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Madhya Pradesh High Court · body

2009 DIGILAW 582 (MP)

Ramakant Patel v. Vindya Nagar Grah Nirman Sahakari Samiti Maryadit, Bhopal

2009-04-30

A.K.MISHRA, SUSHMA SHRIVASTAVA

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ORDER Mishra, J. -- 1. These petitions have been preferred by the petitioners aggrieved by common order passed by the M.P. State Co-operative Tribunal, Bhopal. The Tribunal has set aside the order passed by the Deputy Registrar quashing the order of terminating the membership of the petitioners by the Vindhya Nagar Grah Nirman Sahakari Samiti Maryadit, Bhopal (hereinafter referred to as the "Society"). 2. The society is a registered Co-operative Housing Society registered under section 9 of the M.P. Co-operative Societies Act, 1960. The petitioners were the members of the society. They had been expelled from membership in the meeting dated 16.3.2008. The orders terminating their membership were served upon them on 5.8.2008. Aggrieved thereby they filed appeal u/s 19-C (IA) of the M.P. Co-operative Societies Act, 1960. The Deputy Registrar conferred with the power of the Registrar in the matter of expulsion of members from the primary society heard the appeals and allowed the same vide order dated 3.11.2008. Aggrieved by the order, Second Appeals were filed before the M.P. State Co-operative Tribunal. The Co-operative Tribunal has held the appeal not to be maintainable and at the same time has interfered in the order passed by the Deputy Registrar on the ground that the share money has been refunded. Some of the members have filed their cases before the Consumer Forum and the Consumer Forum has directed refund of the amount deposited in the society including the share capital. On the aforesaid ground appeals have been allowed and the order passed by the Deputy Registrar has been set aside. Aggrieved by the order passed by the M.P. State Co-operative Tribunal these petitions have been preferred. 3. Shri Ankit Saxena, learned counsel appearing on behalf of the petitioners has submitted that as the Tribunal has held that the Second Appeal was not maintainable before it, consequently, no interference could have been made. He has also submitted that the ground that certain members had filed their cases before the Consumer Redressal Forum and received back share capital was not taken even in the memo of appeal. Thus, factual error has been crept in the order passed by the Tribunal, Case of all the members have been treated on similar footing. He has also submitted that the ground that certain members had filed their cases before the Consumer Redressal Forum and received back share capital was not taken even in the memo of appeal. Thus, factual error has been crept in the order passed by the Tribunal, Case of all the members have been treated on similar footing. He has submitted that out of six only three members had approached the Consumer Forum and in two cases- Jagdish Prasad Patel (WP No. 3129/09) and Rajroop Patel (WP No. 3331/09) the order was passed by the Consumer Forum for refund of the amount deposited for purchase of plot, but, only one of the petitioner namely Rajroop Patel has received the amount back. Jagdish Prasad Patel has not taken the money back and in WP No. 3107/09 there is an order in favour of M.P. Patel for execution of the sale-deed of the plot. The membership had been illegally terminated without service of notice: Prior notice is mandatory under proviso to sub-section (1) of section 19-C of the Act. The decision is factually incorrect as in other petitions as the members have not taken back the money pursuant to the termination of the membership which was done in illegal manner by the society. Thus, the decision rendered by the Tribunal is liable to be set aside. 4. Shri B.R. Koshtha and Shri Gyanendra Patel, learned counsel appearing on behalf of the respondent society have supported the order passed by the Co-operative Tribunal, however, on facts they have not disputed the approach having been made by only the three of the petitioners to the Consumer Forum and in the case of two members only there was order passed for refund of the amount and in the case of one member there was an order of execution of sale-deed of the plot. Counsel has submitted that several notices were given to deposit the amount else to face the termination of membership which had been ignored and overlooked by the Deputy Registrar while passing the order. 5. It is also not disputed at bar that no enquiry was conducted by the Deputy Registrar, Co-operative Society, he had simply called for the file and thereafter passed the order. 6. It is also not disputed that six members had not approached the Consumer Forum. Only 3 of them filed the cases and aforesaid orders were passed. 5. It is also not disputed at bar that no enquiry was conducted by the Deputy Registrar, Co-operative Society, he had simply called for the file and thereafter passed the order. 6. It is also not disputed that six members had not approached the Consumer Forum. Only 3 of them filed the cases and aforesaid orders were passed. It is also not disputed on facts that only one of the members had taken back the money after termination of the membership by the society and there was also an order passed by the Consumer Forum for refund of the amount by the society paid for the purpose of purchase of the plot. Thus, the orders passed by the Tribunal generalizing the incumbent allowing the appeal on the ground that the share capital has been taken back by them is factually incorrect. In fact share capital was sought to be refunded by the society while passing order of termination of membership. Other five members had not taken back their share capital, is not disputed on facts. While terminating the membership the order which was sent of termination of membership indicated that they were free to collect their share capital, that would not be enough so as to defeat the right of the member to assail the validity of the order passed by the society in the matter of termination of their membership. On facts, case of each individual required independent adjudication, the order passed by the Tribunal cannot be sustained. It is admitted fact that the five of the members had not taken back their share capital. The fact is not disputed that this point was not raised in the memo of appeal that some of the members had approached the Consumer Forum. Even the order passed by the Consumer Forum was not placed before the Co-operative Tribunal is also not disputed. Consequently, the order passed by the Co-operative Tribunal is liable to be set aside same is hereby quashed. 7. With respect to order passed by the Deputy Registrar, it is also conceded that no enquiry was conducted. Appeal was in the form of original proceedings. Though record was seen, but, it is submitted that in the record there were several notices to deposit amount else face tem1ination of membership, which have been ignored by the Dy. Registrar while passing the order. Appeal was in the form of original proceedings. Though record was seen, but, it is submitted that in the record there were several notices to deposit amount else face tem1ination of membership, which have been ignored by the Dy. Registrar while passing the order. The members were asked to deposit money or else to face tem1ination of membership, thereafter membership was terminated. In the circumstances, we deem it appropriate to set aside the order passed by the Deputy Registrar also and direct him to hold enquiry, give opportunity to parties to submit affidavits and documents, in case prayer is made for cross-examination of the witnesses the same shall be afforded by the Deputy Registrar as agreed to by the learned counsel for the parties. As appeal is in the nature of original proceedings, in case of disputed facts the aforesaid recourse should have been adopted. Deputy Registrar shall look into the aspect whether prior notices were given before tern1ination of membership, he shall also look into what is effect of the order passed by the Consumer Forum. The orders passed by the Consumer Forum to be placed on record before the Deputy Registrar as they may have relevance on member's right to purchase the plot and to continue with the membership. 8. Consequently, writ petitions are allowed. The orders passed by the Co-operative Tribunal and the Deputy Registrar are hereby set aside. Case is remitted to the Deputy Registrar to hold the enquiry into the aforesaid aspect and to render a fresh and considered decision in accordance with law within a period on months from the date of first appearance of the parties. Parties to appear before the Deputy Registrar on May 12th, 2009. No costs.