JUDGMENT: Taken out from the final hearing board. Heard finally by consent of the parties. 2 By this common Judgment, I am inclined to dispose of all these Writ Petitions filed by the members of Respondent No.5 Society, who were expelled from the membership and the said decision of the Society was approved under Section 35 of the Maharashtra Cooperative Societies Act, 1960 (for short, the MCS Act). It is further confirmed by the Appellate Authorities, therefore, all these Writ Petitions. 3 There is no serious dispute to the fact that the Petitioners become members of Respondent No.5Society by paying necessary and requisite charges towards the entrance fees, share money, donation etc. and in pursuance to that, their names were duly recorded in “I” & “J” Register of the Society some time in the year 197980. Respondent No.5Society entered into the Development Agreement. The Petitioners' names were included in the list of members of the Society, annexed to agreement dated 31 March 1981 itself. The respective Petitioners made requisite payment to the Developer/Contractor towards the construction cost of the flats. The same was even confirmed by the Society on 30 March 1984. Further payments were also made when actual construction of building No.2 commenced. Because of the dispute between the members of Respondent No.5 and the Developer/Contractor, the Petitioners filed Disputes in the year 1987 against the Society. On the date of impugned orders, those disputes were pending. The Society, even withdrew the Appeals challenging injunction order dated 30 May 1987 against them from dispossessing the Petitioners from the flat alloted. That was done in the year 1990. 4 The Society, as stated, illegally and without following due procedure in the year 1994, deleted the names of the Petitioners from the membership list and records and created third party membership rights. The Petitioners, therefore, lodged a complaint in the year 2000 and an inquiry was held under Section 83 of the MCS Act. It was held by the Enquiry Officer on 24 September 2001, that this action/transfer of membership, including of all the Petitioners, were illegal and required a corrective step. The election disputes were also pending at the relevant time. 5 In the Managing Committee meeting of the Society dated 31 July 2005, the issue of expulsion of the Petitioners was considered. It was held by the Enquiry Officer on 24 September 2001, that this action/transfer of membership, including of all the Petitioners, were illegal and required a corrective step. The election disputes were also pending at the relevant time. 5 In the Managing Committee meeting of the Society dated 31 July 2005, the issue of expulsion of the Petitioners was considered. On 4 October 2005, the requisite notices were stated to be issued to the Petitioners on the old and incomplete addresses. On the same day, the paper publication in two newspapers “Nav Shakti” and “Free Press Journal” were also issued. The statement is made by the learned counsel appearing for the Petitioners, on instructions, that those two newspapers were never subscribed by them and they never read those two papers, at the relevant time and till this date also. The notices were then again sought to be served by courier services on 19 October 2005. The packets addressed to the Petitioners referring to notice dated 4 October 2005, returned unserved with remarks “require building name, Plot Nos., short and insufficient address etc.”. The fact of return of those letters, is not in dispute or at least there is no further material to justify that the Society, before taking further action, duly served the requisite notices of membership expulsion. In the Special General Body Meeting of Society dated 5 November 2005, therefore, the Petitioners, for want of service/notice/communication not appeared and/or participated. In the Special General Body Meeting dated 5 November 2005, it is stated that one member Vipul Dharod, the Petitioner in Writ Petition No. 2855 of 2008, was present at about 11.10 a.m. The reason for his attendance on that date, in any way, not sufficient to deny and/or overlook the factual situation of non-receipt and/or non-service of requisite notices, as recorded above. All these Petitioners case, who are expelled from membership based upon the mandatory un-served notices, in my view, therefore, need to be tested in accordance with law. All these Petitioners case, who are expelled from membership based upon the mandatory un-served notices, in my view, therefore, need to be tested in accordance with law. 6 Admittedly, in the General Body Meeting, the Society though noted that the Petitioners could not be served for want of correct and detailed address, and as the Society forwarded the notices on the basis of pending record of litigations and as the Society did not have any other correct address and as they issued public notices in two newspapers on 4 October 2005, and as all those members inspite of above publication and the issuance of notices, were failed to appeared and put their cases and therefore, proceed to expel them and passed the resolution accordingly by stating it to be unauthorized membership by treating them as an “unauthorized members” after so many years. 7 Strikingly, when the Applications were forwarded as contemplated under Section 35 of the MCS Act, the Assistant Registrar, also accepted the resolution and approved the action of expulsion of membership, by further observing that “the Respondent neither remained present for the said meeting nor submitted her say in writing”. Various comments were also made by accepting the contentions of the Society that they were unauthorized members of the Society. The Appeals preferred by the Appellants/Petitioners under Section 152 of the MCS Act were also dismissed by order dated 2 January 2007 by the Divisional Joint Registrar, Cooperative Societies, so also the Revisions under Section 154 of the MCS Act. 8 Section 35 of the MCS Act is reproduced as under:“ 35. Expulsion of members (1) A society may, by resolution passed 1[by a majority of not less than threefourths] 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 an 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 subsection shall be eligible for readmission 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 readmission 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”. 9 Relevant Rules 28 and 29 of the Maharashtra Cooperative Societies Rules, 1961 (for short, “the MCS Rules”) read thus:“ 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 bylaws 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 2[or for the reasons mentioned in section 26 of the Act,] may, in accordance with the provisions of subsection (1) 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 1[general body meetings] 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 1[general body meetings] 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 taking into consideration any written representation which he might have sent, the general body of members shall proceed to consider the resolution. After hearing the member, if present, or after 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 2[along with application, the Registrar may consider the resolution and after due inquiry and giving reasonable opportunity of being heard to such member give his decision within ninety days from the date of receipt of application and communicate the same to the society and the member concerned.] The resolution shall be effective from the date of such approval.” 10 The aspect of their membership claim, based upon the respective Petitioners case and contentions, as they were members of the newly formed Society in the year 197980, why shares were not alloted and why their names were deleted from the original registers and what is the justification for treating such members as “unauthorized members”, in my view, just cannot be gone into the writ jurisdiction for the first time, at this stage of the proceedings, basically for the reasons that admittedly, in the Special General Body Meeting, they were not present and as recorded above, for want of legal and proper service of notices, they unable to participate and put their case to such allegations. The Society also, as recorded, not served the Petitioners before taking such drastic action behind their back. The expulsion of members itself contemplate the existence of membership. The unilateral observation treating them as “unauthorized members”, again without giving opportunity to them, in my view, is in a clear breach of provisions of settled law, apart from a basic principle of natural justice. The decision, therefore, so taken by the Society, though stated to be unanimous decision, in view of above position, is unacceptable. The majority decision of any Society needs to be respected only if the Society and/or its Managing Committee takes appropriate decision by giving opportunity to the person concerned. The opportunity and the procedure need to be followed as prescribed and provided including written notices and the opportunity to put their case, are missing in the present cases. This, in my view, goes to the root of the matter. It is clearly in breach of the provisions of law. The opportunity and the procedure need to be followed as prescribed and provided including written notices and the opportunity to put their case, are missing in the present cases. This, in my view, goes to the root of the matter. It is clearly in breach of the provisions of law. Merely because, such action/majority decision of the Society, inspite of above position, approved by the Authority under Section 35 of the MCS Act and further confirmed by the Appellate authorities, cannot be the reason to accept the expulsion action initiated by the Society in such fashion. 11 All the Authorities, in my view, committed jurisdictional error by confirming such expulsion, which was without following the due procedure of law and/or breach of principle of natural justice. The whole procedure, in my view, adopted by the Society and confirmed by the concerned Authorities are illegal, impermissible and contrary to the law and definitely affect the rights of the Petitioners and also causes great injustice and hardship to them. 12 Having noted above, I see a case is made out by the Petitioners to interfere with the orders so passed by the Authorities. However, for the reasons so stated above, I am inclined to remand all the matters before the Assistant Registrar, Cooperative Society being the first Authority, who has given approval to the resolution passed by the Society, as contemplated under Section 35 of the MCS Act. 13 The learned counsel appearing for the Society relied upon common judgment dated 19 August 2013 passed in disputes between the respective parties, which was referred earlier and pending at the relevant time. For the reasons so recorded above, as all the points are kept open, and even while admitting the matters, this Court permitted the Petitioners to initiate the proceedings in accordance with law, for any other aspects if any, I am inclined to keep all points open. The subsequent events, in no way sufficient to decide the issue so raised about the membership. Therefore, there is no point to deal with the same, for the submission so raised by the learned counsel appearing for the Petitioners, and for the reasons so recorded above. For the above reasons itself, impugned orders dated 19 March 2008, 2 January 2007 and 22 February 2006, are required to be quashed and set aside. Therefore, there is no point to deal with the same, for the submission so raised by the learned counsel appearing for the Petitioners, and for the reasons so recorded above. For the above reasons itself, impugned orders dated 19 March 2008, 2 January 2007 and 22 February 2006, are required to be quashed and set aside. 14 It is necessary to note that though served, Respondent No.5 Society not controverted the averments so made in these Petitions, till this date. The matters were admitted in the year 2008. Called out from the final hearing from time to time on 25 February 2015, 26 February 2015, 27 February 2015 and today again. The learned counsel/Advocate who appeared for Respondent No.5Society even at the time of admission and till this date, inspite of repeated communications, unable to get instructions. The Society, if decided not to contest and/or not to participate, considering the reasons so recorded above, I see no case is made out to grant further time to the Society. However, after hearing the learned counsel /Advocate appearing for Respondent No.5Society and for the reasons so recorded above, I am inclined to dispose of all these Petitions, as the issue of membership of Petitioners is pending since 2005. Their entitlement needs to be taken care of at the earliest. However, I am inclined to keep all points open, if they want (both the parties), even permitting them to add subsequent material and evidence to justify their rival cases. 15 Therefore, the following order : ORDER a) Impugned orders dated 19 March 2008, 2 January 2007 and 22 February 2006, are quashed and set aside. b) All the Petitions are remanded back to the Assistant Registrar, Cooperative Societies 'F/N' Ward, Mumbai, for reconsideration by restoring the respective Applications filed by the Society/Respondent No.5 under Section 35 of the MCS Act. c) The parties are at liberty to file additional affidavit and/or material to justify their rival cases, if any. The Assistant Registrar, Cooperative Societies “F/N” Ward, Mumbai to permit the same and pass order by giving equal opportunity to all the parties, as early as, possible preferably within six months from today. d) All points are kept open, for all the parties. e) All the Writ Petitions are accordingly allowed. f) Rule made absolute accordingly. g) There shall be no order as to costs.