Bombay High Court
Shantiniketan Cooperative vs Shivkant S/O Mulchandji Brijwasi on 18 December, 2013
Author: S.S.Shinde
Bench: S.S.Shinde
1 wp5826.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 5826 OF 2011
Shantiniketan Cooperative
Housing Society Ltd., Latur,
through its Chairman,
Ramrao s/o Ganpatrao Maknikar ...Petitioner
[Original Respondent]
VERSUS
1] Shivkant s/o Mulchandji Brijwasi,
age major, occ. Business,
c/o Shantiniketan Cooperative
Housing Society Ltd., Ausa Road,
Shivaji Chowk, Latur,
Tq. And Dist.Latur,
2] The Assistant Registrar,
Cooperative Societies, Latur,
Tq. And Dist.Latur,
3] The Divisional Joint Registrar,
Cooperative Societies, Latur,
Tq. And Dist. Latur ...Respondents
A N D
WRIT PETITION NO. 5819 OF 2011
Shantiniketan Cooperative
Housing Society Ltd., Latur,
through its Chairman,
Ramrao s/o Ganpatrao Maknikar ...Petitioner
[Original Respondent]
VERSUS
1] Shivkant s/o Mulchandji Brijwasi,
age major, occ. Business,
c/o Shantiniketan Cooperative
Housing Society Ltd., Ausa Road,
Shivaji Chowk, Latur,
Tq. And Dist.Latur,
::: Downloaded on - 23/12/2013 20:35:59 :::
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2] The Assistant Registrar,
Cooperative Societies, Latur,
Tq. And Dist.Latur,
3] The Divisional Joint Registrar,
Cooperative Societies, Latur,
Tq. And Dist. Latur ...Respondents
.....
Shri V.D.Salunke, Advocate for the Petitioner
Shri A.A.Mukhedkar, Advocate for respondent no.1
Shri P.P.More, A.G.P. for respondent nos. 2 and 3
.....
ig CORAM : S.S.SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 06.12.2013
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 18.12.2013
ORAL JUDGMENT :-
1] Rule. Rule made returnable forthwith. With the consent of the parties both the Writ Petitions are heard finally.
2] Writ Petition No. 5826 of 2011 is filed challenging the judgment and order, dated 27.12.2008, passed by the Assistant Registrar, Cooperative Societies, Latur in Appeal No. 7 of 2008 and the judgment and order, dated 14.1.2011, passed by the Divisional Joint Registrar, Cooperative Societies, Latur in Revision Petition No. 13 of 2009; whereas Writ Petition No. 5819 of 2011 is filed challenging the judgment and order, dated 30.12.2008, passed by the Assistant Registrar, Cooperative Societies, Latur in Appeal No. 6 of 2008 and the judgment and order, dated 14.1.2011, passed by the Divisional Joint Registrar, Cooperative Societies, Latur in Revision Petition No. 14 of 2009.
::: Downloaded on - 23/12/2013 20:35:59 :::3 wp5826.11 3] It is the case of the petitioner in both the petitions that the petitioner is a registered and deemed to be registered cooperative society under Section 9 of the Maharashtra Cooperative Societies Act, 1960 (herein after referred to as, 'the said Act'). The said society is classified as "housing society" and sub-
classified as "tenant ownership housing society" with limited membership.
After registration of the society, it is a statutory body having its own seal and stamp. The society is having its by-laws adopted and approved by the competent authority i.e. the Assistant Registrar, Cooperative Societies, Latur under Section 13 of the said Act. It is further case of the petitioner that the society is to act/run as per the provisions of the by-laws. The management is vested in the managing committee, the provisions of Section 73 of the said Act lays down the powers and functions of the committee. It is further case of the petitioner that the by-laws framed by the society are having binding force in view of the judgment of this court in the case of Purushottam Yashwant Patil and others vs State of Maharashtra and others, reported in 2002 (1) Mah LR 377.
4] It is further case of the petitioner society that by-law no.4 categorically makes a provision for grant of membership. The said by-law lays down criteria of membership and unless said criteria stated in the said by-law is fulfilled, the person desirous to become member cannot be admitted as a member. Unless the person admitted in accordance with the provisions of the Act and the Rules complies with the mandatory procedure prescribed under Rule 19 of the Maharashtra Cooperative Societies Rules, 1961 (for short, hereinafter referred to as, 'the said Rules'), he cannot be treated as a valid member of the society. In short, in absence of adherence to the provisions of ::: Downloaded on - 23/12/2013 20:35:59 ::: 4 wp5826.11 by-law no.4 and Rule 19 of the said Rules, the person desirous to become member cannot be treated or enrolled as a member of the said society.
5] The object of the society is to provide houses to its members. For the said purpose, the society has purchased multiple property at Latur.
It is the case of the petitioner that for more than a period of 21 years, society is placed under the control of administrator. In fact, the administrator cannot be continued for more than six months. It is further case of the petitioner that the said administrator i.e. respondent no.2 herein has acted against the provisions of the said Act and the said Rules while discharging his duty qua the petitioner society.
6] It is the case of the petitioner society that in Writ Petition No. 5826 of 2011, the disputed plot/house no. 1 was initially allotted to the founder member Madolappa Sidramappa Utage. Said Madolappa Udge claims that he has transferred the said plot to Ashokkumar Vishnudas Dhoot and later on Ahokkumar Dhoot transferred it to respondent no.1. In Writ Petition No. 5819 of 2011, the disputed plot/house No. 13 was initially allotted to the founder member Shridharrao More. He claims that, said Shridharrao More transferred the said plot to Mulchand Brijwasi. Respondent no.1 claims to have purchased under sale deed the residential plot allotted to Shridharrao More.
According to the petitioner, said transfer is without permission of the society and in absence of such permission, ownership of the plot cannot be transferred. The alleged sale deed executed in favour of respondent no.1 by Ashokkumar Dhoot and transfer of the plot by Madolappa Utage in favour of Ashokkumar Dhoot; as also the alleged sale deed executed in favour of ::: Downloaded on - 23/12/2013 20:35:59 ::: 5 wp5826.11 respondent no.1 by Shridharrao More and transfer of the said plot by Shridharrao More in favour of Mulchand Brijwasi, are contrary to the provisions of the said Act and the said Rules and also to the by-laws of the society.
7] The respondent no.1 for the first time moved an application for membership to the petitioner society, on 14.1.2008 (in W.P.No.5826/2011) and on 2.3.2008 (in W.P.No.5819/2011), however, he did not furnish any information provided to it in respect of the alleged transaction by sale deed and transfer of the respective plots in favour of respondent no.1 and the petitioner came to know first time when the respondent no.1 applied for membership on 14.1.2008 and 2.3.2008. It is the case of the petitioner that after receipt of the application from the respondent no.1, the petitioner decided to place the said application before the meeting of the managing committee, and accordingly, said application was placed before the managing committee on 3.2.2008. The managing committee decided to place it before the General Body. The General Body on 2.3.2008 rejected the said application of the respondent no.1 for becoming the member. According to the petitioner, the decision taken by the General Body is final, since the General Body is the supreme authority as per the provisions of Section 72 of the said Act. It is the case of the petitioner that the respondent no.1 in absence of challenge to the resolution passed by the General Body directly approached the Assistant Registrar, Cooperative Societies, Latur under Section 23 (2) of the said Act.
The said authority without considering the fact that the appeal filed by the respondent no.1 is not within time and also there is no challenge to the resolution passed by the General Body and also without considering that the requirement of by-law to become member has not been fulfilled by the ::: Downloaded on - 23/12/2013 20:35:59 ::: 6 wp5826.11 respondent no.1, allowed the appeal of respondent no.1 and directed the petitioner to enroll the respondent no.1 as a member of the society.
8] Being aggrieved by the said judgment and order of the Assistant Registrar, Cooperative Societies, Latur, the petitioner preferred the Revision.
However, in the Revision also, the Revisional Authority confirmed the judgment and order passed by the Assistant Registrar, Cooperative Societies, Latur. Hence this petition.
9] Learned counsel appearing for the petitioner submits that the respondent no.2 has no jurisdiction to entertain the appeal filed by respondent no.1. Respondent no.2 acted without jurisdiction and beyond the powers vested in it. It is submitted that the administrator has no authority/power to enroll the new member. In support of this contention, learned counsel appearing for the petitioner pressed into service exposition of the Supreme Court in the case of K.Shantharaj and another vs M.Nagaraja and others, reported in AIR 1997 SC 2925. It is further submitted that the membership is imposed on society without adherence to the relevant by-laws and also the provisions of the said Act and the said Rules.
10] It is submitted that the appeal which was presented by respondent no.1 before the respondent no.2 was time barred. There was no application accompanied with the appeal for condonation of delay. Therefore, respondent no.2 should have rejected the said appeal on the ground of delay.
It is submitted that there is no prayer in the appeal memo for setting aside the resolution passed by the General Body. It is submitted that in absence of ::: Downloaded on - 23/12/2013 20:35:59 ::: 7 wp5826.11 challenge to the resolution passed by the General Body, the appeal of the respondent no.1 ought to have been dismissed by the respondent no.2. It is submitted that the by-laws have the binding effect and the resolution passed by the General Body, which is the supreme authority in view of the provisions of Section 72 of the said Act, could not have been brushed aside so easily by the respondent no.2. It is submitted that grant the membership to a particular person is within the domain of the petitioner society and the respondent no.2 was not competent to issue direction to the petitioner society to enroll the respondent no.1 as a members of the petitioner society. It is submitted that transfer of plot by the founder members itself was without permission of the society and contrary to the provisions of the by-laws of the society. Therefore, such initial transfer itself is illegal, and therefore, further transfer of the plot in favour of the respondent no.1 was illegal. It is submitted that the Assistant Registrar, Cooperative Societies, Latur i.e. administrator neither possess jurisdiction nor the authority to direct the petitioner to enroll the respondent no.
1 as member of the society.
11] It is submitted that the application filed by respondent no.1 for becoming member of the petitioner society was not in prescribed format. All the necessary documents, which are required to be submitted along with the said application were not accompanied with the said application. It is submitted that the transfer of plot in favour of the respondent no.1 and mutation entry taken in the name of the respondent no.1 is challenged before the Taluka Inspector of Land Records by the petitioner society. It is submitted that as per Section 29 (2)(b) of the said Act, the shares could not be transferred without permission of the society. It is submitted that the ::: Downloaded on - 23/12/2013 20:35:59 ::: 8 wp5826.11 administrator who was illegally continued for years together, contrary to the provisions of law, was not competent to take decision in respect of membership. It is submitted that the petitioner being a tenant ownership society, if any member wants to transfer his share, he has to transfer it with the permission of the society. If there is a sale transaction, the said sale transaction becomes null and void in case no such permission is obtained from the society.
12] It is further submitted that the respondent no.2 while allowing the appeal has not considered the conditions laid down in the by-laws to become member of the petitioner society. It is submitted that the Revisional Authority has mechanically endorsed the findings recorded by the respondent no.2, and therefore, the impugned judgment and orders are required to be quashed and set aside, thereby upholding the resolution passed by the General Body of the petitioner society.
13] Learned counsel appearing for the petitioner invited my attention to the reported judgment of the Supreme Court in the case of Ragho Singh vs Mohan Singh and others, reported in 2001 AIR SCW 2351 and submitted that even though there is few days delay, in absence of filing application for condonation of delay, the appeal could not have been entertained by the respondent no.2.
14] Learned counsel further invited my attention to the judgment of this court in the case of Purushottam Yashwant Patil and others vs State of Maharashtra and others, reported in 2002 (1) Mah LR 377, in ::: Downloaded on - 23/12/2013 20:35:59 ::: 9 wp5826.11 particular para 10 thereof and submitted that while considering the prayer to become member of the society, it is necessary to adhere to the mandate of the by-laws. Therefore, relying upon the pleadings in the petition, annexures thereto and all other documents placed on record, the provisions of the said Act and the said Rules as well as by-laws of the society and the judgments cited supra, learned counsel appearing for the petitioner submits that the petition deserves to be allowed.
15] On the other hand, learned counsel appearing for the respondent no.1 invited my attention to the affidavit in reply filed on behalf of respondent no.1. It is submitted that the answering respondent resides at his house constructed over the respective plot nos.1 and 13 of the petitioner society, which are purchased by him from the ex-members of the petitioner society, namely Ashokkumar Dhoot and Shridharrao More. The possession of the said plots is handed over to the answering respondent on the date of execution of the sale deed. It is submitted that the membership of founder members Madolappa Utage and Shridharrao More came to be legally transferred and the respondent no.1 has purchased the said plot nos.1 and 13. It is submitted that the said plots are purchased by executing a registered sale deeds dated 12.2.2007 bearing registration no. 516 and dated 9.9.1991 respectively. It is submitted that before execution of sale deeds Ashokkumar Dhoot had submitted his membership resignation letter on 12.2.2007; and Shridharrao More had submitted his membership resignation letter on 20.10.1989 to the petitioner society.
::: Downloaded on - 23/12/2013 20:35:59 :::10 wp5826.11 16] Thereafter the answering respondent submitted an application, dated 14.1.2008 to the petitioner society and to the Assistant Registrar, Cooperative Societies, Latur requesting to transfer the membership of Ashokkumar Dhoot in favour of the answering respondent and the consent letter of said Ashokkumar Dhoot was also submitted along with it. It is submitted that the respondent no.1 along with Ashokkumar Dhoot under their joint signatures submitted an undertaking to the petitioner on Rs.200/- stamp in prescribed format. Likewise Shridharrao More and answering respondent submitted joint application dated 20.10.1989 to the petitioner society and to the District Registrary of the Cooperative Societies , Latur requesting to transfer the membership in favour of answering respondent.
17] It is submitted that the mutation entry regarding plot no.1 is sanctioned in favour of respondent no.1 on 16.3.2007 bearing mutation entry no. 3237; whereas the mutation entry regarding plot no.13 is sanctioned in favour of respondent no.1 on 30.4.1992, which were the subject matter of challenge at the instance of the petitioner society before the Superintendent of Land Records, Latur. The said challenge has been unsuccessful before the Superintendent of Land Records, Latur. It is submitted that the authority held that the mutation entry sanctioned in favour of respondent no.1 is legal, proper and in accordance with the provisions of Maharashtra Land Revenue Code. It is submitted that respondent no.1 is paying taxes in respect of respective plots with the Municipal Corporation at Latur. The counsel invited my attention to the certificates of transfer of plots issued by the petitioner society, copy of the P.R. Card of plots and the copies of the judgment and order passed by the Superintendent of Land Records, Latur.
::: Downloaded on - 23/12/2013 20:35:59 :::11 wp5826.11 It is submitted that as per Rule 4 of the by-laws of petitioner society and as per Section 23 of the said Act, the membership of the petitioner is an open membership and it is provided therein that any person can be a member of the society. The respondent no.1 is eligible for becoming member of the petitioner society as per Rules 4 and 19 of the by-laws of the petitioner society.
However, the petitioner society without assigning any reason has refused the membership to respondent no.1. The said refusal has been communicated vide letter dated 11.4.2008. It is submitted that from the date of communication of the refusal of membership, an appeal filed by respondent no.1 before respondent no.2 was within limitation. It is submitted that the by-
law providing limitation is not for filing the appeal, however, the by-law mandates that the decision taken by the society in respect of the membership should be communicated within two weeks from taking actual decision in that respect. It is submitted that the respondent no.2 has considered the documents placed on record and the respondent no.1 is entitled for being a member and is eligible for it, since he has complied with the requirement of relevant Rules and by-laws of the petitioner society, as well as mandate of Section 22 of the said Act.
18] It is submitted that respondent no.1 has fulfilled all the requisite criteria for becoming a member of the petitioner society, and therefore, there was no reason for the petitioner society to deny the membership to respondent no.1 without assigning any reason whatsoever. It is submitted that there are concurrent findings recorded by the authorities below. It is submitted that though both the authorities have decided in favour of respondent no.1, till date the petitioner society has not complied with the said directions. It is submitted ::: Downloaded on - 23/12/2013 20:35:59 ::: 12 wp5826.11 that while exercising the supervisory jurisdiction, this court will not convert itself into court of appeal and reappreciate or evaluate the evidence or correct the errors in drawing inference or correct errors of mere formal or technical character. The counsel appearing for respondent no.1 invited my attention to the judgment of the Supreme Court in the case of Surya Dev Rai vs Ram Chander Rai, reported in AIR 2003 SC 3044. Learned counsel further relied upon the judgment of this court in the case of New Sion Co-
operative Housing Society Ltd. Vs State of Maharashtra and others, reported in 2007 (4) Bom.C.R. 421 and in particular paras 7 and 8 thereof.
He submits that when there is a provision for open membership, the membership ought not to have been refused if the conditions to become member are fulfilled by the respondent no.1.
19] Learned counsel further relied upon the judgment in the case of Sneh Sadan Co-op. Housing Society Ltd. Vs State of Maharashtra and others, reported in 2004 B.C.I. 623 and submits that if in by-law there is no prior requirement of obtaining N.O.C. for sale, in that case, the sale of the property cannot become illegal or invalid. Therefore, relying upon the averments in the affidavit in reply, the reasons recorded by the appellate authority as well as the Revisional Authority and the provisions of the said Act and the said Rules and the judgments cited supra, the counsel appearing for the respondent no.1 submits that this court may not interfere in the impugned judgment and orders.
20] Affidavit in reply is filed on behalf of respondent nos. 2 and 3. It is ::: Downloaded on - 23/12/2013 20:35:59 ::: 13 wp5826.11 stated in the said affidavit in reply that the respondent no.2 has passed the order by following the procedure under the by-laws and also under the said Act and the said Rules, and therefore, the petition deserves to be rejected.
21] I have heard the counsel for the parties at length and with their able assistance, perused the grounds taken in the petitions, annexures thereto, the relevant provisions of the by-laws and also the Maharashtra Cooperative Societies Act and the Rules thereunder as well as the judgments cited across Bar by the counsel for the parties.
22] Copy of the application filed by the respondent no.1 herein with the petitioner society requesting to enroll him as a member is placed on record at Exh. 'B' at page 44 of the compilation of the Writ Petition. It appears that the said application was accompanied with copy of the extract from the City Survey Office and the transfer certificate of plot no.1 in favour of Ashokkumar Dhoot by the original member Madolappa Utage; and plot no. 13 in favour of respondent no.1. Except those two documents, there is no mention of any other document in the said application. It further appears that the said application is dated 14.1.2008 and same has been considered by the petitioner on 2.3.2008 and same is rejected.
23] The contention of respondent no.1 and one of the reason assigned by the appellate authority that the resolution rejecting the application for membership is without assigning reasons, appears to be perverse. Upon perusal of copy of the extract from proceeding book, it appears that it is stated in the said resolution that the petitioner society is original owner of the ::: Downloaded on - 23/12/2013 20:35:59 ::: 14 wp5826.11 property/land. It is further observed that in so far as ownership is concerned, no member can enter into transaction of transfer of ownership. Madolappa Utage is the tenant of the petitioner society. There is a further mention that Shri Shridharrao More has applied for transfer of the plot in the name of his elder son Shivajirao More and accordingly, the petitioner society has communicated to furnish necessary documents so as to consider his request for transfer. It is also mentioned in the resolution that while entering into the transaction of transfer of the plot, both the persons namely transferor and transferee have not given intimation to the society about such transfer. It is also observed that the petitioner society is basically tenant ownership housing society, and therefore, no member can deal with the transaction of transfer of the property. This aspect that the petitioner society is tenant ownership hosing society and it's member cannot transfer the ownership of the plot has been made known by way of public notice, and accordingly, the applications filed by the respondent no.1 are rejected. Therefore, it appears that the respondent no.2 has recorded perverse finding that the society has not assigned single reason while rejecting the application filed by the respondent no.1 for enrolling him as a member of the society.
24] The prayers in the appeal no. 7 of 2008 filed by the respondent no.
1 before the respondent no.2 read thus :-
"(i) That, the respondents society may kindly be directed to declare appellant as member of their society and record his name in its membership.
(ii) That, the respondents may kindly be directed to transfer the plot no.1 on the name of appellant.
(iii) That, the respondents also be directed to complete all the formalities which are required under the law within stipulated time.::: Downloaded on - 23/12/2013 20:35:59 :::
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(iv) That, the necessary documents and proceeding book of the said society which is in custody of respondents may kindly be called from him.
(v) That, any other just and equitable relief may also be awarded to the complainant. "
The prayers in Appeal No. 6 of 2008 are similar to that in Appeal No. 7 of 2008, except mention of plot no.13 in prayer (ii) in Appeal No. 6 of 2008.
25] Upon careful perusal of the prayers in the appeal, it is abundantly clear that there is no prayer for quashing and setting aside the resolution passed in the General Body meeting of the petitioner society, which according to the petitioner is supreme body in view of Section 72 of the said Act to take final decision in respect of affairs of the society including membership. It appears that the appellate authority has not considered the effect of not having such prayer in the appeal memo.
26] Upon perusal of Chapter 4 of the by-laws of the petitioner society, said Chapter deals with the membership. In clause 5 of the by-law, it is stated that any person cannot become member of the petitioner society, unless he fulfills conditions laid down in clause 19 of the by-laws. The criteria/conditions which are required to be fulfilled are stated to be that, the person desirous to become member must be 18 years of age and competent to enter into contract. He should fulfill the conditions laid down in Chapter 4 of the by-laws of the petitioner society. He should possess good character. He should be financially well off and there should not be any outstanding loan either towards ::: Downloaded on - 23/12/2013 20:35:59 :::
16 wp5826.11 taxes imposed by the Government or any other arrears and to that effect there should not be any decree passed by the competent court against the said person. He should show the willingness as per the prescribed form of the society to spend the amount for construction of the house on the plot of the society. The person desirous to become member has no adequate residential accommodation and he is in need of construction of house for the said purpose, and such information should be furnished in Schedule 'E' of the by-
laws. He should not be member of any other Cooperative Society. He should execute agreement in the format of Schedule 'C'. He should file the application in prescribed format for becoming member of the petitioner society.
He should have understood the aims and objects of the society. His application should be accepted/approved by sanction of more than ½ of the members of the managing committee. He should have paid one rupee as an entry fees. He should have purchased minimum one share by paying the entire amount towards it. He should not have been addicted to liquor or any other consumption of prohibited substance. It is further requirement that he should fulfill all the conditions stated in the by-laws.
Clause 5 of the by-laws provides that communicating the decision taken by the committee in respect of membership within fifteen days from such resolution or three months from the date of filing the application for enrolling as member whichever is earlier.
27] The person aggrieved by the decision will be entitled to file the appeal before the Registrar, Cooperative Societies. By-law 19 also provides for certain conditions to be fulfilled for becoming a member of the petitioner society. There is also mention that some amount is required to be paid for ::: Downloaded on - 23/12/2013 20:35:59 ::: 17 wp5826.11 transfer of the sharers. It is stated that no member will be able to transfer the share within one year from the date of becoming member of the petitioner society. There can be transfer of the said share only after permission by the managing committee of the petitioner society and not otherwise. There is a further provision under clause 21 of the by-laws that if any member wish to transfer his plot, in that case only he can transfer the said plot in favor of his eldest legal heir.
28] In order to find out whether the afore mentioned requirements from Chapter 4 clauses 5 and 19 of the by-laws, as also all other relevant provisions of the by-laws in respect of dealing with the request of granting membership, I have carefully perused the impugned judgment and order passed by the respondent no.2. It appears that the record from the office of the administrator was summoned by the appellate authority and after hearing the parties, the appellate authority has observed that, when the administrator was incharge of the petitioner society, the founder member has transferred his plot to the transferee and accordingly, after considering the relevant documents, the petitioner society has conferred membership of the society on the transferee.
The respondent no.1 herein has purchased the respective said plots and on 14.1.2008 applied for membership of the petitioner society. Though the respondent no.1 has referred to the relevant provision in Chapter 4 clauses 5 and 19 of the by-laws of the petitioner society, while considering the said criteria/requirements/conditions, the appellate authority has not made exercise to find out whether each criteria/requirement/condition has been fulfilled by the respondent no.1 to become member of the petitioner society. There are so many conditions/criteria laid down under the relevant provisions, and ::: Downloaded on - 23/12/2013 20:35:59 ::: 18 wp5826.11 therefore, when the application of the respondent no.1 for becoming member of the petitioner society is rejected by the General Body of the petitioner, it was incumbent upon the appellate authority to find out whether each and every condition/criteria/requirement under the by-laws of the petitioner society has been fulfilled by the respondent no.1 or not. However, it appears that such exercise is not undertaken by the appellate authority. The appeal is always available on facts and law and when such appeal was filed it was incumbent upon the appellate authority to find out whether the respondent no.1 has fulfilled all the criteria laid down in the by-laws. Since the appeal is provided under the by-law with the Registrar, this court is not in agreement with the submission of the counsel for the petitioner that the appellate authority has no jurisdiction to entertain such appeal. So far as point of limitation is concerned, the appellate authority ought to have considered the said point. However, the appellate authority has failed in its duty to consider the said point of limitation raised by the petitioner society. Even if, it is considered that the appeal filed by the respondent no.1 is within limitation, on careful reading of the prayers in the appeal memo, there was no prayer for setting aside the resolution passed by the General Body of the petitioner society, which is a supreme body. The effect of not having such prayer has not been considered by the appellate authority.
29] In order to find out whether the appellate authority has considered each condition/criteria under Chapter 4 clauses 5 and 19 of the by-laws, I have carefully perused the impugned judgment. Prima facie, it appears that there is no observation about the compliance of clauses 1, 2 , 3, 4 and 5 of Chapter 4 of the by-laws. It further appears that even the appellate authority has not ::: Downloaded on - 23/12/2013 20:35:59 ::: 19 wp5826.11 considered clause 5 in its entirety and fulfillment of the said clause by the respondent no.1. Even in respect of clause 6 and some other clauses, the appellate authority has not recorded any findings or made observations about fulfillment of such condition. It appears that by cryptic reasons, by not doing complete exercise to find out whether the respondent no.1 fulfills all criteria laid down under clauses 5 and 19 of Chapter 4 of the by-laws, the appellate authority proceeded to decide the appeal and allowed the same. Whether the administrator is competent to confer the membership or not has also not been considered by the appellate authority.
30] This court is not sitting in appeal so as to reappreciate the documents/evidence placed on record. However, certainly this court in writ jurisdiction can find out whether the findings recorded by the appellate authority are in consonance with the documents placed on record or those are perverse or the appellate authority has failed in its duty to find out whether the criteria/requirements/conditions laid down under the by-laws to become a member of the petitioner society have been considered by the appellate authority or not.
31] The Supreme Court in the Zoroastrian Coop. Housing Society Ltd. vs District Registrar, Cooperative Societies (Urban), reported in (2005) 5 SCC 632 held that the concept of open membership, as envisaged by Section 24 of the Gujarat Cooperative Societies Act is not absolute on the very wording of the said Section. The by-laws are not given the go- by in spite of the introduction of the concept of open membership as indicated by the heading of the section. If the relevant bye-law of society places any restriction ::: Downloaded on - 23/12/2013 20:35:59 ::: 20 wp5826.11 on a person getting admitted to a cooperative society, that bye-law would be operative against him and no person,or aspiring member, can be heard to say that he will not be bound by that bye-law which prescribes a qualification for his membership. Therefore, it follows from the authoritative pronouncement of the Supreme Court that by giving go bye to the by-laws no membership can be conferred upon by the appellate authority, the provisions of Section 24 of the Gujarat Cooperative Societies Act, 1961 are pari materia to those of Section 23 (1) of the Maharashtra Cooperative Societies Act, 1960. The marginal note of the two Sections is "open membership". Sub-section (1) of Section 23 of the Maharashtra Cooperative Societies Act, 1960 lays down that, no society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of the Act and the Rules and by-
laws of the society. Therefore, on the interpretation of Section 24 of the Gujarat Cooperative Societies Act, 1961, the Supreme Court in the case of Zoroastrian Coop. Housing Society Ltd. (supra) has taken a view that by-laws are not given go bye in spite of introduction of the concept of the open membership. Therefore, the appellate authority was bound to consider that each criteria/condition/requirement laid down in the by-laws is fulfilled by the respondent no.1 so as to direct the petitioner society to enroll him as a member of the petitioner society. Though detailed reasons are not assigned in the resolution of the society for rejecting the application of the respondent no.1 for membership, nevertheless the resolution refers to the basic aims and objects of the society that the said society is tenant ownership society and the transaction entered between Ashokkumar Dhoot and the respondent no.1 is without prior permission of the petitioner society and also de hors the relevant by-laws and the provisions of the said Act and the Rules, and therefore, the ::: Downloaded on - 23/12/2013 20:35:59 ::: 21 wp5826.11 appellate authority was bound to pay attention to the said aspect. It is true that if all the criteria/conditions laid down in the by-laws are fulfilled by the desirous person for becoming a member of the society, in absence of fulfillment of each criteria laid down, the appellate authority was not correct in directing the petitioner society to confer the membership on the respondent no.1.
Ultimately the Cooperative Housing Society and in the facts of the present case the petitioner society, is formed and registered with certain aims and objects and de hors said aims and objects, no contrary directions can be given by the appellate authority in as much as without fulfilling each and every criteria/requirement/condition, the appellate authority should not have given directions to enroll the respondent no.1 as a member of the society.
32] In that view of the matter, an inevitable conclusion is that the judgment and order passed by the appellate authority cannot sustain in law. It appears that the Revisional authority has mechanically endorsed the findings recorded by the appellate authority and rejected the Revision filed by the petitioner society. Therefore, the said judgment and order also cannot sustain in law. However, while exercising the extra-ordinary jurisdiction, this court has certain limitations. This court cannot convert itself into court of appeal and indulge in reappreciating or evaluating the evidence or correct errors in drawing inference. Therefore, this court is of the opinion that since the appeal is available on law and facts of the present case, the ends of justice would meet if the impugned judgments and orders passed by both the authorities below are set aside and the parties are relegated back before the appellate authority so as to consider the appeal afresh in accordance with the relevant provisions of the by-laws of the petitioner society and the provisions of the said ::: Downloaded on - 23/12/2013 20:35:59 ::: 22 wp5826.11 Act and the Rules thereunder.
33] In the result, following order :-
(i) Both the Writ Petitions are allowed.
(ii) So far as Writ Petition No. 5826 of 2011 is concerned, the judgment
and order, dated 30.12.2008, passed by the Assistant Registrar, Cooperative Societies, Latur in Appeal No. 7 of 2008 and the judgment and order, dated 14.1.2011, passed by the Divisional Joint Registrar, Cooperative Societies, Latur in Revision Petition No. 13 of 2009 are quashed and set aside.
(iii) In Writ Petition No. 5819 of 2011, the judgment and order, dated 30.12.2008, passed by the Assistant Registrar, Cooperative Societies, Latur in Appeal No. 6 of 2008 and the judgment and order, dated 14.1.2011, passed by the Divisional Joint Registrar, Cooperative Societies, Latur in Revision Petition No. 14 of 2009 are set aside.
(iv) The appeals are restored to their original file.
(v) Respondent no.2 is directed to hear and decide the appeals afresh in
accordance with law.
(vi) All the questions are left open to be agitated before the appellate
authority.
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(vii) The appellate authority should strictly adhere to the provisions of the
Maharashtra Cooperative Societies Act, 1960, the rules thereunder and the by-laws and the judgments, if any, cited by the parties and then decide the appeal afresh.
(viii) As already stated the respondent no.1 has stated in the affidavit in reply that the petitioner has not acted upon the directions given by the appellate authority, in as much as, it appears that the petitioner society has not conferred membership on the respondent no.1. In that view of the matter, in that respect it would depend upon the outcome of the appeal. This court has not expressed any opinion thereon.
(ix) Rule made absolute on above terms.
(x) Both the Writ Petitions are disposed of accordingly.
(S.S.SHINDE, J.)
dbm/wp5826.11
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