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Showing contexts for: section 91 mcs act in Nagpur Bench At Nagpur vs Mahalaxmi Railway Karmachari Sahakari on 4 October, 2013Matching Fragments
SUBMISSIONS:
4. Mr. Mardikar, learned counsel for the appellant, argued that the dispute under section 91 of the MCS Act was maintainable and the 4 lpa113.02.odt decision in the case of K. V. Sundaram and anr...vs..Raj Rajeshwari Co-Op. Housing Society Ltd. and ors.; 1980 Mh. L. J. 4 relied upon by the learned Single Judge is clearly distinguishable but the learned Single Judge wrongly applied the same with full force thereby holding that the dispute under section 91 of the MCS Act was not maintainable. The learned counsel further argued that the learned Single Judge did not decide the matter on merits obviously because he found that the dispute itself was not maintainable and the controversy about it was covered by the decision on K.V. Sundaram & anr.(supra). Mr. Mardikar, learned counsel for the appellant, placing reliance on section 91 and 35 of the MCS Act pointed out to us the distinguishing features and the limited area covered by section 35 and the area covered by section 91 of the MCS Act. He urged this Court to decipher the two provisions and argued that the learned Single Judge committed error of law in straightway relying on the decision in the case of K.V. Sundaram & anr. (supra), which was clearly distinguishable on facts. He, therefore, prayed for allowing the appeal by setting aside the impugned judgment made by the learned Single Judge.
There is thus a water tight compartment. Therefore the learned Single Judge was right in holding that the cooperative Court does not have jurisdiction to entertain a dispute under section 91 of the MCS Act. He, therefore, prayed for dismissal of the writ petition.
6. The learned A.G.P. adopted the arguments advanced by Mr. A. H. Patil, learned counsel for the respondent no.1.
CONSIDERATION:
7. We have carefully considered the submissions made by the learned counsel for the rival parties. We have gone through the impugned judgment and order made by the learned Single Judge so also the record and proceedings. It is not in dispute that the learned Single 6 lpa113.02.odt Judge has broadly relied upon decision in the case of K.V. Sundaram & anr. (supra) to come to the conclusion that the dispute under section 91 of the MCS Act was not maintainable in the subject matter. In the facts of the present case, what we find is that the appellant-disputant was admittedly a member of the society but as was the stand taken by respondent no.1-Society, he was given an opportunity but had defaulted the payments and that is why the society passed a resolution to remove him from the membership of the society. Accordingly, pursuant to the resolution dated 16.12.1990, the respondent no.1 issued him the notice of removal dated 05.10.1991. The said resolution was sent to the Assistant Registrar for approval as per the provisions of Section 35 of the MCS Act. Mr. Patil, learned counsel for respondent no.1-society, then fairly made a submission before us that even till date, there is no decision taken by the Assistant Registrar on the said resolution of expulsion i.e. from 16.12.1990. He, however, contended that even though the decision has not been taken by the Assistant Registrar, the learned Single Judge had given liberty to the appellant to get said matter under section 35 of the MCS Act decided by the said authority.
We further find and hold that prayer made in the dispute that the action taken by respondent no.1-society by passing resolution dated 16.12.1990 and consequent notice of removal of membership dated 05.10.1991 could not form the subject matter of challenge in a dispute under section 91 of the MCS Act before the Cooperative Court because the said issue could only be adjudicated by the authority namely the Assistant Registrar under section 35 of the MCS Act.
15. From the perusal of the above legal position, we must conclude thus:
"(i) The dispute under section 91 of the MCS Act as to the challenge to the resolution dated 16.12.1990 and notice of removal dated 05.10.1991 filed by the appellant was not maintainable under section 91 of the MCS Act before the Cooperative Court and the validity or otherwise of the said resolution and the notice of removal dated 05.10.1991 could be adjudicated only by Assistant Registrar acting under section 35 of the MCS Act.