V SHREENIVASSAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petitions under Articles 226 and 227 of the Constitution of India, takes exception to the order passed by the Minister of State for Co-operation dated 23rd January, 1987 in Revision Application No. RVA-1679/2254/cr-19/15-C. The premises in question is Flat No. 14 admeasuring 770 sq. ft. carpet area in the building known as Sundaram, Goradia Nagar, Ghatkopar (East), Mumbai 400 007. Respondent No. 4 society was registered some time in the year 1970. At the relevant time, it is stated that, the petitioner was the Chief Promoter of the Society. It is further stated that the subject flat was allotted to the petitioner some time in the year 1970, but possession thereof was made over to the petitioner in March 1973 by the respondent No. 4 society. It is the case of the respondent No. 4 society that the petitioner inducted one Mr. Pai in the suit premises, as a consequence of that subletting and for other reasons, the respondent No. 4 society issued notice on 4-8-1973 to the petitioner. Copy of which came to be forwarded to Mr. Pai. In this notice it is stated that, the petitioner has not occupied the suit flat since the taking over possession thereof and that has not paid the monthly dues to the society, thus falling in arrears. The notice further alleges that the petitioner has parted with possession of the suit flat in favour of Mr. Pai without obtaining prior consent of the respondent No. 4 society. In this background the petitioner was called upon to take remedial measures within 7 days from the date of receipt of the notice failing which to treat the said letter as a calendar months notice to come into effect on expiry of 7 days, as required to be served on the member under Tenancy Regulation No. 20 and at the expiry of the said period the petitioner to quit, vacate and hand over quite vacant and peaceful possession of the subject flat to the respondent society. By this notice the respondent society also called upon the petitioner to discharge with immediate effect pending dues of the society as penal interest was being incurred on repayment to the financial institution. The petitioner gave reply to the said notice through his Advocate on 21-8-1974. The petitioner denied that he had let out the subject flat in breach of bye laws and tenancy regulations and, therefore, the question of terminating the tenancy by calendar months notice would not arise. In so far as the allegation of default is concerned, the petitioner has stated in his reply that he was ready and willing to pay provided the detailed statement of outstanding amount is furnished to him. According to the petitioner, inspite of this unambiguous declaration that he was ready to pay the amount of dues towards the arrears on receiving details about the same, the respondent society did not furnish necessary information. On the other hand, according to the respondent society, the person who was in occupation of the suit flat, said Mr. Pai, assured the respondent society by letter dated 21-10-1973 that he shall vacate the suit flat and hand over possession thereof to the society. It is the societys case that pursuant to the said assurance given by Mr. Pai obviously on behalf of the petitioner, he handed over possession of the suit flat to the respondent society on 21-1-1974. As a consequence of that development, the society by its letter dated 2-5-1974 addressed to the petitioner, placed on record that he has surrendered the possession of the flat to the society as occupant of the suit flat has handed over possession thereof in pursuance of his letter dated 21-10-1973. By this letter the society, however, further informed the petitioner that the amount which was lying to the credit of his account as per books of the society was to be appropriated by the society towards his misfeasance liability which was estimated upto Rs. 38,000/- and the excess amount to be recovered from him in accordance with law. In response to this letter, the petitioner, through his Advocates notice dated 28-8-1974, made grievance to the Deputy Registrar of the Society Bombay, complaining that the society was falsely claiming to have taken over possession of the suit flat and asserted that he was the member of the society and that he was never put to notice before the act of taking over the suit flat. The petitioner by another letter sent through his Advocate dated 28-8-1974 to the respondent society, in response to the societys letter dated 2-5-1974, asserted that he was surprised to note the stand taken by the society that the petitioner had surrendered the possession of the flat in question. The petitioner also denied his liability to pay any amount of Rs. 38,000/- for the alleged misfeasance. The petitioner once again expressly stated in this letter that he was willing to pay the installments of service charges and other expenses payable as any other member, provided the society would inform him the details thereof. According to the petitioner, however, the respondent society by letter dated 24-8-1974 addressed to the petitioners Advocate did not inform the break up of the outstanding amount and continued to assert that possession of the flat has been handed over to the respondent society and that the petitioner was liable to pay the old dues and amount towards misfeasance liability. In response to that letter the petitioners Advocate gave reply to the society denying the claim made by the respondent society. In turn the respondent society sent letter to the petitioners Advocate reiterating its stand. It is not necessary to go into that controversy for deciding the issues that would arise in the present case. What is relevant to note is that the petitioner was served with the notice dated 9-10-1974 issued by the respondent society calling upon the petitioner to show cause within one month from the date of receipt of the said notice as to why the petitioner should not be expelled from the membership of the society and why his shares and interest should not be forfeited to the society. The petitioner was also informed that general body was to be convened on 17-11-1974 at 10. 00 a. m. at the designated place where the petitioner should remain present to show cause, if so advised. Along with the said notice the society forwarded details about the outstanding dues-giving break up of Rs. 5268/- which was due and payable at the relevant time. Besides the draft resolution which was to be adopted by the general body was also forwarded to the petitioner. In this notice the allegation is that the petitioner was a persistent defaulter and that because of his act of commission and omission disrupted the society and that acted in the manner prejudicial to the interest of the society. Besides, the notice clearly spelt out the ground that the petitioner had not occupied the suit premises himself after taking possession thereof from the society and in fact had parted with possession of the said flat in favour of one Mr. Pai, who in turn had surrendered the flat to the respondent society in January 1974, which fact was now disputed by the petitioner. Accordingly, the society by its notice proposed to take action against the petitioner for expelling him in terms of Bye law 12 (1) (a), 12 (1) (g) and 12 (1) (h) read with section 35 of the Act. In response to this notice the petitioner sent reply dated 28-10-1974. In so far the ground of default is concerned, it was stated on behalf of the petitioner that he was prepared to pay the arrears of charges if detail statement of outstanding amount payable by him was furnished to him and that his attorney shall pay Rs. 5268/- if the restraint on the flat was removed and the flat was restored to him or his attorney. In so far as the allegation of petitioner not having occupied the suit premises himself or that he had parted with possession thereof, the same was denied. According to the petitioner he had never let or sublet the flat or had never given possession of the flat to any person and the flat was lying vacant all along. The reply, however, concedes the position that Mr. Pai was occupying the suit flat temporarily. As per the notice given by the respondent society, the general body meeting was held on 17-11-1974 at 10. 00 a. m. at the designated placed where the petitioner did not remain personally present nor his Advocate or any authorized person. The said meeting was attended by 54 members and after detailed deliberation, as is reflected in the resolution passed by the general body, resolved to expel the petitioner from the membership of the society under Bye-law No. 12 (1) (a), and (g) and (h) and also under section 35 of the Maharashtra Co-operative Societies Act read with Rules 28 and 29 of the Maharashtra Co-operative Societies Rules and that his shares and interest be fortified to the society. The managing committee of the society was authorized to submit an application to the District Deputy Registrar Co-operative Societies for obtaining necessary approval for expulsion of the petitioner and incur such expenses as may be warranted therefor. The general body adopted the amended resolution, the relevant portion whereof reads thus:-"amendment RESOLUTION

(2.) AFTER this resolution was passed, the respondent 2society moved an application before the District Deputy Registrar Co-operative Societies to accord approval to the resolution for expelling the petitioner from the society. In that application further relief was prayed that it be declared that expulsion of the petitioner is without prejudice to the rights of the society to proceed against him in respect of charge of misfeasance proceedings. This application was resisted by the petitioner by filing detailed reply. In so far as the ground of persistent default is concerned, it was stated that the petitioner was always ready and willing to pay the amount and there was no question of petitioner being a persistent defaulter. In so far as the ground that the petitioner has not occupied the suit flat after taking possession thereof, the same was also denied. The petitioner also denied that the petitioner had parted with possession of the suit flat in favour of Mr. Pai as alleged. It is in this reply, for the first time, the petitioner perhaps attempted to explain the position regarding the status of Mr. Pai and contended in para 6 that bye law does not prohibit the members for allowing their friends to stay with them and hence no permission was sought. It is on the basis of this rival case made out before the Registrar, the matter was decided by the Registrar holding that expulsion resolution passed against the petitioner was appropriate and inconformity with the relevant provisions and procedure and, therefore, accorded approval to the said resolution passed in the said general body meeting held on 17-11-1974, by his order dated 6-3-1976.

(3.) IT is relevant to note that while expulsion proceedings were pending before the Registrar, the petitioner filed a dispute before the Co-operative Court, being Dispute No. 1422 of 1975, praying for the following reliefs:---