of resignation by the Chairman or the Secretary of the Society, whichever is earlier."
10. A perusal of the above extracted Bye-law shows that a member of the Committee has to address letter to the Chairman of the Society while resigning his membership of the Committee. The resignation becomes effective from the date it is accepted by the Committee or on expiry of the period of one month from the date of the receipt of the letter of resignation by the Chairman or the Secretary of the Society, whichever is earlier. Placing reliance of the wording about receipt of the letter of resignation by the Chairman or the Secretary of the Society, 4/6 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:59:14 ::: WP13421_18.doc Mr. Kulkarni submitted that as the resignations are not received by the Chairman or Secretary of the Society, they are not valid in the eyes of law. Prima facie, I do not find any merit in this submission as the resignation becomes effective from the date it is accepted by the Committee or on the expiry of the period of one month from the date of the receipt of the letter of resignation by the Chairman or the Secretary of the Society. The Bye-law does not provide that the same has to be served upon the Chairman or the Secretary of the Society. It is not in dispute that the resignation is accepted by the Manager of the Society and the resignation also bears the seal of the Society. The Deputy Registrar has considered this aspect in the impugned order and observed that the resignation tendered by 10 members out of 13 Managing Committee members bear the seal and signature. It, therefore, cannot be said that the Chairman did not accept the said resignation. Prima facie, I do not find that the Deputy Registrar has committed any error in recording that finding.
11. Mr. Kulkarni relied upon Bye-law No.131(e), which is to the following effect:
131(e) In case entire committee intends to resign, the resignation of the committee shall be placed before the General Body and such resignations shall be effective from the date of acceptance of such resignations by the General Body. This fact of acceptance of resignations of the entire Committee by the General Body, shall be communicated to the Registrar by the out going officers and registrar may take necessary action as provided under Section 77A of the Act. However, the existing Committee shall continue to carry on with only routine functioning of the Society, till alternate arrangement is made by the Registrar.
12. He submitted that resignation allegedly tendered by 10 members is required to be placed before the General Body and such resignations become effective from the date of acceptance of such resignations by the 5/6 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:59:14 ::: WP13421_18.doc General Body. Prima facie, I do not find any merit in this submission as in the instant case, entire Committee of 13 members have not tendered resignation. Prima facie, bye-law No.131(e) is not attracted in the present case.
13. In view thereof, the Petition is disposed of in the following terms:
a. Parties assure that they will appear before the Hon'ble Minister on 07.01.2019, and for that purpose, no fresh notice be issued to them;
b. The Hon'ble Minister is requested to fix a suitable date and thereafter proceed to dispose of the Revision Application within 8 weeks therefrom;
c. The prayer for granting stay to the interim orders before the Hon'ble Minister is rejected;
d. The Hon'ble Minister will decide the Revision Application on its own merits and on the basis of the material on record and in accordance with law, uninfluenced by the observations made in this order.
e. Order accordingly.
(R. G. KETKAR, J.)
Minal Parab
6/6
::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 22:59:14 :::