Bombay High Court
Punjabrao Sukhdeorao Nakhate ... vs The State Of Maharashtra And ... on 27 July, 2017
Bench: R.V. Ghuge
WP/2927/1992
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2927 OF 1992
WITH
CIVIL APPLICATON (ST) NO. 22802 OF 2017
Panjabrao Sukhdeorao Nakhate
Since deceased, through L.Rs.
A. Latabai Panjabrao Nakhate,
Aged 58 years, Occ. Household,
R/o Shikshan Colony, Tq. Pathri
District Parbhani.
B. Prajakta d/o Panjabrao Nakhate
@ Prajakta w/o Keshav Ingole
Aged 39 years, Occ. Household
R/o Aadas, Tq. Kaij, Dist. Beed.
C. Pranjali s/o Panjabrao Nakhate
@ Pranjali w/o Vaibha Andhare
Aged 37 years, Occ. Household
R/o Jivan Jyot Hospital,
Shubh Avenue Building
Shop Nos.1 and 2, Flat No.101,
Plot No.59(C), Sector 21,
Kamathe, Tq. Panvel, District
Raigad, Navi Mumbai.410209.
D. Parag Panjabrao Nakhate,
Aged 35 years, Occ. Service,
R/o Shikshan Colony, Tq. Pathri
District Parbhani.
E. Pankaj Panjabrao Nakhate,
Aged 33 years, Occ. Advocate
R/o Shikshan Colony, Tq. Pathri
District Parbhani. ..Petitioners
Versus
1. The State of Maharashtra
::: Uploaded on - 29/07/2017 ::: Downloaded on - 08/08/2017 01:52:26 :::
WP/2927/1992
2
2. The Joint Registrar,
Cooperative Societies,
Aurangabad.
3. The Taluka Dy. Registrar,
Cooperative Societies,
Aurangabad.
4. Jaibhawani Cooperative Housing
society Ltd. Garkheda, Aurangabad
Through its Administrator
C/o Taluka Dy. Registrar,
Cooperative Societies, Aurangabad.
5. Babasaheb Apparao Akat,
Age 30 years, Occ. Agriculture,
R/o Satona, Tq. Partur, Dist. Jalna. ..Respondents
...
Advocate for Petitioner : Shri S.S. Choudhary
AGP for Respondents 1 to 3 : Shri S.K. Tambe
Respondents 4 & 5 : Absent
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: July 27, 2017
...
ORAL JUDGMENT:
1. By this petition, the petitioner has putforth prayer clause
(B), which reads as under:-
" (B). The order contained in the letter dated 26 th April,
1991 issued by the Administrator of the respondent No.4,
the order contained in the letter dated 11 th February,
1991 issued by the Taluka Dy. Registrar, Co-op. Societies,
Aurangabad granting approval, and the judgment and
order passed by the Joint Registrar, Co-op. Societies,
WP/2927/1992
Aurangabad on 6th August, 1992 in Case No.284/1991
may please be quashed by issuing Writ or Certiorari or
Orders or directions or any other appropriate writ in the
nature of Writ of Certiorari."
2. Though this matter has been adjourned over the last one
and half years, none has appeared for respondents 4 and 5. As
such, I have considered the submissions of Shri Choudhary,
learned Advocate for the petitioner and learned AGP on behalf of
respondents 1 to 3.
3. Issue is as regards the cancellation of the membership of
the petitioner by respondent No.4 / Society, by communication
dated 26.4.1991 on the basis of a resolution passed after
receiving a communication by the Deputy Registrar, Cooperative
Societies, dated 11.2.1991, directing respondent No.4 to cancel
the membership of the petitioner.
4. Shri Choudhary has pointed out the document dated
26.11.1983, which is a communication to the petitioner for
depositing some amounts. The ownership certificate issued by
the Society with regard to the Plot No.6, S. No. 62, by which, the
petitioner was granted the ownership after a resolution was
passed in the Annual General Body meeting on 26.1.1984 is on
WP/2927/1992
record. He was thus shown to be the owner of plot No.6.
5. Subsequently, it appears that the petitioner was allotted
one more plot by Shri Babasaheb Apparao Akat, who claimed to
be the Chairman of the said society.
6. It is not in dispute that the membership of the petitioner
has been cancelled as he has failed to pay an amount of about
Rs.11,000/- to the society, though he claims to have paid the
said amount to Babasaheb. The record of the society reveals that
the said amount was never deposited with the society either by
the petitioner or by Babasaheb.
7. Learned counsel for the petitioner has specifically raised
his challenge to his expulsion on the following grounds:-
(a) Notice of hearing as contemplated under Section 35
of the Maharashtra Cooperative Societies Act and Rule 29 of
the Rules of 1961, was not given to the petitioner.
(b) No opportunity of hearing in the Special General
Body Meeting on the issue of expulsion was given to the
petitioner.
(c) Opportunity of hearing by the Registrar of
WP/2927/1992
Cooperative Societies was not given to him under Rule
29(2) of the Rules.
8. This case pertains to the year 1991. Section 35 of the Act
as it stood then, prior to any amendment, reads as follows:-
" 35. Expulsion of members.-(1) A society may, by
resolution passed by a majority of not less than three-
fourths of the members entitled to vote who are present at a
general meeting held for the purpose expel a member for
acts which are detrimental to the interest or proper working
of the society:
Provided that, no resolution shall be valid, unless the
member concerned is given opportunity of
representing his case to the general body, and no
resolution shall be effective unless it is approved by
the Registrar.
(2) No member of a society who has been expelled under the
foregoing sub-section shall be eligible for re-admission as a
member of that society, or for admission as a member of any
other society, for a period of one year from the date of such
expulsion:
Provided that, the Registrar may, on an application
by the society and in special circumstances, sanction
the re-admission or admission, within the said
period, of any such member as a member of the said
society or of any other society, as the case may be."
WP/2927/1992
9. Similarly, Rule 28 and 29, prior to the amendment on
13.8.2014, reads as under:-
"28. Expulsion of Members:-Any member who has been
persistently defaulting payment of his dues or has been
failing to comply with the provisions of the by-laws
regarding sales of his produce through the society, or other
matters in connection with his dealings with the society or
who, in the opinion of the committee, has brought disrepute
to the society or has done other acts detrimental to the
interest or proper working of the society may, in accordance
with the provisions of sub-section (i) of Section 35, be
expelled from the society. Expulsion from membership may
involve forfeiture of shares held by the member.
29. Procedure for expulsion of members:- (1) Where any
member of a society proposes to bring a resolution for
expulsion of any other member, he shall give a written
notice thereof to the Chairman of the society. On receipt of
notice or when the committee itself decides to bring in such
resolution, the consideration of such resolution shall be
included in the agenda for the next general meeting and a
notice thereof shall be given to the member against whom
such resolution is proposed to be brought, calling upon him
to be present at the general meeting to be held not earlier
than a period of one month from the date of such notice and
to show cause against expulsion to the general body of
members. After hearing the member, if present, or after
WP/2927/1992
taking into consideration any written representation which
he might have sent, the general body of members shall
proceed to consider the resolution.
(2) When a resolution passed in accordance with sub-rule
(1) is sent to the Registrar or otherwise brought to his
notice, the Registrar may consider the resolution and after
making such enquiries as he may deem fit, give his approval
and communicate the same to the society and the member
concerned. The resolution shall be effective from the date of
such approval."
10. There is no dispute that after the above provisions
underwent an amendment in 2014, the member sought to be
expelled is required to be given an opportunity of hearing even
by the Registrar before confirming the resolution passed by the
Society sanctioning his expulsion.
11. Though Shri Choudhary has strenuously canvassed, on the
basis of which I have formulated his three challenges in the
foregoing paragraphs, that the record before the Divisional Joint
Registrar, Cooperative Societies indicates that a public notice
was published in Marathi Daily Lokmat on 5.3.1990 and Daily
Marathwada on 8.3.1990 calling upon the members to pay the
outstanding development charges. So also, a personal notice
dated 10.10.1990 was served upon the petitioner calling upon
WP/2927/1992
him to attend the General Body Meeting on 25.11.1990 to
explain his case on the proposed expulsion. The petitioner is said
to have remained absent in the said meeting. Consequentially,
the resolution was passed expelling him from the membership.
12. The document placed on record dated 11.2.1991 is not a
direction by the Deputy Registrar, Cooperative Societies to
respondent No.4 / Society to expel the petitioner from
membership, but is a communication under Rule 29(2) that the
approval to the expulsion is being granted and the procedure
followed by the society is in accordance with the Rules applicable
and the action deserves to be approved.
13. Keeping in view that this Court is considering this matter
under it's supervisory jurisdiction, the findings on facts arrived at
by the authorities below cannot be discarded merely because the
petitioner claims that he was not given any opportunity of
hearing. The findings of the authorities below, which are based
on the record, clearly indicate an opportunity of hearing granted
to the petitioner.
14. Considering the effect of the above factors, it appears that
the petitioner was called upon to participate in the General Body
WP/2927/1992
Meeting on 25.11.1990 and since he chose to remain absent, he
was expelled from the membership. In the light of the same, this
petition being devoid of merits is, therefore, dismissed. Rule is
discharged.
15. The pending Civil Application does not survive, and it
stands disposed off.
( RAVINDRA V. GHUGE, J. )
...
akl/d
