Awamma Nagappa Horti vs Channa Sanyukta Sheti Sahakari ...
2016 Latest Caselaw 6713 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                                     
                            WRIT PETITION NO. 1980 OF 2005




                                                            
            Smt. Awamma Nagappa Horti
            since deceased through legal heir
            1A. Shri P. Nagappa Horti, since minor
            through guardian Shri Satyappa




                                                           
            Shidsmall Maled                                     ..      Petitioners
                  vs.
            Channa Sanyukta Sheti Sahakari
            Sanstha Ltd. & Ors.                                 ..      Respondents




                                                 
            Mr. Umesh R. Mankapure with Mr. Vinod Sangvikar for Petitioners.
            Ms Manjiri Parasnis for Respondent No. 1.
                                    ig     CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 22 November 2016 Date of Pronouncing the Judgment : 28 November 2016

JUDGMENT :-

1] The petitioner (now through legal representatives) challenges

judgment and order dated 20 December 2004 made by the

Divisional Joint Registrar, Co-operative Societies, Kolhapur, by

which the Revisional Authority has set aside judgment and order

dated 17 March 2003 made by the Assistant Registrar who had

directed the respondent no. 1 society to hand over possession of

the suit property to the original petitioner, no sooner, her resignation

as a member of the society stands accepted.

            2]      The original petitioner Smt. Awamma Horti was the owner of

            property       bearing       Gat   Nos.   236/5B,        327/5B    and     238/4B



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admeasuring about 5 Ha and 90 R (suit property). In or about the

year 1969, she became a member of the respondent no. 1 society

and leased out the suit property to the society for alleged term of

25 years. Upon expiry of the lease term, Awamma Horti

demanded the return of the suit property to her. Since, the suit

property was not restored to her, she raised a dispute before the

Co-operative Court, Sangli, under Section 91 of the Maharashtra

Co-operative Societies Act, 1960 (said Act), which came to be

numbered as co-operative case no. 217 of 1984.

3] By judgment and order dated 4 June 1991, the Cooperative

Court granted substantial reliefs applied for by Awamma Horti.

However, in appeal nos. 353 and 428 of 1991 instituted by the

respondent no. 1 society, the Maharashtra State Cooperative

Appellate Court by judgment and order dated 4 October 2000 set

aside judgment and order dated 4 June 1991 made by the

Cooperative Court, Sangli, mainly on the ground that the dispute

raised by said Awamma Horti was premature, since, she had not

submitted her resignation prior to raising of the dispute and

therefore, no cause of action could be said to have arisen for her to

raise the dispute. Awamma Horti did not challenge the judgment

and order dated 4 October 2000 made by the Cooperative Appellate

Court, thereby accepting the position that the dispute raised by her

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in the first instance was premature.

4] Awamma Horti, thereafter, pursued the matter with regard to

the acceptance of her resignation as member of the respondent no.

1 society, but with no success. It is the case of the respondent no. 1

society that the suit property was barren land and the same was

substantially developed by the society at a considerable expense. It

is the case of the society that in terms of the bye-laws as well as

agreement between the parties, should Awamma Horti desire the

return of the suit property, she has to pay for the development

undertaken by the society and since, she is in arrears, there was no

question of accepting resignation or restoring the suit property to

her. At this stage, we are really not concerned with the merits of

such defence.

5] Awamma Horti, upon being unsuccessful in persuading the

respondent no. 1 society to accept her resignation and restoring the

suit property, this time, filed an application before the Assistant

Registrar of Co-operative Societies seeking directions to the

respondent no. 1 society to accept her resignation and to restore

the suit property to her. Such application is not on record.

            6]      The Assistant Registrar of Co-operative Societies by his order





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/ communication dated 17 March 2003 substantially granted

Awamma Horti reliefs applied for by her. Thereupon, the respondent

no. 1 society instituted revision application no. 368 of 2003 before

the Divisional Joint Registrar (Revisional Authority). The Revisional

Authority by impugned judgment and order dated 20 December

2004 has allowed the revision application and set aside the

Assistant Registrar's order dated 17 March 2003 holding that the

Assistant Registrar lacked jurisdiction in the matter and the proper

remedy available to Awamma Horti was to raise a dispute under

Section 91 of the said Act before the Cooperative Court.

7] Mr. Mankapure, learned counsel for the petitioners submits

that in the first round of litigation, the Cooperative Court had held

that unless the resignation of Awamma Horti is accepted, the

dispute under Section 91 of the said Act is premature. The

respondent no. 1 society, is neither accepting the resignation of

Awamma Horti for any justifiable reasons nor is the society

releasing the suit property, even though, the tenure of the lease has

long expired. Mr. Mankapure submitted that the demand for

development charges by the society is patently illegal and in any

case highly exaggerated. He submitted that the respondent no. 1

society, mainly comprises of relatives of the chairman and it is only

Awamma Horti who was non relative. He submits that the society is

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virtually exploiting Awamma Horti and now her legal

representatives, in as much as attempts were made by the society

to even mortgage the suit property for the purposes of raising loans

on behalf of the society. He submits that on basis of technicalities,

respondent no. 1 society is bent upon holding on to the suit property

and further, exploiting the same in the meanwhile.

8] Mr. Mankapure, has also filed written submissions urging that

the society has not developed the suit property but is raising

frivolous and exaggerated demands only with a view to hold on to

the suit property, which, it is not otherwise entitled to do. Mr.

Mankapure also submitted that the lease was initially for a period of

5 years but the term was extended to 25 years by practicing fraud

and overwriting. Mr. Mankapure submits that even after the expiry of

25 years, the society, is not returning the suit property to the

petitioners.

9] Mr. Mankapure, by reference to Section 25 of the said Act

submits that a person ceases to be a member of a society on his

resignation from the membership thereof being accepted or on his

death or removal or expulsion from the society. He submits that

Section 35 of the said Act empowers the Registrar of Co-operative

Societies to consider the issue of expulsion of a member. He

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submits that though, it is not expressly provided in Section 35 of the

said Act, issue of validity of resignation, can always be gone into by

the Assistant Registrar and therefore, the Assistant Registrar had

jurisdiction to make the order dated 17 March 2003 and the view

taken by the Assistant Registrar is an equitable one.

10] On the other hand, Ms. Manjiri Parasnis, learned counsel for

the respondent no. 1 society whilst disputing the contentions raised

by and on behalf of the petitioners submitted that the disputes

raised by Awamma Horti, are covered by the provisions of Section

91 of the said Act and therefore, the jurisdiction lies with the

Cooperative Court and not with the Assistant Registrar. She

submitted that as long as resignation of Awamma Horti was not

accepted by the respondent no. 1 society she continued to be a

member of the society and even the dispute with regard to non

acceptance of her resignation or the release of the suit property, are

all disputes governed under Section 91 of the said Act. She

submitted that in the first round, the dispute was not entertained as

being premature because Awamma Horti had not even submitted

her resignation before raising the dispute under Section 91 of the

said Act. By now, she submitted, the resignation has already been

tendered and the issue as to whether the same was rightly rejected

or not, is clearly a dispute covered under section 91 of the said Act.

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By adverting to the provisions of Section 91 of the said Act, she

submitted that the legal representative of late Awamma Horti, also

claim through Awamma Horti and therefore the dispute stands

covered under Section 91 of the said Act. For these reasons, Ms.

Parasnis submitted that the Revisional Authority was right in setting

aside the Assistant Registrar's order dated 17 March 2003, on the

ground that the Assistant Registrar lacked jurisdiction to either

entertain or decide a dispute under Section 91 of the said Act.

11] The rival contentions now fall for determination.

12] At the outset, it is made clear that this court, at this stage, is

not evaluating the relative merits or otherwise of the disputes

between the parties. Therefore, although much can be said about

the actions of the respondent no. 1 society obviously, this is not the

occasion to say or comment upon the same. There is however merit

in the submission of Ms Parasnis that the disputes raised by

Awamma Horti and which are now continued by her legal

representatives clearly constitute a dispute in terms of Section 91 of

the said Act. As long as the resignation of Awamma Horti was not

accepted, she continued to be a member of the respondent no. 1

society. Upon the demise of Awamma Horti, this remains a dispute

between legal representatives of Awamma Horti or persons

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claiming through Awamma Horti and the society. The dispute

relates to the business of the society therefore, the dispute, as

contended by Ms Parasnis is clearly covered under Section 91 of

the said Act. There is no question of such dispute being either

premature at this stage or being barred by any principle of res

judicata on account of the orders made in the first round. This is

now a ripe dispute covered under Section 91 of the said Act.

13]

The Assistant Registrar who made the order dated 17 March

2003 lacked jurisdiction to entertain or decide a dispute under

Section 91 of the said Act. Such dispute is required to be

adjudicated and decided by the Co-operative Court. The Revisional

Authority has also held that the dispute is one covered by Section

91 of the said Act and consequently the Assistant Registrar lacked

jurisdiction to entertain the same. There is accordingly no case

made out to interfere with the decision of the Revisional Authority.

14] Mr. Mankapure's contention on basis of reading Sections 25

and 35 of the said Act, unfortunately cannot be accepted. Section

25, no doubt provides that a person ceases to be a member of the

society upon his resignation being accepted by the society. Section

35 of the said Act, however, relates to the issue of expulsion of a

member, which is quite different and distinct from the issue of

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acceptance or non acceptance of the resignation of a member. In

this case, Awamma Horti had submitted her resignation, which was

not accepted by the society. The situation therefore is quite reverse

to that which obtains in the case of expulsion of a member from the

membership of the society. Section 35 is not attracted to a case of

this nature. Besides, Section 35, makes reference to Registrar of

Co-operative Societies and not Assistant Registrar of Co-operative

Societies. Even assuming that there is some delegation of power in

favour of the Assistant Registrar, clearly, the issue raised by the

petitioner, does not attract provisions of Section 35 of the said Act.

15] As contended by Mr. Mankapure, it does appear that

technicalities and perhaps, improper advise have resulted in the

petitioner and her legal representatives being denied, proper

adjudication with regard to their disputes. Awamma Horti has

already expired. Lease granted by her to the society, at least prima

facie, has already expired. The legal representatives are neither

paid any money by respondent no. 1 society for the use of the suit

property nor is the suit property being restored to them. If therefore,

the petitioners i.e. legal representatives of Awamma Horti raise a

dispute before the competent Cooperative Court within a period of

six weeks from today, the competent Cooperative Court is directed

to dispose of the same in accordance with law and on its own merits

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as expeditiously as possible and within a period of six months from

the date of its institution.

16] It is made clear that the observations, if any, made in this

judgment are only prima facie and the Cooperative Court need not

be influenced by them. The dispute, if instituted, by the petitioners,

is to be decided on its own merits and in accordance with law.

17] Since,

there are already orders made in some other

proceedings restraining the respondent no. 1 society from selling,

transferring, alienating or in any other manner dealing with the suit

property, orders in this regard are not being made. In the absence

of such protection, this Court was quite inclined to make some

orders, which would operate until the disposal of the dispute before

the Cooperative Court.

18] With the aforesaid observations and liberty, Rule is

discharged.

19] All concerned to act on basis of authenticated copy of this

order.

(M. S. SONAK, J.)

Chandka