Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9505 OF 2023
Ramugade Sahaniwas No.2 Sahkari …Petitioner
Gruharachna Dekhbhal Sanstha Maryadit
Through its Chairman
IN
Ramugade Sahaniwas No.2 Sahkari …Applicant
IN
Dr. Pranjal Sarang Fulbandhe & Ors. …Applicants
IN THE MATTER BETWEEN:
Petitioner in WP/9505/2023 & WP/7635/2023 and for the Applicant in
IA/14914/2023.
Mr. Vishal Kanade, for the Intervenor in IA/16129/2023 in Writ Petition
No.7635 of 2023.
Mr. Shriram Kulkarni i/b Nachiket V Kulkarni a/w Samir Sao, for
, for the State.
JUDGMENT
1. The following relief is sought in Writ Petition No.9505 of 2023:- “[B] Issue a writ of certiorari or any other appropriate writ, order or direction in the nature of writ of certiorari to quash and set aside the election process undertaken in pursuance to election programme dated 30.07.2023 (Exh- P) published by the respondent No.4 Assistant Registrar & the Taluka Co-operative Election Officer, Wadgaon Mawal, Dist. Pune for holding the elections of the petitioner society and for that purpose issue necessary orders.”
2. The challenge in Writ Petition No.7635 of 2023 is to the Order dated 23rd April 2021 passed by the Respondent No.3 - the Divisional Joint Registrar, Co-operative Societies, Pune Division, Pune in Appeal No.64 of 2019 by which the Order dated 19th August 2019 passed by the Respondent No.2 - Assistant Registrar, Co-operative Societies, Vadgaon Maval, Pune is set aside. By the said Order dated 19th August 2019 the Assistant Registrar, Co-operative Societies, Vadgaon Maval, has allowed the Application for change of the name and classification of the Society - Ramugade Sahanivas No.2 Sahakari Grihanirman Sanstha Ltd. from “Housing Society” and sub-classification as “Tenant Ownership” to “Maintenance Society”. The said Order has been set aside by the impugned Order.
3. At the outset, it is required to be noted that in both these Writ Petitions arguments were concluded on 21st December 2023. Parties were directed to file written submissions on or before 12th January
2024. Written submissions were submitted by the Petitioner even before the said Order i.e. on 15th December 2023. Written submissions on behalf of the Respondent No.1 were submitted on 6th February 2024 and written submissions were submitted by the Intervenor on 6th February 2024. Thereafter, as the Judgment in this Writ Petition could not be delivered, submissions of the parties were again heard on various dates and the same were concluded on 16th December 2024.
4. This Order was dictated in Open Court on earlier dates and completed today.
5. As I am conducting the Court at least for 2 - 2 & ½ hours almost every day after regular Court hours, leaving the Chamber after correcting/signing daily orders after 10:30 pm - 11:30 pm on almost all the Court working days and reading the case papers at my residence up to 02:00 am, reading the case papers in the morning at least for one hour and also attending the Chamber on almost all Saturdays/Sundays/Holidays for completing pending work, hence dictation and uploading of this Order is delayed.
6. Mr. Nitin Gaware Patil, learned Counsel appearing for the Petitioner raised following contentions:i. Learned Counsel submitted that by the Order dated 19th August 2019 what is permitted is change of classification of the Petitioner - Housing Society to maintenance Society. He submitted that at present there are a total of 287 members. Out of said 287 members, 105 members were present when the General Body of the Petitioner - Society passed Resolution on 30th September 2018 resolving to change the classification of the Society. He submitted that the said General Body Resolution is not challenged and therefore the said Order dated 19th August 2019 could not have been set aside. ii. Learned Counsel submitted that, while setting aside the said Order dated 19th August 2019, all the factual aspects have not been taken into consideration. iii. Learned Counsel submitted that out of said 287 members, 108 members are defaulting members and therefore in fact it is necessary to change the classification from “Housing Society” to “Maintenance Society”. He submitted that Order dated 19th August 2019 is already implemented and therefore the same should not have been set aside. He pointed out bye-laws of the earlier Society which are from Page Nos. 54 to 124 and new byelaws (Page Nos.183 to 209), and particularly bye-law No.37 (Page No.202), by which it is provided that defaulting members have no right to vote. He submitted that as 108 are defaulting members, such type of bye-laws are made. He pointed out a list of such defaulting members on Page Nos.147 to 149 in Writ Petition No.9505 of 2023. iv. Learned Counsel pointed out letter dated 7th June 2018 (Page No.150) of the Assistant Registrar, Co-operative Societies, Vadgaon Maval, letter dated 31st August 2018 (Page No.151) of the District Deputy Registrar, Co-operative Societies, Pune Rural, Pune. He pointed out the Resolution passed by the Managing Committee of the Petitioner - Society on 12th September 2018 (Page No.152). He also pointed out notice of the Annual General meeting dated 15th September 2018 (Page Nos.155-156). He pointed out the minutes of Annual General meeting held on 30th September 2018 (Page Nos.157 to 172). He also pointed out the sale deed dated 28th March 1994 annexed at Exhibit - A to the Writ Petition No.9505 of 2023. He pointed out NA Order dated 6th August 1996 at Page No.48 of the Writ Petition. He pointed out Section 17 of the Maharashtra Co-Operative Societies Act, 1960 (“MCS Act”). He pointed out sub-division of plots. He also pointed out sale deed dated 16th December 2013 (Page Nos.127 to 143), which is executed with the plot purchasers and pointed out certain clauses of the said sale deed, particularly Page No.130, wherein it is mentioned that Co-operative Housing Society has been formed for the maintenance of the said plots in the said Society. He pointed out clauses on Page No.135, by which purchaser has been given right to peacefully and quietly enter upon, have use, occupy and enjoy the said plot and also entitled to use and enjoy all common amenities, facilities and also entitled to use the common layout roads as access to their plot along with the other plot holders. He pointed out Clause No.5 of the said sale deed on Page No.137, which provides that the developer shall carry on any other and further development to the said plot of land as may be decided and undertaken by the developers from time to time in order and which may be provided to the entire scheme for the use and benefit of the purchasers. He also pointed out Clause No.7 (Page No.137), Clause No.8 (Page No.139), Clause No.10 (Page No.139) and Clause No.11 (Page No.141). He therefore submitted that the rights of the plot purchasers are adequately protected by the said sale deed and therefore change/conversion of the present Society in another class of Society will not affect the rights of the members of the Society. He pointed out a list of defaulters (Page Nos.147-149). v. On the basis of the above documents, learned Counsel submitted that the impugned Order dated 23rd April 2021 is passed without considering various important aspects of the matter. He submitted that the impugned Order is very cryptic and several contentions raised are not even considered by the learned Authority. vi. Learned Counsel further submitted that very important aspect is whether a single member can challenge the Resolution passed by the Society. He therefore submitted that the Respondent No.1 has no locus. Apart from that, Respondent No.1 is a defaulter. He submitted that unless the Resolution dated 30th September 2018 which has been passed by the Society is challenged, the Respondent No.1 has no locus. He submitted that in the Annual General Body meeting also except the Respondent No.1, none has objected for passing the Resolution. He submitted that the procedure as laid down by the MCS Act is duly complied with. He submitted that the Respondent No.1 is in the habit of filing complaints. He pointed out about 28 proceedings filed by the Respondent No.1 (Page Nos.224 - 225). He, therefore, submitted that the Order dated 19th August 2019 passed by the Assistant vii. Learned Counsel relied on the decision of the Supreme Court in Bengal Secretariat Coop. Land Mortgage Bank & Housing Society Ltd. v. Aloke Kumar 1 and more particularly on Paragraph Nos.56 to 60 of the said decision. He also pointed out the decision of the Supreme Court in Daman Singh v. State of Punjab 2 and more particularly Paragraph No.11 of the same. He also relied on the decision of a learned Single Judge of this Court in Purna Co- Operative Sugar Factory v. Jaiprakash 3 and more particularly on Paragraph Nos.13 to 15 of the same. He also relied on the decision of the Supreme Court in State of U.P. v. C.O.D. Chheoki Employees' Coop. Society Ltd. 4 and more particularly on Paragraph Nos.16 and 17 of the same. He also relied on the decision of the Supreme Court in Ayaaubkhan Noorkhan Pathan
3 2002 SCC OnLine Bom 1059: (2003) 3 Mah LJ 292 v. State of Maharashtra 5 and more particularly on Paragraph Nos.9, 10 and 11 of the same. He also relied on the decision of the Supreme Court in Pt. Chet Ram Vashist v. Municipal Corpn. of and more particularly on Paragraph No.6 of the same. He therefore submitted that the impugned Order is liable to be quashed and set aside.
7. In addition to the oral submissions, Mr. Nitin Gaware Patil, learned Counsel has also tendered written submissions. In the written submissions following contentions are raised:i. One Dr. Mahesh Ramugade and his wife are the owners of several lands. Dr. Mahesh Ramugade was desirous of commercially exploiting the plot and for that purpose sub-plots were carved out and the same were sold to interested purchasers. He obtained NA permission. He submitted the plans and got the same approved from the concerned planning authority. The individual plots were sold to the interested purchasers. The said sale deeds executed with individual purchasers confirm that the purchasers of such plots became the absolute owners of their concerned plots with the rights to develop the same. Under the said sale deed, the land surrounding the plots being the common areas remained with
Dr. Mahesh Ramugade and were not given on lease to any Society of purchasers. ii. On 27th December 1995, the Petitioner - Society came to be registered under the provisions of the MCS Act, however, when the Application for registration was made, due to inadvertence and lack of verification, the Petitioner was classified as a “Housing Society” and further sub classified wrongly as “Tenant Ownership”. The Petitioner - Society has 287 members. Due to the wrongful sub-classification of the Society as tenantownership, there was a lot of chaos among the members as to their ownership rights of their plots and since the Petitioner - Society was having no ownership / lease rights of whatsoever nature qua the plots and was established only to maintain the common areas around the plots such as streets, lighting, security, etc., it was deemed necessary and fit by the members to seek correction in the sub classification. Various representations were made to the Assistant Registrar in this regard and vide letter dated 7th June 2018 the Assistant Registrar wrote to the Divisional Joint Registrar and sought his guidance on change of classification of the Petitioner - Society from tenant-ownership to maintenance Society. The Divisional Joint Registrar by letter dated 31st August 2018, asked the Petitioner to amend its byelaws suitably if they want change of classification. iii. Accordingly, on 12th September 2018, the managing Committee of the Petitioner - Society passed a Resolution, resolving to change the classification of the Society from tenant-ownership Society to maintenance Society and also approved the amended bye-laws so prepared and presented instead of the prevailing bye-laws. The amendment in bye-laws and change of classification was also placed in the general body meeting and accordingly Agenda No.7 of the Notice dated 16th September 2018, informing the members of the Annual General Body Meeting. In the Annual General meeting held on 30th September 2018, Agenda No.7 pertaining to change of classification from tenant-ownership Society to maintenance Society and for amendment of bye-laws so presented was unanimously approved. The Respondent No.1 was present in this meeting, however, did not object. Accordingly, on 29th October 2018, the Petitioner submitted the Application dated 30th September 2018 to the Assistant Registrar for change of classification and amendment of bye-laws. Even in the next Annual General Body Meeting held on 19th November 2020 the same Resolution for change of classification and amendment of bye-laws was unanimously approved. iv. The Society having resolved, in its managing committee meeting and its Annual General Body Meeting, to change its classification from tenant-ownership Society to maintenance Society and to adopt the amended bye-laws, the Assistant Registrar passed Order dated 19th August 2019 allowing the change of classification and approved the amendment of the Petitioner’s bye-laws. v. The Respondent No.1 has till date not challenged either the Resolution of the managing committee’s meeting held on 12th September 2018 or the AGM Resolution dated 13th September 2018 and 19th November 2020. The same have thus attained finality. None of the members of the Petitioner - Society except Respondent No.1 have challenged the Order dated 19th August 2019 passed by the Assistant Registrar allowing the change of classification and amendment of bye-laws. Only Respondent No.1 has challenged the Order dated 19th August 2019 passed by the Assistant Registrar by filing his Appeal bearing No.64 of 2019 before the Divisional Joint Registrar. The Divisional Joint the said Appeal on the ground that the Annual General Meeting held on 30th September 2018 and the Application for approval was submitted to the Assistant Registrar on the same day and that the Order dated 19th August 2019 does not say that the said Resolution has not been passed under Section 17 of the MCS Act or Rule 16 of the Maharashtra Co-operative Societies Rules, 1961 (“MCS Rules”). Not a single finding has been rendered by the Divisional Joint Registrar in the impugned Order as to how the order dated 19th August 2019 is contrary to the MCS Act or the Rules framed thereunder. There is also not a single finding as to how the provisions of the Act or the Rules have not been complied with. vi. It is settled law that a quasi-judicial authority must provide the reasoning or findings in support of its decision. On this ground alone, the impugned Order deserves to be set aside. vii. In fact, the Order dated 19th August 2019 passed by the Resolution in its committee meeting and the Annual General Meeting adopting the amended bye-laws and approving the change of classification. The same gets confirmation as not a single member till date has shown any grievance against the same. Thus, Order dated 19th August 2019 is required to be confirmed as the same is in the interest of the 287 members of the Society. The provisions of Sections 16 and Rule 17 are complied with. viii. Respondent No.1 is the sole member, who appears to be aggrieved by the Order dated 19th August 2019. Respondent No.1 is a nuisance creator who has filed 32 cases against the Society and its Office Bearers, 28 cases out of which have been rejected. Respondent No.1 is also a defaulter who has not paid maintenance to the Petitioner - Society since past few years. Total arrears are to the tune of Rs.14,65,209/-. The Petitioner - Society in its special general body meeting held on 18th April 2018 had resolved to expel Respondent No.1 from the membership of the Petitioner - Society. ix. As per section 17 of the MCS Act, 1960 for conversion of Society a Resolution is required to be passed by 2/3 majority of the members present and voting at a general body meeting of a Society. The members of the Petitioner - Society have resolved unanimously at the annual general meeting to change the classification and to adopt the amended bye-laws. No transfer of liability was contemplated by the above change of classification and amendment of by laws and as such the requirements of clauses (i) to (iii) of the proviso to section 17 do not apply. What was only contemplated was a change in the sub-classification. x. Perusal of Rule 10 of the MCS Rules, 1961 would reveal that a Tenant-Ownership Housing Society is one where the Housing Society holds the land on a leasehold or freehold basis. The plots in question are owned by the respective members who have purchased the same under various sale deeds. As such, the Petitioner - Society was established only to undertake maintenance of common areas. xi. The Affidavit filed by the Assistant Registrar confirms that the provisions of Section 17 and the Rules framed under the MCS Act have been complied with while sanctioning the change of sub-classification and the amendment of bye-laws. xii. The Taluka Co-operative election officer, in view of the impugned Order dated 23rd April 2021 issued election programme on 13th July 2023 for conducting the elections of the managing committee of the Petitioner - Society. Pursuant to the same, the elections of the MC of the Petitioner - Society have been held and the results of the election have been declared on 19th August 2023. The list of voters who voted in elections clearly show that 63 out the 116 voters who participated in the elections were defaulters. As the members who have defaulted in payment of maintenance, the election was conducted and managing committee members were elected on the basis of the voting by the defaulting members. If the impugned Order dated 23rd April 2021 is set aside and the status of the Petitioner - Society as a general maintenance is upheld, the defaulters would not be entitled to vote and as such the election programme dated 13th July 2023 allowing the defaulters to vote would have to be set aside and including the results declared in pursuance of the same. xiii. The change of sub-classification of the Society from tenantownership Society to general maintenance Society was pursuant to Resolutions passed in the managing committee meeting as well as two Annual General Body Meetings, none of which have been challenged / set aside till date. The Assistant Registrar, on the basis of the above Resolution passed the Order dated 19th August 2019 approving the change of classification and amendment of the bye-laws. The Divisional Joint Registrar has not assigned any reason as to how any procedure was not followed or provision of law not complied with. The order is completely non-speaking and contrary to the general interest of the Petitioner - Society at large. The Order dated 19th August 2019 cannot be set aside at the behest of a single member, who himself is a defaulter and a nuisance creator. xiv. In view of above submissions, the impugned Order dated 23rd April 2021, the election programme declared on 13th July 2023 and actions taken pursuant to the same including the election results declared on 19th August 2023 be quashed and set aside.
8. Mr. Vishal Kanade, learned Counsel appearing for the Applicant in Interim Application No.16129 of 2023 adopted the arguments of Mr. Nitin Gaware Patil, learned Counsel for the Petitioner. He submitted that there are a total 286 members of the Petitioner-Society and out of the same almost 108 members are defaulters, 28 members are newly enrolled members who have not completed two years from the date of their enrollment. He submitted that approximately about Rs.2.83 Crores is the aggregate amount of default by these 108 members. He therefore submitted that as the Respondent No.1 himself is a defaulter, the Order dated 19th August 2019 passed by the Assistant Registrar should not have been set aside at the instance of the Respondent No.1 by the Divisional Joint Registrar by Order dated 23rd April 2021.
9. Mr. Shriram Kulkarni, learned Counsel appearing for the Respondent No.1 raised the following contentions:i. Learned Counsel pointed out the Registration Certificate of “Ramugade Sahaniwas No.2 Sahkari Gruharachna Sanstha Maryadit” dated 27th October 1995 (Page No.53) which shows that the said Society has been classified as “Housing Society” and the same is sub-classified as “Tenant Ownership Housing Society”. He pointed out various provisions of bye-laws which are annexed along with the Registration Certificate (Page Nos.54 to 124). He pointed out Clause Nos.3(18) and 3(19) on Page No.59 and more particularly the manner in which ‘open space’ and ‘common area and amenities’ are defined. He also pointed out Chapter (X) of bye-laws (Page No.90), wherein the work to be performed by the first General Body Meeting which includes that from the Chief Promoter the property is to be transferred in favour of the Society and the execution of lease deed are provided. He pointed out bye-law No.82 (Page No.92). ii. Learned Counsel pointed out Page No.155 i.e. notice dated 15th September 2018 inter alia issued by Petitioner calling Annual General Meeting and more particularly Clause No.7 of the same. He submitted that the said notice is for calling Annual General Meeting and not Special General Body Meeting. He pointed out Resolution which has been passed in the said General Body Meeting held on 30th September 2018 (Page Nos.168 to 170) and raised several contentions with respect to the same. He submitted that the reasons are incorrectly recorded. He pointed out Page No.172, wherein it is recorded that the said annual general body meeting took place at Borivali (E), Mumbai-66. He also pointed out letter issued by the Petitioner - Society on 19th November 2020 (Page No.173), wherein the said Resolution No.7 passed in the Annual General Body Meeting dated 30th September 2018 is quoted. He submitted that although the meeting held on 30th September 2018 was Annual General Body Meeting, the said letter dated 19th November 2020 erroneously mentions the same as Special General Body Meeting. iii. Learned Counsel submitted that although the Order dated 19th August 2019 records that in the said Annual General Body Meeting the Resolution has been passed unanimously (Page No.174), however, 31 members have opposed the said Resolution. To substantiate the said contention, he pointed out letter dated 30th September 2018 submitted to the Assistant of the Society (Page Nos.38 and 39 of Compilation). He submitted that 63 members were not present in the Annual General Meeting held on 30th September 2018 and 31 members who were present have opposed the said Resolution. iv. Mr. Kulkarni, learned Counsel pointed out the Order dated 19th August 2019 passed by the Assistant Registrar (Page Nos.174-
176) and more particularly Clause No.3 of the same, by which it has been directed that all concerned with the Society shall not use any other land than the land which is allotted to them. He also pointed out Clause No.8 of the said Order which has provided that the said Order is passed subject to the Resolution in the Annual General Body Meeting and further that if it is found that if there is dispute with respect to the said Resolution of the Annual General Meeting, and if dispute is raised with respect to the Resolution of the Annual General Meeting or if it is found that the same is false, then the said Order stands cancelled. v. Learned Counsel submitted that although it is the contention of the Petitioner that the said Resolution of the Annual General Meeting is not challenged, the dispute with respect to the same filed under Section 91 of the MCS Act is pending. He submitted that by Order dated 25th April 2023 passed by the learned Judge, Co-operative Court, Pune below Exhibit - 13 in Dispute No.130 of 2022 the execution and implementation of Resolution No.8 passed in the Annual General Meeting dated 27th February 2022 of the Petitioner - Society has been stayed till final disposal of the dispute. He submitted that the said Order dated 25th April 2023 passed by the learned Judge, Co-operative Court, Pune is challenged by filing Appeal before the Co-operative Appellate Court by the Petitioners and the said Appeal is pending, however, no stay has been granted in the said Appeal. vi. Learned Counsel submitted that Mr. Ramugade, original owner as a member of the Petitioner - Society contested the election after the impugned Order and he has lost the election. vii. Learned Counsel pointed out the reasons given in the impugned Order dated 23rd April 2021 and submitted that as the mandatory provisions of Section 17 have not been complied with, the impugned Order is rightly passed. He pointed out the provisions of Section 17(1)(d) and more particularly pointed out the first proviso to said Section. He also pointed out the definition of “housing society” as defined under Section 2(16) of the MCS Act. He also pointed out Rule 16 of the MCS Rules and submitted that the entire procedure followed is contrary to Rule
16. He also pointed out Section 12 and Rule 10 regarding classification and sub-classification of Societies and more particularly Class 5 - Housing Society and sub clause (a) - Tenant Ownership Housing Society and also Section 16. viii. Learned Counsel pointed out Clause No.4 of the Order dated 27th October 1995 of the Assistant Registrar (Page No.15 of the Compilation) and submitted that by the said Order it is directed that within a period of 4 months the sale deed be executed in the name of the Housing Co-operative Society. ix. Learned Counsel submitted that, in the facts and circumstances, the impugned Order should not be interfered with as the basis of the said Order i.e. the Resolution No.8 passed in Annual General Body Meeting dated 27th February 2022 itself has been stayed by the learned Judge, Co-operative Court. He submitted that in any case the mandatory requirement of Section 17 and Rule 16 are not complied with and therefore no interference in the impugned Order is required.
10. In addition to the above oral submissions, Respondent No.1 has also filed written submissions. In written submission, following points are raised: i. The chronology of events is set out in the written submissions. ii. It is wrongly mentioned that the said Resolution in the Annual General Meeting dated 30th September 2018 has been passed unanimously and the Chairman of the Petitioner - Society had manipulated the said Resolution. iii. It is submitted that the election program was declared on 6th April 2023 during the pendency of Writ Petition No.7635 of 2023. The Petitioner had filed Interim Application No.13588 of 2023 in Writ Petition No.7635 of 2023. However, thereafter the same was withdrawn with liberty to file a Writ Petition and accordingly Writ Petition No.9505 of 2023 has been filed challenging the election program dated 30th July
2023. iv. The original Society has been formed and registered under the Class “Housing Society” and Sub-Class “Tenant Ownership Housing Society”. The original name of the Society is “Ramugade Sahaniwas No.2 Sahkari Gruharachna Sanstha Maryadit”. The said Society was registered on 27th October 1995. v. Both the Petitions and Interlocutory Applications have been filed with a sole intention of protecting the vested interest of Mr. Mahesh Tukaram Ramugade and his wife - Mrs. Uma Mahesh Ramugade under the pretext of the Petitioner-Society. vi. Initially the Society was constituted by 45 members who contributed a sum of Rs.23.97 Lakhs approximately in the account of the said Society and paid the same amount to Mr. Mahesh Tukaram Ramugade and Mrs. Uma Mahesh Ramugade for the purpose of purchasing a property in the name of the said Society. vii. Mr. Mahesh Ramugade was the Chief Promoter of the said Society. While issuing Registration Certificate of the said Society, the 1995 directed by Clause No.4 to execute a Conveyance Deed in favour of the Society within 4 months of the registration of the Society. However, till date, Mr. Mahesh Ramugade has deliberately not conveyed the property to the Society by misusing his power as the Chairman of the said Society. viii. The Collector sanctioned layout of the land property for 192 plots with open spaces, amenities, etc. However, Mr. Mahesh Ramugade has illegally subdivided and sold 309 plots and has falsely mentioned the number of members as 287. ix. It is submitted that as per the records, the total land acquired is 1,73,727.[4] sq mtrs. Out of the same, the residential area is 1,11,987.69 sq mtrs, area reserved for roads is 27,766.38 sq mtrs, amenities area is 17,264.79 sq mtrs and open space is 12,207.14 sq mtrs. Mr. Mahesh Ramugade has illegally sold an area of 4302.990 sq mtrs out of the said amenity area to 10 members. The balance area of amenities admeasuring 12,961.[8] stands illegally in the name of Mr. Mahesh Ramugade. Mr. Mahesh Ramugade has illegally sold an area of 5397.62 sq mtrs out of the said open space to 3 members. One such plot reserved for amenities is sold to the Respondent No.1 and therefore he has filed Special Civil Suit No.188 of 2022 against Mr. Mahesh Ramugade, which is pending before the Civil Judge, Senior Division, Vadgaon Maval, Pune and also a FIR has been filed under Section 420 r/w 34 of the Indian Penal Code, 1860 and the RCC No.219 of 2015 was filed before the learned JMFC, Vadgaon Maval, Pune. Mr. Mahesh Ramugade was acquitted in the said case by the Judgment and Order dated 28th August 2020. However, Respondent No.1 has appealed against the said Order in Criminal Appeal No.3 of 2023 and the same is pending. x. It is submitted that Mr. Mahesh Ramugade along with his Associates conspired to change the class and name of the Society in order to avoid Conveyance. xi. Reliance is also placed on a Report submitted by the Auditor (Class-1) dated 1st June 2018. A Criminal Case is filed by the Economic Offences Wing of Pune Gramin Police Station based on FIR registered by Mr. Rajesh Sudam Bhujbal, Class-1, Audit Officer for illegalities mentioned in his Re-Audit Report and one more FIR has been lodged by the Respondent No.1 in the same case. Charge-sheet was filed by Police in 2021. RCC No.676 of 2020 is pending before J.M.F.C., Vadgaon Maval. xii. The nature of the bye-laws of the Society is for housing purpose only. Thus, only the plot holders were entitled to become members of the said Society. However, by amending the bye-laws of the said Society, Mr. Mahesh Ramugade has made a provision for any person to become a member of the Petitioner-Society by paying nominal fees. This is intended with a view to increase the number of voters to support him. Mr. Mahesh Ramugade has converted a Society into a Club where anyone can become a member on payment of the entry fees. It is submitted that if such outsiders are given membership into the said Society, then the same will hamper the interest of genuine members who have purchased plots in the said Society premises. xiii. It is submitted that Mr. Mahesh Ramugade and his wife Mrs. Uma Ramugade have been monitory beneficiaries in the transactions. They are duty bound to transfer the funds received out of the sale proceeds into the account of the said Society. xiv. Mr. Mahesh Ramugade was also the proprietor of M/s Pranjal Park. Mr. Mahesh Ramugade, as a Chairman of the said Society, had contracted with said firm for engaging the firm to provide maintenance service to the Society. While entering into the said contract, no tender procedure was followed by Mr. Mahesh Ramugade. M/s Pranjal Park has received Rs.4,55,63,182/- from the said Society. Thus, Mr. Mahesh Ramugade has misappropriated Society funds to his own account under the proprietorship of M/s Pranjal Park. xv. It is submitted that the Petitioner has not complied with the provisions of Section 17 of the MCS Act and Rule 16 of the MCS Rules which are pertaining to change of Class of the Society. The Petitioner has not placed on record the Application submitted to the concerned Authorities for change of Class, name and amendment in bye-laws. Therefore, it cannot be ascertained whether the Petitioner had given full details about the same in the said Application to the Registrar and what was sought in the Application. xvi. The correspondence between the Petitioner and various Authorities under the provisions of the MCS Act is pointed out and more particularly letter dated 7th June 2018 of the Assistant Registrar Co-operative Societies (Page No.150) and letter dated 31st August 2018 of the Divisional Joint Registrar (Page No.151). It is submitted that by said letter dated 31st August 2018, no permission has been granted to the Petitioner to change class and amend bye-laws. Hence, notice dated 15th September 2018 calling Annual General Meeting is illegal and void to change class and amend bye-laws. It is submitted that as per Rule 16(3), the Society is required to convene a Special General Body meeting by giving 15 days’ notice. The notice dated 15th September 2018 is for convening Annual General Body Meeting. As per Rule 16(3), the Society is required to pass a Resolution for amalgamation, transfer of assets and liabilities, division or conversion, as the case may be, by 2/3 majority of the members present and voting at the meeting. The Resolution so passed shall contain the purpose with the full scheme indicating how the proposed amalgamation, transfer or division or conversion would be useful to the Society and be given effect to. However, the Petitioner did not disclose full scheme of conversion to the members. Moreover, the Resolution also did not contain full scheme of conversion. Resolution was not passed with 2/3 majority as the Respondent No.1 along with other 30 members out of 63 present members in the said Annual General Meeting opposed the Resolution. They submitted a signed letter to the Assistant Registrar dated 30th September 2018 opposing the same. xvii. It is submitted that in the impugned Order it is rightly observed that there is no Agenda in Notice dated 15th September 2018 regarding change of name of the Society. Yet the Petitioner has changed the name of the Society as well. It is submitted that it is rightly observed in the impugned Order that in spite of changing the class from “Housing” to “General” the Petitioner has continued to use word “Gruharachana” in its new name. The said word “Gruharachana” was purposely kept by the Petitioner as Mr. Mahesh Ramugade knew that if the said word is not there in the name of the Society, then it would create doubt in the mind of new purchasers who would purchase land from Mr. Mahesh Ramugade and his wife Mrs. Uma Ramugade. It is rightly observed in the impugned Order that there is no compliance of Sections 17 of the MCS Act and Rule 16 of the MCS Rules. xviii. With respect to the Writ Petition No.9505 of 2023, it is submitted that Mr. Mahesh Ramugade has taken dual stand while he is opposing the election programme at the same time, he filled up the nomination for election and contested the same. However, he has lost the election. On the other hand, Respondent No.1 won the election with 71 votes. It is submitted that the participation of Mr. Mahesh Ramugade validates the fact that the election program was not ultra vires and was in accordance with law. xix. It is submitted that the contention raised by the Petitioner is that by changing the Class and amending the bye-laws the Petitioner wanted to debar the defaulters from voting into the election. However, the Petitioner has always been trying to put the Respondent No.1 into the definition of “defaulter” for non-payment of outstanding dues. It is submitted that Respondent No.1 has paid the maintenance amount regularly. However, the Petitioner has levied the litigation fees and conveyance charges upon the Respondent No.1. xx. It is submitted that as far as the Resolution which has been passed declaring Respondent No.1 as “defaulter”, the Co-operative Court, Pune has stayed the execution and implementation of the said Resolution. xxi. It is submitted that Respondent No.1 has challenged the Resolution passed in Annual General Meeting dated 30th September 2018 before the Co-operative Court by filing Dispute No.105 of 2019 which is pending. xxii. Thus, it is submitted that both the Writ Petitions be dismissed with cost.
11. Before considering the rival submissions, it is necessary to set out certain factual and legal aspects: i. It is the case of the Respondent No.1 that initially the Society was constituted by 45 members who contributed a sum of Rs.23.97 Lakhs approximately and the said amount is deposited in the account of the Society and paid to Mr. Mahesh Tukaram Ramugade and his wife who purchased a property i.e. agricultural land at Village Patan, Taluka - Maval, District - Pune in the name of the said Society. Mr. Mahesh Tukaram Ramugade was the Chief Promoter of the said Society. Accordingly, the land is purchased by Mr. Mahesh Ramugade and his wife. ii. On 27th October 1995 the Society namely “Ramugade Sahaniwas No.2 Sahkari Gruharachna Sanstha Maryadit” was registered under the Class “Housing Society” and Sub-Class as “Tenant-Ownership Housing Society”. The Registration Certificate was issued on 27th October 1995 (Page No.53). iii. As per the Order dated 27th October 1995 of the Assistant Pune (Page No.15 of Respondent No.1’s Compilation), Condition No.4 was imposed on the Chief Promoter Mr. Mahesh Tukaram Ramugade, which reads as follows: ß4½ laLFkk uksan.khps fnukadkiklqu pkj efgU;kaps vkar laLFksP;k ukaos [kjsn[kr;ksX;fjR;k d:u ?ksowu rlk iwrZrk vgoky;k dk;kZy;kdMsa ikBfo.ks vko’;d vkgs-Þ Thus, what is provided is that within a period of 4 months from the date of registration of the Society conveyance is to be executed and the compliance report is to be submitted to the said Office. Admittedly, this clause is not complied with. iv. The registered approved bye-laws are annexed along with the said Registration Certificate dated 27th October 1995 (Page Nos.54- 124). The relevant portion of the same namely definitions of open space, common area and amenities, etc. are defined by Clause Nos.3(18) and 3(19) of bye-laws (Page No.59) is as follows: ß¼18½ ßeksdGh tkxkÞ Eg.kts vlk HkwHkkx (Area) tks LkaLFksP;k eatwj ys&vkÅV izek.ks laLFksP;k Hkw[kaMkarxZr vlysyh eksdGh tkxk] th vkdk’kki;Zar eksdGh lksMysyh vkgs- ¼19½ ßlkekbZd {ks=s vkf.k lqfo/kkÞ Eg.kts & ¼v½ iVkax.k] ckx] ikfdZax vkf.k dksBhlkBhph tkxk] lkekbZd varxZr jLrs- ¼vk½ O;oLFkkiukdMwu dkexkjkalkBh miyC/k d:u ns.;kar vkysyh ekydhph tkxk] ¼b½ vR;ko’;d lqfo/kkaph mHkkj.kh mnk- fo|qr iqjoBk] izdk’k] xWl] xje vkf.k FkaM ik.kh jsfQztjsVj],vjdafM’kfuax vkf.k lkQlQkbZ b- ¼bZ½ lkekbZd miHkksxklkBhP;k lqfo/kk mnk- bfyOgsVlZ] VWaaDl] iai] eksVlZ] QWUl] daizsllZ] b- ¼m½ brj vkfFkZd vkf.k O;kikjh rRokojhy lq[klksbZ- ¼Å½ lkekbZd miHkksxklkBh rlsp esaVsuUl o laj{k.k;klkBh laLFksP;k ekydhP;k Hkw[kaMkpk dj.;kar vkysyk mi;ksx-Þ Thus, open space is inter alia defined as open space shown in the sanctioned layout. The common area and amenities is defined as grounds, gardens, internal roads, common amenities viz. electricity etc. v. The Chapter X of the said bye-laws (Page No.90) is concerning the General Body Meeting and Part-A of the same is regarding the first general body meeting. Bye-Law No.80 (Pages 90-91) specifies the work which is to be undertaken by the First General Body Meeting. The relevant part of the same is as under: ß80-¼v½ laLFksP;k ifgY;k loZlk/kkj.k lHksph dkes [kkyh uewn dsY;kizek.ks jkgrhy-
6) eq[; izorZdkdMwu vlysY;k ¼cka/kdkenkjkdMwu½ R;kps ekyeRrsrhy ekydh gDd o fgr laca/k laLFksP;k ukokoj gLrkarjhr d:u ?ks.;kdjhrk lferhdMs vf/kdkj lqiwnZ dj.ks-
11) foghr ueqU;krhy fyt MhMyk ekU;rk ns.ks-Þ Thus, in the First General Body Meeting, the Chief Promoter has to authorise the Managing Committee of the Society to get transfer the right, title and interest with respect to the concerned property and to approve the draft lease deed as per the format. vi. Bye-Law No.81 (Page No.91) is concerning the recording of minutes of the First General Body Meeting and the same is as under: ß81- ifgY;k loZ lk/kkj.k lHksP;k osGh th O;Drh v/;{krk djhy rh O;Drh lHksP;k bfro`Ùkkph uksan d:u R;koj vkiyh lgh djhy o rs gaxkeh lferhP;k ifgY;k lHksr fuoMwu vkysY;k laLFksP;k lfpokdMs fdaok mifo/kh dz- 89¼c½ [kkyh uksan.kh vf/kdkÚ;kus fu;qDr dsysY;k lfpokdMs lqiwnZ djhy-Þ vii. Bye-Law No.82 (Page No.92) is regarding the record and the property of the Society which has to be handed over to the Society by the Chief Promoter. The same inter alia specifies that the documents which the Chief Promoter is having and the properties of the Society which are in his possession of the Chief Promoter has to be handed over to the Society. viii. It is also relevant to note the terms and conditions of the Agreement executed with the plot purchasers. One such agreement is produced by the Petitioner (Page Nos.126 to 144). The said sale deed is executed by Mrs. Uma Mahesh Ramugade and Mr. Mahesh Tukaram Ramugade in favour of the plot purchasers. The relevant Clauses of said sale deed are as follows: “3. Where as RAMUGADE SAHNIWAS NO.2
SAHAKARI GRUHARACHNA SANSTHA MARYADIT through its chairman Dr. Mr. Mahesh Tukaram Ramugade is a consenting party through its constituted attorney Mr. Gopinath Kamble” (which terms and expression shall unless it be repugnant to the context and meaning thereof shall mean and include his heirs, agents, executors As permitted assigns etc.) as the party of the THIRD PART:- Vendor & Developer MR.
MAHESH TUKARAM RAMUGADE is And where as the well seized, possessed and sufficiently entitled to all that piece and parcel of land or ground lying and being situated at Village – Patan, Tal. - Mawal, Dist. Pune bearing Gut No. 313, admeasuring 181.80 Sq.mts, herein after the same shall be referred as “the said land”.
AND WHEREAS vendor and developer have purchased the said land from the then owner Mrs.UMA MAHESH RAMUGADE said land by virtue of sale deed dated _________.
AND WHEREAS by virtue of the said sale deed the vendor became the absolute owner of the said land. The said agriculture land has been converted into N.A. plots by Collector of Pune vide its N.A. order no. PMA/NA/SR/90/97, Dated 13/10/97.
AND WHEREAS the Vendor & Developer has sub divided the said land into plots and the said layout of the plots is sanctioned by the Town Planning Authorities vide its letter No. TPS/1896/1563/SOR/178-96, Dated 07/08/1996.
AND WHEREAS the Vendor & Developer has obtained Non Agricultural use permission for the said land and the same is sanctioned by the Collector of Pune vide its N.A. Order No.PMA/NA/SR/90/97, Dated 13/10/97.
AND WHEREAS the Vendor & Developer has formed a Cooperative Housing Society for the maintenance of the said plots in the said society. The said society is duly registered with the Registrar of Co-operative Societies vide its Registration No. PNA/MWL/HSG/(T.O.)/713/95-96/1995 Dt.27/10/95 the said society is formed under the name and style as RAMUGADE SAHANIWAS NO.2
AND WHEREAS with the present Sale Deed Party of the First Part Sold & Conveyed into the name of Party of the Second part AND WHEREAS by virtue of the said sale deed the Purchasers have become the absolute owners of the said land.
AND WHEREAS the Purchasers have agreed to purchase from the Vendor and the Vendor has agreed to sell to the Purchasers a portion of land admeasuring 181.80 Sq.mtrs. Equivalent to 1957 Sq.ft being named as Plot no. 1 (Part- Western) situated as part of the sanctioned layout of the Gut No. 313, of Village Patan, Taluka - Mawal, Dist. Pune, at and for the lumpsum price of Rs.391400/- (Rupees: Three lakhs Ninty One Thousand Four Hundred Only).
AND WHEREAS the Purchasers have paid the total consideration for the 181.80 Sq.mtr. plot equivalent to 1957 Sq.ft. being named as Plot No. 1 (Part-Western) situated as part of the sanctioned layout of the Gut No. 313, to the Vendor and called upon the Vendor and confirming/consenting party of the third part to execute proper conveyance of the said sub plot in favour of Purchasers.
NOW THIS INDENTURE WITNESSETH AS FOLLOWS, That in pursuance of the said proposal of sale and in consideration of Rs. 391400/- (Rupees Three lakhs Ninty One Thousand Four Hundred only) paid by the Purchasers to the Vendor before the execution of these presents, being the full consideration money (the payment and receipt whereof the Vendor doth hereby admits and acknowledges and of and from the same and every part thereof doth hereby acquits, releases and discharges unto the Purchasers absolutely and forever) the Vendor DOTH hereby SELLS, TRANSFERS, ASSIGNS AND RELEASES unto the Purchasers absolutely and forever all that portion of land admeasuring 181.80 Sq.mtrs. equivalent to 1957 Sq.ft including the hand - dug water well therein being named as Plot no. 1 (Part- Western) situated as part of the sanctioned layout of the Gut No. 313, of Village - Patan, Taluka - Mawal, Dist. Pune and more particularly described in the Schedule hereunder written and hereinafter referred to as the ‘said plot’ TOGETHER WITH all and singular the hand dug water well, courtyards, areas, ways, paths, passages, sewers, drains, water, water courses, liberties, members, easements, profits, privileges and appurtenances whatsoever to the said plot belonging to and or in any way reputed to belong or with the same or every part thereof now or at any time hereto before usually held, used, or occupied or known as part or member thereof.
THIS INDENTURE FURTHER WITNESSETH THAT, the Purchasers of the said plot are entitled to use and enjoy all common amenities, facilities and also entitled to use the common layout roads as access to their plot alongwith other plot holders.
IT IS FURTHER AGREED BY AND BETWEEN THE PARTIES THAT,
1. The Purchaser will utilise the FSI respectively available in respect of the said plot as per the regulations laid down by the concerned Govt. authority.
2. The said conveyance deed or sale deed is based on the agreement to sale of a developed plot of land dated 13/12/1997 and on full payment by the Purchasers to the vendor and developer.
3. The Vendor hereby declares that the provisions of ‘LAND CEILING & REGULATION ACT 1976’ are not applicable to the above said lands bearing Gut No. 313, of Village Patan, Tal. -Mawal, Dist. Pune.
4. The Vendor shall obtain and submit income tax clearance as per the The Income Tax Act 1961 As Amended from time to time, if necessary, to the Sub Registrar Assurance before execution of this sale deed.
5. That the developer shall carry on any other and further development to the said plot of land as may be decided and undertaken by the developers from time to time in order and which may be provided to the entire scheme for the use and benefit of the Purchasers.
6. That the Purcharers have agreed that the Purchasers shall pay and bear the cost of legal expenditure which may be required for execution of and Registration of the necessary documents to and in favour of th Purchasers.
7. Regarding individual płot fencing work, society has decided to do it on a contribution basis and developer has agreed to do the work with the rate of Rs.190/-(Rupees One Hundred Ninety only) per running feet and the material used shall be M.S. angle (1/2” X 1/2”) alongwith galvanized barbed wire. The work shall be done by the Developer after conveyance of the said plot in the name of purchasers and with prior written intimation with sufficient period of days to the Purchasers.
8. That the Purchasers have agreed to pay Rs.2.12 per sq.ft. per year, to the developer by way of security charges in respect of said plot of land from the date of handing over the possession of the said plot to the Purchasers. The Purchasers have further agreed to pay Rs.696.96/- per plant per year towards maintenance of the plants. The developer shall plant the trees and look after their security, cultivation of plantation, watering, pesticides and fertilizers. It is generally for the maintenance and up keep of the plants and growth of plants that belong to the Purchasers. Payment shall be made on a half yearly basis.
9. It is binding upon and agreed by the Purchasers that for the purpose of construction of Bungalow on the said plot of land the Purchasers shall utilise the F.S.I. of 0.[5] or F.S.I. sanctioned and allotted by competent Govt. Authorities and shall construct the bungalow in the fashion of ground plus one by utilising the plinth level of ground 489.25 sq.ft i.e. Equivalent to 45.45 sq.mts thereabout out of the said plot of land as per the plan of construction of Bungalow given by the developer and agreed upon by the Purchasers.
10. It is agreed by purchasers to construct a bungalow for residential purpose on the plot purchased by the purchasers from the developer. It is mandatory that the purchasers shall give the contract for their bungalow construction to the firm of the developer i.e. PAA enterprises Or Pranjal Park. The design of the bungalow can be as per the approved typical bungalow plan or any other revised plan specially designed for the purchasers as per their requirements and liking, prepared by the consulting Architect of the Developer at no extra cost. The cost of the bungalow shall be quoted by the developer on the basis of the selected design of the bungalow, amenities required, prevailing basic rates of the materials and labour charges at the time of construction.
11. The Purchasers have agreed to become members of the proposed plot Owners Society named “Ramugade Sahaniwas No.2 Sahakari Griharachana Sanstha Maryadit”.” (Emphasis added) It is an admitted position that with all the purchasers the sale deed is executed in above format. ix. In view of above position, it is necessary to see the definition of “housing society” as defined under Clause 16 of Section 2 of the MCS Act, which is as under: “2. Definitions In this Act, unless the context otherwise requires,—... (16) “housing society” means a society, the object of which is to provide its members with open plots for housing, dwelling houses or flats; or if open plots, the dwelling houses or flats are already acquired, to provide its members common amenities and services;” x. Section 12(1) provides that the Registrar shall classify all societies into one or other of the classes of societies defined in section 2 and also into such sub-classes thereof as may be prescribed by rules. xi. Rule 10 of the MCS Rules is regarding the classification and subclassification of societies. The housing societies are covered under Clause 5 of the said Rules and sub-classification (a) is “Tenant Ownership Housing Society”. xii. Thus, in view of above classification and sub-classification of societies and in view of the direction issued by the Assistant Registrar while registering the Society that the Promoter has to convey the land in favour of the Society within four months and detailed bye-laws of the Societies giving various rights to the purchasers as well as terms and conditions of the respective sale deeds executed with all the purchasers, it is necessary to consider Section 17 of the MCS Act, which reads as under: “17. Amalgamation, transfer, division or conversion of societies (1) A society may, with the previous approval of the members present and voting at a special general meeting held for the purpose, decide— (a) to amalgamate with another society; (b) to transfer its assets and liabilities, in whole or in part, to any other society;
(c) to divide itself into two or more societies; or
(d) to convert itself into another class of society:
Provided that, when such amalgamation, transfer, division or conversion, aforesaid, involves a transfer of the liabilities of a society to any other society, no order on the resolution shall be passed by the Registrar, unless he is satisfied that—
(i) the society, after passing such resolution, has given notice thereof in such manner as may be prescribed to all its members, creditors and other persons, whose interests are likely to be affected (hereinafter in this section referred to as “other interested persons”), giving them the option, to be exercised within one month from the date of such notice, of becoming members of any of the new societies, or continuing their membership in the amalgamated or converted society, or demanding payment of their share or interest or dues, as the case may be,
(ii) all the members and creditors and other interested persons, have assented to the decision, or deemed to have assented thereto by virtue of any member or creditor or any other interested person failing to exercise his option within the period specified in clause (i) aforesaid, and
(iii) all claims of members and creditors and other interested persons, who exercise the opinion within the period specified, have been met in full or otherwise satisfied: [Provided further that, in case of societies doing the business of banking, no such amalgamation, transfer, division or conversion shall be initiated without the prior approval of the Reserve Bank of India.] (2) Notwithstanding anything contained in the Transfer of Property Act, 1982, or the Indian Registration Act, 1908, in the event of division or conversion, the registration of the new societies or, as the case may be, of the converted society, and in the event of amalgamation, on the amalgamation the resolution of the societies concerned with amalgamation, shall in each case be sufficient conveyance to vest the assets and liabilities of the original society or amalgamating societies in the new societies or converted or amalgamated society, as the case may be. (3) The amalgamation of societies, or division or conversion of a society shall not affect any rights or obligation of the societies so amalgamated, or society so divided or converted, or render defective any legal proceedings which might have been continued or commenced by or against the societies which have been amalgamated, or divided or converted; and accordingly, such legal proceedings may be continued or commenced by or against the amalgamated society, or, as the case may be, the converted society, or the new societies. (4) Where two or more societies have been amalgamated, or a society has been divided or converted, the registration of such societies or society shall be cancelled on the date of registration of the amalgamated society, or the converted society, or the new societies between which the society may have been divided.” xiii. In the context of conversion of society from one class to another class, Rule 16 of the MCS Rules is also important, which reads as under: “16. Amalgamation, transfer of assets and liabilities, division or conversion of societies (1) Every society desiring to effect amalgamation, transfer of assets and liabilities, division or conversion shall make an application to the Registrar in that behalf, giving full details about such amalgamation, transfer, division or as the case may be, conversion. (2) On receipt of such application, the Registrar may, after examining the details furnished in the application and other particulars which he may call upon the society to furnish, give his approval to the amalgamation, transfer, division or conversion, if he considers such amalgamation, transfer, division or conversion, as the case may be, to be in the interest of the society. (3) After the receipt of Registrar's approval under sub-rule (2), the society shall convene a [special general body meeting] by giving notice of at least 15 clear days to all its members and creditors and pass a resolution for amalgamation, transfer of assets and liabilities, division or conversion, as the case may be, by two-third majority of the members present and voting at the meeting. The resolution so passed shall contain the purpose and the full scheme indicating how the proposed amalgamation, transfer, division or conversion would be useful to the society and be given effect to. Where the scheme does not involve transfer of liabilities of the society to another society, a statement to that effect shall be made in the application to be made under subrule (1). Where the scheme involves transfer of liabilities of the society, the society shall give written notice in Form 'G' to all its members, creditors and other persons whose interests are likely to be affected by such transfer. The notice shall also be published in at least one newspaper in circulation in the district in which the society's office is situated and a copy thereof shall be exhibited on the notice-board in the society's and Registrar's office. [Provided that the State Government may, in the case of any society, dispense with the giving of such notice, regard being had to the extent of liabilities, the financial position of the society and its members and other relevant factors pertaining to such society.] (4) Within one month from the date of notice referred to in sub-rule (3), the members, creditors and other persons whose interests are likely to be affected by the transfer of the society’s liabilities may exercise their option as required by clause (f) of the proviso to sub-section (i) of Section 17 failing which they shall be deemed to have assented to the transfer of liabilities of the society to another society. (5) The society shall meet in full and otherwise satisfy all claims of members and creditors and other interested persons who exercise the option. (6) The society shall submit a report to the Registrar of the action taken by it and request him to give effect to its decision for amalgamation, transfer, division or conversion by registering the amalgamated or converted society or the new society, as the case may be, and cancelling the registration of the societies which have been amalgamated, divided or converted. (7) On receipt of the report from the society under subrule (6), the Registrar shall, after satisfying himself that the procedure has been properly followed, register the amalgamated, divided or converted societies and cancel the registration of the societies which have been amalgamated, divided or converted.”
12. Thus, reading of Section 17 of the MCS Act read with Rule 16 of the MCS Rules clearly provides that following is the mandatory procedure which is required to be followed for amalgamation, transfer of assets and liabilities, division or conversion of societies:-
(i) Every Society desiring to effect amalgamation with another society or transfer its assets and liabilities, in whole or in part, to any other society, to divide itself into two or more societies or to convert itself into another class of society, shall make an application to the amalgamation, transfer, division or as the case may be, conversion. [Section 17(1) r/w Rule 16(1)]
(ii) On receipt of such application, the Registrar, after examining the details furnished in the application and other particulars which he may call upon the Society to furnish, give his approval to the amalgamation, transfer, division or conversion, if he considers such amalgamation, transfer, division or conversion, as the case may be, to be in the interest of the Society. [Section 17(1) r/w Rule 16(2)]
(iii) After receipt of Registrar’s approval under Sub-Rule (2) of Rule 16, the Society shall convene a special general body meeting by giving notice of at least 15 clear days to all its members and creditors and pass a resolution for amalgamation, transfer of assets and liabilities, division or conversion, as the case may be, by two-third majority of the members present and voting at the meeting. The resolution so passed shall contain the purpose and the full scheme indicating how the proposed amalgamation, transfer, division or conversion would be useful to the Society and be given effect to. [Section 17(1) r/w Rule 16(3)]
13. It is the submission of Mr. Nitin Gaware Patil, learned Counsel appearing for the Applicant that the only classification of the Society is being changed and therefore the same does not involve transfer of liabilities of the Society and therefore other requirement of Section 17 of the MCS Act and also Rule 16 of the MCS Rules are not required to be followed and therefore the other requirements are not considered.
14. Thus, from the above scheme of Section 17 of the MCS Act read with Rule 16 of the MCS Rules, as far as the present Petition is concerned, following steps are required to be taken by the Society and the said steps are mandatory:
(i) The Society shall make an application to the Registrar giving full details about the conversion of the said Society to some different class.
(ii) The Registrar, after examining the details give his approval to the conversion, if the Registrar considers such conversion in the interest of the Society.
(iii) If the Registrar grants approval, then the Society shall convene the special general meeting by giving notice of at least 15 clear days to all its members and pass a resolution for conversion by two-third majority of the members present and voting at the meeting.
15. Thus, the crucial aspect which is required to be decided in the present Writ Petition is regarding compliance of the above mandatory requirements.
16. On 7th June 2018, the Assistant Registrar, Co-operative Societies, Vadgaon, Taluka - Maval, District - Pune by addressing letter to the District Deputy Registrar, Co-operative Societies, Pune (Rural) sought guidance for the conversion of the said Society registered as housing society into maintenance society (Page 150). The said letter dated 7th June 2018 is very relevant, which reads as under:- ßtkdz- lfuek@d{k&4@x`g@jkewxMs2@iqu@2017 fnukad 07.6.2018 izfr] ek- ftYgk mifuca/kd] lgdkjh laLFkk iq.ks ¼xzk-½ fo”k; % jkeqxMs lgfuokl u-2 lgdkjh x`gjpuk laLFkk e;kZ- eGoyh rkekoG ft- iq.ks;k laLFksps iquoZxhZdj.k dj.ksckcregksn;] mijksDr fo”k;kdMs d`i;k vkiys y{k os/k.;kr;sr vkgsmijksDr fo”k;kUo;s vki.kkl lfou; dGfo.ksr;srs dh];k dk;kZy;kdMs jkeqxMs lgfuokl u-2 lgdkjh x`gjpuk laLFkk e;kZ- eGoyh rkekoG ft- iq.ks;k laLFkslanHkkZr izpaM izek.kkoj rdzkjh izkIr gksr vlwu R;keqGs;k dk;kZy;kP;k nSuafnu dkedktkojgh ifj.kke gksr vkgs- lnj laLFksP;k uksan.khosGh laLFksps oxhZdj.k pqdhP;k in~/krhus >kY;kpsgh dkgh izkIk~r rdzkjhao:u fun’kZukl vkysys vkgs rlsp R;keqGs lHkklnkaP;k fgrkl ck/kk fuekZ.k >kY;kpsgh Jh- HkqtcG ¼’kkldh; ys[kkifj{kd½;kauh dsysY;k lu 2011 rs 2016 P;k Qjys[kkifj{k.k vgokykrgh uewn dsysys vkgsrlsp lnjph laLFkk uksan.khosGh ¼HkkMsd: ekydh gd~d x`gjpuk laLFkk½ ¼fV- vks-½ Eg.kwu uksan.kh >kysyh vkgs- rjh lnj uksan.khps iquoZxhZdj.k ^ns[kHkky laLFkk* vls djkos fdaok vls;kckcr d`i;k ekxZn’kZu feGkos gh fouarh-Þ
17. The District Deputy Registrar by letter dated 31st August 2018 communicated to the Assistant Registrar as follows: ßmijksDr lanfHkZ; fo”k;kdMs vkiys y{k os/k.;kr;sr vkgsvkiysdMhy ofjy lanHkkZuqlkj jkexqMs lgfuokl lgdkjh x`gjpuk laLFkk e;kZ-] eGoyh rk- ekoG] ft- iq.ks;k laLFksP;k lanHkkZr izpaM izek.kkoj rdzkjh izkIr gksr vlqu R;keqGs vkiys dk;kZy;kP;k nSuafnu dkedktkoj ifj.kke gksr vlY;kps dGfoysys vlqu lnj laLFksP;k uksan.khosGh laLFksps oxhZdj.k pqdhP;k i/nrhus >kY;kpsgh dkgh izkIr rdzkjhao:u fun’kZukl vkysys vkgs rlsp R;keqGs lHkklnkaP;k fgrkl ck/kk fuekZ.k >kY;kpsgh Jh- HkqtcG ¼’kkldh; ys[kkifj{kd½;kauh dsysY;k lu 2011 rs 2016 P;k Qsjys[kkifj{k.k vgokykr ueqn dsysys vkgsrlsp lnjph laLFkk uksan.khosGh laLFksps mioxhZdj.k HkkMsd: ekydh gDd lgdkjh x`gjpuk laLFkk ¼fV- vks-½;k mioxhZdj.kk[kkyh uksan.kh >kysyh vkgs- rjh lnj uksan.khps iquZoxhZdj.k ns[kHkky laLFkk vls djkos fdaok vls;kckcr ekxZn’kZu feG.ksph fouarh vki.k lanfHkZ; i=kus dsysyh vkgs-;kckcr vki.k ueqn dsysY;k dkj.kkaeqGs laLFksps oxhZdj.kkr cny dj.;klkBh ofjy dkj.k la;qDrhd okVr ukgh- ek= l|fLFkrhr laLFksps ukos tehu ulysus laLFksps mioxhZdj.kkr cny dj.kslkBh;kckcr laLFksdMqu rlk iksVfu;e nq:Lrh izLrko izkIr >kysyk vlY;kl rlk lfoLrj izLrko;k dk;kZy;kl lknj djkok Eg.kts rks ofj”B dk;kZy;kdMs ikBfork;sbZy-Þ Thus, it is clear that the District Deputy Registrar, Co-operative Society, Pune (Rural), has specifically opined that, the reasons assigned for conversion of classification of the Society are not appropriate and proper, however, if detailed proposal is received from the Society as the land is not yet transferred in favour of the Society, then the same can be considered.
18. It is an admitted position that pursuant to said letter dated 31st August 2018 of the District Deputy Registrar, no such detailed proposal has been submitted to the Registrar.
19. Thus, it is clear that before convening a special general body meeting for consideration of the resolution of conversion, it is mandatory that an application has to be filed with the Registrar and such Special General Body Meeting can be convened only if the opinion that the said conversion is in the interest of the society, gives approval to such conversion. Perusal of the record do not show that such prior approval as contemplated by Section 17(1) of the MCS Act read with Sub-Rule (2) of Rule 16 of the MCS Rules is given by the June 2018 of the Assistant Registrar, Co-operative Societies only guidance was sought from the District Deputy Registrar as many complaints were received. The District Deputy Registrar by letter 31st August 2018 addressed to the Assistant Registrar has specifically recorded that there is no appropriate and proper reason for conversion of the classification of the Society, however, it is further stated in the said letter that if detailed proposal is received from the Society along with the proposal for change in bye-laws, then the same can be considered. The said letter by no stretch of imagination can be considered as prior approval as contemplated by Section 17(1) of the MCS Act read with Rule 16(1) and 16(2) of the MCS Rules.
20. In fact the same can be considered as rejection. In any case, the same cannot be the approval. Thus, it is very clear that the Authorities under the MCS Act at no point of time, have granted approval as contemplated under Section 17(1) of the MCS Act and Sub-Rule (2) of Rule 16 of the MCS Rules by recording satisfaction that the conversion is in the interest of the society. The said requirement is very crucial as at that stage the Registrar has to satisfy himself whether the said conversion is in the interest of the Society and then to give approval for the same.
21. The Society after receipt of letter dated 31st August 2018, in the managing committee meeting passed following Resolution on 12th September 2018 (Page 152): “Extract of the Managing Committee Meeting Resolution NO. 08 of Dated 12/09/2018. Resolution No: 08 It is resolved to correct classification of society from Tenant Ownership to maintenance society / condonium society considering the basis structure of the formation of the society and to reduce the complaint made by few of the members due to misunderstanding and misconception occurred because of Tenant Ownership classification of society, considering the advice given by hon’ble D.D.R. Pune gramin on the letter issued to hon’ble A.R.C.S. Vadgaon. It is also resolved to approve the bye-laws prepared by the society and presented by the Hon. secretary Mr. Hemant Chandrakant Gaonkar instead of prevailing bye-laws of Tenant Ownership. It is also resolved to get the approval of forthcoming Annual General Body Meeting and get it passed the resolution by 2/3rd of majority to make amendment of the bye-laws of the society.” Thus, it is clear that the said proposal/application for conversion alongwith proposed amended bye-laws were not sent to the Registrar and approval of the Registrar has not been taken which is the mandatory requirement.
22. It is further significant to note that a notice dated 15th September 2018 (Pages 155-156) regarding general body meeting of the Society was issued. The said general body meeting was proposed to be held on 30th September 2018. The said notice dated 15th September 2018 reads as under: ßfnukad % 15@09@2018 lwpuk laLFksph lu 2017-18 lkBhph okf”kZd loZlk/kkj.k lHkk jfookj] fnukad 30 lIVsacj] 2018 jksth Bhd ldkGh 10%00 oktrk ?ks.;kps;ksftys vkgs- lnj lHksps fo”k; [kkyhyizek.ks vlrhyvtsaMk 1- ekxhy okf”kZd loZlk/kkj.k lHkk fnukad 23@09@2017 vkf.k fo’ks”k loZlk/kkj.k lHkk fnukad 24@06@2018 ps bfro`Rrkar- 2- uohu lHkkln o gLrkarfjr lHkkln- 3- lu 2018-2019 lkyklkBhP;k ys[kkijh{kdkph ¼vkWfMVj½ use.kwd dj.ks- 4- lu 2017-2018 pk tek[kpZ] rkGscan o vkWfMV fjiksVZ- 5- Fkdckdh olqyh o R;kP;klkBh laLFksdMwu dsysyh dkjokbZ] lkscr Hkkoh okf”kZd;kstuk o R;kP;k [kpkZph eatqjh- 6- jkeqxMs lgfuokl ua- 1 vkf.k ua- 2 ps foyhuhdj.k @,d=hdj.k dj.ks ckcrph dye 17 [kkyh ppkZ o iksVfu;e nq:Lrhpk Bjko- 7- laLFksP;k pqdhus >kysY;k ‘Tenant Ownership’ oxhZdj.kkps ‘Maintenance society’ dj.;kckcrph ppkZ o iksVfu;e nq:Lrhpk Bjko- 8- v/;{kkaP;k ijokuxhus;s.kkjs fo”k;-Þ
23. The requirement of Section 17 of the MCS Act read with Rule 16 of the MCS Rules is that a special general body meeting is required to be convened after the receipt of the Registrar’s approval under Sub-Rule (2) of Rule 16 of the MCS Rules. Such Special General Body Meeting is required to be convened by giving notice of at least 15 clear days to all its members. Even the said requirement is also not fulfilled as the notice at the most is of 14 days, assuming that all the members are served on the date of the notice i.e. on 15th September 2018. In any case, the meeting convened is not the special general body meeting but the annual general body meeting. In any case, there was no prior approval given by the Registrar and therefore the said Annual General Meeting assuming to be the Special General Body Meeting is in fact null and void with respect to Subject Nos.[6] and 7 and more particularly regarding conversion of classification of the society.
24. In this background of the matter, it is relevant to note that as per the bye-laws of the Society, the annual general body meeting is to be convened in accordance with bye-law No.87 and Agenda of the annual general meeting is as per the bye-law No.88. As far as the special general body meeting, the concerned provisions are bye-law Nos.89 to 92 which are set out: ßfo’ks”k loZlk/kkj.k lHkk dsOgk Hkjokoh-
89. v/;{kkaP;k vkns’kko:u fdaok lferhP;k cgqerkO; fu.kZ;koj fo’ks”k loZlk/kkj.k lHkk dsOgkgh cksyfork;sbZyek= laLFksP;k lHkklnkaiSdh 1/5 lHkklnkauh ys[kh ekx.kh dsY;kl fdaok uksan.kh izkf/kdj.kkus fdaok T;k lgdkjh x`gfuekZ.k egkla?kkl laLFkk layXu vkgs R;k egkla?kkus ekx.kh dsyh vlrk ekx.kh vkY;kP;k rkj[ksiklwu,d efgU;kP;k vkar fo’ks”k loZlk/kkj.k lHkk cksyfoyhp ikfgts- v’kk lHkse/;s uksVh’khr uewn dj.;kar vkysY;k fo”k;kO;frfjDr vU; dks.kR;kgh fo”k;koj fopkj dsyk tk.kkj ukgh- Ekkx.kh dsysY;k fo’ks”k loZlk/kkj.k lHksph rkjh[k] osG o LFkG fuf’pr dj.ks
90. mifo/kh dz-89 vuqlkj fo’ks”k loZlk/kkj.k lHkslkBh vkysys ekx.khi= laLFksP;k lfpokyk rs iksgkspY;kP;k rkj[ksiklwu lkr fnolkaps vkar v’kk lHksph rkjh[k] osG o LFkG fuf’pr dj.;klkBh lferhP;k lHksiq<s Bsokos ykxsyloZlk/kkj.k uksVhl 91. lferh izR;sd loZlk/kkj.k lHksph rkjh[k] osG o tkxk vkf.k rhr djko;kps dkedkt fuf’pr djhy- ek= ekx.kh dsysY;k fo’ks”k loZlk/kkj.k lHksr djko;kps dkedkt] ekx.kh fuf’pr djhy- ek= ekx.kh dsysY;k fo’ks”k loZlk/kkj.k lHksr djko;kps dkedkt] ekx.kh i=dkr fnysY;k fo”k;kiqjrsp e;kZfnr jkghy- R;kizek.ks mifo/khrhy rjrqnhuqlkj laLFksP;k lfpokdMwu loZlk/kkj.k lHkk cksyfo.;kph uksVhl lHkklnkauk ikBfo.;kar;sbZy- R;kus uksVhl ikBfoyh ukghrj v/;{k rh uksVhl ikBfoyloZlk/kkj.k lHksP;k uksVh’khph eqnr
92. okf”kZd loZlk/kkj.k lHksP;k ckcrhr 14 iw.kZ fnolkaph o fo’ks”k loZlk/kkj.k lHksP;k ckcrhr 5 iw.kZ fnolkaph uksVhl laLFksP;k loZ lHkklnkauk mifo/khrhy rjrqnhuqlkj fnyh ikfgts- lnj uksVh’khaph izr uksan.kh vf/kdkÚ;kadMs vkf.k gkSflax QsMjs’kudMs ikBfoyh ikfgts-,[kk|k fudMhP;k izlaxh lferhus deh eqnrhph uksVhl nsowu fo’ks”k loZlk/kkj.k lHkk Hkjfo.;kpk,derkus fu.kZ; ?ksrY;kl R;kizek.ks deh eqnrhph uksVhl nsowu fo’ks”k loZlk/kkj.k lHkk Hkjfo.;kpk,derkus fu.kZ; ?ksrY;kl R;kizek.ks deh eqnrhph uksVhl nsowugh fo’ks”k loZlk/kkj.k lHkk cksyfork;sbZy-, [kk|k fudMhP;kizlaxh cksykfo.;kar vkysY;k v’kk CkSBdhph fo”k;if=dk vkf.k CkSBdhps dkj.k loZ lHkklnkai;Zar ys[kh Lo:ikr iksgkspys ikfgts- R;kpizek.ks lnj CkSBdhe/;s ? ks.;kar vkysys fu.kZ; v’kh cSBd >kY;kiklwu nksu fnolkaP;k eqnrhe/;s loZ lHkklnkauk ys[kh Lo:ikr dGfoys ikfgtsr-Þ
25. Thus, as far as the special general body meeting is concerned, the said meeting is to be convened only for the purpose of considering the specific subject for which special general body meeting is convened. The scheme of Section 17 of the MCS Act read with Rule 16 of the MCS Rules, clearly provides that the subject of conversion of housing society into a maintenance society has to be considered by the Society in its special general body meeting convened by giving notice of at least 15 days clear notice to all its members. It is further required to be noted that the said Resolution has to be passed by two-third majority of the members present and voting at the meeting. It is very clear that all these safeguards are provided by Section 17 of the MCS Act read with Rule 16 of the MCS Rules in the interest of the Society. Thus, it is clear that the Resolution concerning conversion of the Society which has been passed, is not passed in accordance with Section 17 of the MCS Act and Rule 16 of the MCS Rules.
26. In this background of the matter, it is very relevant to note the minutes of the said general body meeting dated 30th September 2018. The discussion on Agenda No.7 is to be found on Page Nos.168-169 and Resolution passed being Resolution No.6 is to be found on Page Nos.169-170, which read as under:- ßvtsaMk dz- 7 - laLFksP;k pqdhus >kysY;k ‘Tenant Ownership’ oxhZdj.kkps ‘Maintenance society’ dj.;kckcrph ppkZ o iksVfu;e nq:Lrhpk Bjko- Bjko ekaMY;koj AR & DDR;kaph;k lanHkkZrhy i=s vuqdzes lfpo Jh- xkodj o lglfpo Jh- jes’k tksxGsdj;kauh okpwu nk[koyh- rlsp loZ lHkklnkauk dYiuk fnyh fd lnjps Tenant Ownership gs oxhZdj.k dls pqdhps >kys vkgs vkf.k R;keqGs lHkklnkaP;k O;fDrxr ekydhyk Lora= [kjsnh[kr vlwu lq/nk d’kh ck/kk iksgprs] gs LI”V dsys- R;keqGs lnj nksUgh vf/kdkÚ;kaps er fopkjkr ?ksÅu vkf.k O;oLFkkiu dfeVhpk lnj ckcrhr ldkjkRed n`”Vhdksu o Bjko ikgwu gk Bjko eatwj dj.k fdrh egRRokps vkgs] gs fo”kn dsys- LkHksps v/;{k Jh- lqjs’k ijc;kauh dYiuk fnyh fd gk IykWV izR;sdkpk vkgs] izR;sdkpk 7@12 R;kP;k ukokoj vkgs- R;kyk R;kP;k IykWV e/;s dkghgh dj.;kpk vf/kdkj vkgs- vktP;k rkj[ksyk frFks 0-5 FSI vkgsm|k 1 gksbZy] 2 gksbZy fdaok 3 gksbZy- R;kpk Qk;nk gk R;kp ek.klkyk Ogk;yk gok] lkslk;Vhyk ukgh- eh vkrki;Zar vls letr gksrks fd fg esaVsuUl lkslk;Vh vkgs] IykWV vksulZ lkslk;Vh vkgs] IykWV vksuj gk Lor%P;k IykWV pk Lork ekyd vkgs- QDr R;k IykWV lkBh tks vaWizkWp jksM vkgs] tks ykbZV vkgs R;kph ns[kHkky dj.;klkBh Eg.kwu fg lkslk;Vh vkgs- ckdh lkslk;VhPkk dqBykgh IykWV’kh dkghgh laca/k ukgh- vkEgh lxG;kauh IykWV fodr ?ksryk vkgs- IykWV vkeP;k ukokoj vkgs- 7@12 vkeP;k ukokoj vkgs- vkeP;k IykWV oj laLFksPkk dqBykgh vf/kdkj ukgh- fg dfeVh IykWV oj dks.kR;kgh ifjfLFkrhr vfedze.k d: ‘kdr ukgh vkf.k Eg.kwu Eg.krks; fg IykWV vksuj lkslk;Vhp >kyh ikfgts- We are not the tenant of the society we are the owners of the society gk eh Bjko rqeP;k iq<s ekaMrks;-;koj Jh- lkjFkh eq[kthZ;kauh dYiuk fnyh fd lnjpk Bjko ekaMyk R;kaph dk;ns’khj ckc Ck?k.ks vko’;d vkgs- R;kauh mifo/khrhy dkgh rjrqnhpk mYys[k d:u dYiuk fnyh fd lnj Bjko ekaMrkuk gs lq/nk ikg.;kr;koa-;kosGsl lfpo Jh- gsear xkodj;kauh Li”V dYiuk fnyh dh lHkklnkps fgr gs O;fDrxr ekydh;krp vl.kkj vkf.k rs ns[kHkky lkslk;Vhe/;sp lk/; gksÅ ‘kdrs- lcc lnjpk Bjko gks.ks vko’;d vkgslnj ckcrhy Jh- vkG’kh;kauh vtsaM~;kyk lksMwu dkgh eqÌs mifLFkr dj.;kpk iz;Ru dsyk vlrk lHksps v/;{k Jh- ijc;kauh lkafxrya dh lnj ckcrhr lacaf/kr vtsaMk >kY;koj ppkZ dj.;kr;sbZy- vkf.k iq<hy Bjko ekaM.;kl vuqerh fnyh- Bjko dz- 6 jkeqxMs lgfuokl ua- 2 lgdkjh x`gjpuk laLFkk e;kZfnr] ikV.k] rk-ekoG;k laLFksph LFkkiuk o uksan.kh lu 1995 lkyh ekuuh; lgk¸;d fuca/kd] oMxkao] ekoG;kaP;k dk;kZy;kdMwu dj.;kr vkysyh vkgs- lnj laLFksP;k ukasn.kh osGh dsysY;k oxhZdj.kkckcr laLFksdMs o fuca/kd dk;kZy;kdMs vusd rdzkjh izkIr vkgsr- laLFksP;k pqdhP;k oxhZdj.kkeqGs laLFksP;k lHkklnkae/;s laHkzekoLFkk vkgs- R;keqGs R;kpk ifj.kke laLFksP;k nSuafnu dkedktkoj rlsp laLFksP;k ekfld ns[kHkky ‘kqYd o brj ns.ks;koj gksr vkgs- rlsp ekuuh; ftYgk mifuca/kd] iq.ks ¼xzkeh.k½;kauhgh dsysY;k i=O;ogkjkeqGs laLFksps oxhZdj.kkr cny dj.ks laLFksP;k fgrklkBh vko’;d vkgs] vls uewn dsys vkgs-;kckcrps Li”Vhdj.k lHksl mifLFkr lHkklnkauk lfpokauh d:u fnys- l/;fLFkrhr laLFksps oxhZdj.k – lgdkjh x`gjpuk laLFkk] mioxhZdj.k – HkkMsd: ekydh gDd vls vlwu frps:ikarj oxhZdj.k – ns[kHkky laLFkk] mioxhZdj.k – brj laLFkk vls dj.;kr;s.ksckcr lfoLrj ppkZ dj.;kr vkyh] rlsp lnjP;k ns[kHkky laLFksps mifo/kh lknj d:u eatqjhlkBh lkscr ekaMys- rlsp laLFksps uko jkeqxMs lgfuokl ua-2 lgdkjh x`gjpuk laLFkk vlwu R;kr cny d:u jkeqxMs lgfuokl x`gjpuk ns[kHkky laLFkk e;kZfnr vls dj.;kr;kos] vls Bjfo.;kr vkyslwpd % Jh- gsear xkaodj vuqeksnd % Jh- eksgu lksgksuh;kckcr mifLFkr lHkklnkae/;s ppkZ dj.;kr vkyh- R;kuarj lnjpk Bjko ernkukl ?ks.;kr vkyk- R;kl mifLFkr lHkklnkaiSdh BjkokP;k cktwus loZ lHkklnkauh ekU;rk fnY;keqGs o dq.khgh fojks/k u dsY;keqGs lnjpk Bjko,derkus rlsp fcufojks/k eatwj dj.ksr vkyklcc lnjpk Bjko,derkus rlsp fcufojks/k eatwj >kykmijksDr Bjkokizek.ks vko’;d rs cny d:u lnjpk izLrko iksVfu;e nq:LrhlkBh ekuuh; lgk¸;d fuca/kd] oMxko ekoG;kaP;k dk;kZy;kdMs v/;{kkaP;k vf/kdkjkus ikBfo.ksckcr ekU;rk ns.;kr vkyh-Þ
27. It is relevant to note that, although the minutes of the said annual general body meeting states that the same was approved unanimously by all the members and none has opposed the same. In the said annual general meeting about 63 members were present and out of that 31 members by letter dated 30th September 2018 (Pages 38-39 of Compilaton) informed the Assistant Registrar, Co-operative Societies, Maval that they have opposed following three Resolutions:- “Sr no Resolution no Details of Resolution which we oppose 1 1 To pass minutes of AGM dated 23/09/2017 and Spl Gen Body meeting dated 24/06/2018 2 6 Merger of two Societies Ramugade Sahanivas 1 and Ramugade Sahanivas 3 7 To change category of Society from Tenant Ownership to Maintenance Society” Thus, it is clear that out of 63 members who were present at the annual general body meeting, 31 have opposed the same and communicated about the same immediately on the very day to the Assistant Registrar.
28. It is the submission of Mr. Kulkarni, learned Counsel appearing for the Respondent No.1 that, in fact, all these 31 members have opposed the said resolution in the meeting but the minutes of the said annual general body meeting incorrectly records that none has opposed.
29. In any case, the factual position clearly shows that although the said minutes record that none of the members have opposed the said resolution regarding change of category of society of “tenantownership” to “maintenance society”, 31 members on the very day i.e. 30th September 2018, have submitted letter to the Assistant Registrar, Co-operative Societies, stating that they have opposed the abovementioned three resolutions including resolution concerning the change of classification. The mandatory requirement as set out herein above in terms of Section 17 of the MCS Act read with Rule 16 of the MCS Rules clearly provides that the said Resolution has to be passed by two-third majority of members who are present and voting at the meeting. Thus, out of 63 members who are present and voted, at least 42 members should have voted in favour of the resolution to change category of society from “tenant-ownership” to “maintenance society”. The position on record shows that out of said 63 members at least 31 members have opposed the said resolution. Thus, it is very clear that almost 50% of the members who were present and voted have opposed passing of said resolution. Thus, it is clear that the mandatory requirement of Section 17 of the MCS Act read with Rule 16 of the MCS Rules are not followed and even the resolution passed in the annual general meeting dated 30th September 2018 is also not passed by two-third majority of members who are present and voted.
30. It is pointed out by the learned Counsel appearing for the Petitioner that the said letter dated 30th September 2018 does not bear any acknowledgment. He further submits that although 31 members who have signed on the said letter dated 30th September 2018 addressed to the Assistant Registrar, Co-operative Societies, Vadgaon, Taluka - Maval, District - Pune have attended the meeting, they have not raised any objection in the meeting. He further submits that the said objection is allegedly filed on 30th September 2018 i.e. on Sunday.
31. On the other hand, it is contended by Respondent No.1 that although on 30th September 2018 it was signed and the same was Sunday, the Application filed by the Petitioner is also on 30th September
2018. It is further submitted that they have also submitted the proposal on 30th September 2018. He further states that in the record of the 2018 is available. Even if it is assumed that no such objection dated 30th September 2018 is filed, the position on record shows that as discussed herein above various mandatory requirements of Section 17 of the MCS Act read with Rule 16 of the MCS Rules have not been followed.
32. It is settled legal position that if a statute provides for doing a thing to be done in a particular manner, then it has to be done in that manner only and no other manner. The Supreme Court in Dharmin Bai Kashyap v. Babli Sahu 7 in Paragraph No.13, has held as follows:- “13. It is well-settled principle of law that where a right or a liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by the statute must be availed of. It is also well-settled salutary principle that if a statute provides for doing a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. In Cherukuri Mani v. State of A.P. [Cherukuri Mani v. State of A.P., (2015) 13 SCC 722: (2016) 2 SCC (Cri) 345], it is observed that: (SCC p. 727, para 14) “14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure.” ”
Thus, it is clear that what the Supreme Court has held that if a law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure.
33. The Supreme Court in Babu Verghese v. Bar Council of Kerala 8, has held in Paragraph Nos.31 and 32, as follows:- “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426: 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372: AIR 1936 PC 253] who stated as under: “[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.”
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322: 1954 SCR 1098] and again in Deep Chand v. State of Rajasthan [AIR 1961 SC 1527: (1962) 1 SCR 662]. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [AIR 1964 SC 358: (1964) 1 SCWR 57] and the rule laid down in Nazir Ahmad case [(1936) 63 IA 372: AIR 1936 PC 253] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.” Thus, the Supreme Court has held that it is the basic principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner only or not at all. Thus, on the touchstone of above settled principle of law and as discussed herein above, the mandatory procedure as contemplated under Section 17 of the MCS Act read with Rule 16 of the MCS Rules has not been complied with.
34. The impugned Order dated 23rd April 2021 has been passed by the Divisional Joint Registrar, Co-operative Societies, Pune Division, Pune by specifically observing that the procedure as contemplated under Section 17 of the MCS Act read with Rule 16 of the MCS Rules has not been complied with. It is very clear that the facts and circumstances of this case clearly show that the said reason given is proper and appropriate.
35. In this background of the matter, it is very important to note that Section 17 is concerning amalgamation, transfer, division or conversion of societies. Thus, the same is concerning the existence of the Society as after amalgamation, transfer, division or conversion a new Society is going to be formed or comes into existence. Thus, what Section 17 of the MCS Act read with Rule 16 of the MCS Rules contemplates is that the decision either to amalgamate, transfer, division or conversion of societies is required to be taken in the best interest of the Society and the same is to be taken by two-third majority of the members present and voting. What is provided is that for the said purpose, special general body meeting should be held. Thus, it is clear that the object of these provisions as contained in Section 17 of the MCS Act read with Rule 16 of the MCS Rules is to ensure that the decision is taken in the interest of the Society.
36. The position on record clearly shows that by Order dated 27th October 1995 by which the Society has been directed to be registered, it has been directed that within a period of 4 months, sale-deed be executed in favour of the Petitioner - Society. It is an admitted position that although the said condition is imposed, by Order dated 27th October 1995 of the Assistant Registrar, Co-operative Societies till date there is no compliance of the said condition.
37. In view of this position, it is very important to note the submissions of the Petitioner in the written submissions. As already noted, written submissions were filed by the Petitioner. Clause Nos.[1] to 3 of said written submissions are very relevant and the same are reproduced herein below:- “1. The petitioner submits that land bearing Gat Nos.284, 288, 289, 293, 300 to 305, 306, 313 to 315, 328, 330 and 331/2 of village Patan, Maval, Pune were owned by one Dr Mahesh Ramagude and his wife.
2. As Dr Mahesh Ramagude was desirous of commecially exploiting the plot, he intended to carve out sub-plots and send the same to interested purchasers. For this purpose he obtained NA permission on 6 August 1996 (Ex. B to WP). He then submitted plans and got the same approved from the concerned planning authority (Ex. C to WP).
3. Dr Mahesh Ramagude then sold the individual plots to various interested purchasers by and under various sale deed. One such sale deed is annexed as Exhibit E to WP. A perusal of the sale deed would confirm that the purchasers of such plots became the absolute owners of their concerned plots with the rights to develop the same. It is also pertinent to note that under the sale deed, the land surrounding the plots being the common areas remained with Dr. Mahesh Ramagude and were not given on lease to any society of purchase.”
38. In view of the said contentions raised by the Petitioner in written submissions, it is also necessary to set out Paragraph Nos.[1] to 5 under the heading “Brief History of the Petitioner Society” on Page Nos.[5] and 6 of written submissions filed on behalf of the Respondent No.1. “1. The original name of Petitioner Society is ‘Ramugade Sahaniwas No. 2 Sahakari Gruharachana Sanstha Maryadit’. It was registered under the Class ‘Housing Society’ and Sub-class ‘Tenant Ownership Housing Society’ (hereinafter referred to as the ‘said Society’). The Society was registered and registration certificate dated 27/10/1995 was issued in the name of abovesaid Society.
2. The present Petitions and the Interlocutory Applications therein are filed with a sole intention of protecting the vested interest of couple named Mr. Mahesh Tukaram Ramugade and Mrs. Uma Mahesh Ramugade, under the pretext of Petitioner Society.
3. Initially the Society was constituted by 45 members who contributed a sum of Rs.23.97 lakh approximately in account of the said Society and paid to Mr. Mahesh Tukaram Ramugade and his wife Mrs. Uma Mahesh Ramugade to purchase a property, being an agricultural land, at Village Patan, Tal. Mawal, Dist. Pune, in the name of the said Society.
4. Mr. Mahesh Ramugade was the chief promoter of ‘Ramugade Sahaniwas No. 2 CHS Ltd.’. While issuing Registration Certificate of the said Society, the ARCS had directed at Clause No. 4 to do appropriate Conveyance Deed in favour of the Society within 4 months of the registration of Society. However, till date Mr. Mahesh Ramugade has deliberately failed and not conveyed the property to the Society by misusing his power as Chairman of the said Society. Annexed hereto and marked as Exhibit - A is a copy of the said directions in registration certificate dated 27/10/1995.
5. The Collector sanctioned layout of the land property for 192 plots with open spaces, amenities etc. However, Mr. Mahesh Ramugade has illegally subdivided and sold 309 plots. Mr. Mahesh Ramugade has falsely mentioned the number of members as 287 in Para 7 of WP NO. 9505/2023.”
39. Thus, it is clear that the contentions raised in the written submissions filed on behalf of the Petitioner i.e. Society, in the above Paragraphs, in fact clearly shows that the same have been filed to protect the interest of Dr. Mahesh Tukaram Ramugade and not the interest of the Society. If it is the submission of Mr. Mahesh Ramugade that due to wrong classification of the Society his interest is affected, then he could have challenged the registration of the Society as “Housing Society”, which registration has been allowed by Order dated 27th October 1995. It is not in the interest of the society to change the said classification. It is very significant to note that it is the specific contention raised in the written submissions by the Petitioner that under the Sale-Deeds executed with the flat purchasers the land surrounding the plots being the common areas remained with Dr. Mahesh Ramugade and in fact the respective Sale-Deeds executed with the plot purchasers specifically records that the purchasers of the said plot are entitled to use and enjoy all common amenities, facilities and also entitled to use the common layout roads as access to their plot alongwith other plot holders and that the developer shall carry on any other and further development to the said plot of land as may be decided and undertaken by the developers from time to time in order and which may be provided to the entire scheme for the use and benefit of the purchasers. Now it is the contention of the Petitioner that all these areas are the absolute property of said Mr. Ramugade. Thus, it is clear that the change in the classification was proposed at the instance of and to protect the interest of said Dr. Mahesh Ramugade and the same is shown as proposed by the Society. It is very clear that the said conversion of Society is not at all in the interest of the Society.
40. In view of above factual position, it is very clear that Dr. Mahesh Ramugade as Chairman of the Society took action to safeguard his personal interest by claiming the same to be in the interest of the Society. However, the same is contrary to the interest of the Society. In fact, it is an admitted position that after passing of the impugned Order the elections were held of the Managing Committee of the said Society and the present Respondent No.1 has been elected as the Managing Committee Member and said Dr. Mahesh Tukaram Ramugade has lost the election.
41. Thus, even on the touchstone of whether the change of classification is in interest of the Society it has to be held the same is not in the interest of the Society. In any case, as there is non compliance of mandatory statutory conditions as required under Section 17 of the MCS Act read with Rule 16 of the MCS Rules, the impugned Order is rightly passed.
42. It is also one of the submissions of the learned Counsel appearing for the Petitioner that the resolution dated 30th September 2018 passed in annual general meeting has not been challenged and therefore the impugned Order is required to be quashed and set aside. However, learned Counsel appearing for the Respondent No.1 pointed out that the said resolution passed in annual general meeting dated 30th September 2018 is challenged by filing proceedings under Section 91 of the MCS Act bearing D & I No.105 of 2019 before the Co-operative Court, Pune. Thus, there is no substance in the said contention.
43. Learned Counsel appearing for the Petitioner has also submitted that except Respondent No.1 no other member has challenged the Order dated 19th August 2019 passed by the Assistant Registrar, Cooperative Societies allowing the change of classification and name of the Society and amendment in bye-laws. However, in fact, as already noted herein above on the very day i.e. 30th September 2018, 31 members out of 63 members who were present, have filed objection with the Assistant Registrar and stated that the said resolution is not approved by them in the Annual General Meeting. In any case as the mandatory requirements are not followed, the Order dated 19th August 2019 passed by Assistant Regisrar, Co-operative Societies, is totally illegal, null and void. Therefore, even one member of the Society can raise challenge to the same. Apart from that, as the mandatory requirements are not followed, by the impugned Order dated 23rd April 2021 the Order dated 19th August 2019 passed by the Assistant 17 of the MCS Act read with Rule 16 of the MCS Rules. Therefore, there is no substance in the said contention.
44. Although, it is the contention raised by learned Counsel appearing for the Petitioner that the Order dated 19th August 2019 passed by the Assistant Registrar is in the interest of 287 members of the Society, the position on record shows that in fact the same is against the interest of the Society. One more contention raised by learned Counsel for the Petitioner is that the Respondent No.1 is a defaulter member and therefore resolution has been passed by the Society in the annual general meeting dated 27th February 2022 and he has been expelled as member of the Society. However, it is required to be noted that Dispute No.130 of 2022 has been filed by the Respondent No.1 and the said Resolution No.8 passed in annual general meeting dated 27th February 2022 has been stayed by the learned Judge, Co-operative Court No.1, Pune by passing Order below Exhibit -13 in Dispute No.130 of 2022. Thus, there is no substance in the said contention. In any case, it is required to be noted that the challenge in the present Writ Petition is to the impugned Order dated 23rd April 2021 passed by the Divisional Joint Registrar. The said resolution is the subsequent resolution passed in annual general meeting dated 27th February 2022 and in any case the same has been stayed. Therefore, the same will not have any bearing on merits of this case. It is also required to be noted that in the subsequent elections held said Mr. Mahesh Ramugade has not been elected as the Managing Committee Member and the Respondent No.1 has been elected as the Managing Committee Member of the Society.
45. Mr. Nitin Gaware Patil, learned Counsel appearing for the Petitioner has raised contention that the other requirements of Section 17 read with Rule 16 are not required to be complied with as no transfer of liabilities was contemplated by change of classification and amendment of bye-laws. However, it is required to be noted that in the said annual general meeting dated 30th September 2018 another resolution has been passed bearing Resolution No.5, by which Ramugade Sahaniwas No.1 and No.2 are amalgamated. Thus, what is mandatorily required to be done is giving notice to all its members, creditors and other persons whose interests are likely to be affected, giving them the option, to be exercised within 1 month from the date of such notice of becoming members of any of the new societies or continuing their membership in the amalgamated or converted Society or demanding payment of their share or interest or dues, as the case may be. All the members, creditors and other interested persons have deemed to be assented if such persons failing to exercise their option within the period of one month. Thus, it is clear that those mandatory requirements are also required to be followed and the same are not followed. However, the same is not required to be dealt with in detail, since as set out herein above very crucial mandatory statutory requirements are not followed and the said change of classification is not in the interest of the Society.
46. Perusal of the bye-laws of the earlier Society and perusal of the bye-laws of the Society after the conversion, clearly shows that the interest of the members of the earlier Society is clearly affected. The contention raised that the conversion of the Society is required as many members are defaulting members, has no basis. If a member is a defaulting member, action can be taken against such member by the Society as per the provisions of law including obtaining Recovery Certificate against such member under Section 101 of the MCS Act and execution of the same. For that purpose change of classification is not at all required. Thus, the said submission has no basis.
47. There is substance in the contention raised by Mr. Kulkarni, learned Counsel for the Respondent No.1 that as issue regarding conveyance was taken up by the members, Mr. Mahesh Ramugade who was the Chairman at the relevant time of the Society, took action along with few members who were supporting him and took action against the interest of the Society.
48. Mr. Shriram Kulkarni, learned Counsel appearing for the Respondent No.1 pointed out that in fact the Economic Offences Wing of Pune Gramin Police Station on the basis of FIR registered by Government Auditor, has filed Charge-sheet bearing RCC No.676 of No.2020 before the learned JMFC, Vadgaon Maval, Pune. In the light of above, it is necessary to set out submissions of Respondent No.1 in Paragraph Nos.15 to 17 on Page Nos.[8] and 9, which read as under: “15. The nature of the bye laws of Society is for housing purpose only. Thus only the plot holders were entitled to become members of the said Society. However, by amending the bye-laws of the said Society, Mr. Mahesh Ramugade has made a provision for any person to become a member of the Petitioner Society by paying nominal entry fee. This is intended with a view to increase the number of voters to support him. By this act, Mr. Mahesh Ramugade has converted a Society into a club where anyone can become a member on payment of entry fees.
16. It is submitted that, if such outsiders are given membership into the said Society, then the same will hamper the interest of genuine members who have purchased plots in the said Society premises.
17. Mr. Mahesh Ramugade and his wife Mrs. Uma Ramugade have been the monitory beneficiaries in the transactions. They were supposed to transfer the funds received out of the sale proceeds into the account of the said Society, however they have never done so till date.” Thus, above submissions also shows that Mr. Mahesh Ramugade has taken action against the interest of the Society.
49. Although learned Counsel appearing for the Petitioner has pointed out certain decisions, however as already held herein above as the mandatory requirements as per Section 17 read with Rule 16 are not complied with, in fact, Order dated 19th August 2019 of Assistant void. Therefore, it is not necessary to consider the said decisions cited by learned Counsel appearing for the Petitioner.
50. Thus, there is no substance in Writ Petition No.7635 of 2023 and the same is dismissed with cost.
51. Writ Petition No.9505 of 2023 has been filed by the Society which has come into existence pursuant to Order dated 19th August 2019 passed by the Assistant Registrar, Co-operative Societies, however, the said Order has been set aside by Order dated 23rd April 2021 passed by the Divisional Joint Registrar. It is an admitted position that said Order dated 23rd April 2021 passed by the Divisional Joint Registrar setting aside Order dated 19th August 2019 is not stayed by this Court. Thus, the effect of the same is that the Petitioner - Society is not even in existence.
52. In any case, it is an admitted position that as far as Ramugade Sahaniwas No.2 Sahkari Gruharachna Sanstha Maryadit, has conducted the election and in the said election Respondent No.1 has been elected as the Managing Committee Member. However, at this stage, it is important to note that Mr. Mahesh Ramugade has already raised dispute regarding the election under Section 91 of the MCS Act. In any case, as set out herein above I have already held that Mr. Mahesh Ramugade has acted contrary to the interest of the Society and therefore, the Petitioner is not entitled for any relief under writ jurisdiction of this Court under Article 227 of the Constitution of India. Accordingly, Writ Petition No.9505 of 2023 is also dismissed.
53. At this stage, learned Counsel appearing for the Petitioner seeks extension of Order dated 11th September 2023 passed by this Court. By said Order dated 11th September 2023 the statement made by Mr. Kulkarni, learned Counsel appearing for the Respondent No.1 that no major policy decisions will be taken was recorded. However, as I have held that said Dr. Ramugade has in fact acted against the interest of the Society and in his own interest, the said request for continuation of said ad interim relief is rejected.
54. In view of disposal of Writ Petitions, nothing survives in the Interim Applications and the same are also disposed of. [MADHAV J. JAMDAR, J.]