METROPOLITAN CO-OPERATIVE HOUSING SOCIETY LTD v. REGISTRAR OF CO-OPERATIVE SOCIETIES, WEST BENGAL
2005-05-01
SOUMITRA SEN
body2005
DigiLaw.ai
S. SEN, J. ( 1 ) IN this application the petitioner has challenged an order passed by the Registrar of Co-operative Societies dated 30th of march, 2005, whereby some of the respondents herein have been added as a party in the dispute Case No. 63/rcs of 2003-2004 (Smi. Minati Seal v. Metropolitan Co-operative Housing Society Ltd.) ( 2 ) THIS matter has a chequered history. It appears from the records that the parties are litigating almost for nearly 20 years. The Metropolitan Co-operative Housing Society Ltd. (hereinafter referred to as the said Society) was registered in the year 1966. The election of the Board of Directors was for the first time held in the year 1982. ( 3 ) SOME of the members filed a writ petitioner challenging the said election whereupon an order was passed on 30th of January, 1985 dissolving the Board of Directors with a direction upon the respondent No. 1 that is the Registrar of the Co-operative Societies to appoint an Administrator not only to manage the affairs of the Society but also to hold in the election of the Board of Directors of the Society. An appeal was preferred against the said order and by an order dated 30th of September, 1985, the Hon'ble Division Bench affirmed the order passed by the learned single Judge. ( 4 ) BETWEEN the 1985-1989 various administrators were appointed and in 1989 one Sambhu Prasad Mitra was appointed as the administrator of the said Society. Curiously enough though there was a clear direction both by the learned single Judge as well as by the Division Bench to hold an election no such election was held for years together. Accordingly, in May, 2003, 147 members of the Society which is otherwise constituted of over 600 members filed an application before the Hon'ble Division Bench, inter alia, praying for removal of Sambhu Prasad Mitra as an Administrator and for appointing another person in his place and also to hold election of the Board of Directors of the said Society. ( 5 ) BY an order dated 28th of August, 2003, the Hon'ble Division bench removed the said Sambhu Prasad Mitra from the post of an administrator and appointed one Dr.
( 5 ) BY an order dated 28th of August, 2003, the Hon'ble Division bench removed the said Sambhu Prasad Mitra from the post of an administrator and appointed one Dr. Surath Kumar Biswas, Joint registrar of the Co-operative Societies, Government of West Bengal as the new Administrator of the said Society with a direction to hold the election of the Board of Directors within a period of 6 months from the date of the said order. ( 6 ) THE said election was accordingly held on 28th of January, 2004. Compliance Report in respect of the said election was filed by the administrator before the Hon'ble Division Bench on 15th of March, 2004. ( 7 ) AFTER the election was held some of the respondents herein filed an application being CAN No. 4357 of 2003 for appropriate reliefs contending that the election was not held in a fair manner. A Division bench of this Hon'ble Court by an order dated 15th of March, 2004, disposed of the said application by observing that since election has already been completed the aggrieved party is at liberty to approach the appropriate forum under the Co-operative Societies Act. Prior to passing the said order the respondent No. 2 had already filed a dispute case under section 95 of the West Bengal Co-operative Societies Act, 1983 (hereinafter) referred to as the said Act ). The applicants in the can application did not raise any dispute with regard to the election until the time mentioned hereinafter. ( 8 ) IN the proceeding, which was pending prior to the passing of the order dated 15th of March, 2004, respondent Nos. 3-7 filed an application for addition of party. By the impugned order the said respondents were added as a party defendant in the proceeding before the Registrar of Co-operative Society. On behalf of the petitioner it has been submitted that overwhelming majority of the members of the Society wanted that an election should be held and pursuant thereto after a great deal of difficulty and after almost 20 years an election has been held. It is submitted that no case has been made out as to why the said respondent should be added as a party in the proceeding initiated by the respondent No. 2.
It is submitted that no case has been made out as to why the said respondent should be added as a party in the proceeding initiated by the respondent No. 2. My attention has been drawn to the application filed for addition of party wherein it has been contended by the said respondents that the respondent No. 2 will not be able to effectively contest the proceeding, therefore, the petitioner should be added. It is also submitted that no case has been made out as to why the said respondent should be considered a necessary and proper party in the said proceeding. It is true that the dispute relates to the election but that by itself does not constitute a cause of action in rem. An individual member might have a grievance with regard to the election such cause of action may or may not be supported by others. Therefore, merely because the dispute relates to an election it does not necessarily mean that dispute has assumed a representative character and every person having grievance is required to be added in the proceeding. Moreover, in an application of addition of party no specific case has been made out as to why the applicants should be considered as a necessary and proper party. In my opinion, the application filed for addition of party does not mention anything with regard to the fact that the proceeding initiated by the respondent No. 2 herein cannot be effectively adjudicated in absence of the said respondents who had been added as a party to the said proceeding. The inefficiency of a party to proceed with his or her proceeding cannot be a ground to implead others. Under section 95 of the West Bengal Co-operative Societies Act, 1983 (hereinafter referred to as the said Act) a time limit is fixed within which time a dispute may be referred. Under sub-section (3) of section 95 the Registrar has the power and/or authority to accept any dispute after the expiry of the period of limitation, if the applicant satisfies the Registrar that he had sufficient reasons for not referring the disputes within such period of limitation. The cause of action of the said respondents to refer the disputes in terms of section 95 arose as soon as the division Bench passed the order on 15th March, 2004.
The cause of action of the said respondents to refer the disputes in terms of section 95 arose as soon as the division Bench passed the order on 15th March, 2004. They did not choose to refer the dispute but are now seeking to be added as a party in the dispute which was pending as on that date. On behalf of the respondents it has been submitted since the dispute is regarding election any member has a right to challenge the same. It was further submitted that once an application has been accepted by a Tribunal it should be deemed that the period of limitation has been condoned. It was also submitted that in order to add a necessary party there is no period of limitation. In support of the above propositions the respondents have stated the following decisions:-1) AIR 1953 Bombay 284 2) AIR 1960 Calcutta 718 3) AIR 1969 Mysore 398 4) AIR 1962 SC 1277 5) 1999 (2) SCC 577 ( 9 ) IN my opinion, the above Judgments are of no assistance to the respondents. I have already held that the proceedings may be in connection with an election but that by itself would not assume a representative character. Every person may have different reasons to challenge an election. ( 10 ) THE question of condoning the delay impliedly would arise only if the respondents filed an application under section 95 and if that is accepted without any specific finding as to the question of limitation. ( 11 ) SINCE there is a prescribed period of limitation contained in section 95 which period of limitation has obviously expired as far as the said respondents are concerned, unless the said respondents file an application explaining the delay and unless the said application is accepted by the Tribunal the question of condoning the period of limitation cannot and does not arise. The respondent cannot resort to this subterfuge to by-pass the specific provisions of limitations by trying to join in another proceeding which was admittedly pending prior to the passing of the order of the Division Bench as mentioned above.
The respondent cannot resort to this subterfuge to by-pass the specific provisions of limitations by trying to join in another proceeding which was admittedly pending prior to the passing of the order of the Division Bench as mentioned above. ( 12 ) THERE is no finding in the impugned order as to whether without impleading the respondents the proceedings could not be effectively disposed of and/or adjudicated upon unless there is such a specific finding it cannot be contended that the said respondents are necessary and proper party in the said proceeding. ( 13 ) IT was also submitted on behalf of the respondent-authorities that by not impleading the respondents it would lead to multiplicity of judicial proceeding. I am unable to accept the said submission for the simple reason that by impleading the respondents an opportunity has been given to each one of the respondents to raise their independent objections with regard to the election, which would in effect lead to the multiplicity of the proceeding. If the persons who wish to challenge the election can file independent proceeding under section 95 of the said Act, those applications can be effectively adjudicated upon analogously and would cause no prejudice to anyone. ( 14 ) IN a Society, which has over 600 members, there is every possibility that there would be some disgruntled member. But this should not stand in the way of the wishes of the overwhelming majority who wants to put an end to all the issues and proceed to deal with the Society by a duly elected Board of Directors. ( 15 ) THE grounds given in the application for addition of party, in my opinion, are not enough to allow the respondents to be added as the party in the pending proceedings. Though in the matter of addition of party the Courts have been extremely lenient but however, it must be shown that the party intending to be added as a party is one, in whose absence the proceeding cannot be effectively adjudicated. The case which is sought to be made out that the respondent No. 2 who has initiated the proceeding is not in a position to conduct the proceeding effectively is no ground at all for impleading a party. The aforesaid view has been taken in the decision of Girdhari Lal v. Nagar parisad and Anr. reported in AIR 1988 Rajasthan 128.
The aforesaid view has been taken in the decision of Girdhari Lal v. Nagar parisad and Anr. reported in AIR 1988 Rajasthan 128. ( 16 ) A Co-operative Society functions under a democratic principle and the wishes of the majority should be honoured. In the instant case, I find that apart from these respondents the overwhelming majority of the members wanted an election to be held and after the same has been held they want that it should be given due effect. In view of the matter, in my opinion, that the impugned order has been passed erroneously and the same is accordingly set aside. The writ petition succeeds in the manner as indicated above. There will be no order as to costs. Writ application succeeds.