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Judgment
Petitioner is aggrieved by the Orders passed by the Co-operative Court and Co-operative Appellate Court, resulting in denial of allotment of plot to him by Respondent-Society. In Writ Petition No. 4536 of 2014, the Petitioner has challenged the judgment and order dated 1 August 2013 passed by the Cooperative Appellate Court in Appeal No. 184 of 2007, thereby confirming the order passed by the Cooperative Court, Pune in Dispute No. 346 of 1994 dated 30 June 2007. Dispute No. 346 of 1994 was filed by the Petitioner challenging the Resolution adopted by the Respondent-Society dated 25 October 1994 thereby cancelling the earlier Resolution dated 18 January 1993 for allotment of plot to the Petitioner.
Writ Petition No. 1369 of 2014 is filed by the Petitioner challenging the judgment and order dated 1 August 2013 passed in Appeal No. 185 of 2007 filed by him, by which the order passed by the Cooperative Court on 24 July 2007 in Dispute No. 116 of 1998 is confirmed. Dispute No. 116 of 1998 was filed by the Respondent-Society inter alia challenging the Resolution dated 18 January 1993 seeking to allot a plot in favour of the Petitioner.
Thus, the Co-operative Court has allowed Dispute No. 116 of 1998 filed by the Society whereas Dispute No. 346 of 1994 filed by the Petitioner is dismissed. Resultantly, Petitioner is denied allotment of plot.
Briefly stated, facts of the case are that Vijay Cooperative Housing Society Limited has been formed with an intention to provide residential accommodation / plots to the persons from backward community. Land admeasuring 2 hectares 38 ares situated in Survey No.132/A/1, Village-Bhamburda, Shivaji Nagar, Pune was allotted by the Collector to the Society on 12 August 1958. The Society submitted plans for approval to the Pune Municipal Corporation and accordingly plan for creation of 25 plots in the allotted land was sanctioned by the Pune Municipal Corporation in the year 1960. A revised plan was sanctioned for creation of 32 plots in the allotted land in the year 1962. It appears that an Administrator was appointed on the society in the year 1970 and he decided to add four members by allotting Plot Nos.26, 27, 29 and 30 on 5 August 1970. On 31 December 1970, General Body Resolution was adopted to accept grant of membership in respect of 29 plots, and it was decided to keep 3 plots as common area for utility and benefit of the Society. It appears that there were disputes about management of the Society and an inspection was directed to be carried out by the Deputy Registrar under Section 83 of the Maharashtra Cooperative Societies Act, 1960 (MCS Act) into the affairs of the Society. Enquiry report was submitted in March 1993. It appears that a Resolution dated 18 January 1993 came to light by which the Managing Committee headed by Shri. Dattatraya Bandu Jagtap (Respondent No.4) made allotment of 3 plots in favour of his relatives. Petitioner is son of Shri. Dattatraya Bandu Jagtap and claims allotment of Plot No. 31 vide Resolution dated 18 January 1993. It appears that the Society thereafter called General Body Meeting and in the meeting so held on 25 October 1994, it was decided to rescind the managing committee Resolution dated 18 January 1993.
In the above background, two Disputes came to be filed before the Cooperative Court. Dispute No. 346 of 1994 was filed by the Petitioner alongwith Ms. Padmini Vasant Patole, seeking a declaration that they are legal members of the allotted plots and that they are entitled to exercise rights of membership. Injunction was sought against the Society from disturbing possession of Plot No.31 by the Petitioner.
On the other hand, the Society filed Dispute No.116 of 1998, challenging the Resolution dated 18 January 1993. Both the disputes have been decided by the Cooperative Court by judgment and order dated 30 June 2007. Dispute No. 346 of 1994 filed by the Petitioner and Smt. Padmini Vasant Patole has been dismissed. On the other hand, Dispute No. 116 of 1998 filed by the Respondent-Society has been decreed, holding that the meeting of the Managing Committee as well as Resolution dated 18 January 1993 passed therein are illegal and void. It further declared that the Petitioner is not a legally enrolled member of the Society and the documents executed by Shri. Dattatraya Bandu Jagtap in their favour are not legal or binding on the Society. Petitioner is permanently restrained from exercising right of membership on the basis of Resolution dated 18 January 1993 or from carrying out any construction on Plot No.31.
Aggrieved by the decrees passed by the Cooperative Court, Petitioner, alongwith Ms. Padmini Vasant Patole, filed Appeal Nos. 184 and 185 of 2007. However, both the Appeals have been dismissed by the Co-operative Appellate Court by separate judgments and orders dated 1 August 2013. Aggrieved by the orders passed by the Cooperative Court and Cooperative Appellate Court, only Petitioner has filed the present Petition, and it appears that Smt. Padmini Vasant Patole has not challenged the orders passed by the Cooperative Court and by Cooperative Appellate Court. By order dated 27 February 2015, notice for final disposal is issued. Respondent-Society has appeared in the Petitions and accordingly, the same are taken up for final disposal.
Mr. Sawant, the learned counsel appearing for the Petitioner, submits that the Cooperative Court and Cooperative Appellate Court have erroneously held the Petitioner to be not a validly admitted member. That Resolution dated 18 January 1993 is validly adopted by the Society. That the said Resolution is already acted upon by admitting Petitioner as a member, by issuing share certificate and by putting him in possession of plot No.31. That Petitioner is possessing plot No.31 for the last 35 long years. That the General Body of the Society cannot sit on appeal over the Resolution dated 18 January 1993. That once allotment of plot is made, the same cannot be cancelled on account of subsequent change of mind. That mere existence of disputes between the parties cannot be a ground for modifying the decision taken by the earlier body. That Petitioner did not receive any notice in respect of the meeting held on 25 October 1994. That admittedly, he was a member as on 25 October 1994 and ought to have been given an opportunity to participate in the meeting dated 25 October 1994. He submits that allotment of three plots is done on account of directions issued by the Collector. That mere relationship of Petitioner as son of Shri. Dattatraya Bandu Jagtap does not mean that he did not hold the eligibility criteria for allotment of the plot. He therefore submits that the impugned orders passed by the two Courts are clearly erroneous and liable to be set aside.
Per contra, Mr. Sale, the learned counsel appearing for Respondent-Society opposes the Petitions. He submits that the two Courts have concurrently held against the Petitioner and that in absence of an element of perversity in their decisions, this Court cannot set aside the order by acting like an Appellate Authority. He submits that a detailed enquiry was directed into the affairs of the Society under Section 83 of the MCS Act. That the report clearly demonstrates gross illegalities in the manner of allotment made on 18 January 1993. That Shri. Dattatraya Bandu Jagtap misused his position by allotting the three plots to his relatives. That Petitioner is the son of Shri. Dattatraya Bandu Jagtap and the case involves decision taken by the Chairman to allot a plot to his son. That the enquiry report under Section 83 of the MCS Act has attained finality and that findings in the said report are correctly taken into consideration by the Cooperative Court and Cooperative Appellate Court. He therefore prays for dismissal of the Petitions.
Rival contentions raised on behalf of the parties now fall for my consideration.
Petitioner is aggrieved by non-allotment of Plot No.31 out of the land allotted to the Respondent-Society by the Collector. The allotment of the land in the year 1958 was for the purpose of providing housing accommodation facilities to members of backward community. Initially, plans were sanctioned for subdivision and creation of only 25 plots by Pune Municipal Corporation in the year 1960. The said plan was revised, and 32 plots were created in the year 1966. The Administrator appointed in respect of the Society made allotment of four plots in the year 1970 and the Society has decided to accept the allotment made by the Administrator in respect of the four members. Thus, total 29 plots have been allotted to various members and there is no dispute about the same. Three plots out of the 32 plots remained unallotted and it is the case of the Respondent-Society that the same are not allotted as the Society decided to maintain it as common area/utility to be enjoyed by all the members. This is a reason why after the last allotment made by the Administrator in the year 1970, there are no further allotments for next 23 long years. It appears that there were disputes amongst the members about the manner in which the affairs of the Society were maintained. The Deputy Collector had directed enquiry into the affairs of the society by appointing an Enquiry Officer. The Enquiry Officer gave a detailed report in March 1993. Several discrepancies were noticed by the Enquiry Officer into the affairs of the Society. While enquiry was underway, Respondent No.4 created a record of allotment of plot No.31 to his son (Petitioner). Similarly, two other relatives were sought to be added as members of the Society. The decision to allot the plots was taken by the managing committee and not by the general body. The Enquiry Officer has made detailed findings about the manner in which decision was taken for allotment of plots to the Petitioner and two other persons. The Enquiry Officer held that all the three persons to whom plots are allotted are close relatives of Shri. Dattatraya Bandu Jagtap who was functioning as Secretary of the Society. It was found that no advertisement was issued for making the allotment. The eligibility of 3 persons for allotment of plot was also highly questionable. Accordingly, the Managing Committee meeting dated 18 January 1993 was held to be illegal in the report of the Enquiry Officer conducted under Section 83 of the MCS Act. It is undisputed that the report of the Enquiry Officer under Section 83 of the MCS Act has attained finality. The Cooperative Court and the Cooperative Appellate Court have rightly taken into consideration the findings recorded by the Enquiry Officer for denial of any relief to the Petitioner and two other allotees.
After going through the concurrent findings recorded by the Cooperative Court and the Cooperative Appellate Court, I am unable to trace any element of gross perversity in the same. The present case involves gross abuse of powers by the Secretary of the Society who has made allotment of a plot to his own son, in addition to allotting two more plots to his close relatives. It has come up in evidence that Petitioner was himself residing in another Plot alongwith his father and still an additional allotment was made to him by his father who functioned as the Secretary. Thus father and son would have received two plots only because the father functioned as Secretary of the society. Petitioner’s income was also found to be more than the prescribed limit.
Mr. Sawant submits that allotment of three plots was done as per the directives issued by the Collector. However, it is established that the decision to allot plots is not taken by the general body. The inquiry officer has made adverse comments on the meeting of Managing Committee shown to have been conducted on 18 January 1993. The same was not held as per the bye-laws. The allotments are found to be grossly illegal and made to his own relatives by the Secretary.
Considering the above position, in my view, the Cooperative Court and the Cooperative Appellate Court have rightly ruled against the Petitioner. The Society has decided to keep the three plots for common use by members. The Secretary, however, took undue benefit of his position and made allotment merely on the basis of decision of the Managing Committee. Holding of meeting of Managing Committee is found to be illegal. In my view therefore, the two Courts have rightly denied any benefit of membership to the Petitioner. Mere issuance of Share Certificate to the Petitioner by his father would not give flavour of legality to unauthorised allotment of plot made by the Secretary on the basis of an illegal managing committee meeting.
Considering the above position, I do not find any valid reason to interfere in the concurrent findings recorded by the Cooperative Court and the Cooperative Appellate Court. The Writ Petitions are devoid of merits. The same are accordingly dismissed. There shall be no order as to costs.