Ramesh Sawant vs The State Of Maharashtra, The ...
2003 Latest Caselaw 468 Bom

JUDGMENT

Nishita Mhatre, J.

1. This Petition challenges the orders dated 24.8.1998, 25.11.1998 and 27.9.1999 passed by the Deputy Registrar, Cooperative Societies. The Joint Registrar, Co-op. Societies (Appeals) and the State Government respectively. These orders had been passed pursuant to a show-cause notice being issued to the Petitioner under Section 78 of the Maharashtra Cooperative Societies Act (for short, 'the Act') calling upon him to show cause as to why his name should not be removed as Managing Committee member since he was not a member of the Society from 4.6.1996 and, therefore, could not have been a Managing Committee member.

2. The Petitioner was a member of Respondent No. 5-Society occupying flat No. A-205 in the building belonging to the society. Some time in May, 1966 when the Petitioner was the Chairman of Respondent No. 5-Society, he decided to gift the flat to his three children and executed gift deeds accordingly. The Society was informed by the Petitioner that he had by three separate instruments on 8.5.1996 gifted the flat to his two sons Vikrant and Sangram and daughter Monika. The society, accordingly, acted upon these gift deeds and transferred the flat to the names of Vikrant, Sangram and Monika as the owners of the flat. The three children's names were entered on to the duplicate share certificate as the Petitioner claimed that he had misplaced the original. Changes were accordingly made by Respondent No. 5 Society in the Registers maintained in due course of business, that is, 'I' and 'J' form Registers. The Petitioner's son Vikrant was admitted as a member on 4.6.1996 and form 'I' of the Register of members was endorsed accordingly Form J also showed that Vikrant, Sangram and Monika were members of the society. The maintenance bills were also issued in their names. The Petitioner had ceased to be a member of the society on 4.6.1996. It appears that the Petitioner then decided to revoke the gift deeds and informed the society in February 1997 that the gift deeds were revoked. Assuming that he automatically on the revocation of the gift deeds, had become a member of the society again, on 14.3.1997 the Petitioner chaired the meeting of the Managing Committee when a resolution was passed including the Petitioner's son Sangram and his wife Leena as Associate Members and, accordingly, necessary changes were made on the share certificate. This share certificate was the original share certificate which did not bear the endorsement that the Petitioner had already ceased to be a member in view of the fact that he had executed the gift deeds in favour of the children.

3. A show-cause notice came to be issued to the Petitioner in July, 1998 calling upon him to show cause as to why he could not be removed as a managing committee member of Respondent No. 5 society in view of the fact that he ceased to be a member of the society from 4.6.1996 pursuant to the gift deeds. The Petitioner replied to this show-cause notice giving his explanation and contending that no share could have been transferred pursuant to the gift deeds since although there was an instrument of transfer, it was not properly stamped under the Bombay Stamp Act nor was it registered. It was the Petitioner's contention that in view of these conditions not having been fulfilled, the gift deeds could not take effect and no changes could have been made in the register maintained by the cooperative society. According to the Petitioner, he continued to be a member once the gift deeds were revoked and in any event the deeds having no force of law, could not have been acted upon by the society. Surprisingly, although all these contentions were raised by the Petitioner he continued as the Chairman of the Society.

4. An order was passed by the Deputy Register, Cooperative Societies after hearing the Petitioner removing him from the membership of the Committee of Respondent No. 5 society. Being aggrieved by this order, the Petitioner filed an appeal before the Divisional Joint Registrar. The appeal was heard and disposed of by an order of 25.11.1998 confirming the order of the Deputy Registrar. However, the reasons which have been separately recorded were not furnished to the Petitioner till the filing of the present petition. Being aggrieved by this order, the Petitioner then filed an appeal by way of revision before the State Government under Section 154 of the Act. This Revision Application also met with the same fate as the earlier proceedings. The Divisional Joint Registrar confirmed the order passed under Section 78 of the Act and it was declared that the Petitioner had no right to continue as a Managing Committee member of Respondent No. 5 Society. Being aggrieved by all the three orders, the Petitioner filed the present petition. In the meantime, while this petition has been pending, the Petitioner filed a dispute on 16.8.1999 before the Cooperative Court under Section 91 of the Maharashtra Cooperative Societies Act being dispute No. 280 of 1999 and prayed for the following reliefs:

"(a) that the Hon'ble Court be pleased to declare that the Disputant is continued to be member, share holder and allottees of flat No. A/705, in Opponent No. 1 society;

(b) that this Hon'ble court be pleased to declare that Opponents, their servants, agents and/or any person claiming through them, be permanently restrained by an order and injunction of this Hon'ble court:

i) from preventing the Disputant from acting as a member of Opponent No. 1 society in any manner whatsoever.

ii) directing the Opponent No. 1 society to recognise the Disputant as a member and issue the maintenance bill in the name of Disputant regularly.

(c) that pending the hearing and final disposal of this dispute, the Opponents, their servants, agents and/or any person claiming through them, be restrained from preventing the Disputant from acting as a member of Opponent No. 1 society in any manner whatsoever;

(d) that pending the bearing and final disposal of this dispute, the Opponents, their servants, agents and/or any persons claiming through them, he restrained by an order and/or injunction of this Hon'ble Court direction the Opponent No. 1 society to recognize the Dispute and as a member and issue the maintenance bill in his name regularly;

(e) Interim and ad-interim reliefs, in terms of prayer Clause (c) and (d) above be granted;

(f) Cost of this dispute be provided for;

(g) Such further and other reliefs as this Hon'ble authority may deem fit and proper in the interest of justice be granted."

5. An interim relief application which was moved by the Petitioner was dismissed for default on 4.3.2003. The Petitioner has admittedly taken no steps so far for restoring the said dispute.

6. It appears that prior to this, on 9.1.1999 the Deputy Registrar had rejected the Petitioner's nomination for elections to the Managing Committee of the society. The Petitioner had challenged this order in this Court by filing Writ Petition NO. 790 of 1999. It was rejected on 30.3.1999. As the elections had already been concluded, this Court directed that any challenge to the same would lie before the election tribunal constituted under the Act. Further directions were also given that the Petitioner could raise an appropriate dispute regarding his membership with Respondent No. 5 society.

7. The contention now raised by the petitioner is that the gift deeds executed by him were not binding on the society and the society should not have acted upon them since they were not in accordance with the provisions of the Act. It is contended that under Section 17 of the Act, an instrument of gift of Immovable property is required to be registered. Section 49 of the Act stipulates that no document, which is required by Section 17 to be registered shall affect any immovable property or confer any power to adopt or to receive as evidence of any transaction effecting such property, unless it has been registered. According to the learned Counsel, appearing for the Petitioner admittedly, the gift deeds were neither properly stamped nor registered. He submits that a circular has been issued on 8.7.1996 by the Commissioner for Cooperative and the Registrar of Cooperative Societies, Maharashtra State, Pune directing that unless the documents in the form of receipt is produced along with the transfer proposal in accordance with law and registered, no transfers could be effected. The learned Counsel, therefore, submits the gift deeds having no force of law, Respondent No. 5-society could not have acted upon them and deleted the name of the Petitioner as a member by incorporating the names of his children as members in his place. It is further submitted that the provisions of Section 78 of the Act are extreme and can be used only to bring the erring societies and their office bearers to book and the Petitioner had in no way caused any irreparable damage to the society nor were any of the elements mentioned in Section 78 of the Act present in the conduct of the Petitioner. He, therefore, submits that the action taken pursuant to the Section 78 is illegal and had in law. He further submits that the orders of the authorities show total non-application of mind and as a result, have visited the Petitioner with severe consequences.

8. Mr. Bhadrashete, learned Counsel for Respondent No. 5 society, submits that the entire dispute in the writ petition is academic in view of the fact that the petitioner is no longer a member of the society and the dispute having been dismissed by the cooperative court. He further submits that the elections to the managing committee have also been held when the petitioner had contested the same and lost. He further submits that once the Petitioner ceased to be a member on 4.6.1996 and the flat was transferred to the names of his three children, the Petitioner could not continue to be a member of the managing committee as he was not qualified as a member. He, therefore, submits that the disqualification under Section 78 being complete, the Petitioner had no option but to seek readmittance as a member in accordance with the procedure laid down under the Act. In any event, submits the learned Counsel, the Petitioner's dispute having been dismissed the entire petition has become infructuous.

9. Ordinarily, while exercising the jurisdiction under Article 226 of the Constitution of India when there are findings of facts by three different authorities, there would be no necessity to go into grant dealt and set aside such findings. However, in the present case, what is required to be seen is the effect of the gift deeds executed by the Petitioner in May, 1996. It would also be necessary to see the conduct of the Petitioner when he comes to this Court for redressal of his grievance under Article 226 of the Constitution of India. All along from May, 1996 when the gift deeds were executed, the Petitioner was the Chairman of Respondent No. 5 society. Therefore, he was well aware of the consequences of the gift deeds and the effect that they would have on his membership if the same were acted upon by the society. In fact while he was the Chairman, an application was made by him on 18.5.1996 to include the names of his children as he had gifted the flat to them equally. He also had tendered the share certificate and requested that his name be deleted from if and necessary action be taken to include the names of his children. The membership forms signed by his children were also annexed to the application. On 4.6.1996, when the Petitioner was in the chair, the Managing Committee resolved to approve of the gifting of the flat of the Petitioner to his children. Accordingly, the entries were made in the Register maintained in the course of business. Therefore, for the Petitioner to suggest that the society has wrongly accepted the gift deeds is unreasonable. The Petitioner knew very well that the gift deeds were not stamped sufficiently nor had they been registered. As the Chairman of the Managing Committee of Respondent No. 5 Society, he was expected to know the consequences of such a resolution being passed. It appears that the Petitioner wants to continue as the managing committee member when the cooperative Court has already decided his fate. The Petitioner cannot continue as the Managing Committee member if the basic requirement of being a member of Respondent No. 5 society is not present. It is obvious that the petitioner who is not a member of the society cannot be a member of the managing committee. On 4.6.1996, when the resolution was passed by the committee to accept the children of the Petitioner, the petitioner had ceased to be a member of the society and therefore, was disqualified for being continued as the Chairman of the Society. On 14.3.1997, the Petitioner's son Sangram and the Petitioner's wife Leena were accepted as associate members. Even on this date that is 14.3.1997, the Petitioner chaired the meeting when the committee discussed the issue regarding acceptance of the Petitioner's wife Leena and son Sangram as associate members.

10. The submission of the learned Counsel for the Petitioner based on the judgment of his Court in the case of Patesinghrao Anandrao Naik and Ors. v. R.V. Deshmukh and Ors. reported in 1981 Mh.L.J. 936 and M.R. (SIC) v. Divisional Joint Registrar and Ors. reported in 1987 Mh.L.J. 368 that Section 78 is to be adopted as a last resort and the Petitioner should not be visited with severe consequences cannot be accepted. The submission of the learned Counsel that since the gift deeds were revoked, status quo ante would prevail cannot be sustained. This is because the Petitioner had already ceased to be a member. Steps were taken under Section 75 and 75-A. The children's names were incorporated in the register and, therefore, the status quo ante could not prevail. If the Petitioner had any dispute and wanted to become a member all over again, it was necessary for him to adopt the procedure for becoming a member in accordance with law and only then would he be entitled to be a member and also would he be entitled to stand for elections as an office bearer of the managing committee.

11. The Petitioner has not adopted any of these procedures and, therefore, the Writ Petition does not deserve acceptance. The authorities below have rightly held that the Petitioner, having ceased to be a member on 4.6.1996, could not continue as a member of the managing committee and have rightly taken action under Section 78 of the Act.

12. In view of this, Rule is discharged. No costs.