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Judgment
Z.A. Haq, J.—Heard learned advocates for the respective parties.
The Respondent No. 1 filed dispute before the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act, 1960 contending that she is entitled for allotment of Plot No. 2 as per option exercised by her in the meeting held on 18th December, 1988. According to the respondent No. 1, she had filled up forms "E" and "I" and had submitted the forms in the meeting of the society held on 18th December, 1988. According to the respondent No. 1, the allotment of plots of the society was as per the seniority of the members and options given by them. The respondent No. 1 claimed that though she is senior to the petitioner and she had given her option for Plot No. 2, it was allotted to the petitioner overlooking her claim. The respondent No. 1 prayed that the allotment of Plot No. 2 in favour of the petitioner be cancelled and the Plot No. 2 be allotted to the respondent No. 1.
The society opposed the claim of the respondent No. 1 by filing the written statement. According to the society, the respondent No. 1 was not the member of the society on 18th December, 1988 and she attended the meeting of the society on 18th December, 1988 as the representative of her husband. According to the society, the option was given by the respondent No. 1 for Plot No. 2 not on her behalf but on behalf of her husband. In this background, the society contended that the dispute filed by the respondent No. 1 making claim for Plot No. 2 was not maintainable. The society further contended that the application of the respondent No. 1 for membership was rejected in the meeting of the society held on 25th March, 1990 and on the same date the petitioner was accepted as the member and Plot No. 2 was allotted to the petitioner. The society prayed that the dispute filed by the respondent No. 1 be dismissed.
The petitioner filed his written statement opposing the claim of the respondent No. 1. The petitioner opposed the claim of the respondent No. 1 on the same lines as by the society.
The Co-operative Court, after conducting the trial, by the order dated 31st January, 2004 rejected the prayers made by the respondent No. 1 in the dispute, however, directed the society to execute the sale-deed of Plot No. 26 in favour of the respondent No. 1. The respondent No. 1, being aggrieved by the order passed by the Co-operative Court, filed an appeal which is allowed by the Co-operative Appellate Court by the impugned order. The petitioner, being aggrieved by the order passed by the Co-operative Appellate Court, has filed this petition.
After hearing the learned advocates for the respective parties and examining the record, I find that the following issues arise for consideration :
I) Whether the respondent No. 1 acquires deemed membership of the society as per Section 22(2) of the Maharashtra Co-operative Societies Act, 1960 and if yes from which date ?
II) If the respondent No. 1 acquires deemed membership of the society, whether the allotment of Plot No. 2 has been properly done in favour of the petitioner, overlooking the claim of the respondent No. 1 ?
The respondent No. 1 has neither pleaded nor placed any resolution of the society on the record to show that the application of the respondent No. 1 seeking membership of the society was considered by the society and she was accepted as the member of the society. The basis of the claim of the respondent No. 1, is based on the provisions of Section 22(2) of the Maharashtra Co-operative Societies Act. Section 22(2) of the Maharashtra Co-operative Societies Act lays down that where a person is refused admission as a member of a society, the decision (with the reasons therefor) shall be communicated to that person within fifteen days of the date of the decision, or within three months from the date of receipt of the application for admission, whichever is earlier. It further lays down that if the society does not communicate any decision to the applicant within three months from the date of receipt of such application the applicant shall be deemed to have been admitted as a member of the society.
In the present case, it is undisputed that the society had neither taken any decision nor had communicated any decision to the respondent No. 1 rejecting her claim for membership of the society. Therefore, as per the deeming fiction, the respondent No. 1 became member of the society after three months from the date of application. The respondent No. 1 undisputedly submitted her application for membership on 18th December, 1988 and as the decision was not taken by the society within three months it is to be held that the petitioner became member of the society from 18th March, 1989. The contention of the society that the application of the petitioner came to be rejected in the meeting held on 25th March, 1990 cannot be accepted as the petitioner became member of the society much earlier and therefore, rejection of her application seeking membership, on 25th March, 1990 is inconsequential.
It has to be seen as to whether the allotment of Plot No. 2 in favour of the petitioner has been done as per the procedure adopted by the society for allotment of the plots. The respondent No. 1 has pleaded that the allotment of the plots was done by considering the options exercised by the members according to the seniority of the members. The respondent No. 1 has led evidence to substantiate this contention. In the dispute paragraph No. 3 is shown twice. In the second paragraph No. 3 (page 23 of the paper book) the relevant pleadings of the respondent No. 1 are as follows :
"3.It is the policy of the Society, that the senior members of the Society shall have preferential claim in the matter of allotment of the plots of the Society inasmuch as the individual members have right to give their choice for selection of plots in the layout of the Society, and if more than one members give choice for same post, the senior member, claiming for that plot, would be given preference."
The society and the petitioner have not given any reply to the pleadings of the respondent No. 1 that the allotment of the plots of the society was done by considering the preferential claim according to the seniority of the members. The contention of the respondent No. 1 in this regard is uncontroverted. The respondent No. 1 has led evidence to substantiate her contention. Shri Ramraksha Devidin Sahu, who was the Secretary of the society at the relevant time, has deposed in his evidence that the allotment of the plots was done as per the seniority of the members of the society. The evidence of Shri Ramraksha Sahu shows that in the meeting held on 18th December, 1988 the existing depositors had not opted for plot Nos. 1 and 2. It is clear from the pleadings and the evidence on the record that the claim of the respondent No. 1 for Plot No. 2 has not been considered by the society treating her to be a member of the society w.e.f. 18th March, 1989. Even if the submissions made on behalf of the petitioner that the option given by the respondent No. 1 for Plot No. 2 on 18th December, 1988 cannot be accepted on the ground she was not the member of the society on that date, it goes unexplained as to why the entitlement of the respondent No. 1 for plot No. 2 has not been considered when it came to be allotted to the petitioner on 25th March, 1990. The respondent No. 1 acquired the membership of the society by deeming fiction on 18th March, 1989 i.e. much before 25th March, 1990.
In these facts, I find that the allotment of Plot No. 2 in favour of the petitioner on 25th March, 1990 without considering the claim of the respondent No. 1, is illegal. The finding recorded by the Co-operative Appellate Court in this regards are proper.
The question arises as to whether the findings recorded by the Co-operative Appellate Court and the directions given regarding allotment of Plot No. 2 to the respondent No. 1 are proper and sustainable. The respondent No. 1 has claimed that she is entitled for the Plot No. 2 as per the option given by her in the meeting held on 18th December, 1988.
The respondent No. 1 could not have given option for Plot No. 2 on 18th December, 1988 as she was not member of the society on that date. There is nothing on the record to show that respondent No. 1 exercised option for Plot No. 2 after 18th March, 1989 on which date she acquired the membership by deeming fiction. There is nothing on the record to show that the society has followed the same procedure as followed by it for other plots, while allotting Plot No. 2 to the petitioner. The allotment of Plot No. 2 to the petitioner is without following proper procedure and it is done arbitrarily. Therefore, after quashing the allotment of Plot No. 2 in favour of the petitioner, it has to be left to the society to follow the same procedure for allotting the Plot No. 2 as was done while allotting other plots of the society.
Shri Gordey, learned Senior Advocate has submitted that the jurisdiction of this Court would be very limited and this Court will have to consider the only issue of legality of the impugned order. In support of his contention he has relied on the following judgments :
i) The judgment given by the Hon''ble Supreme Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, ;
ii) The judgment given by the Hon''ble Supreme Court in the case of Hari Vishnu Vs. Mohd. Ishaque, reported in AIR 1995 SC 233;
iii) The judgment given by the Hon''ble Supreme Court in the case of Grindlays Bank Limited Vs. Income Tax Officer, Calcutta and Others, ;
Smt. S.W. Deshpande, learned advocate has submitted that the order passed by the Co-operative Appellate Court is proper and based on appreciation of the pleadings and evidence on the record and it does not require any interference. It is further submitted that this Court need not interfere with the impugned order and the matter need not be remitted back to the society.
In view of my conclusions that there is manifest illegality in the allotment of the plot No. 2 in favour of the petitioner and as the subordinate Courts have committed error of jurisdiction by not considering the relevant pleadings and the evidence on the record, the judgments relied upon on behalf of the petitioner will not be applicable in the facts of the present case. I have considered the matter on the basis of the pleadings, the evidence on record and the admitted facts on the record.
In view of the above, the following order is passed :
i) The impugned orders are modified.
ii) It is declared that the allotment of Plot No. 2 in favour of the petitioner is illegal.
iii) The resolution No. 5 passed by the society in its meeting held on 25th March, 1990 regarding the allotment of Plot No. 2 in favour of the petitioner and the sale-deed executed by the society in favour of the petitioner on 25th October, 1989 in respect of the Plot No. 2 are quashed.
iv) The claim of the respondent No. 1 for allotment of Plot No. 2 as made in the dispute is rejected.
v) It is left open for the society to consider the allotment of Plot No. 2 in favour of its member, however, it is clarified that while allotting Plot No. 2 the society shall follow the same procedure as was followed by it in the year 1988 while allotting the other plots to its members.
The petition is partly allowed in the above terms. In the circumstances, the parties to bear their own costs.