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2007(7) Supreme 660
Supreme Court of india
(From Bombay High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
Veena Kumari Tandon — Appellant
versus
Neelam Bhalla and others — Respondents
Appeal (civil) 5130 of 2007
(Arising out of SLP (C) No. 525 of 2005)
Decided on : 02-11-2007
Facts of the case :
1.Issue in consideration in present case was regarding interpretation of section 27 of Maharashtra Cooperative Housing Societies Act, 1960 visavis Byelaws of Merry Niketan cooperative housing society limited.
Findings of the Court :
The Court held that it was a well settled principle of law that a Legislative Act shall prevail over subordinate legislation. Bye-Laws must, hence conform to provisions of Act and could not act in derogation thereof. Section 27 of 1960 Act in no unmistakable terms provided for one member-one vote. If, Legislative Act provided for concept of ‘one person one vote’, no bye-law could create another concept so as to defeat legislative object. Bye-law provided for a member’s right to be allotted flats in name of his family members; but same not meant that under no circumstances more than one member of a family could not become member of society. Section 27 of 1960 Act being absolutely clear and unambiguous, it did not admit of two meanings. If literal rule of interpretation was to be applied and there was no reason as to why it should not be, all members of family who had been admitted to membership of the Society would be entitled to vote. Bye-law, could not prevail over statutory provision. No infirmity was found in impugned judgment of High Court. Appeal was dismissed accordingly.
Result : Appeal dismissed.
JUDGMENT
S.B. SINHA, J.—
1.Leave granted.
2.Interpretation of Section 27 of the Maharashtra Cooperative Housing Societies Act, 1960 (1960 Act) vis-a-vis Bye Laws of the Merry Niketan Co-operative Housing Society Ltd. is in question in this appeal which arises out of a judgment and order dated 30th April, 2004 passed by a Division Bench of the Bombay High Court whereby the writ petition filed by the respondents herein declaring that each member of the society will have a separate vote was allowed.
3.Respondent No.17 is a Group Housing Cooperative Society. Contesting parties hereto are its members. Some of the members of the said Group Housing Cooperative Society are members of the same family. They were, however, admitted to the membership of the Society without any reservation whatsoever.
4.The dispute which arose amongst the members of the Society started with preparation of voter list. A provisional list of voters was published by the Managing Committee of the Society on 22nd January, 2004 showing the names of 35 members. However, a resolution was adopted by the Managing Committee to prepare a final list of members eligible to vote on the purported basis of bye-laws 8(a), 9(a) and 9(b) of the Bye Laws of the society meaning thereby that member holding more than one flat or membership in the name of his/her family members will be eligible to one vote only. On the said basis a final list of members was published. Objections thereto were submitted. Respondent No. 1 besides other members filed nomination for contesting the election. The same was rejected whereagainst appeals were preferred under Section 152(A) of 1960 Act by respondent Nos. 1, 3 to 5, and 7 to 11 herein. The said appeals were dismissed by the Deputy Registrar of Cooperative Societies H/West Division, Mumbai on 17th March, 2004.
5.A writ petition was filed thereagainst. Some interim orders were passed by the High Court directing the votes of the members, whose names had been excluded in the final voter list on the ground that they are members of the same family, to be kept in a separate sealed cover. Indisputably in the final voters list which was prepared showing only one member of the family to be a voter, despite the fact that more than one member of the same family had been allotted more than one flat.
6.The High Court by reason of its impugned judgment, on interpretation of Section 27 of the 1960 Act, opined that each member of the Society is entitled to cast his/her vote despite the definition of ‘family’ contained in Bye-Law 3(xxv) of the Bye-Laws of the Society.
7.Mr. P. Shah, learned counsel appearing on behalf of the appellant inter alia submitted that the High Court committed a manifest error in so far as it failed to take into consideration that the provisions of the 1960 Act are required to be read alongwith the Bye-Laws framed by the Society. In a Group Housing Cooperative Society, the learned counsel would contend, a family may be allotted more than one flat but, however, with a view to seeing that members of the same family by reason of having been allotted more than one flat do not constitute majority, a formula has been adopted in the Bye-Laws, namely ‘one family one vote’.
8.Relevant part of Section 27 of the 1960 Act reads as under :
“27.Voting powers of members : —
(1)Save as otherwise provided in sub-sections (2) to (7), no member of any society shall have more than one vote in its affairs; and every right to vote shall be exercised personally, and not by proxy :
Provided that, in the case of an equality of votes the Chairman shall have a casting vote.”
Section 73(H) of the 1960 Act reads as under :—
“73H - Responsibility of committee to hold election before expiry of term —
(1)It shall be the duty of the committee of every society to arrange for holding the election of its members before the expiry of its term.
(2)Where there is a wilful failure on the part of the committee to hold the election to the committee before the expiration of its term, the commi
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