Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 1593 (BOM)

CHANDRAPUR AUSHNIK VIJ KENDRA KARMACHARI PATH SANSTHA, CHANDRAPUR v. DIVISIONAL JOINT REGISTRAR, CO-OPERATIVE SOCIETIES, NAGPUR

2007-11-02

A.B.CHAUDHARI

body2007
JUDGMENT: - Rule. Heard forthwith by consent of parties. Heard respective counsel appearing in both the matters. These petitions can conveniently be disposed of by this common judgment. Facts Writ Petition No. 3211 of 2007: 2. In this petition, the petitioner has challenged the appellate Order dated 25-6-2007 made by the respondent No.1. The petitioner Society, taking recourse to bye-law No. 40 of the Society, issued notices to respondents No.3 to 6 asking for their explanation as to why they should not be removed for not attending consecutive six meetings between 24-6-2006 and 14-10-2006. The respondents No. 3 to 6 did not reply to the communication asking them to show cause and instead, they filed dispute on 17-10-2006 in the Co-operative Court praying that the meeting to be held on 18-10-2006 in which there was a proposal to remove them from the Managing Committee was to be discussed be declared illegal but they did not get any order from the Co-operative Court for stay of the said meeting dated 18-10-2006. In the meeting which was held on 18-10-2006, the Managing Committee found that despite giving opportunity to respondents No.3 to 6 to show cause or furnish explanation as to why they did not attend consecutive meetings, respondents No. 3 to 6 did not respond and in the absence thereof, in terms of bye-law No. 42, resolution was passed for their removal. It appears that thereafter the Society intimated the Assistant Registrar, Co-operative Societies, Chandrapur by endorsing a copy thereof and respondent No.2 issued show cause notice under section 78 of the Maharashtra Co-operative Societies to respondents 3 to 6 calling upon them to explain as to why they should not be removed. The show-cause notice was obviously issued on the basis of their removal in the meeting dated 18-10-2006. The Assistant Registrar made an order under section 78 of the Act removing respondents No.3 to 6. That order came to be challenged before the Appellate Authority i.e. respondent No. 1 by respondents No.3 to 6 who entertained the appeal and set aside the order made by the 2nd respondent removing respondents No. 3 to 6. Hence, this writ petition. Writ Petition No. 3801 of 2007: 3. In this writ petition, there is a challenge to the Order dated 25-6-2007 made by the Appellate Authority viz. Hence, this writ petition. Writ Petition No. 3801 of 2007: 3. In this writ petition, there is a challenge to the Order dated 25-6-2007 made by the Appellate Authority viz. the Divisional Joint Registrar who set aside the order dated 6-3-2007 made by the Assistant Registrar, Co-operative Societies, Chandrapur superseding the Managing Committee of respondent No.3 Society and appointing the Administrator. It appears that on 12-12-2006, the 2nd respondent issued show-cause notice under section 78(1) of the Maharashtra Cooperative Societies Act to the Managing Committee of the respondent No.3 Society mainly on the ground that there existed dispute in the Managing. Committee members. As a result, two rival groups have come to the fore fighting with each other. It appears that the resolution of removal of about four members from the Managing Committee passed on 18-10-2006 was the point of ignition of the said action being taken by the respondent No.2. On the basis of the said show-cause notice, the 2nd respondent made an order on 6th March, 2007 removing the entire Managing Committee of the respondent No. 3 Society and appointed Administrator in its place. Being aggrieved by the said order, the respondent No.4 filed appeal before the Appellate Authority viz. the Divisional Joint Registrar. That appeal came to be allowed under the impugned order made by the Authority. Hence, this writ petition. Arguments 4. Mr. P. D. Meghe, the learned counsel appearing for the petitioner in Writ Petition No. 3211 of 2007 also argued on behalf of respondents No.3 to 11 in Writ Petition No. 3801 of 2007 while Mr. D. V. Siras and Mr. N. R. Bhisikar, learned counsel argued on behalf of petitioners in Writ Petition No. 3801 of 2007 and respondents Nos. 3 to 6 in Writ Petition No. 3211 of 2007. 5. Mr. P. D. Meghe argued that bye-law No. 40 of the Society provides for removal of a member of Managing Committee if he is absent consecutively for four meetings and accordingly, action was taken against respondents No.3 to 6 after issuing them letters seeking their explanation about their absence. He then argued that though they filed dispute in the Co-operative Court, no orders staying the meeting dated 18-10-2006 were made by the Co-operative Court and the dispute is still pending. He then argued that though they filed dispute in the Co-operative Court, no orders staying the meeting dated 18-10-2006 were made by the Co-operative Court and the dispute is still pending. Consequently, according to him, in the said meeting resolution for removal of respondents No. 3 to 6 was passed and they stood removed in terms of Bye-law No. 40. He then argued that remedy against the said passing of resolution could at the most be in a pending dispute filed by the respondents No.3 to 6 in the Co-operative Court and, therefore, according to him, the Divisional Joint Registrar had no jurisdiction to entertain the matter. While arguing for respondents No.3 to 11, Mr. Meghe argued that the Appellate Authority has found that mere existence of two groups in a co-operative society fighting with each other is not a ground for supersession of Managing Committee and appointment of Administrator in its place and, therefore, according to him, the Appellate Authority has rightly interfered with the order of supersession. 6. Per contra, Mr. D. V. Siras and Mr. Nitin Bhisikar, learned counsel for respondents 3 to 6 in Writ Petition No. 3211 of 2007 argued that as a matter of fact, the Assistant Registrar had initiated action under section 78 of the Act against the respondents No.3 to 6 and pursuant to that, they were removed. That order of removal was appellable as the same was passed under section 78(1) of the Act and, therefore, the respondents 3 to 6 rightly preferred appeal before the Appellate Authority. They then argued that the Appellate Authority has found a very serious defect in the action of removal which is apparent from the order of the Appellate Authority viz. want of requisite notice of five days as per bye-law No. 43. The learned counsel submitted that because of existence of rival group in the co-operative society, the management of the Society was affected and, therefore, there was no alternative but to remove the Managing Committee and appoint administrator in its place. Both of them, therefore, argued that the appellate order was illegal and liable to be quashed and set aside. Consideration 7. Both of them, therefore, argued that the appellate order was illegal and liable to be quashed and set aside. Consideration 7. In the light of the submissions made by the learned counsel for rival parties in both the writ petitions, at the outset, I find that bye-law No. 40 operates independently and provides for removal of a member of Managing Committee in case there is a failure to attend on his part four consecutive meetings. It is undisputed that respondents No.3 to 8 had received letters or communications in the nature of show-cause notice for their failure to attend six consecutive meetings and none of them has any explanation to offer. Not only that, in the meeting dated 18-10-2007, no explanation was furnished and as a result thereof, resolution to remove them was passed by the Managing Committee. 8. The respondents No. 3 to 6 challenged the action of the Society in convening the meeting on 18-10-2006 proposing removal of the respondents No.3 to 6 and by filing a dispute in the Co-operative Court which is pending in the said Court. The 2nd respondent Assistant Registrar has no role to play in the above fact situation. However, it appears that merely because copy of the said resolution was given to the Assistant Registrar, he initiated the proceedings under section 78(1) of the Act and then made an order removing them on the basis of the said revolution dated 18-10-2006. There was absolutely no need for the Assistant Registrar to take action under section 78(1) of the Act since against the removal under bye-law No. 40 of a member of managing committee, the only remedy available to them was to challenge the validity of the meeting or their removal in a dispute before the Co-operative Court which admittedly they have filed. Hence, in my opinion, the order made by the Assistant Registrar under section 78(1) of the Act itself was without jurisdiction. Further, the Divisional Joint Registrar/Appellate Authority instead of realizing the mistake of the Assistant Registrar entertained the appeal against the order made by the Assistant Registrar under section 78(1) of the Act and also allowed the same. Since the original order made under section 78(1) itself was without jurisdiction, the appellate order consequently must go. It appears that the respondents 3 to 6 have adopted a wrong remedy. Since the original order made under section 78(1) itself was without jurisdiction, the appellate order consequently must go. It appears that the respondents 3 to 6 have adopted a wrong remedy. In view of this legal position, it will have to be held that the impugned orders passed by the respondent No. 1 and 2 are without jurisdiction and hence, the same will have to be quashed and set aside. 9. Insofar as impugned order in Writ Petition No. 3801 of 2007 is concerned, the only reason for which the Managing Committee of the Society has been superseded is that there is quarrel amongst the members of the managing committee and consequently, two rival groups have been formed. The Appellate Authority has rightly observed that assuming that two rival groups have been formed in the Managing Committee, the affairs of the Society will have to be conducted by majority and since there is a majority on one side, mere dispute amongst the members of the Managing Committee cannot be a ground to supersede the entire elected Managing Committee. In my opinion, the reasoning adopted by the Appellate Authority is correct and in tune with the principles of democracy. I, therefore, do not find any error in the impugned order. 10. In the result, following order is made: (1) Writ Petition No. 3211 of 2007 is allowed. Rule is made absolute in terms of prayer clause (a). In addition, the impugned order made by the 2nd respondent on 5-4-2007 at Annexure-H to the petition is also quashed and set ~side being without jurisdiction. No order as to costs. (2) Writ Petition No. 3801 of 2007 is dismissed. Rule discharged with no order as to costs. Petition dismissed.