Smt. Bigni Devi vs U.P. Cooperative Tribunal Lucknow And ...
2025 Latest Caselaw 6044 ALL

Allahabad High Court

Smt. Bigni Devi vs U.P. Cooperative Tribunal Lucknow And ... on 12 March, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
				   Neutral Citation No. - 2025:AHC-LKO:16678 
 
Court No. - 19
 

 
Case :- WRIT - C No. - 1003067 of 2015
 

 
Petitioner :- Smt. Bigni Devi
 
Respondent :- U.P. Cooperative Tribunal Lucknow And Others
 
Counsel for Petitioner :- Sudeep Seth,Manoj Kumar,Sridhar Awasthi
 
Counsel for Respondent :- C.S.C.,K.S. Pawar,Rakesh Kumar Chaudhary,Rakesh Srivastsava
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Sudeep Seth learned Senior Counsel assisted by Mr. Shridhar Awasthi learned counsel for petitioner, learned State Counsel for opposite party No.1, Mr. Rakesh Kumar Chaudhary learned counsel for opposite party No.2 and Mr. Rakesh Srivastava learned counsel for opposite party No.3.

2. Petition has been filed challenging order dated 23rd July, 2010 passed in an arbitration case No. 128-E of 2008 upholding cancellation of plot of petitioner. Also under challenge is the judgment and order dated 7th May, 2015 whereby appeal No.161 of 2015 preferred by petitioner has been rejected.

3. Learned counsel for petitioner submits that petitioner submitted an application dated 5th November, 1985 for being admitted as a member of the opposite party No.3 Sri Saraswati Cooperative Housing Society Limited, Kanpur, which was allowed and in pursuance thereof, registered lease deed in perpetuity was executed in favour of petitioner vide deed dated 24th March, 1986 allotting plot No. 45 situate in Daheli, Sujanpur, Kanpur whereupon petitioner constructed a residence in the year 1993 and is being duly assessed for house tax. It is submitted that petitioner is residing alongwith her younger daughter on the said plot.

4. It is further submitted that without any prior notice to petitioner and in an ex parte manner, the aforesaid lease has thereafter been cancelled by the society vide resolution dated 26th October, 2008 on twin grounds that petitioner's husband, Mr. Haridwar had earlier been allotted plot No. 44 in the same society vide deed dated 10th October, 1984 and therefore in terms of bye laws applicable upon the society, two members of the same family could not have been allotted plots in the society simultaneously. Second ground for cancellation was that petitioner failed to make any permanent residential construction over the plot in question within a  period of three years from the date of allotment as stipulated in the bye laws of the society.

5. Learned counsel for petitioner submits that at the time of allotment of plot in favour of petitioner, it was the model bye law of 1976 which was applicable and as per bye law 5 thereof, no such  prohibition was indicated prohibiting two persons of the same family from being allotted a plot simultaneously.

6. It is also submitted that the petitioner even otherwise has made permanent construction over the plot in question within the stipulated period of three years; a fact which has been noticed in the impugned order as well and therefore there was no occasion to uphold cancellation of  plot of petitioner on that ground.

7. It has been further submitted that the allotment having been made in the year 1986, even otherwise could not have been cancelled after a  period of more than 22 years and was therefore barred by limitation.

8. Learned counsel for opposite party No.3 has refuted submissions advanced by learned counsel for petitioner with the submission that at the time of allotment in favour of petitioner vide lease deed dated 24th March, 1986, it was in fact the model bye laws of 1979 which were prevalent in the society and not bye laws of 1976. It is submitted that since petitioner's husband had already been allotted and transferred plot No.44 in the same society, petitioner was ineligible to become a member of the society and for allotment of plot in terms of bye law 5 of the bye laws of 1979.

9. It is also submitted that as per bye law-3 (11) of the bye laws of 2004, the petitioner had not constructed a house over plot No.45 within stipulated time limit and by merely constructing a room measuring 10 ft x 12 ft, the same would not come within connotation; 'residential house', since in terms of bye law 3(11) of Bye laws of 2004, a residential house connotes a complete dwelling unit comprising a living room, a kitchen, latrine and a bathroom as defined therein.

10. It is submitted that it was during proceedings initiated against one Smt. Pratima in an arbitration case filed against her by the society that the discrepancies in allotment in favour of petitioner came to light whereafter resolution dated 26th October, 2008 was passed by the society cancelling deed dated 24th March, 1986 in favour of petitioner and in pursuance of provisions of U.P. Cooperative Societies Act, 1965, the arbitration case was  filed against petitioner who was accorded full opportunity to defend her case.

11. It is further submitted that although earlier the society was governed by the model bye laws of 1976 in terms of notification dated 15th June, 1976 issued by the State Government in exercise of power under Section 3(2) of the Act 1965, all the urban cooperative housing society were registered in terms thereof and the model bye laws issued from the office of Housing Commissioner in the year 1965 were made applicable upon all such cooperative housing societies which continued till the year 2004 when new model bye laws as framed by the Housing Commissioner were enforced in terms of Section 14 of the Act 1965 and were adopted by the society with information of such adoption being submitted to the Deputy Housing Commissioner vide letter dated 26th December, 2004 and the earlier bye laws of 1979 was surrendered.

12. It is therefore submitted that in terms of bye law 3(10) of the bye law of 1979, the term 'family' has been defined to include husband, wife and dependent children and it is in  accordance with bye law 5(1) of the said bye laws of 1979 that two or more members of the same family are prohibited from being allotted a plot in the society simultaneously. It is also submitted that the unfurnished small room constructed by petitioner over plot No. 45 in the society is inhabitable and even otherwise, the petitioner never resided therein and  is in fact is a resident of 122/9, Labour Colony (J.K. Colony), Jajmau, Kanpur Nagar and the fact of petitioner's actual residence was proved by evidence.

13. He has also adverted to bye law 3(11) of the bye laws of 2004 to submit that the construction made by petitioner over plot No.45 does not come within definition of a 'house' in terms of the said provision of bye laws of 2004, which he submits would have retrospective effect. It is in such circumstances that the committee of management of the society in its meeting held on 26th October, 2008 resolved to cancel petitioner's allotment over plot No.45.

14. It is also submitted that since knowledge with regard to illegal allotment in favour of petitioner came to notice of the society in another arbitration case pertaining to one Smt. Pratima in the month of September-October, 2008 in terms of pleadings made in written statement therein, it cannot be said that there is any inordinate delay in passing of resolution in cancellation of petitioner's allotment.

15. Learned counsel for opposite party No.2 on the basis of instructions submits that office of Housing Commissioner does not have any copy of the model bye laws of 1979 available with them but has brought on record various other model bye laws of the year 1979 as applicable to other societies. He further submits that the model bye laws are required to be implemented upon the society concerned in terms of Section 14 of the Act of 1965.

16. Learned counsel for petitioner in rebuttal thereof submits that the procedure for amendment of earlier bye laws or even adoption of model bye laws framed from the office of the Housing Commissioner are required to be enforced and implemented in terms of procedure indicated in the Act of 1965, which has not been followed with regard to bye laws of 1979, which are not registered in the office of Registrar and therefore it is only approved bye laws of 1976 which governed the case of petitioner.

17. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the questions required to be adjudicated upon in the present petition are framed as follows:-

(1) Whether allotment pertaining to petitioner would be governed by the bye laws of 1976, 1979 or 2004?

(2) Whether cancellation of allotment of plot in favour of petitioner in view of bye law 5 of the bye laws of 1979 is valid ?

(3) Whether the constructions raised by petitioner over plot No. 45 in the society in question in pursuance of allotment in her favour are in terms of the bye laws applicable upon the society ?

Answer to question No.(1)

18. With regard to aforesaid question, it would be relevant to advert to Section 2(C) of the Act of 1965, which defines bye laws as registered bye laws of a cooperative society for the time being in force. Section 7 of the said Act pertains to registration of the proposed bye laws and indicates that if the Registrar is satisfied that the proposed bye laws of the society are not inconsistent with the provisions of the Act and the rules and complies with requirements thereunder, the said bye laws would be registered. Section 12 of the Act 1965 pertains to amendment of bye laws of cooperate society and prescribes that a cooperative society may, subject to provisions of the Act and Rules, amend its bye laws in the manner prescribed and that no such amendment would be valid and operative unless it has been registered under this Act. The relevant provision is as follows:-

"12. Amendment of bye-laws of a Co-operative Society.- (1) A co-operative society may, subject to the provisions of this Act and rules, amend its bye-laws in the manner prescribed ;

Provided that no such amendment shall be valid and operative unless it has been registered under this Act.

(2) The proposal for an amendment of the bye-laws shall be forwarded to the Registrar and if the Registrar is satisfied that the proposed amendment-

(i) is not contrary to the objects specified in section 4 of the Act ; and

[(ii) is not contrary to the other provisions of the Act or the rules, he shall register the amendment within one month from the date of receipt of such proposal. If the Registrar does not register the amendment within one month then it will be deemed that he has refused to register the amendment and in this case it will be obligatory for the Registrar to intimate the society within next one month, the reasons for not registering the amendment.]

(3) [* * * * *]2"

19. Section 13 of the Act indicates that an amendment of bye laws of a cooperative society would come into force on the day it is expressed to come into operation on a particular day after registration or in other cases on the day on which it is registered.

20. It is Section 14 of the Act of 1965, which has been relied upon by learned counsel for opposite parties to indicate enforcement of the bye laws of 1979, in terms of which allotment of petitioner has been cancelled. Section 14 of the Act is as follows:-

"14. Power to direct amendments in bye-laws.- (1) Where the registrar is of the opinion, whether on the representation of a member of a co-operative society, or otherwise, that an amendment in the bye-laws of a co-operative society is necessary or desirable in the interests of such society, or in public interest, he may, under such circumstances as may be prescribed, by order in writing issued to the society by registered post, require the society to make the amendment within such time as he may specify in the order.

(2) If the society fails to make the amendment within the time specified, the Registrar may, after giving the society an opportunity of being heard, [X X X]3 register such amendment and issue to the society by registered post a copy of the amendment certified by him as a copy and such copy shall be conclusive evidence that the amendment has been duly made and such copy registered."

21. The aforesaid provision clearly pertains to amendment of bye laws which have already been approved by the Registrar for its enforcement.

22. With regard to notification of model bye laws for the purposes of implementation upon a cooperative society, it is Chapter III of the U.P. Cooperative Societies Rules, 1968 which is relevant.

23. Rule 13 of the said Rules indicates that a Registrar may frame model bye laws for each class of society or societies and makes such changes therein from time to time as he may consider necessary. Rule 14 provides that the model bye law as are appropriate for a society in the opinion of Registrar may be adopted by such society with such modifications, if any, as may be considered necessary by the society having regard to its requirements.

24. A conjoint reading of Rules 13 and 14 therefore clearly indicate that although model bye  laws may be framed and notified by the Registrar but are required to be adopted by the society having regard to its requirements and therefore would not be automatically applicable.

25. Chapter IV of the Rules 1968 pertains to procedure regarding amendment of bye laws. Rules 24,29, 31, 32 and 33 of the said Rules are as follows:-

"24. An amendment in the bye-laws of a co-operative society including substitution of the entire set of bye-laws by new bye-laws may be made by a resolution passed by the votes of at least two-thirds of the members of the general body of the society present and voting at the general meeting called for the purpose: Provided that in case of model bye-laws of amendment previously approved by the Registrar or amendment required by the Registrar to be made under sub-section (1) of Section 14, the resolution may be passed by simple majority only.

29. Where the Registrar registers an amendment under Rule 28(1), he shall-

(a) make or cause to be made under his signature-

(i) an entry regarding amendment in the relevant column of the registration register,

(ii) an endorsement regarding amendment in the office copy of the original bye-laws in his office,

(b) retain for his office record one copy of the amendment so registered,

(c) send or cause to be sent a certified copy of the registered amendment-

(i) to the co-operative society concerned,

(ii) to the central society, if any, to which the society concerned is affiliated,

if in his opinion the said amendment is of any significance to the central society,

(d) return or cause to be returned to the society,-

(i) the registration certificate noting therein the date of registration of amendment of bye-laws, and

(ii) the original bye-laws with endorsement regarding amendment.

[29A. Where the bye-laws of a co-operative society are substituted by a new set of bye-laws. The Registrar may nominate the First Committee of Management including the Chairman and the Vice-Chairman. The nominated Committee of Management shall hold office till the Committee of Management is duly constituted:

Provided that the Registrar shall nominate the Committee of Management only in those Societies where elected Committee of Management is not existing. In case of the societies where the bye- laws have been substituted by a new set of bye-laws but the elected Committee of Management is still existing, the Registrar shall have powers to nominate the Committee of Management only after the expiry of term of the elected Committee of Management]

31. Where the Registrar issues an order for amendment of a bye-law under sub- section (1) of Section 14, the order shall contain-

(a) the text of proposed amendment;

(b) the period within which such amendment is required to be adopted by the society;

(c) reasons for proposing the amendment.

32. If the society objects to make the proposed amendment the Registrar shall consider the objections of the society and if satisfied that the objections of the society are correct, he may drop further proceedings, and if not satisfied, he shall take further action as provided under sub-section (2) of Section14.

33. Where an amendment has been registered under sub-section (2) of Section 14, an entry thereof shall be made in the register maintained for the purpose in Form 'I' and a copy of the amendment so registered shall be sent to the co-operative society concerned. Action as provided in sub-rules (a), (b) and (c) of Rule 29 shall also be taken in regard to that amendment. If the society has sent registration certificate and original registered bye-laws to the Registrar, action as provided under sub-rule (d) of Rule 29, shall also be taken."

26. A conjoint reading of Sections 12,13 and 14 of the Act of 1965 and the rules indicated herein above make it evident that either in case of amendment of existing bye laws of society or in case of applicability of model bye laws as notified by the Registrar, the same are not automatically applicable upon a cooperative society. The provisions of Rule 13 and 14 make it evident that once model bye laws have been framed, they are required to be adopted by the society which such modifications, if any, as may be considered necessary.

27. Similarly in the case of amendment in existing bye laws of a society, the same is required to be adopted by a resolution passed by votes of at least two thirds of the members of the general body of society present and voting at the general meeting called for that purpose in terms of rule 24 of the Rules 1968.  The proviso to Rule 24 also indicates that in case of amendment required to be made of existing bye laws due to model bye laws, the same are also required to be adopted in terms of Section 14(1) of the Act of 1965 by a resolution of the general body is required to be passed by a simple majority. Thus even in case of amendment in existing bye laws of a cooperative society in terms of model bye laws issued by the Registrar, its adoption by the society in the manner contemplated under Rule 24 of Rules 1968 is mandatory.

28. Once the procedure pertaining to amendment of existing bye laws in terms of Rule 24 of the Rules 1968 has been implemented, the Registrar is required to register that amendment in terms of Rule 29 of the Rules as indicated herein above.

29. Since the opposite parties have placed reliance upon Section 14 of the Act of 1965 to submit that model bye laws of 1979 were automatically applicable upon the society, consideration of Rules 31, 32 and 33 of Rules of 1968 is required and as per which, once an order under Section 14(1) of the Act is made, an order for amendment of bye law is required to be issued containing specifications indicated in Rule 31.

30. It is only in case if the society objects to implement the proposed amendment that the Registrar is required to take action as provided under Section 14(2) of the Act read with Rule 32 of the Rules of 1968. Rule 33 of the Rules provides that where an amendment has been registered under section 14(2) of the Act, an entry thereafter is required to be made in the Register in Form 'I' and a copy of the amendment is also to be sent to the cooperative society concerned whereafter proceedings in terms of Rule 29 is required to be undertaken.

31. Considering aforesaid aspects, it is evident that a model bye law notified by the Registrar is not automatically applicable upon a society and is in fact required to be first adopted by the society whereafter procedure indicated herein above is required mandatorily to be followed. The same is the situation with regard to amendment of any existing bye laws even if the same has been issued in terms of Section 14 of the Act of 1965.

32. Upon applicability of aforesaid provision in the present facts and circumstances of the case, it is obvious from pleadings made on behalf of opposite parties 2 and 3 that no such approved bye laws of 1979 have been brought on record. Not only that, the said opposite parties have failed to bring on record any order passed under Rule 31 or any document in terms of Rule 33 of the Rules of 1968, which is an imperative aspect.

33. Considering the Sections of the Act 1965 and the Rules of 1968 which have been  quoted herein above, the submission of opposite parties that the bye laws of 1975 are automatically implemented upon the societies is hereby rejected.

34. The opposite parties in their pleadings have clearly admitted the fact that prior to issuance of the model bye laws of 1979, the bye laws of 1976 were applicable upon the society.

35. In view of what has been held herein above, this Court finds that it would therefore be the bye laws of 1976 which would govern the issue in dispute and not the bye laws of 1979 which were never adopted by the society.

36. So far as the bye laws of 2004 are concerned, although learned counsel for opposite party No.3 has submitted that the provisions thereof would be applicable retrospectively, an examination of the bye laws of 2004 however make it evident that there is no provision therein making the said bye laws effective  retrospectively. The aspect of bye laws or rules applicable upon an cooperative society being retrospective in nature has been considered by Supreme Court in the case of Ishwar Nagar Cooperative Housing Building Society versus Premanand Sharma and others, AIR 2011, Supreme Court 548 in the following manner:-

"12. The learned counsel for the respondent-1 further contended that the Rule 25 is not applicable to the respondent-1's case as the said rule is not retrospective and the alleged `disqualification' of purchasing the said property had incurred prior to the adoption of the Rules. We are of the considered opinion that the aforesaid contention of the learned counsel for the respondent-1 is misconceived. Merely because a person who had become a member of the society at a point of time when the disqualification mentioned in Rule 25 was not in existence and because of the said rule would now cease to be a member of the society does not necessarily mean that the said rule is retrospective. "A statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time precedent to its passing". (See Craise on Statute Law. 17th edition page 386). Reference may also be made to Queen v. Vina reported at (1875) 10 Q.B 195 wherein the Statute enacted that every person convicted of felony shall be for ever disqualified from selling spirits by retail. It was held that the disqualification applied to every convicted felon irrespective of whether he was so convicted prior to or after the Act came into operation.

15.The most concrete cases wherein laws are made retrospective are those in which the date of commencement is earlier than enactment, or which validate some invalid law, otherwise, every statute affects rights which would have been in existence but for the statute and a statute does not become a retrospective one because a part of the requisition for its action is drawn from a time antecedent to its passing. Applying that to the present case, the conclusion is inescapable, that Rule 25(2) is not retrospective. All that Rule 25(2) does is that it operates in future, though the basis for taking action is the factum acquiring a plot in the past. Thus when by virtue of Rule 25(2), a member is deemed to have ceased to be a member of the society, the cessation operates from April 2, 1973, when the rules came into force."

37. In view of aforesaid judgment and the fact that there is no specific condition indicated in the bye laws of 2004 pertaining to its retrospective application, the submission of learned counsel for opposite party No.3 pertaining to restrospective application of the bye laws of 2004 is hereby rejected.

38. Upon consideration of aforesaid discussion, it is evident that it is only the bye laws of 1976 which would be applicable in the case of petitioner.

39. Question No.1 therefore is answered in favour of petitioner.

Answer to Question No.(2)

40. Once it has been held as discussed herein above that it is bye laws of 1976 and not of 1979 which would  operate, consideration of the said bye laws of 1976 become relevant. It is relevant that in paragraph 18 of the writ petition, it has been stated that as per bye law 5 of the bye laws of 1976, the only stipulation was that any person residing in the area of operation of society and did not have his residence, could become a member of the Society. It is also stated that in bye law 42 of the said bye laws, it was provided that no member would be permitted to be allotted/possessed of more than one plot. It is also stated that the word 'family' has not been mentioned or defined in said bye laws. These averments have not been denied in paragraph 16 of the counter affidavit filed by opposite party No. 3 which only places reliance on the model bye laws of 1979.

41. Thus it is evident that the definition of the term 'family' has been incorporated for the first time in the model bye laws of 1979 and the prohibition of one 'family' having more than one plot in the society was not present in the bye laws of 1976.

42. In view thereof, since there was no such prohibition in the bye laws of 1976, it is held that cancellation of petitioner's allotment of plot by means of deed dated 24th March, 1986 was not in accordance with law.

43. The question therefore is answered in favour of petitioner.

Answer to Question No.3

44. With regard to the aforesaid question, it has been submitted by learned counsel for petitioner that in terms with the by laws prevalent in the year 1976 and in terms of allotment order, a dwelling unit was constructed upon plot No. 45 in the society by petitioner within stipulated  time period.

45. The aforesaid aspect has not been disputed either by the opposite parties in their counter affidavit or even in the impugned orders.

46. On the contrary a perusal of award dated 23th July, 2010 clearly refers to a spot inspection report to the effect that construction of a room having an area of 10 ft. x 12 ft. is existing over the said plot with trees and garden existing over remaining area. Despite recording such a finding, the impugned award thereafter holds that the said plot is not being utilized for residential purpose.

47. The opposite party No.3 in its counter affidavit has placed reliance on the bye laws of 2004 to submit that the construction made by petitioner on the said plot did not answer the definition of a house as contained in the said bye laws since the construction made did not have room for a kitchen, toilet and bath room as defined in bye law 3(11) of bye laws of 2004.

48. The counter affidavit does not advert at all to any definition of a house or dweling unit in terms of the bye laws of 1976.

49. Once it has already been held that bye laws of 2004 would not be applicable in the present dispute, the definition of a 'house' as is being relied upon by answering opposite party, deserves to be rejected.

50. The award dated 23th July, 2010 clearly indicates the fact that a permanent construction exists over plot in question and therefore it can naturally be deduced that the said construction has been made by petitioner within stipulated time period. The bye laws of 1976 not adverting to any specifications pertaining to a 'house' or 'dwelling unit', in the considered opinion of this Court, the said construction would come within the definition of a house in terms of bye laws of 1976.

51. Considering aforesaid discussion, it is evident that cancellation of allotment in favour of petitioner on the aforesaid ground is also liable to be rejected.

52. The question is therefore answered in favour of petitioner.

53. In view of discussions made herein above, this Court comes to the conclusion that cancellation of allotment in favour of petitioner vide resolution dated 26th October, 2008 by the society and its being upheld by means of award dated 23d July, 2010 passed in case No. 128-E of 2008 and by the Cooperative Tribunal vide judgment and order dated 7th May, 2015 passed in appeal No. 161 of 2015, being against provisions of law are hereby quashed by issuance of writ in the nature of Certiorari. A further writ in the nature of Mandamus is issued commanding the opposite parties not to interfere in peaceful possession of petitioner over plot No. 45 situate in Scheme No.2, Daheli, Sujanpur, Kanpur.

54. Resultantly the petition succeeds and is allowed. Parties to bear their own cost.

Order Date:-12.3.2025

prabhat