Dismissed

New Amtura Park Co. Operative Housing Society v. District Registrar

Gujarat HC24 Sept 2019LPA/1391/2018

Case brief

AI extract

What is this about?

The High Court of Gujarat dismissed this Letters Patent Appeal regarding a housing society's membership admission order made by the District Registrar. The Court held that the appellant society had an alternative remedy to appeal before the Registrar, leading to the dismissal of the appeal with liberty to approach the competent authority.

What did the court decide?

The Letters Patent Appeal was dismissed with liberty to the appellant to approach the competent authority under the Gujarat Cooperative Societies Act.

New Amtura Park Co. Operative Housing Society Vs District… — Property and Title | Gujarat HC (2019)

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C/LPA/1391/2018 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 1391 of 2018

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R/SPECIAL CIVIL APPLICATION NO. 12420 of 2018

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With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018 In R/LETTERS PATENT APPEAL NO. 1391 of 2018

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FOR APPROVAL AND SIGNATURE: Sd/-

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HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

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and

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HONOURABLE DR.JUSTICE A. P. THAKER

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================================================================ 1 Whether Reporters of Local Papers may be allowed to No see the judgment ?

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2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?

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4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

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================================================================ NEW AMTURA PARK CO OPERATIVE HOUSING SOCIETY

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Versus

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DISTRICT REGISTRAR

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================================================================

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Appearance: ADITYA A GUPTA(7875) for the Appellant(s) No. 1 MOHIT A GUPTA(8967) for the Appellant(s) No. 1 MR MK VAKHARIA(1483) for the Respondent(s) No. 2 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1

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================================================================

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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE DR.JUSTICE A. P. THAKER

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C/LPA/1391/2018 CAV JUDGMENT

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Date : 24/09/2019

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CAV JUDGMENT

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(PER : HONOURABLE DR.JUSTICE A. P. THAKER)

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The appellant has preferred this Letters Patent Appeal under Clause 15 of the Letters Patent Appeal against the order dated 25.09.2018 passed by the learned Single Judge in Special Civil Application No.12420 of 2018, whereby, the learned Single Judge has dismissed the petition. The appellant herein is the original petitioner and respondents are the original respondents in the captioned petition.

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The prayers sought for in the main Special Civil Application No.12420 of 2018 are as under:-

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(A) YOUR LORDSHIPS BE PLEASED to issue writ of certiorari or any other writ, direction, order in the nature of certiorari to quash and set aside the order dated 04/07/2018 passed by the Respondent No.1 in case No. skk/01/GH-2/165/2017 which is annexed at ANNEXURE A to this petition in the interest of justice.

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(B) YOUR LORDSHIPS BE PLEASED to issue stay the operation and implementation of the impugned order dated 04/07/2018 passed by the Respondent No.1 in case No. skk/01/GH-2/165/2017 which is annexed at ANNEXURE A to this petition pending admission, hearing and final disposal of this petition in the interest of justice.

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(C) BE PLEASED to pass such other and further orders as may be deemed fit in the interest of justice.

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The brief facts of the case is that the appellant is a Cooperative Society registered under the Gujarat Cooperative Societies Act, 1961 (hereinafter be referred to as

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C/LPA/1391/2018 CAV JUDGMENT

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“the Act”). That, the originally, tenement No.56 (hereinafter be referred to as “the property”) in the society was in the name of one Mrs.Ritaben Babubhai Shah. That, she had sold the property to Mrs.Rakshaben Kiritkumar Shah vide registered sale deed dated 02.05.1995 and the said transfer was made without informing the appellant – society and without obtaining permission from the appellant – society. It is also alleged that said Mrs.Rakshaben Kiritkumar Shah had also transferred the property to Mr.Jayantilal Keshavlal Chauhan vide registered sale deed dated 30.06.2004 and that transaction was also made without informing or obtaining the permission from the society. It is also alleged that the name of Mrs.Ritaben Babubhai Shah is also reflected as member of the society and no transfer procedure has been carried out by respondents or by Mr.Jayantilal Keshavlal Chauhan. It is alleged that the father of respondent No.2 Mr.Jayantilal Keshavlal Chauhan has executed a Will on 18.07.2006 and accordingly, the said property was bequeathed to respondent No.2 and his brother Mr.Nimeshbhai Jayantilal Chauhan has in equal share in the property and respondent No.2 has also appointed as guardian of children and, thereafter, Mr.Nimeshbhai Jayantilal Chauhan has passed away on 09.09.2006 and, therefore, his share in the property is devolved on his legal heirs.

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2.1 It is also alleged that respondent No.2 vide his application dated 07.08.2012 proceeded to transfer his name as member of the society and as no supporting documents were produced by respondent No.2 for entering his name as member of the society, the appellant asked him to produce resignation letter of previous member, original share certificate, Bank NOC if required, declaration letter from transferee, etc. and those documents were never produced

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C/LPA/1391/2018 CAV JUDGMENT

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by respondent No.2 before the appellant – society. It is alleged that while respondent No.2’s application for membership was in consideration, he had requested the appellant to return transfer fees paid to him, the appellant returned the transfer fees paid to him.

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2.2 It is also alleged that respondent No.2 has purchased 50% share of the property from the legal heirs of his brother. According to the appellant, respondent No.2 or Ms.Snehaben Shah had never obtained permission before transfer of the property. It is alleged that respondent No.2, without first making an application before the appellant for membership, has, directly, filed an application dated 17.07.2017 before the District Registrar. The respondent No.1 under Section 24 of the Act has exercised the appellate jurisdiction. It is alleged that the power vested with the District Registrar is a appellate power and the Appellate Authority cannot be moved, directly, without first approaching before the concerned authority. That, the District Registrar has passed the order in favour of respondent No.2, which was assailed by the appellant before this Court by filing Special Application No.12420 of 2018, which came to be dismissed by the learned Single Judge on the ground that the appellant has, alternative remedy, to file revision application before the competent authority under the provisions of the Act.

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Being aggrieved and dissatisfied with the order of the learned Single Judge, the appellant has approached this Court.

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Heard learned advocate for the appellant and learned advocate for the respondents. Perused the material placed on record.

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C/LPA/1391/2018 CAV JUDGMENT

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Learned advocate for the appellant has vehemently submitted the same facts which are narrated in the memo of petition and memo of appeal. He has vehemently submitted that respondent No.1 has no authority to pass the impugned order which came to be challenged by the appellant before the High Court by filing Special Civil Application No.12420 of 2018. While referring to Section 24 of the Act, he has submitted that it is incumbent on the part of the private respondent to apply to the society and if his application is rejected or not decided within stipulated time and any order passed by the concerned authority, then the private respondent could have been raised appeal before the District Registrar. According to him, however, in this case, without approaching the society, the private respondent has directly moved the District Registrar for his redressal and in view of the provisions of Section 24 of the Act, he being Appellate Authority, could not pass the order. He has submitted that the order passed by the District Registrar is without jurisdiction.

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5.1 While assailing the impugned order of the learned Single Judge, he has submitted that the alternative remedy principle is not applicable in this case as the authority, who has passed the order, has no jurisdiction to pass such order and, therefore, even if the alternative remedy is available, even in that case also, the petition under Section 226 of the Constitution of India is maintainable. He has prayed to allow the present appeal and to quash and set aside the both the orders.

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Per contra, Mr.M. K. Vakharia, learned advocate for the respondents has vehemently submitted that the conduct of the appellant is required to be looked into. He has submitted that initially, the private respondent has already applied for

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transferring of membership on the basis of the sale deed and that application was kept pending by the society and no decision was taken and, thereafter, since the times for encashing the cheques was going to be expired, the private respondent was compelled to receive back the cheques. He has submitted that Section 24 of the Act itself suggests that if the society did not take any decision in stipulated period then the new purchaser would become automatically a member of the society. He has submitted that in this case, neither the society has decided the application of the private respondent nor provided any information and kept silent and, therefore, the private respondent has no alternative but to approach the competent authority under Section 24 of the Act. According to him, as alternative remedy is available with the appellant, he could approach the concerned authority first. He has supported the impugned order of the learned Single Judge. According to him, the District Registrar has not committed any error while appreciating the provisions of Section 24 of the Act and the learned Single Judge has also rightly dismissed the application.

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The Section 22 of the Act provides that the person who may become member. The relevant provision reads as under:-

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22. Person who may become member. - (1) Subject to the provisions of Section 25, no person shall be admitted as a member of a society except the following, that is to say-

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(a) an individual, who is competent to contract under the Indian Contract Act, 1872 (IX of 1872);

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(b) a firm, company, [or any other body corporate constituted under any law for the time being the force] or a society registered under the Societies Registration Act, 1860 (XXI of 1860);

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C/LPA/1391/2018 CAV JUDGMENT

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(c) a society registered, or deemed to be registered, under this Act;

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(d) the State Government;

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[(e) a local authority;

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(f) a public trust registered or deemed to have been registered under Bombay Public Trusts Act, 1850; (Bombay XXIX of 1950)]:

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[(g) a group of the individuals eligible under clause (a), whether incorporated or not and whether established or not by or under any law :]

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Provided that, the provisions of clause (a) shall not apply to an individual seeking admission to a society exclusively formed for the benefit of students of a school or college:

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Provided further that subject to such terms and conditions as may be laid down by general or special order [a firm or a company or other body corporate constituted under any law for the time being in force] may be admitted as a member only of such society as may be prescribed.

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[(2) Every person seeking admission as a member of a society, if duly qualified for membership of such society under the provisions of this Act, the-rules and the byelaws of the society, may make an application to the society for membership. The society shall take decision on the application and shall communicate the decision within a period of three months from the date of the receipt of the application.]

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[2A) Any person aggrieved by the decision of a society under sub-section (2), may prefer any appeal to the Registrar within sixty days of the date of communication of the decision and such appeal shall be decided by the Registrar within a period of

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C/LPA/1391/2018 CAV JUDGMENT

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sixty days.]

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At the same time, Rule 12 of the Gujarat Cooperative Societies Rules, 1965 reads as under:-

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12. Open membership. - [(1)] No SevaSahakari Mandli or Consumers’ Society or Co-operative Milk Producer’s Society, shall without sufficient cause refuse admission to membership to any person duly qualified therefor under the provisions of the Act and the bye-laws

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[(2) No co-operative housing society shall without sufficient cause, refuse admission to its membership to any person, duly qualified therefor under the provisions of the Act, and its bye-laws to whom an existing member of such society wants to sell or transfer his plot of land or house and no such society shall without sufficient cause, refuse to give permission to any existing member thereof to sell or transfer his plot of land or house to another person who is duly qualified as aforesaid to become its member.]

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At this juncture, it is required to refer to Section 24 of the Gujarat Cooperative Societies Act, 1961, which reads as under:-

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Section 24. Open membership.

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(1) “No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefore under the provisions of this Act, the rules and byelaws of such society.

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(2) Where the society does not communicate any decision to a person within a period of three months from the date of receipt by the society of his application for “admission, such person shall be deemed to have become the member of such society on the expiry of the aforesaid

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period of three months.

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(3) Where a person is refused admission as a member of a society, the decision together with the reasons therefore shall be communicated in writing to such person by the society within three months from the date of receipt by the society of the application for admission, made by such person.

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(4) Any society aggrieved by the admission of a member under sub-section (2) or any person aggrieved by the decision of the society refusing him its, membership under sub-section (3) may appeal to the Registrar.

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(5) An appeal under sub-section (4) shall be made within a period of two months from, the date of communication to him of the decision of the society, or, as case the may be, from the date of the expiry of the period of three months specified in sub-section (2).

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(6) The decision of the Registrar in appeal shall be final and shall not be called in question in any court.

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(7) Nothing in this section shall apply to a society belonging to a class notified under sub-section (2) of section 22.”

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It is an undisputed fact that the appellant is a society wherein the tenement No.56 was, originally, in the name of Mrs.Ritaben Babubhai Shah, who has sold it to Mrs.Rakshaben Kiritkumar Shah vide registered sale deed dated 02.05.1995. Thereafter, Mrs.Rakshaben Kiritkumar Shah had transferred the property to Mr.Jayantilal Keshavlal Chauhan (father of respondent No.2) vide registered sale deed dated 30.06.2004. The respondent No.2’s father bequeathed the property by Will to his two sons, out of which one Mr.Nimeshbhai Jayantilal Chauhan had died and, thereafter, respondent No.2 purchased the share of his brother and became owner thereof. It is an undisputed fact

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that respondent No.2 on 07.08.2012 requested to enter his name in the records of the society as member and pending his application, respondent No.2 got back his transfer fees. It is an undisputed fact that thereafter, respondent No.2 has filed the application before the District Registrar under Section 24 of the Act for entering his name in the record of the society as member. That order has been challenged by the appellant before this Court by filing Special Civil Application No.12420 of 2018.

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While scrutinizing the provisions of Section 24 of the Act, it is crystal clear that if the society does not take decision within stipulated period then the member ought to have been deemed to be member of the society. In this case, earlier in 2012, the respondent No.2 had approached the society, but, the society did not paid heed it to his prayer and ultimately, transfer fee was returned back to him. It appears that without deciding the application of respondent No.2, the society has returned back the transfer fees to respondent No.2. In such eventuality, if the person, who has purchased the property from the member of the society and the society did not decide the same within stipulated time, the aggrieved person can always approach the appellate forum.

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Admittedly, in this case, it is not the case of the society that respondent No.2 is, anyway, disqualified as member of the society. Of course, the member of the society has to fulfill such conditions which are led in the bye-laws of the society and the subject of the payment of entrance fees or subscribing for share. If a person concerned fulfills such conditions as provided under Section 22 r/w. Rule 12 of the Act and the Rules, the society, without any proper reason, can not deny membership of the society.

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C/LPA/1391/2018 CAV JUDGMENT

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In the present case, as observed by the District Registrar, he has exercised powers vested with him under the Act. It also reveals that the learned Single Judge has dismissed the Special Civil Application on the ground that the petitioner has alternative remedy to file the revision application before the competent authority under the provisions of the Act.

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The impugned order of the learned Single Judge does not warrant any interference. In view of the above, the present Letters Patent Appeal is dismissed with a liberty to the appellant to approach the competent authority under the provisions of the Gujarat Cooperative Societies Act. It is clarified that this Court has not gone into merits of the case and whatever discussion is made is only for deciding this appeal on the ground of alternative remedy. It is further clarified that as and when, the appellant approaches the competent authority, in that event, the competent authority shall decide such proceeding in accordance with law uninfluenced by the above observation of this Court.

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ORDER IN CIVIL APPLICATION NO. 1 OF 2018:

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Since the main appeal is disposed of, the Civil Application shall not survive. Hence, the Civil Application stands disposed of accordingly.

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Sd/(S.R.BRAHMBHATT, J)

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Sd/(A. P. THAKER, J)

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V.R. PANCHAL

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New Amtura Park Co. Operative Housing Society v. District Registrar

Case brief

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New Amtura Park Co. Operative Housing Society v. District Registrar

Case brief

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