S.B. MAJMUDAR

(1) In this petition under Art. 227 of the Consti- tution of India though wrongly styled as one under Art. 226 thereof the petitioners who were original respondents before The Gujarat State Co-operative Tribunal have challenged the decision of the Tribunal rendered against them in appeal No. 134 of 1976 which was entertained and decided by the Tribunal in exercise of its appellate powers conferred on it by sec. 102 of the Gujarat Co-operative Societies Act 1961 hereinafter referred to as the said Act.

(2) In order to appreciate the grievance of the petitioners factual background leading to the present proceedings may be glanced at. The respondents herein are the original plaintiffs while petitioner No. 1 is a Co-operative housing society registered under the said Act. The respondents are the members of petitioner No. 1 society. The society was registered on 2-7-1956 as a housing society. The respondents- plaintiffs raised a dispute on 18-11-1976 under sec. 96 of the said Act before the Assistant District Registrar ventilating certain grievances against the petitioner society and against other petitioners who were alleged to have been wrongly permitted to be enrolled as members of the society. The said dispute was initially referred to the Registrars nominee but thereafter it came to be transferred to the Board of Nominees duly constituted under the said Act. The Board of Nominees dismissed the dispute after hearing the concerned parties. The respondents being aggrieved by the said decision of the Board of Nominees preferred an appeal before the Tribunal. The said appeal came to be partly allowed against the petitioners and that is how the petitioners are before this court. By the appellate order petitioner No. 1 Societys resolution No. 14 dated 31-3-1963 passed at the general meeting is declared by the Tribunal to be illegal and invalid. In addition to the aforesaid declaration the Tribunal has also declared admission of petitioners Nos. 5 and 6 as members of the society to be illegal and they are permanently restrained from exercising or enjoying their rights as members of the society. The aforesaid two declarations given by the Tribunal have been seriously challenged by the petitioners in the present petition.

(3) Mr. Kamdar for the petitioners raised the following contentions in. support of the petition :

1 The Board of Nominees had no jurisdiction to entertain the dispute under sec. 96 of the in connection with the alleged illegal admission of petitioners Nos. 5 and 6 as members of the petitioner-society and consequently respondent-plaintiffs suit to that extent could not have been decreed by the appellate Tribunal. 2 Resolution No. 14 dated 31-3-1963 passed at the general meeting of the petitioner-society was not contrary to any provisions of law and as it was passed by the general body meeting it was binding on all the members and even otherwise the said resolution was in no way arbitrary or discriminatory nor was it illegal from any point of view. [After stating certain facts His Lordship further observed]: ... . ...

(4) So far as the first contention of Mr. Kamdar is concerned it is obvious that the respondent-plaintiffs contended in the proceedings under sec. 96 of the that petitioners Nos. 5 and 6 were wrongly admitted as members of the society as they were not entitled to be enrolled as members of the petitioner society in view of the allegations of the plaintiffs that they were already having other plots in the names of their family members and suppressing these facts they got themselves enrolled as members of the society. Mr. Kamdar submitted that such a dispute squarely falls within the provisions of secs. 11 and 23 of the and when such specific provisions have been made by the legislature for resolving such a dispute general provisions of sec 96 got pro tanto excluded and consequently such a dispute could not have been entertained and decided under sec. 96 of the by the Board of Nominees and equally by the Appellate Tribunal in appeal arising from such decision. The Tribunal in its judgment has considered this aspect of the matter and has taken the view that sec. 11 of the does not apply to the facts of the present case. To that extent the Tribunals view is justified as sec. 11 contemplates limited types of controversies which are left to be decided by the Registrar. Sec. 11 reads as under :

"When any question arises whether for the purpose of the formation or registra- tion or continuance of a society or the admission of a person as a member of a society under this Act a person is an agriculturist or a non-agriculturist or whether any person is a resident in a town or village or group of villages or whether two or more villages shall be considered to form a group or whether any person belongs to any particular tribe class or occupation the question shall be decided by the Registrar".

(5) A mere look at the said section shows that the Registrar under that section can decide those questions which relate to formation registra- tion or continuance of the society or the questions which arise in connection with qualifications of persons for being enrolled as members on the basis that they are agriculturists or non-agriculturists or resi- dents in town or village or group of villages or two or more villages. If disputes of aforesaid nature arise the Registrar can decide the same. On the facts of the present case it is nobodys contention that the concerned petitioners 5 and 6 were disqualified from being enrolled as members on account of non-fulfilment of any of the requirements of sec. 11. The dispute raised regarding qualifications of these peti- tioners was entirely of a different type and that pertained to their alleged misleading the society and suppressing true facts from the society for getting themselves enrolled as members. Such a dispute is not covered by sec. 11 as rightly held by the Tribunal. Consequently Mr. Kamdar cannot derive any assistance from sec. 11 in support of his first contention.

(6) However Mr. Kamdar is on a stronger ground insofar as he seeks assistance of sec. 23 in support of his contention Sec. 23 reads as under :

"23 (1) Where a person becomes a member of any society on his making a declaration as required by the bye-laws of the society or otherwise and such declaration is found to be false then such person shall be disqualified to continue as a member of the society. (2) Where a person continues as a member of the society notwithstanding the disqualification incurred by him under sub-sec. (3) of sec. 22 or under sub-sec. (1) he shall be removed from the society by the Registrar; Provided that the Registrar shall before making an order of removal give the person an opportunity of being heard".

(7) In substance it is the contention of the plaintiffs-respondents that while filing declaration for enrolment as members petitioners Nos. 5 and 6 falsely stated that they were qualified to be enrolled and sup- pressed the true facts that they themselves or any of the relations with whom they were staying jointly were having other plots. According to the plaintiffs these false declarations as made by the concerned petitioners Nos. 5 and 6 resulted in their being granted membership and they were disqualified from being enrolled and also from being continued as members on account of prohibition imposed by the bye-laws applicable to the society and its members. Such a dispute would obviously fall within sec. 23 (2) of the. As per the said provision Registrar can entertain such a dispute and can make proper order for removal of the concerned person after giving him notice and opportunity of hearing. Such an order of the Registrar would also be revisable by appropriate authority as laid down by sec. 155 of the. Thus the legislature has made express provision for resolution of such types of disputes and has also provided hierarchy of proceedings for challenging the orders passed in such proceedings. In that view of the matter general provisions of sec. 96 of the which otherwise would cover all sorts of disputes including the present dispute would get excluded pro tanto. For arriving at the aforesaid conclusion decision of this court (coram: D. P. Desai J.) in the case of JITENDRA V. HIRABAG CO-OPERATIVE HOUSING SOCIETY 19 G.L.R. 92 can be profitably looked at. The question before D. P. Desai J. was as to whether the dispute pertaining to expulsion of a member from a Co-operative society can be decided under the general provision of sec 96 when the legislature had provided specific machinery for resolution of such dispute under sec. 36 of the and had provided an appeal against such order under sec. 153 of the. It is no doubt true that D. P. Desai J. while taking the view that express provision for resolution of such dispute under sec. 36 resulted in exclusion of such dispute from the jurisdiction of the Registrars nominee under sec. 96 heavily relied upon the fact that decision under sec. 36 arrived at by The Registrar for removal of the concerned mem- ber could be made the subject matter of appeal under sec. 153 and the decision in appeal was made final. However the following observations of Desai J. on the main question as to whether sec. 96 represents a scheme for resolution of disputes in general and when a specific provision is made for resolution of a particular dispute by any other provision of the general scheme of resolution of disputes under sec. 96 gets excluded or not are required to be extracted in extenso:

"But for the provisions of sec. 36 the dispute raised by a member as to his expulsion from the society would have been covered by sec. 96 of the. It is significant to find that in the Bombay Act of 1925 there was no provision similar to sec. 36. Therefore it is quite likely that the dispute of the present nature under that Act would have been covered by the provisions relating to compulsory arbitration contained in sec. 54 of that Act The point to be emphasised is that the question whether a member of a society should be expelled from the society may raise a dispute touching the constitution or in a case like the present where the society is a housing society the business of the society. Therefore a specific type of dispute which would clearly fall under the provision of sec. 96 of the is sought to be taken out by the legislature for the purpose of making a special provision This specific type of dispute as per the legislative intent is to be resolved by resort to sec. 36; and the decision of the society is made subject to the approval or disapproval of the Registrar. It is further made subject to an appeal. Therefore in case of a dispute of this type the legislature has provided for machinery for its resolution. On this basis it can be said that the specific dispute for which a specific machinery has been provided including a right of appeal would not be covered by sec. 96 of the. Ex-facie there could not be any escape from this conclusion. (Emphasis supplied)"

(8) Now so far as the present dispute is concerned the aforesaid reasoning would squarely apply for ousting the jurisdiction of the Board of Nominees under sec. 96 of the. The only distinguishing feature between the facts of Jitendras case (supra) and the facts of the present case is that the dispute is not regarding expulsion of members but removal of the members on the ground of disqualifications. Former type of dispute would fall under sec. 36 while the dispute of the latter type with which I am concerned in the present proceedings would fall under sec. 23 as seen above. Registrar is the authority which resolves both types of disputes. His decision under sec. 36 is appealable under sec. 153 while his decision under sec. 23 is revisable under sec. 155. Save and except this difference the schemes for resolution of such disputes are almost parallel. Consequently the reasoning of D. P. Desai J. for coming to the conclusion that such dispute for which specific provision has been made by legislature gets excluded from the general operation of sec. 96 would squarely apply to the facts of the present case respectfully concur with the afore- said reasoning of D. P. Desai J. Consequently it must be held that the dispute pertaining to the alleged illegal admission given to petitioners Nos. 5 and 6 as members of the society on account of their false declaration that they were entitled to be enrolled as members can be resolved only under sec. 23 (2) and consequently. sec. 9o of the would get excluded for resolution of such a dispute. Once that conclusion is reached the result is obvious. The finding reached by the Tribunal on merits on this aspect will be rendered absolutely without jurisdiction. Consequently the declaration given by the Tribunal in appeal regarding the alleged illegal enrolment of petitioners Nos. 5 and 6 as members of the society and consequential permanent injunction issued against them restraining them from exercising or enjoying rights as members of the society will have to be quashed and set aside. The first contention of Mr. Kamdar therefore stands accepted.

(9) In support of the second contention Mr. Kamdar submitted that the Tribunal has patently erred in law in taking the view that resolution No. 14 of the general body meeting was illegal or discriminatory. In para 12 of the judgment the Tribunal in terms holds that the question of recovery of the land revenue in respect of the plots of the society is certainly a question of internal management of the society. However in para 13 of the judgment the Tribunal has taken the view that resolution No. 14 suffers from another infirmity viz. charging the land revenue equally from all the members irrespective of the area of their plots and consequently it is illegal and invalid The Tribunals reasoning is that when different members are occupying different sizes of plots which would require them to pay different amounts of land revenue on the basis of the sizes of respective plots the society could not have decided to charge land revenue equally from all the members. Now the aforesaid reasoning of the Tribunal for voiding resolution No. 14 ex-facie suffers from two patent infirmities. Firstly resolution No. 14 did not seek to charge any land revenue from any of the members On the contrary a mere look at the resolution No. 14 a copy whereof was made available by Mr. Kamdar to me shows that the said reso- lution sought to exonerate all the members from the liability to pay any land revenue for the plots held by them as the society had decided to raise other sources of income and from that income land revenue liability of the members of the society was to be defrayed. It is difficult to appreciate how such a resolution can be construed by the Tribunal to be one by which land revenue was being charged on equal basis from all the members irrespective of the sizes of their plots. It may be that different members who were holding different sizes of plots would have otherwise been liable to pay different amounts of land revenue. But the society adopted a uniform practice of not charging any land revenue from any of these members. Thus benefit of general resolution No. 14 was made available to all the members. Those who were holding larger plots got larger benefits while those holding smaller plots got smaller benefits because their liability to pay land revenue was larger in 1st type of cases and was smaller in the latter type of cases. But that does not mean that resolution No. 14 was discriminatory in any manner qua the members inter se. On the contrary it reflecte a uniform scheme of exemption from payment of land revenue which was made available to all the members and no one was discri- minated in the grant of this exemption. Even apart from the aforesaid infirmity as found in the Tribunals order when it voided resolution No. 14 on the ground of illegality and discrimination the second infirmity is that when the general body resolved as per resolution No. 14 and once the Tribunal itself holds that the question regarding recovery of land revenue was the question of internal management of the society unless the resolution is shown to be contrary to any express provision of law it could 110t have been declared illegal and not binding on some of the members when the general body had passed its resolution. In a democratic institution when the general body passes ally resolution touching its internal management either unanimously or by majority it would obviously be binding to all the members consti- tuting that body unless it is shown that such a resolution conflicts with any express statutory provision or any other provisions of law or rules. Such is not the case here. Consequently even on that ground the Tribunal was not justified in voiding the resolution No. 14 which is not shown to be in conflict with any express statutory provision of any enactment or rules and even otherwise it is shown to be perfectly justified and beneficial to all the members and no discrimination is traced out therefrom. Consequently the declaration given by the Tribunal regarding alleged illegality of resolution No. 14 also suffers from a patent error of law and is liable to be set aside. The second contention of Mr. Kamdar also therefore must be accepted. Rule made absolute.