Wadala Shri Ram Industrial Premises Co-operative Society Limited Vs. Kotecha and Company and ors. - Court Judgment

Excerpt:
(a) maharashtra co-operative societies act, 1960 - sections 152, 13 - appeal - order either registering or refusing to register amendment to a bye-law under section 13 - appealable of the instance of the aggrieved party.;on a plain reading of section 152, there can be no doubt that the order passed under section 13 of the act has been made appealable by virtue of sub-section (1) of section 152. there is no express provision in the act so as to limit the scope of appeal only against an order refusing to register the amendment of bye-law and not against an order registering the same.;(b) maharashtra co-operative societies act, i960 - sections 13, 91, 152 - appeal - scope of appeal against order passed under section 13 - enquiry to be limited as to whether the registrar had rightly exercised his jurisdiction - question regarding interpretation and applicability of the amended bye-law can be done only by the court in a dispute under section 91.;although the member may challenge the order, passed in exercise of powers under section 13 of the act, by way of an appeal under section 152 of the act, however, the scope of proceedings before the appellate authority would be very limited. the appellate authority will have to confine the challenge and examine the matter only in the context of mandatory procedural compliance for carrying out the amendment as well as regarding its registration. the authority cannot elongate the scope of the proceedings and pronounce upon the applicability or otherwise of the bye-law. inasmuch as, the question regarding interpretation and applicability of the amended bye-law can be done only by the court in a dispute under section 91 of the act. - article 14: [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] retiral benefit - classification between part time lecturers and full time teachers held, the part-time lecturers form a class by themselves and the said classification between part time lecturers and full-time teachers for purpose of granting retrial benefits cannot be said to be unconstitutional or bad in law -- consumer protection act, 1986 -- article 16; right to pension held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. retirement benefit; differentiation between full time teachers and part-time lecturers government resolution providing for retrial benefits to full-time teaching staff part-time lecturer were not entitled to said benefit held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. - it is well settled that a right of appeal is the creature of statute and inheres in no one. the appellate authority will have to confine the challenge and examine the matter only in the context of mandatory procedural compliance for carrying out the amendment as well as regarding its registration. 18. in the present case, although the petitioners have raised specific objection with regard to the maintainability of the appeal as well as the locus of the contesting respondents to maintain the appeal, however, the appellate authority has not addressed itself to either of these objections but proceeded to interpret the bye-law in question to arrive at a decision that the same shall have no application to the contesting respondents until they induct new tenants or enter into fresh contract with the existing tenants or receive increased rents. the appellate authority has, therefore, not only failed to consider the relevant issue but has clearly exceeded its authority for the reasons indicated hereinabove. reliance has been placed on the dictionary meaning of expression 'desiring' as well as on the decision of the co-operative appellate tribunal, reported in 1963 co-op.a.m. khanwilkar, j.1. rule.2. by consent, rule made returnable forthwith.3. respondents waive service.4. by consent of the parties, the matter is taken up for hearing and final disposal.5. heard learned counsel for the parties.6. by this writ petition, the petitioners have taken exception to the order passed by the divisional joint registrar, co-operative societies (appeal) m.d. mumbai, dated 9th october, 2000 in appeal no. 101 of 1989.7. the above numbered appeal was filed by respondent nos. 1 to 3 challenging the order passed by the assistant registrar, co-operative societies, dated 12th april, 1999 approving the amendment in the bye law of the petitioner society. the said appeal has been allowed by the divisional joint registrar. the appellate authority took a view that the amendment to the bye law of the petitioner society shall not be applicable to respondent nos. 1 to 3 until they induct new tenants/renew or enter into fresh contract with the existing tenants and receive increased rents.8. before adverting to the rival submissions, it would be appropriate to advert to the relevant bye-law. the bye-law in question, as it stood prior to amendment, bearing no. d.3.4, reads as under :---'any member desiring to let, sub-let or give on care taker or leave and licence basis his/her unit and/or premises or any portion thereof, which shall not be unreasonably withheld, shall obtain permission, in writing, from the managing committee and shall pay additional taxes, as may be levied by the municipal corporation.'the said bye-law was sought to be amended in the year 1999, which amendment has been registered by the assistant registrar of the co-operative societies on 12th april, 1999 in exercise of powers granted under section 13 of the maharashtra co-operative societies act, 1960 (hereinafter referred to as the 'act'). the said amended bye-law reads as follows :---'any member desiring to let, sub-let or give on caretaker or leave and licence basis his/her unit and or premises or any portion thereof, which shall not be unreasonably withheld, shall obtain permission in writing, from the managing committee and shall pay additional taxes as may be levied by the municipal corporation and shall also pay to the society non-occupancy charges as may be decided by the general body from time to time as permitted under existing law'. the underlined portion referred to above came to the inserted by the said amendment.9. being aggrieved by the order registering the said amendment, respondent nos. 1 to 3 preferred an appeal under section 152 of the act. the said appeal has been allowed, as aforesaid, by the divisional joint registrar, which order is the subject matter of challenge in the present writ petition.10. learned counsel for the petitioner society argues that the appeal presented before the divisional joint registrar at the instance of respondent nos. 1 to 3 under section 152 of the act challenging the order of the assistant registrar dated 12th april, 1999 registering the amendment in the bye laws was not maintainable in law. the submission is two fold. in the first place, it is submitted that the appeal against such an order was not maintainable under section 152 of the act ; inasmuch as, the appeal would lie only against an order refusing to register the amendment to the bye law of the society and not against the order which registers the amendment of the bye laws. the second limb of argument is that respondent nos. 1 to 3 being members of the petitioner society were not entitled to challenge the said bye law of the petitioner society. learned counsel further contends that by virtue of sub-section (4) of section 152 of the said act, no appeal would lie against an order registering the amendment of bye law, passed in exercise of powers under section 13 of the act, unless such an order is not in accordance with the provisions of the act. learned counsel further submits that assuming that the said respondents could challenge the validity of the bye law qua them, such challenge could be maintained only by way of dispute under section 91 of the act and in no other manner. it is further submitted that the said respondents have already availed of the said remedy by filing dispute under section 91 of the act; and, therefore, it was wholly inappropriate on their part to pursue two parallel proceedings for the same reliefs. learned counsel further submits that, assuming that the appeal under section 152 of the act was maintainable, even in that case, the scope of interference in such appeal would be very limited. it is further submitted that the appellate authority could only examine the correctness and appropriateness of the decision of the registrar in registering the amendment of the bye-law in exercise of powers under section 13 of the act; and, in no case, the appellate authority could pronounce upon the interpretation and applicability of the said bye law qua the aggrieved members of the society, for such jurisdiction exclusively vested in the court while considering disputes under section 91 of the act. in other words, it is submitted that the question of interpretation of amended bye laws or its applicability qua the aggrieved members of the society cannot be a subject matter of an appeal under section 152 of the act, though challenging the order granting registration of the amendment of bye law. insofar as the interpretation and applicability of the amended bye law qua the contesting respondents are concerned, learned counsel for the petitioner society has fairly submitted that the amendment in question will come into effect prospectively and the society would levy charges in terms of the amended bye laws from the date of its registration.11. learned counsel for the contesting respondents, on the other hand, has adopted the reasons assigned by the divisional joint registrar in the impugned order, to support the said decision. according to him, there is no infirmity in the approach adopted by the divisional joint registrar which requires interference at the hands of this court in exercise of its writ jurisdiction. it is further submitted that the interpretation put by the petitioner society to the scope of appeal under section 152 of the act, if accepted, it would be adopting pedantic approach. according to him, from a plain reading of the said provision, no such limited meaning can be assigned to the said provision to mean that the appeal against an order under section 13 of the act would lie only against the order refusing to register the amended bye law and not against the order registering the amended bye law. according to learned counsel for the petitioner society, the proper interpretation of section 152 of the act would be that any order passed under section 13 of the act is appealable and not restricted to an order refusing to register the amended of the bye law. he further submits that the respondent, being aggrieved persons, were competent to maintain appeal under section 152 of the act. learned counsel further contends that, although the respondents have already taken recourse to the dispute under section 91 of the act, however, that would not preclude the respondents from assailing the order passed under section 13 of the act, lest the same attains finality and which would come in their way while questioning the said bye laws on the ground of its applicability qua them. learned counsel further submits that the interpretation given by the divisional joint registrar in the impugned order to the bye law in question cannot be seriously doubted and the same is just and proper.12. having considered the rival submissions, it would be necessary to first deal with the scope of appeal under section 152 of the act. section 152 of the act reads thus :---'152. appeals.(1) an appeal against an order or decision (under sections 4, 9, 12, 13, 14, 17, 18, 19, 21, 21-a, 29, 35, 77-a, (78, 79, 88 and 105 including an order for paying compensation to a society) shall lie,---(a) if made or sanctioned or approved by the registrar or the additional or joint registrar on whom the powers of the registrar are conferred to the state government.(b) if made or sanctioned by any person other than the registrar or the additional or joint registrar on whom the powers of the registrar are conferred to the registrar.(2) where an appeal against an order or decision to the co-operative appellate court has been provided under this act, it shall lie to the co-operative appellate court.(3) an appeal under sub-section (1) or (2) shall be filed within two months of the date of the communication of the order or decision.(4) save as expressly provided, no appeal shall lie against any order, decision or award passed in accordance with the provisions of this act; and every such order, decision or award shall, whether expressly provided or not, be final, but shall always be subject to the provisions for revision in this act; and where an appeal has been provided for, any order passed on appeal shall likewise be final, but the subject to such revision provisions.'13. on a plain reading of the said provision, there can be no doubt that the order passed under section 13 of the act has been made appealable by virtue of sub-section (1) of section 152. there is no express provision in the act so as to limit the scope of appeal only against an order refusing to register the amendment of bye-law and not against an order registering the same. i find merit in the submissions advanced on behalf of the contesting respondents that the interpretation put by the petitioners, if accepted, would result in taking a pedantic approach and doing violence to the legislative intent. on the other hand, sub-section (1) of section 152 provides for an appeal against any order or decision under section 13 of the act. as observed earlier, there is no express provision in the act which curtails the remedy of appeal in favour of the members of the concerned society in assailing an order passed under section 13 of the act registering the amendment of bye-law. it is well settled that a right of appeal is the creature of statute and inheres in no one. accordingly, i have no hesitation in concluding that an appeal against any order passed under section 13 of the act, either registering or refusing to register the amendment, is amenable to appeal under section 152 of the act at the instance of the aggrieved person (s). sub-section (4) of section 152 does not curtail the remedy of appeal. in fact, sub-section (4) of section 152 opens with the expression 'save as expressly provided'. in other words, it would only mean that an appeal can be maintained under section 152 only against the orders referred to under sub-section (1) of section 152 of the act and not against any other order or decision. in the circumstances, sub-section (4) of section 152 cannot be pressed into service to limit the remedy of an appeal under section 152 of the act, if provided by sub-section (1).14. the next issue that arises for consideration is, whether the members of a society whose bye-law has been amended, can challenge the said bye-law and legitimately make a grievance that the bye-law has no application qua them. no doubt, reliance has been placed on the decision of the apex court reported in : [1997]1scr380 in the case of state of u.p. & another v. c.o.d. chheoki employees co-operative society ltd. & another. the said decision takes a view that there is no fundamental right to be a member of a co-operative society, that being a statutory right. the apex court has held that, a member of a society has no independent right qua the society and he cannot assail constitutionality of the act, rules and bye-laws. the view taken by the apex court is that society represents the corporate aggregate. however, in my view, this decision has no application to the issue that arises for consideration in the present case.15. in the present case, the challenge set up by the contesting respondents is not with regard to the constitutionality of the bye-law as such, but their challenge is to the registration of the amendment of bye-law. understood thus, the aggrieved members can surely maintain an appeal under section 152 of the act challenging the order passed by the authority in exercise of powers under section 13 of the act. the scope of challenge in such an appeal would be on limited grounds, amongst others, that the registrar did not comply with the mandatory requirements before registering the amendment of the bye-law of the society, or that the registrar ought not to have registered the amendment on account of the fact that the mandatory requirements for carrying out amendment to the bye-law were not complied with. only such issues can be gone into in an appeal filed under section 152 of the act by the aggrieved members. taking recourse to the remedy of appeal by an aggrieved member in no way mean that the member of a society is asserting an independent right qua the right of the society as such. but, in such a situation, the challenge would be on the ground that the amendment of bye-law and its registration, by virtue of provision of section 13 of the act, was not in conformity with the mandate of law.16. reliance has been placed on the decision of the division bench of this court in the case of omprakash gowardhandas singhania & another v. g.v. koimatlur & another, reported in : air1967bom7 . in this decision the division bench of this court has observed that there is nothing in sub-section (4) of section 152 which prevents a challenge to the validity of bye-law, after it has been registered. the division bench of this court has also observed that, in a dispute, which is a subject matter of a reference under section 91 of the act, while considering the main relief, the court, if called upon to decide a question about the validity of bye-law, would surely decide the same. in my view, there is no express inhibition in the act against the members of a society to maintain appeal under section 152 of the act challenging the validity of an order or decision passed in exercise of powers under section 13 of the act registering the amendment. on the other hand, section 152 of the act enables the members and vests right in a member to challenge the order passed in exercise of powers under section 13 of the act.17. although the member may challenge the order, passed in exercise of powers under section 13 of the act, by way of an appeal under section 152 of the act, however, the scope of proceedings before the appellate authority would be very limited. the appellate authority will have to confine the challenge and examine the matter only in the context of mandatory procedural compliance for carrying out the amendment as well as regarding its registration. the authority cannot elongate the scope of the proceedings and pronounce upon the applicability or otherwise of the bye-law. inasmuch as, the question regarding interpretation and applicability of the amended bye-law can be done only by the court in a dispute under section 91 of the act. in other words, the issue regarding applicability of the amended bye-law as against the particular class of members and in particular the aggrieved members cannot be a ground for assailing the registration of the amended bye-law of the society. it is also not a ground which essentially questions the validity of the amended as such. in other words, the scope of inquiry in an appeal under section 152 will have to be limited as to whether the registrar had rightly exercised his jurisdiction while passing the order under section 13 registering the amendment of bye-law of the society. this appeal, being in continuation of the order passed by the registrar in exercise of powers under section 13 of the act, therefore, the scope of such an appeal will have to be limited to the nature of inquiry that can be made by the registrar while registering or refusing to register the amendment of bye-law of the society. only such interpretation would serve the legislative intent. any other interpretation would result in elongating the scope of the authority under section 13 of the act. in other words, the appellate authority can be permitted to examine the matter only in the context of the powers of the original authority under section 13 of the act or else it would tantamount to allowing the stream to rise higher than the source.18. in the present case, although the petitioners have raised specific objection with regard to the maintainability of the appeal as well as the locus of the contesting respondents to maintain the appeal, however, the appellate authority has not addressed itself to either of these objections but proceeded to interpret the bye-law in question to arrive at a decision that the same shall have no application to the contesting respondents until they induct new tenants or enter into fresh contract with the existing tenants or receive increased rents. the appellate authority has, therefore, not only failed to consider the relevant issue but has clearly exceeded its authority for the reasons indicated hereinabove.19. it is relevant to note that neither in the appeal nor before this court the contesting respondents have made any grievance regarding non-compliance of the procedural requirements for carrying out the amendment to the bye-law as such or relating to procedural requirement to be followed by the registrar before registration of the amendment in exercise of powers under section 13 of the act. on the other hand, the appeal filed by the contesting respondents on the grounds mentioned therein before the divisional joint registrar, the said grounds could not have been entertained in an appeal under section 152 of the act. instead, the appellate authority ought to have relegated the contesting respondents to get the said issue, regarding applicability of the amended bye-law qua them, decided in a dispute which has been filed and admittedly pending between the parties. although, both the sides have addressed this court with regard to the question of applicability of the bye-law qua the contesting respondents, however, i would prefer to leave the said question open so that the same can be decided in a dispute pending between the parties under section 91 of the act. the petitioner-society has already taken a stand before this court, through its counsel, that the bye-law in question shall be given effect only prospectively, however, there are other questions which would still arise for consideration, and all those matters will have to be adjudicated while deciding the dispute pending between the parties. reliance has been placed on the dictionary meaning of expression 'desiring' as well as on the decision of the co-operative appellate tribunal, reported in 1963 co-op. tr. cases page 44 in the case of jackson co-operative bank of the western railway ltd. v. a.d. aderbehman, and on another decision reported in 1965 co-operative tr. decisions in the case of shri krishna tukaram wayal v. shri someshwar sahakari sakhar karkhana ltd. i am not expressing any opinion about the correctness of the view taken by the appellate authority with regard to the applicability of the bye-law qua the contesting respondents and, as observed above, the same is kept open to be decided by the appropriate court while deciding the dispute pending between the parties under section 91 of the act.20. in the circumstances, the present writ petition partly succeeds. the impugned order passed by the divisional joint registrar dated 9th october, 2000 in appeal no. 101 of 1999 is quashed and set aside and all the questions regarding applicability of the amended bye-law qua the contesting respondents are kept open to be decided by the co-operative court at mumbai in case no. cc/iii/ 645 of 1999. the co-operative court is directed to decide the said dispute expeditiously and preferably within a period of six months from the date of receipt of the writ of this court.21. rule made partly absolute in the aforesaid terms.22. no order as to costs.23. learned counsel for contesting private respondents prays that this order may not be given effect for a period of two weeks. counsel for the petitioners has no objection for the said order being passed. accordingly, this order shall not be given effect for a period of two weeks. it will be open to the respondents to apply to co-operative court for appropriate reliefs in accordance with law, if any.