Sindhu Co-Operative Housing ... vs State Of Maharashtra And Ors.
2005 Latest Caselaw 417 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Heard Shri Madkholkar, Advocate for the petitioner and Smt. Taiwade, Assistant Government Pleader for respondents No. 1 to 3. Nobody appears for respondents No. 4 to 10.

2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner, a Society registered under Maharashtra Co-operative Societies Act, challenges the order dated 11/26-4-1991 passed by the Deputy Registrar, Co-operative Societies (City) Nagpur, in Appeal under Section 23 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act). By the impugned order, the said authority has allowed the appeal preferred by the present respondents No. 4 to 10 and directed the petitioner - Society to admit them as its members.

3. Shri Madkholkar, Advocate for the petitioner has made three grievances in relation to impugned order. He contends that there cannot be any enrolment of members in excess of plots available with the society. He contends that at the relevant time, no plots were available with the Society and all plots were allotted and as such there was no question of giving enrolment to any person as new members. He further states that the appellate authority has overlooked the fact that unamended provisions of Section 22 of the Act were prevalent when the controversy involved in this writ petition arose. Lastly, he contends that by taking recourse to amended provisions, the appellate authority has rejuvenated dead rights. He states that these respondents No. 4 to 10 moved application for membership on 13-10-1980 and as there was no communication on those applications to the respondents from society, as per provisions of Section 22(2) of the Act then in operation, the applications stood rejected after expiry of three months from 30-10-1980. He, therefore, contends that after 30-1-1981, no application for membership by any of the respondents was pending with the society and the membership stood declined to these respondents. He points out that provisions of Section 22(2) of the Act, have been materially altered in 1986 and instead of earlier presumption of "deemed rejection", now the presumption is of "deemed admission". He contends that the appellate authority has applied this amended provision which has come into force after 1986 to the facts at hand and this amendment has been applied retrospectively though the amending statute expressly states that it is prospective. He, thereafter, relies upon a judgment of this Court in the case of Atomica Co-op Housing Society Ltd., Bombay v. B.R. Ballal, reported at 1988 C.T.J. 292, to substantiate his contention that the Cooperative Society cannot enrol members in excess of plots available with it for allotment to its members. He contends that the appeal as filed under Section 23 of the Act was also delayed because the appeal came to be filed sometime in the year 1990 after the respondents received the communication dated 4-11-1990 from the Administrator of the petitioner-Society. He contends that the delay in filing the appeal from 31-1-1981 till the year 1990 has not been explained at all.

4. As against this, Smt. Taiwade, Assistant Government Pleader states that the petitioner - Society itself has sent a communication to respondents No. 4 to 10 and the appeal has been filed thereafter. She contends that therefore, there is no question of delay and as the appellate authority has been approached in view of the communication dated 4-11-1990, law prevailing on that date has been correctly applied. She further contends that the communication of rejection for membership was must and as there was no communication, the respondents were right in filing appeal only after they received the communication. She, therefore, contends that there is no retrospective application of law as alleged and the appellate authority has correctly exercised the jurisdiction, hence, no interference in writ petition is warranted in this case.

5. The perusal of the order of the appellate authority reveals that respondents No. 4 to 10 applied for membership to the petitioner - Society on 30-10-1980. No decision on that application is alleged to have been communicated to the respondents and it appears that the respondents, sometime in the year 1990 made a representation to the petitioner (administrator at that time) inquiring about the grounds for rejection of their membership. The letter dated 4-11-1990 was issued in response to that query and society informed these respondents that they were not found suitable for enrolment as members. This discussion as contained in the revisional order dated 17-4-1993 reveals that the respondents were aware before November, 1990 that their membership application already stood rejected and they only enquired about the reasons for the same from the Administrator. The Administrator has thereafter communicated the reasons. Thus, it is not the first communication of rejection of their applications by the petitioner to them.

6. In any case, when the provisions of unamended Section 22(2) of the Act are seen, the said sub-section as prevalent before 1986 prescribed that if the society does not communicate any decision to the person who has applied for membership, within three months from the date of receipt of his application, his application shall be deemed to have been rejected. It is thus clear that when no decision is communicated within three months of application dated 30-10-1980 and even if first communication on the subject is received on 4-11-1990, the application for membership is deemed to be rejected in January, 1981 and issue in relation to membership of respondents 4 to 10 stood closed at that time.

7. The amendment to provisions of Section 22(2) of the Act came into force on 12-5-1986 and the Amending Act specifically states that the Act would come into force from such date as the Government may prescribe in this respect. Thus, the Act appears to be prospective. The amendment effected to Sub-section (2) of Section 22 by this Amendment Act is that if the Society does not communicate any decision within three months from the date of receipt of such application, the applicant is deemed to have been admitted to the membership of the Society. It is thus clear that diagonally opposite provision has been enacted by Amendment Act. As such the amendment cannot be made retrospective or cannot be applied to the case of present nature which stood condoned in January, 198 itself. As already discussed above, the communication dated 4-11-1990 does not clothe the respondents with any new right. Upon enquiry made by respondents No. 4 to 10, this communication was sent by the Administrator and it does not, therefore, amount to creating any new cause of action in their favour so as to enable them to file any appeal under Section 23 of the Act, challenging the said communication.

8. The argument about the restriction on number of members in view of limited plots available with Society is based upon the ruling of this Court reported at 1988 C.T.J. 292 (supra). The perusal of paras 10 and 11 of said ruling reveal that there the petitioner - Society viz., The Atomica Co-operative Housing Society Limited, Bombay had a bye-law which enjoined General Body, not to admit members exceeding the number of tenements or flats. The observations made in paras 10 and 11 are in view of this bye-law 6(2). In this case, no such bye-law is pointed out and therefore, the arguments that the petitioner - Society could not have admitted members in excess of plots with it for allotment, cannot be accepted.

9. As the 1986 Amendment to Section 22(2) of the Act has no application in the facts and circumstances of the case, the order of appellate authority dated 11/26-4-1991 impugned in this case as also the order of Revisional Authority dated 17-4-1993 are quashed and set aside. Writ Petition is allowed. Rule is made absolute in above terms. There shall be no order as to costs.