Allahabad High Court
Bank Sahyog Sahkari Awas Samiti ... vs State Of U.P. And 2 Others on 14 November, 2013
Bench: Arun Tandon, Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 10
Case :- WRIT - C No. - 47679 of 2013
Petitioner :- Bank Sahyog Sahkari Awas Samiti Ltd.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Rajendra Kumar Pandey, K.N. Tripathi
Counsel for Respondent :- C.S.C.,Ashutosh Tripathi,Nripendra Mishra
Hon'ble Arun Tandon,J.
Hon'ble Anjani Kumar Mishra,J.
Despite notice being issued, nobody is present on behalf of respondent no.3, even in the revised reading of the list.
Heard Sri Keshari Nath Tripathi, learned Senior Advocate, assisted by Sri Rajendra Kumar Pandey, Advocate on behalf of the petitioner, Sri Nipendra Mishra, Advocate on behalf of respondent no.2 and learned Standing Counsel on behalf of State-respondent.
Petitioner, before this Court seeks quashing of the order passed by the Housing Commissioner/Registrar, Cooperative Societies, U.P. Avas Evam Vikas Parisahd, at Lucknow dated 13th August, 2013.
Under the order impugned, the Housing Commissioner/Registrar, in exercise of powers of Registrar under the Cooperative Societies Act, 1965 (hereinafter referred to as the "Act, 1965") with reference to Section 128 of Act, 1965, has held that removal of Mamta Mukhi (respondent no.3) from primary membership of the society, as per its resolution made in the meeting dated 23rd March, 2013 was illegal and was accordingly declared as such. It has been directed that the resolution shall stand excluded from the records and the representation made by respondent no.3 has been allowed.
Facts in short leading to the present writ petition are as follows:
Petitioner, Bank Sahyog Sahkari Awas Samiti Ltd. is a housing society duly registered under the Societies Registration Act. It is a primary cooperative housing society. Respondent no.3 had made an application for being enrolled as member of the petitioner society on 15th March, 2000, which was granted and she was inducted as a member of the petitioner society. Her membership number is 294 and membership certificate in that regard was issued on 28th April, 2000. Petitioner society is stated to have allotted a plot bearing No. 148 through a registered deed in favour of respondent no.3 on 11th March, 2003. Respondent no.3, however, did not take possession of the said plot.
The Secretary of the petitioner society was informed that respondent no.3 and her husband had been inducted as members of S.C.T.B.M. Cooperative Housing Society and the said cooperative housing society had allotted Flat No. A-703 in their favour. Accordingly, a decision was taken that since respondent no.3 had taken membership of another cooperative housing society, her membership in the petitioner society was labile to be cancelled in view of Bye-Law No. 5 (1) of the registered bye-laws of the petitioner-society read with Rule-43 of U.P. Cooperative Societies Rules, 1965 (hereinafter referred to as the "Rules, 1968"). Accordingly, the Committee of Management of the petitioner society in its meeting held on 23rd March, 2013 vide resolution no. 2, resolved to terminate the membership of respondent no.3. The decision so taken was communicated to respondent no.3 vide letter dated 9th April, 2013.
Not being satisfied with the decision so taken, respondent no.3 filed Civil Misc. Writ Petition No. 25578 of 2013 before the High Court. Writ petition was disposed of vide order dated 7th May, 2013. She was permitted to represent her grievance under Section 128 of the Act, 1965 and the application made by her in that regard was directed to be decided within the time specified. The Writ Court corrected its order dated 7th May, 2013 vide order dated 22nd May, 2013.
The Registrar of Cooperative Societies has examined the grievance of respondent no.3 after affording opportunity of hearing to the petitioner society and respondent no.3 and has found that the plot which has been allotted by S.C.T.B.M. Cooperative Housing Society namely Flat No. A-703 was situate in District Ghaziabad while the area of operation of the petitioner society was District Gautam Budh Nagar and therefore, respondent no.3 has not violated Bye-Law No. 5(1) of the registered bye-laws of the petitioner society nor her membership could have been terminated for alleged violation of Rule- 43 of Rules, 1968. It has been recorded that Bye-Law No. 5(1) of the registered bye-laws of the petitioner society prohibits membership of second cooperative housing society within the area of operation of the petitioner society only.
Challenging the order so passed, it is contended by Sri Keshari Nath Tripathi, learned Senior Advocate on behalf of the petitioner that power of the Registrar under Section 128 of Act, 1965 stands impliedly excluded in view of Section 102 of Act, 1965. He explains that Section 102 of Act, 1965 provides that orders made under Section 71 or those in the nature covered by Section 98 (1) shall become final, if no appeal has been preferred and if any appeal has been preferred, then the award or the order under Sections 97 and 98 of Act, 1965, as the case may be, shall be subject to the orders to be passed under Section 99 i.e. power of review of the order by the appellate authority shall be final and binding between the parties and shall not be questioned in any manner in any Court of law. It is his case that the very purpose of making of an order of the nature contemplated under Section 98 (1) which will include an order of expulsion from membership of cooperative society [Reference 98 (1) (c) of Act, 1965], if not questioned by way of appeal under Section 98 is declared to become final under the provisions of Act, 1965 and therefore, power of the Registrar under Section 128 of Act, 1965 stands excluded. He submits that a complete code in the matter of orders covered by Section 98 of Act, 1965 has been provided for by way of an appeal and review. This remedy alone could have been availed of by the petitioner. He, therefore, submits that the order of the Registrar is wholly without jurisdiction. He also submits that even otherwise, membership of respondent no.3 was rightly terminated in view of the provision of Bye-Law No. 5 (1) of the registered bye-laws of the petitioner society read with Rule-43 of Rules, 1968.
Learned counsel for the Housing Commissioner/Registrar (respondent no.2) submits that two alternative remedies have been provided to a person aggrieved by expulsion from the membership of the cooperative society, (i) by way of an appeal under Section 98 (1) (c) and (ii) by way of an application under Section 128 of Act, 1965 before the Registrar. He explains that such statutory remedies provided cannot be deemed to have been excluded by an implication, as has been suggested by the learned counsel for the petitioner. He explains that finality attached to the orders covered by Section 98 (1) of Act, 1965 on appeal being not filed and in case appeal is filed, will not in any way dilute the remedy available to an aggrieved person under Section 128 of Act, 1965. He clarifies that the power of the Registrar under Section 128 of Act, 1965 is limited to reversing the decision of the officer of the cooperative society and the resolution made by the cooperative society. The Registrar has no power to sit over the orders of the Tribunal, which may be passed under Section 98 of Act, 1965. Even otherwise, he submits that the order impugned has been passed by the Registrar in compliance to the order of the Division Bench of this Court dated 7th May, 2013 referred to above, which has become final between the parties and has not been subjected to challenge by the petitioner any further.
On merits of the order, he submits that Bye-Law No. 5(1) of the registered bye-laws of the petitioner society only restrains a member from obtaining membership of another cooperative society within the area of operation of the petitioner society. The Registrar has found that S.C.T.B.M. Cooperative Housing Society of which respondent no.3 and her husband had become members, had different area of operation than that of the petitioner cooperative society and therefore, have not violated Bye-Law No. 5(1) of the registered bye-laws of the petitioner society. So far as Rule-43 of Rules, 1968 is concerned, he explains that from simple reading of Rule-43, it is apparent that at best membership of respondent no.3 in the subsequent S.C.T.B.M. Cooperative Housing Society could have been declared invalid but it will not give a cause to the petitioner society to remove respondent no.3 from its membership.
We have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.
For the purposes of appreciating the controversy raised on behalf of the parties, it would be worthwhile to reproduce Section 27, Section 98 (1) (c), Section 102 and Section 128 of the Act, 1965, which read as follows:
"27. Removal or expulsion of a member by a society or the Registrar. ----(1) A co-operative society may, by resolution, remove, or expel a person from its membership in accordance with such procedure and for such causes and within such period as may be prescribed.
(2) The Registrar may also remove or expel a person from the membership of a co-operative society-----
(a) if the person has ceased to fulfil the qualifications required for membership, or is disqualified to be a member under this Act or the rules of the bye-laws of the society, and the co-operative society, even when required by the Registrar by order in writing, fails to remove or expel him, in accordance with the provisions of sub-section (1) within thirty days from the receipt of the order of the Registrar; or
(b) if the person was admitted to the membership of the society in contravention of the provisions of this Act, the rules or the bye-laws of the society.
(3) No resolution under sub-section (1) and no order under sub-section (2), shall be passed unless the member concerned has been afforded reasonable opportunity of being heard in respect of the grounds on which his removal or expulsion is proposed to be made.
(4) A resolution under sub-section (10, or an order under sub-section (2), shall subject to the result of appeal, if any, against the resolution or the order, as the case may be, with effect from the date of communication of the resolution or the order, have the effect of terminating the membership of the member so removed or expelled, but without prejudice to his rights and liabilities under this Act, the rules or the bye-laws of the society, as a past member.
(5) No member of a co-operative society, expelled under sub-section (1) or sub-section (2), shall be eligible for re-admission as a member of that society for a period of two years from the date of resolution or the order of expulsion takes effect and he shall further be not eligible to hold any office under that society, or to seek election to its Committee of Management for a period three years from the date of his re-admission as a member."
"Section 98. Appeal against the awards, orders and decisions.----(1) An appeal against---
...........
(c) a decision of co-operative society refusing to admit any person as a member of the society under sub-section (2) of Section 26 or expelling any member of the society under sub-section (1) of Section 27 [or an order passed under sub-section (1) of Section 38 for removal of an officer from the office held by him or to disqualify him from holding any office];
.........."
"Section 102. Finality of orders and decision.----Every award made under Section 71 and every order of the nature referred to in sub-section (1) of Section 98 where no appeal has been preferred against such award or order under Section 97 or Section 98, as the case may be, and every decision in appeal under the said sections, shall, subject to Section 99, be final and binding on the parties concerned and shall not be questioned in any court."
"Section 128. "Registrar's power to annul resolution of a Co-operative Society or cancel order passed by an officer of a Co-operative Society in certain cases.--The Registrar may-
(i) annul any resolution passed by the Committee of Management, or the general body of any Co-operative Society ; or
(ii) cancel any order passed by an officer of a Co-operative Society;
if he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act. the rules or the bye-laws of the society, whereupon every such resolution or order shall become void and Inoperative and be deleted from the records of the society :
[Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the co-operative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if deems fit may stay the operation of that resolution or the order during such period.]"
It will be seen that Section 27 contemplates removal of a person from the membership of a society by the cooperative society or by the Registrar. The orders passed under Section 27 of Act, 1965 have been made appellable under Section 98 (1) (c) of Act, 1965. Section 102 declares that an order made under Section 27 shall be final, if no appeal is filed and it cannot be questioned in any Court of law and if an appeal has been filed then the order of the appellate authority shall be final and cannot be questioned in any Court of law. Section 102 is completely silent with regard to the power conferred upon the Registrar under Section 128 of Act, 1965. Power conferred upon the Registrar is supervisory in nature. The power of the Registrar under Section 128 of Act, 1965 is not diluted in any manner, because of the conferment of the appellate powers upon the Tribunal under Section 98 (1) (c) of Act, 1965 with regard to the removal of a person from the membership of a cooperative society.
In our opinion, Act, 1965 provides two remedies to a person, whose membership is terminated by a cooperative society, under Section 27 of Act, 1965, (I) by way of appeal under Section 98 (1) (c) and (II) by way of an application under Section 128 of Act, 1965 before the Registrar to annul the decision/resolution of the cooperative society.
A Division Bench has already held that if two statutory remedies are made available to a person, then he has a right to opt for any of them [Reference Kumari Vidyottama Gupta vs. Kumari Nirmala Gupta and others, (1994) 3 UPLBEC 1971].
We may also indicate that statutory remedy provided to a person is not to be treated to have been excluded on mere presumption or by implications unless the language of the Statute compels the Court to hold so.
In the facts of the case, we find that Section 102 of Act, 1965 does not in any restrict the exercise of powers by the Registrar in the matter arising out of expulsion of member of cooperative society.
We further find that the order of the Division Bench of this Court dated 7th May, 2013, which required the Registrar to examine the grievance of respondent no.3 in exercise of powers under Section 128 of Act, 1965 has not been challenged by the petitioner and he has permitted the same to become final. We, therefore, hold that in the facts of the case, exercise of powers by the Registrar under Section 128 of Act, 1965 on an application made by the petitioner cannot be faulted with.
It is admitted on record that respondent no.3 had not availed the appellate power under Section 98 (1) (c) of Act, 1965 and she had preferred to opt for the remedy provided under Section 128 of Act, 1965 only.
So far as the merits of the order is concerned, we find that the Registrar has rightly held that prohibition contained in Bye-Law No. 5(1) of the registered bye-laws of the petitioner society is in respect of acceptance of membership of other cooperative housing society operating within the area of operation of the petitioner society and not otherwise. The finding of the Registrar to the effect that the S.C.T.B.M. Cooperative Housing Society had its area of operation at Ghaziabad while the area of operation of the petitioner society was Gautam Budh Nagar only and therefore, there has been non-breach of Bye-Law No. 5(1) of the registered bye-laws of the petitioner society is based on true reading of the Bye-Law.
Rule-43 of Rules, 1968 provides that no member of a cooperative society will accept membership of other cooperative society except under a reasoned order in that regard to be made by the Registrar, meaning thereby that admission to the membership of the 2nd society is prohibited, unless an order of the registration in writing supported by reasons is made. Therefore, at best it can lead to a situation when the membership obtained by a person of the second cooperative society can be annulled. In the facts of the case membership of respondent no.3 could be objected to challenge by S.C.T.B.M. Cooperative Housing Society for want of an order of Registrar in writing, but the petitioner society cannot take adverse against the petitioner only because has been admitted as a member of other cooperative society without an order of the Registrar in writing. Her right to continue in the petitioner cooperative society is not effected under Rule 43 of Rules, 1968 in any manner.
For the reasons recorded above, we find no ground to interference with the order impugned in the present writ petition.
This writ petition is accordingly dismissed.
(Anjani Kumar Mishra, J.) (Arun Tandon, J.)
Order Date :- 14.11.2013
Sushil/-
Case :- WRIT - C No. - 47679 of 2013
Petitioner :- Bank Sahyog Sahkari Awas Samiti Ltd.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Rajendra Kumar Pandey, K.N. Tripathi
Counsel for Respondent :- C.S.C.,Ashutosh Tripathi,Nripendra Mishra
Hon'ble Arun Tandon,J.
Hon'ble Anjani Kumar Mishra,J.
Dismissed.
For orders, see order of date passed on the separate sheets.
(Anjani Kumar Mishra, J.) (Arun Tandon, J.)
Order Date :- 14.11.2013
Sushil/-
