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2013 Supreme(Bom) 2657
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
S.S. SHINDE, J.
Shantiniketan Cooperative Housing Society Ltd. through its Chairman – Appellant
Vs.
Shivkant, the Assistant Registrar and the Divisional Joint Registrar – Respondent
Writ Petition Nos. 5826 and 5819 of 2011
Decided On : 18.12.2013
Advocate Appeared:
For the Appellants :Shri V.D. Salunke, Advocate
For the Respondents:Shri A.A. Mukhedkar, Advocate for Respondent No. 1 and Shri P.P. More, A.G.P. for Respondent Nos. 2 and 3
Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 23(1) - Membership. - Since in instant case, appellate authority provided membership to applicant with complying with criteria/condition prescribed in by-laws, considering impugned order unsustainable and illegal, matter was remanded to appellate authority for afresh hearing and disposal. - The Supreme Court in the Zoroastrian Co-op. Housing Society Ltd. v. District Registrar, Co-operative Societies (Urban), reported in (2005) 5 SCC 632 : 2005 (5) All MR 731 (SC), 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 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 Co-operative Societies Act, 1961, the Supreme Court in the case of Zoroastrian Co-op. Housing Society Ltd., 2005 (5) All MR 731 (SC), has taken a view that by-laws are not given go bye in spite of introduction of the concept of the open membership. 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 cannot convert itself into Court of appeal and indulge in re-appreciating 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 Act and the Rules thereunder.
S.S. Shinde, J.
1. Rule. Rule made returnable forthwith. With the consent of the parties both the Writ Petitions are heard finally. 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.
2. 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.
3. 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 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.
4. 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.
5. 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 resident
