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Madhya Pradesh High Court · body

2024 DIGILAW 472 (MP)

Anurag Vijayawargiya v. State of M. P.

2024-07-01

PRANAY VERMA

body2024
ORDER 1. This petition under Article 226 of the Constitution of India has been preferred by the petitioners for directing the respondents to include their names along with 224 similarly situated members in the list of eligible members for allotment of plots and to issue fresh list accordingly. 2. As per the petitioners, they are members of respondent No.5 Devi Ahilya Shramik Kamgar Sahkari Sanstha Maryadit which is a Housing Society. They had obtained membership of the society in different years by depositing the requisite charges towards entry fees, share money, maintenance charges, transfer fees, etc. Receipts were accordingly issued by the 5 society in their names. Petitioners were allocated plot numbers along with sizes on the receipts issued by the society. 3. It is further case of the petitioners that in spite of the aforesaid transactions, the records of the society did not reflect their names in the members list prepared in the year 2018. Respondent No.3, the Deputy Registrar, Cooperative Societies, Indore, hence by his letter dated 24.8.2018 corrected the list of members of the society and after including the names of petitioners along with 224 similarly situated members forwarded the corrected/amended list to the Collector, District Indore. By note sheet dated 5.9.2018 and 23.10.2018, the aforesaid amended list was forwarded to the Collector for appropriate action but none was taken. 4. Upon making of several complaints by members of the society a notice was published on 17.6.2022 by the society inviting objections from all the members. Pursuant thereto the petitioners also filed their objections. However, without finalizing the objections, respondent Nos. 1 to 3 constituted an Enquiry Committee on 30.11.2022 again inviting objections and claims from members of the society. Respondent No.4, the Enquiry Committee, upon scrutinizing the objections and claims of the members issued various lists declaring the members to be either eligible or ineligible for allotment of plots and made its recommendations accordingly. In the list published upon the objections raised by the petitioners along with 224 similarly situated members, it has been concluded that petitioners and they are not eligible for allotment of plots. Hence, this petition has been preferred by the petitioners claiming the aforesaid relief. 5. Learned counsel for the petitioners has submitted that the impugned list issued by respondent No.4 is illegal and without jurisdiction. Hence, this petition has been preferred by the petitioners claiming the aforesaid relief. 5. Learned counsel for the petitioners has submitted that the impugned list issued by respondent No.4 is illegal and without jurisdiction. Petitioners have not committed any irregularity or lapse in payment of the requisite charges as demanded by the society yet they have been deprived of their plots without any lawful reason. Petitioners had filed their objections before the authorities from time to time along with the relevant records for the purpose of enquiry hence the respondents could not have declared the petitioners ineligible for allotment of plots. The entire impugned list is illegal and hence deserves to be quashed. 6. Reply has been filed by respondent Nos.1 to 4 submitting that the dispute and claim made by the petitioners has to be referred to the Registrar, Cooperative Society and the petitioners are required to file a dispute under section 64 of the M.P. Co-operative Societies Act, 1960. The petition in view of availability of alternate remedy is not liable to be entertained. It is further submitted that respondent No.5 society had been directed to submit its entire records to respondent No.4 Enquiry Committee so that the objections received from various members of the society can be decided. After examining the entire records submitted by the society, it was found that the records relating to original members, their resignations, affidavits as well as applications for membership made by the petitioners and other similarly situated members and appropriate resolutions of the Board of Directors in respect of granting membership to petitioners were not available and in absence of any such resolutions or record, transfer of membership to the petitioners could not be held to be valid hence the petitioners have been held ineligible for allotment of plots. It is also submitted that in the list of members prepared in the year 2009-2010 the names of petitioners along with other 224 members were found to be included in the records of the society but the aforesaid records have not been made available to the enquiry committee at the time of scrutiny and verification of list hence the Enquiry Committee could not examine the record pertaining to the petitioners. It is hence submitted that the petition deserves to be dismissed. 7. It is hence submitted that the petition deserves to be dismissed. 7. Reply has also been filed by respondent No.5 society submitting that it has not prepared the list but has only provided the available records of the society to respondent Nos.3 and 4 who have prepared the list. The society is presently being managed by newly elected Managing Committee which has not been handed over the entire record of the society by the predecessor committee. The record of the society was seized by the Police Department for investigation earlier. In such circumstances, whatever record was available was procured by obtaining either certified copies or photocopies available in the Court and made over to the Enquiry Committee. It is further submitted that petitioners have an alternate remedy of filing a dispute under section 64 of the Act, 1960 before the Registrar, Cooperative Societies in view of which the petition deserves to be dismissed. 8. I have considered the submissions of learned counsel for the parties and have perused the record. 9. Along with the petition, the petitioners have filed documents dated 24.8.2018 (Annexure P/2) and 23.10.2018 (Annexure P/3). From the same, it is evident that earlier also proceedings had been taken by the Sub Registrar, Cooperative Societies as regards correction of list of members of respondent No.5, Society. Therein objections had been invited from the members in respect of the list and during the proceedings, it was observed that the records from the earlier President of the society have been received and the members who had claimed themselves to be the original members of the society had submitted their receipts and the same were cross-checked from the record of the society and on the basis of the same 224 original members of the society were found verified from the record. On such findings, they were included in the corrected list of members of the society. Such corrected list was forwarded to the Deputy Commissioner, Cooperative Society, who approved the same and the corrected list of members 224 in number was finalized. The same included the names of the petitioners also. 10. Thus, on the basis of the aforesaid documents, it is evident that the petitioners in the year 2018 during course of preparation and finalization of the list of members of the society were found to be the original members of the society. The same included the names of the petitioners also. 10. Thus, on the basis of the aforesaid documents, it is evident that the petitioners in the year 2018 during course of preparation and finalization of the list of members of the society were found to be the original members of the society. The same was on the basis of the record of the society received from its earlier President. These documents emphatically demonstrate that the petitioners were the original members of the society and were found to be so by the Deputy Registrar, Cooperative Societies himself. They were in fact not even found to be transferees from original members. That has never been their contention as has been illegally presumed while preparing the impugned list. The documents Annexure P/2 and Annexure P/3 and so also the receipts Annexure P/1 as regards payment of requisite sum by the petitioners for obtaining membership of the society from the society itself have not been denied by respondent Nos.1 to 4 in their return and on the contrary in paragraph No.3 of the return these documents have been stated not to be disputed. It has also been admitted that the names of the petitioners were included in the list of members of the society as was corrected in the year 2018 on the basis of the record of the society. 11. The only explanation given in the return is that the record of the proceedings of the year 2018 was not found available at the time of the present enquiry. That would hardly be of any relevance. Once an enquiry had been conducted earlier by the Deputy Registrar, Cooperative Societies himself in which the petitioners were found to be the original members of the society, only for the reason that during subsequent enquiry the said records were not made available, petitioners could not have been held not to be the original members of the society. The earlier enquiry proceedings have not been disputed by the respondents. An enquiry having once been conducted and finalized cannot be effaced or ignored only for the reason that in the subsequent enquiry, the relevant record was not made available. 12. The reason for denying the claim of the petitioners in the impugned list is only that the record of the society has not been made available to the Enquiry Committee. An enquiry having once been conducted and finalized cannot be effaced or ignored only for the reason that in the subsequent enquiry, the relevant record was not made available. 12. The reason for denying the claim of the petitioners in the impugned list is only that the record of the society has not been made available to the Enquiry Committee. That cannot defeat the rightful claim of the petitioners. It is not their fault if the record of the society was not made available during present enquiry. The same was available during the earlier enquiry and by relying upon the same, the petitioners were held to be the members of the society which is final and conclusive of the matter. These documents ought to have been taken into consideration by the Enquiry Committee while preparing the impugned list of members which has however not been done by it which vitiates the entire list. The impugned list excluding the name of the petitioners is hence apparently illegal and erroneous. 13. Though, an objection has been taken by the respondents that the petitioners ought to raise a dispute under section 64 of the M. P. Cooperative Societies Act, 1960 before the Deputy Registrar, but in the available facts and circumstances of the case, the said remedy is hardly of any relevance. Respondents have themselves stated in the reply filed by them that the records of the society are not available hence could not be produced before the Enquiry Committee at the time of preparation of the impugned list. Thus, no disputed question of fact is required to be determined in the matter. In absence of any record, raising of dispute under section 64 would be an empty formality. The facts are not disputed and all the admitted facts are already available on record of this petition. Moreover, it is apparent that proceedings as regards preparation of list of members of respondent No.5 society have been going on since a long time, hence relegating the petitioners to the remedy under section 64 would be highly unjust and improper. In any case the impugned list is on the face of it illegal and contrary to the record hence does not require determination by any other authority. The objection of the respondents in this regard is hence rejected. 14. In any case the impugned list is on the face of it illegal and contrary to the record hence does not require determination by any other authority. The objection of the respondents in this regard is hence rejected. 14. In this petition, an application bearing I.A. No.7287/2023 has been filed by interveners claiming themselves to be the members of the society stating that they are also proper parties to this petition. However, in the entire application, it has not been stated as to how the rights of the interveners would be affected by the outcome of this petition. The relief which has been claimed by the petitioners in this petition is only for inclusion of their names in the list of eligible members of the society. They have not prayed that the names of any of the members from the impugned list be deleted or excluded. Petitioners are claiming relief only for themselves and not against any other member of the society. If any member has already been included in the list, then in absence of any proceeding or prayer for exclusion of his name, his rights would not be affected in any manner. The outcome of this petition would not have any adverse impact upon the rights of the interveners. Thus, I.A. No.7287/2023 does not deserve any consideration and is accordingly rejected. 15. As a result of the aforesaid discussion, the petition deserves to be and is accordingly allowed and the respondents are directed to include the names of the petitioners in the list of eligible members of respondent No.5 Society for allotment of plots and to issue a fresh list accordingly. 16. The petition is accordingly allowed and disposed off.