Bombay High Court
Shantiniketan Cooperative vs Shivkant on 18 December, 2013
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 5826 OF 2011
Shantiniketan Cooperative
Housing Society Ltd., Latur,
through its Chairman,
Ramrao s/o Ganpatrao Maknikar ...Petitioner
[Original Respondent]
VERSUS
1] Shivkant s/o Mulchandji Brijwasi,
age major, occ. Business,
c/o Shantiniketan Cooperative
Housing Society Ltd., Ausa Road,
Shivaji Chowk, Latur,
Tq. And Dist.Latur,
2] The Assistant Registrar,
Cooperative Societies, Latur,
Tq. And Dist.Latur,
3] The Divisional Joint Registrar,
Cooperative Societies, Latur,
Tq. And Dist. Latur ...Respondents
A N D
WRIT PETITION NO. 5819 OF 2011
Shantiniketan Cooperative
Housing Society Ltd., Latur,
through its Chairman,
Ramrao s/o Ganpatrao Maknikar ...Petitioner
[Original Respondent]
VERSUS
1] Shivkant s/o Mulchandji Brijwasi,
age major, occ. Business,
c/o Shantiniketan Cooperative
Housing Society Ltd., Ausa Road,
Shivaji Chowk, Latur,
Tq. And Dist.Latur,
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2] The Assistant Registrar,
Cooperative Societies, Latur,
Tq. And Dist.Latur,
3] The Divisional Joint Registrar,
Cooperative Societies, Latur,
Tq. And Dist. Latur ...Respondents
.....
Shri V.D.Salunke, Advocate for the Petitioner
Shri A.A.Mukhedkar, Advocate for respondent no.1
Shri P.P.More, A.G.P. for respondent nos. 2 and 3
.....
ig CORAM : S.S.SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 06.12.2013
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 18.12.2013
ORAL JUDGMENT :-
1] Rule. Rule made returnable forthwith. With the consent of the
parties both the Writ Petitions are heard finally.
2] 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.
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3] 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.
4] 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
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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.
5] 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.
6] 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 residential plot allotted to Shridharrao More.
According to the petitioner, said transfer is without permission of the society
and in absence of such permission, ownership of the plot cannot be
transferred. The alleged sale deed executed in favour of respondent no.1 by
Ashokkumar Dhoot and transfer of the plot by Madolappa Utage in favour of
Ashokkumar Dhoot; as also the alleged sale deed executed in favour of
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respondent no.1 by Shridharrao More and transfer of the said plot by
Shridharrao More in favour of Mulchand Brijwasi, are contrary to the provisions
of the said Act and the said Rules and also to the by-laws of the society.
7] The respondent no.1 for the first time moved an application for
membership to the petitioner society, on 14.1.2008 (in W.P.No.5826/2011) and
on 2.3.2008 (in W.P.No.5819/2011), however, he did not furnish any
information provided to it in respect of the alleged transaction by sale deed
and transfer of the respective plots in favour of respondent no.1 and the
petitioner came to know first time when the respondent no.1 applied for
membership on 14.1.2008 and 2.3.2008. It is the case of the petitioner that
after receipt of the application from the respondent no.1, the petitioner decided
to place the said application before the meeting of the managing committee,
and accordingly, said application was placed before the managing committee
on 3.2.2008. The managing committee decided to place it before the General
Body. The General Body on 2.3.2008 rejected the said application of the
respondent no.1 for becoming the member. According to the petitioner, the
decision taken by the General Body is final, since the General Body is the
supreme authority as per the provisions of Section 72 of the said Act. It is the
case of the petitioner that the respondent no.1 in absence of challenge to the
resolution passed by the General Body directly approached the Assistant
Registrar, Cooperative Societies, Latur under Section 23 (2) of the said Act.
The said authority without considering the fact that the appeal filed by the
respondent no.1 is not within time and also there is no challenge to the
resolution passed by the General Body and also without considering that the
requirement of by-law to become member has not been fulfilled by the
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respondent no.1, allowed the appeal of respondent no.1 and directed the
petitioner to enroll the respondent no.1 as a member of the society.
8] Being aggrieved by the said judgment and order of the Assistant
Registrar, Cooperative Societies, Latur, the petitioner preferred the Revision.
However, in the Revision also, the Revisional Authority confirmed the
judgment and order passed by the Assistant Registrar, Cooperative Societies,
Latur. Hence this petition.
9] Learned counsel appearing for the petitioner submits that the
respondent no.2 has no jurisdiction to entertain the appeal filed by respondent
no.1. Respondent no.2 acted without jurisdiction and beyond the powers
vested in it. It is submitted that the administrator has no authority/power to
enroll the new member. In support of this contention, learned counsel
appearing for the petitioner pressed into service exposition of the Supreme
Court in the case of K.Shantharaj and another vs M.Nagaraja and
others, reported in AIR 1997 SC 2925. It is further submitted that the
membership is imposed on society without adherence to the relevant by-laws
and also the provisions of the said Act and the said Rules.
10] It is submitted that the appeal which was presented by respondent
no.1 before the respondent no.2 was time barred. There was no application
accompanied with the appeal for condonation of delay. Therefore,
respondent no.2 should have rejected the said appeal on the ground of delay.
It is submitted that there is no prayer in the appeal memo for setting aside the
resolution passed by the General Body. It is submitted that in absence of
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challenge to the resolution passed by the General Body, the appeal of the
respondent no.1 ought to have been dismissed by the respondent no.2. It is
submitted that the by-laws have the binding effect and the resolution passed
by the General Body, which is the supreme authority in view of the provisions
of Section 72 of the said Act, could not have been brushed aside so easily by
the respondent no.2. It is submitted that grant the membership to a particular
person is within the domain of the petitioner society and the respondent no.2
was not competent to issue direction to the petitioner society to enroll the
respondent no.1 as a members of the petitioner society. It is submitted that
transfer of plot by the founder members itself was without permission of the
society and contrary to the provisions of the by-laws of the society. Therefore,
such initial transfer itself is illegal, and therefore, further transfer of the plot in
favour of the respondent no.1 was illegal. It is submitted that the Assistant
Registrar, Cooperative Societies, Latur i.e. administrator neither possess
jurisdiction nor the authority to direct the petitioner to enroll the respondent no.
1 as member of the society.
11] It is submitted that the application filed by respondent no.1 for
becoming member of the petitioner society was not in prescribed format. All
the necessary documents, which are required to be submitted along with the
said application were not accompanied with the said application. It is
submitted that the transfer of plot in favour of the respondent no.1 and
mutation entry taken in the name of the respondent no.1 is challenged before
the Taluka Inspector of Land Records by the petitioner society. It is submitted
that as per Section 29 (2)(b) of the said Act, the shares could not be
transferred without permission of the society. It is submitted that the
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administrator who was illegally continued for years together, contrary to the
provisions of law, was not competent to take decision in respect of
membership. It is submitted that the petitioner being a tenant ownership
society, if any member wants to transfer his share, he has to transfer it with the
permission of the society. If there is a sale transaction, the said sale
transaction becomes null and void in case no such permission is obtained from
the society.
12] It is further submitted that the respondent no.2 while allowing the
appeal has not considered the conditions laid down in the by-laws to become
member of the petitioner society. It is submitted that the Revisional Authority
has mechanically endorsed the findings recorded by the respondent no.2, and
therefore, the impugned judgment and orders are required to be quashed and
set aside, thereby upholding the resolution passed by the General Body of the
petitioner society.
13] Learned counsel appearing for the petitioner invited my attention to
the reported judgment of the Supreme Court in the case of Ragho Singh vs
Mohan Singh and others, reported in 2001 AIR SCW 2351 and
submitted that even though there is few days delay, in absence of filing
application for condonation of delay, the appeal could not have been
entertained by the respondent no.2.
14] Learned counsel further invited my attention to 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, in
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particular para 10 thereof and submitted that while considering the prayer to
become member of the society, it is necessary to adhere to the mandate of the
by-laws. Therefore, relying upon the pleadings in the petition, annexures
thereto and all other documents placed on record, the provisions of the said
Act and the said Rules as well as by-laws of the society and the judgments
cited supra, learned counsel appearing for the petitioner submits that the
petition deserves to be allowed.
15] On the other hand, learned counsel appearing for the respondent
no.1 invited my attention to the affidavit in reply filed on behalf of respondent
no.1. It is submitted that the answering respondent resides at his house
constructed over the respective plot nos.1 and 13 of the petitioner society,
which are purchased by him from the ex-members of the petitioner society,
namely Ashokkumar Dhoot and Shridharrao More. The possession of the said
plots is handed over to the answering respondent on the date of execution of
the sale deed. It is submitted that the membership of founder members
Madolappa Utage and Shridharrao More came to be legally transferred and
the respondent no.1 has purchased the said plot nos.1 and 13. It is submitted
that the said plots are purchased by executing a registered sale deeds dated
12.2.2007 bearing registration no. 516 and dated 9.9.1991 respectively. It is
submitted that before execution of sale deeds Ashokkumar Dhoot had
submitted his membership resignation letter on 12.2.2007; and Shridharrao
More had submitted his membership resignation letter on 20.10.1989 to the
petitioner society.
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16] Thereafter the answering respondent submitted an application,
dated 14.1.2008 to the petitioner society and to the Assistant Registrar,
Cooperative Societies, Latur requesting to transfer the membership of
Ashokkumar Dhoot in favour of the answering respondent and the consent
letter of said Ashokkumar Dhoot was also submitted along with it. It is
submitted that the respondent no.1 along with Ashokkumar Dhoot under their
joint signatures submitted an undertaking to the petitioner on Rs.200/- stamp
in prescribed format. Likewise Shridharrao More and answering respondent
submitted joint application dated 20.10.1989 to the petitioner society and to the
District Registrary of the Cooperative Societies , Latur requesting to transfer
the membership in favour of answering respondent.
17] It is submitted that the mutation entry regarding plot no.1 is
sanctioned in favour of respondent no.1 on 16.3.2007 bearing mutation entry
no. 3237; whereas the mutation entry regarding plot no.13 is sanctioned in
favour of respondent no.1 on 30.4.1992, which were the subject matter of
challenge at the instance of the petitioner society before the Superintendent of
Land Records, Latur. The said challenge has been unsuccessful before the
Superintendent of Land Records, Latur. It is submitted that the authority held
that the mutation entry sanctioned in favour of respondent no.1 is legal, proper
and in accordance with the provisions of Maharashtra Land Revenue Code. It
is submitted that respondent no.1 is paying taxes in respect of respective plots
with the Municipal Corporation at Latur. The counsel invited my attention to
the certificates of transfer of plots issued by the petitioner society, copy of the
P.R. Card of plots and the copies of the judgment and order passed by the
Superintendent of Land Records, Latur.
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It is submitted that as per Rule 4 of the by-laws of petitioner society
and as per Section 23 of the said Act, the membership of the petitioner is an
open membership and it is provided therein that any person can be a member
of the society. The respondent no.1 is eligible for becoming member of the
petitioner society as per Rules 4 and 19 of the by-laws of the petitioner society.
However, the petitioner society without assigning any reason has refused the
membership to respondent no.1. The said refusal has been communicated
vide letter dated 11.4.2008. It is submitted that from the date of
communication of the refusal of membership, an appeal filed by respondent
no.1 before respondent no.2 was within limitation. It is submitted that the by-
law providing limitation is not for filing the appeal, however, the by-law
mandates that the decision taken by the society in respect of the membership
should be communicated within two weeks from taking actual decision in that
respect. It is submitted that the respondent no.2 has considered the
documents placed on record and the respondent no.1 is entitled for being a
member and is eligible for it, since he has complied with the requirement of
relevant Rules and by-laws of the petitioner society, as well as mandate of
Section 22 of the said Act.
18] It is submitted that respondent no.1 has fulfilled all the requisite
criteria for becoming a member of the petitioner society, and therefore, there
was no reason for the petitioner society to deny the membership to respondent
no.1 without assigning any reason whatsoever. It is submitted that there are
concurrent findings recorded by the authorities below. It is submitted that
though both the authorities have decided in favour of respondent no.1, till date
the petitioner society has not complied with the said directions. It is submitted
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that while exercising the supervisory jurisdiction, this court will not convert
itself into court of appeal and reappreciate or evaluate the evidence or correct
the errors in drawing inference or correct errors of mere formal or technical
character. The counsel appearing for respondent no.1 invited my attention to
the judgment of the Supreme Court in the case of Surya Dev Rai vs Ram
Chander Rai, reported in AIR 2003 SC 3044. Learned counsel further
relied upon the judgment of this court in the case of New Sion Co-
operative Housing Society Ltd. Vs State of Maharashtra and others,
reported in 2007 (4) Bom.C.R. 421 and in particular paras 7 and 8 thereof.
He submits that when there is a provision for open membership, the
membership ought not to have been refused if the conditions to become
member are fulfilled by the respondent no.1.
19] Learned counsel further relied upon the judgment in the case of
Sneh Sadan Co-op. Housing Society Ltd. Vs State of Maharashtra
and others, reported in 2004 B.C.I. 623 and submits that if in by-law there
is no prior requirement of obtaining N.O.C. for sale, in that case, the sale of
the property cannot become illegal or invalid. Therefore, relying upon the
averments in the affidavit in reply, the reasons recorded by the appellate
authority as well as the Revisional Authority and the provisions of the said Act
and the said Rules and the judgments cited supra, the counsel appearing for
the respondent no.1 submits that this court may not interfere in the impugned
judgment and orders.
20] Affidavit in reply is filed on behalf of respondent nos. 2 and 3. It is
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stated in the said affidavit in reply that the respondent no.2 has passed the
order by following the procedure under the by-laws and also under the said Act
and the said Rules, and therefore, the petition deserves to be rejected.
21] I have heard the counsel for the parties at length and with their able
assistance, perused the grounds taken in the petitions, annexures thereto, the
relevant provisions of the by-laws and also the Maharashtra Cooperative
Societies Act and the Rules thereunder as well as the judgments cited across
Bar by the counsel for the parties.
22]
Copy of the application filed by the respondent no.1 herein with the
petitioner society requesting to enroll him as a member is placed on record at
Exh. 'B' at page 44 of the compilation of the Writ Petition. It appears that the
said application was accompanied with copy of the extract from the City
Survey Office and the transfer certificate of plot no.1 in favour of Ashokkumar
Dhoot by the original member Madolappa Utage; and plot no. 13 in favour of
respondent no.1. Except those two documents, there is no mention of any
other document in the said application. It further appears that the said
application is dated 14.1.2008 and same has been considered by the
petitioner on 2.3.2008 and same is rejected.
23] The contention of respondent no.1 and one of the reason assigned
by the appellate authority that the resolution rejecting the application for
membership is without assigning reasons, appears to be perverse. Upon
perusal of copy of the extract from proceeding book, it appears that it is stated
in the said resolution that the petitioner society is original owner of the
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property/land. It is further observed that in so far as ownership is concerned,
no member can enter into transaction of transfer of ownership. Madolappa
Utage is the tenant of the petitioner society. There is a further mention that
Shri Shridharrao More has applied for transfer of the plot in the name of his
elder son Shivajirao More and accordingly, the petitioner society has
communicated to furnish necessary documents so as to consider his request
for transfer. It is also mentioned in the resolution that while entering into the
transaction of transfer of the plot, both the persons namely transferor and
transferee have not given intimation to the society about such transfer. It is
also observed that the petitioner society is basically tenant ownership housing
society, and therefore, no member can deal with the transaction of transfer of
the property. This aspect that the petitioner society is tenant ownership hosing
society and it's member cannot transfer the ownership of the plot has been
made known by way of public notice, and accordingly, the applications filed by
the respondent no.1 are rejected. Therefore, it appears that the respondent
no.2 has recorded perverse finding that the society has not assigned single
reason while rejecting the application filed by the respondent no.1 for enrolling
him as a member of the society.
24] The prayers in the appeal no. 7 of 2008 filed by the respondent no.
1 before the respondent no.2 read thus :-
"(i) That, the respondents society may kindly be directed to
declare appellant as member of their society and record his
name in its membership.
(ii) That, the respondents may kindly be directed to transfer
the plot no.1 on the name of appellant.
(iii) That, the respondents also be directed to complete all
the formalities which are required under the law within stipulated
time.
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(iv) That, the necessary documents and proceeding book of
the said society which is in custody of respondents may kindly
be called from him.
(v) That, any other just and equitable relief may also be
awarded to the complainant. "
The prayers in Appeal No. 6 of 2008 are similar to that in Appeal
No. 7 of 2008, except mention of plot no.13 in prayer (ii) in Appeal No. 6 of
2008.
25]
Upon careful perusal of the prayers in the appeal, it is abundantly
clear that there is no prayer for quashing and setting aside the resolution
passed in the General Body meeting of the petitioner society, which according
to the petitioner is supreme body in view of Section 72 of the said Act to take
final decision in respect of affairs of the society including membership. It
appears that the appellate authority has not considered the effect of not having
such prayer in the appeal memo.
26] Upon perusal of Chapter 4 of the by-laws of the petitioner society,
said Chapter deals with the membership. In clause 5 of the by-law, it is stated
that any person cannot become member of the petitioner society, unless he
fulfills conditions laid down in clause 19 of the by-laws. The criteria/conditions
which are required to be fulfilled are stated to be that, the person desirous to
become member must be 18 years of age and competent to enter into
contract. He should fulfill the conditions laid down in Chapter 4 of the by-laws
of the petitioner society. He should possess good character. He should be
financially well off and there should not be any outstanding loan either towards
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taxes imposed by the Government or any other arrears and to that effect there
should not be any decree passed by the competent court against the said
person. He should show the willingness as per the prescribed form of the
society to spend the amount for construction of the house on the plot of the
society. The person desirous to become member has no adequate residential
accommodation and he is in need of construction of house for the said
purpose, and such information should be furnished in Schedule 'E' of the by-
laws. He should not be member of any other Cooperative Society. He should
execute agreement in the format of Schedule 'C'. He should file the
application in prescribed format for becoming member of the petitioner society.
He should have understood the aims and objects of the society. His
application should be accepted/approved by sanction of more than ½ of the
members of the managing committee. He should have paid one rupee as an
entry fees. He should have purchased minimum one share by paying the
entire amount towards it. He should not have been addicted to liquor or any
other consumption of prohibited substance. It is further requirement that he
should fulfill all the conditions stated in the by-laws.
Clause 5 of the by-laws provides that communicating the decision
taken by the committee in respect of membership within fifteen days from such
resolution or three months from the date of filing the application for enrolling as
member whichever is earlier.
27] The person aggrieved by the decision will be entitled to file the
appeal before the Registrar, Cooperative Societies. By-law 19 also provides
for certain conditions to be fulfilled for becoming a member of the petitioner
society. There is also mention that some amount is required to be paid for
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transfer of the sharers. It is stated that no member will be able to transfer the
share within one year from the date of becoming member of the petitioner
society. There can be transfer of the said share only after permission by the
managing committee of the petitioner society and not otherwise. There is a
further provision under clause 21 of the by-laws that if any member wish to
transfer his plot, in that case only he can transfer the said plot in favor of his
eldest legal heir.
28] In order to find out whether the afore mentioned requirements from
Chapter 4 clauses 5 and 19 of the by-laws, as also all other relevant provisions
of the by-laws in respect of dealing with the request of granting membership, I
have carefully perused the impugned judgment and order passed by the
respondent no.2. It appears that the record from the office of the administrator
was summoned by the appellate authority and after hearing the parties, the
appellate authority has observed that, when the administrator was incharge of
the petitioner society, the founder member has transferred his plot to the
transferee and accordingly, after considering the relevant documents, the
petitioner society has conferred membership of the society on the transferee.
The respondent no.1 herein has purchased the respective said plots and on
14.1.2008 applied for membership of the petitioner society. Though the
respondent no.1 has referred to the relevant provision in Chapter 4 clauses 5
and 19 of the by-laws of the petitioner society, while considering the said
criteria/requirements/conditions, the appellate authority has not made exercise
to find out whether each criteria/requirement/condition has been fulfilled by the
respondent no.1 to become member of the petitioner society. There are so
many conditions/criteria laid down under the relevant provisions, and
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therefore, when the application of the respondent no.1 for becoming member
of the petitioner society is rejected by the General Body of the petitioner, it was
incumbent upon the appellate authority to find out whether each and every
condition/criteria/requirement under the by-laws of the petitioner society has
been fulfilled by the respondent no.1 or not. However, it appears that such
exercise is not undertaken by the appellate authority. The appeal is always
available on facts and law and when such appeal was filed it was incumbent
upon the appellate authority to find out whether the respondent no.1 has
fulfilled all the criteria laid down in the by-laws. Since the appeal is provided
under the by-law with the Registrar, this court is not in agreement with the
submission of the counsel for the petitioner that the appellate authority has no
jurisdiction to entertain such appeal. So far as point of limitation is concerned,
the appellate authority ought to have considered the said point. However, the
appellate authority has failed in its duty to consider the said point of limitation
raised by the petitioner society. Even if, it is considered that the appeal filed
by the respondent no.1 is within limitation, on careful reading of the prayers in
the appeal memo, there was no prayer for setting aside the resolution passed
by the General Body of the petitioner society, which is a supreme body. The
effect of not having such prayer has not been considered by the appellate
authority.
29] In order to find out whether the appellate authority has considered
each condition/criteria under Chapter 4 clauses 5 and 19 of the by-laws, I have
carefully perused the impugned judgment. Prima facie, it appears that there
is no observation about the compliance of clauses 1, 2 , 3, 4 and 5 of Chapter
4 of the by-laws. It further appears that even the appellate authority has not
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considered clause 5 in its entirety and fulfillment of the said clause by the
respondent no.1. Even in respect of clause 6 and some other clauses, the
appellate authority has not recorded any findings or made observations about
fulfillment of such condition. It appears that by cryptic reasons, by not doing
complete exercise to find out whether the respondent no.1 fulfills all criteria
laid down under clauses 5 and 19 of Chapter 4 of the by-laws, the appellate
authority proceeded to decide the appeal and allowed the same. Whether the
administrator is competent to confer the membership or not has also not been
considered by the appellate authority.
30]
This court is not sitting in appeal so as to reappreciate the
documents/evidence placed on record. However, certainly this court in writ
jurisdiction can find out whether the findings recorded by the appellate
authority are in consonance with the documents placed on record or those are
perverse or the appellate authority has failed in its duty to find out whether the
criteria/requirements/conditions laid down under the by-laws to become a
member of the petitioner society have been considered by the appellate
authority or not.
31] The Supreme Court in the Zoroastrian Coop. Housing Society
Ltd. vs District Registrar, Cooperative Societies (Urban), reported in
(2005) 5 SCC 632 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
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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 Cooperative Societies Act, 1961, the Supreme Court in the case of
Zoroastrian Coop. Housing Society Ltd. (supra) has taken a view that
by-laws are not given go bye in spite of introduction of the concept of the open
membership. Therefore, the appellate authority was bound to consider that
each criteria/condition/requirement laid down in the by-laws is fulfilled by the
respondent no.1 so as to direct the petitioner society to enroll him as a
member of the petitioner society. Though detailed reasons are not assigned
in the resolution of the society for rejecting the application of the respondent
no.1 for membership, nevertheless the resolution refers to the basic aims and
objects of the society that the said society is tenant ownership society and the
transaction entered between Ashokkumar Dhoot and the respondent no.1 is
without prior permission of the petitioner society and also de hors the relevant
by-laws and the provisions of the said Act and the Rules, and therefore, the
21 wp5826.11
appellate authority was bound to pay attention to the said aspect. It is true that
if all the criteria/conditions laid down in the by-laws are fulfilled by the desirous
person for becoming a member of the society, in absence of fulfillment of each
criteria laid down, the appellate authority was not correct in directing the
petitioner society to confer the membership on the respondent no.1.
Ultimately the Cooperative Housing Society and in the facts of the present
case the petitioner society, is formed and registered with certain aims and
objects and de hors said aims and objects, no contrary directions can be given
by the appellate authority in as much as without fulfilling each and every
criteria/requirement/condition, the appellate authority should not have given
directions to enroll the respondent no.1 as a member of the society.
32] 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 court cannot convert itself into court of appeal and
indulge in reappreciating 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
22 wp5826.11
Act and the Rules thereunder.
33] In the result, following order :-
(i) Both the Writ Petitions are allowed.
(ii) So far as Writ Petition No. 5826 of 2011 is concerned, the judgment
and order, dated 30.12.2008, 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 are quashed and set aside.
(iii) In Writ Petition No. 5819 of 2011, 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 are set aside.
(iv) The appeals are restored to their original file.
(v) Respondent no.2 is directed to hear and decide the appeals afresh in
accordance with law.
(vi) All the questions are left open to be agitated before the appellate
authority.
23 wp5826.11
(vii) The appellate authority should strictly adhere to the provisions of the
Maharashtra Cooperative Societies Act, 1960, the rules thereunder and the
by-laws and the judgments, if any, cited by the parties and then decide the
appeal afresh.
(viii) As already stated the respondent no.1 has stated in the affidavit in
reply that the petitioner has not acted upon the directions given by the
appellate authority, in as much as, it appears that the petitioner society has not
conferred membership on the respondent no.1. In that view of the matter, in
that respect it would depend upon the outcome of the appeal. This court has
not expressed any opinion thereon.
(ix) Rule made absolute on above terms.
(x) Both the Writ Petitions are disposed of accordingly.
(S.S.SHINDE, J.)
dbm/wp5826.11
