ORDER
1. This judgment shall govern Writ Petitions Nos. 1510/1991, 1511/1991 and 1546/1991, as an identical point is involved in all the three petitions. Petitioners in all the three petitions were the members of one Housing Society, i.e., Kanyaka Griha Nirman Sahakari Sanstha Ltd., Yavatmal respondent No. 3. All the three petitioners had purchased the plots from the society. All the three petitioners were served with a notice dated 4-1-1986 calling upon them to pay the arrears by 31-1-1986, failing which as
per bye-laws No. 4-A(2) their membership would be terminated. It has been stated in the said notice that for effecting the said termination a special general meeting would be held on 1-2-1986 and the petitioners were required to attend the same. It is an admitted fact that on 1-2-1986, the said meeting was actually held and in that the petitioners’ membership was terminated in pursuance of S. 35.1 of the Maharashtra Co-operative Societies Act, 1960. The resolution No. 1 specifically states to the effect that since in all seven members had failed to comply with the notice given to them and since these persons had failed to co-operate with the co-operative society by making the payments, their membership was being terminated.
2. As per the provisions of S. 35 of the Maharashtra Co-operative Societies Act, 1960 this resolution was sent to the Assistant Registrar, Co-operative Society, Yavatmal for approval. The Assistant Registrar, by his order dated 29-4-1987 passed separate but common order in respect of all the seven members. He held therein that members had failed to co-operate with the society inasmuch as they had failed to construct their houses and having failed to make the due payment to the society. It seems that an opportunity was given by the Assistant Registrar to these members to make the payment before January 1987 but even then these persons remained in arrears and did not pay the amount. In short, the Assistant Registrar endorsed the action taken by the society by the concerned resolution. Appeals came to be filed against this order of approval by the Assistant Registrar. The Appellate Authority namely Divisional Joint Registrar, Cooperative Societies heard the appellants and dismissed the appeals. The concerned appeals are:– Appeal No. 3/1988 filed by Shri Bhaurao Keshaowar, Appeal No. 23/1987 filed by Shri Hardeolal Jaiswal and Appeal No. 25/1987 filed by Shri Narayan Embadwar. The orders passed by the Divisional Joint Registrar and the Assistant Registrar are challenged in the present petition.
3. Shri Deshpande, learned counsel appearing for the petitioners in all the three
petitions urged that both the orders are totally erroneous in law, inasmuch as both the authorities have ignored the mandatory provisions of S. 35(1) of the Maharashtra Co-operative Societies Act, and Rules 28 and 29 of the Maharashtra Co-operative Societies Rules. According to Mr. Deshpande, firstly the mandatory notice which was required to be served individually, has not at all been served on any of the petitioners. He further contended that even if the notice is taken to have been served on the members, there is a specific breach of Rule 29, inasmuch as the said meeting for expulsion could not have been taken place before one month of the service of that notice. Rule 29 of the Maharashtra Co-operative Societies Rules, reads as under:–
“29. Procedure for expulsion of members :–
(1) Where any member of a society proposes to bring resolution for expulsion of any other member, he shall give a written notice thereof, to the Chairman of the Society. On receipt of notice or when the committee itself decides to bring in such resolution, the consideration of such resolution shall be included in the agenda for the next general meeting and a notice thereof shall be given to the members against whom such resolution is proposed to be brought, calling upon him to be present at the general meeting to be held not earlier than a period of one month from the date of such notice and to show cause against expulsion to the general body of members. After hearing the member, if present, or after taking into consideration any written representation which he might have sent, the general body of members shall proceed to consider the resolution.”
The language of Rule 29 thus is very clear that where the society proposes to expel a member from the membership, not only that the member shall be individually served with a notice, which would contain an agenda of the said proposed general body meeting but the said meeting has to be held not earlier than a period of one month from the date of such notice. In the present case admittedly the notice is dated 4-1-1986. Meeting has been
held on 1-2-1986 i.e. within a period of one month. The language of Rule 29 is mandatory and as such the meeting in which the resolution of expulsion of these members was passed is itself rendered illegal. The Assistant Registrar, who granted, approved of this expulsion was bound under Section 35 of the Maharashtra Co-operative Societies Act to consider this aspect as the said approval by the Registrar provided in Section 25(1) of the Act is not an empty formality. The Registrar, who was approached, by the society for the approval of the resolution, has to examine all the legal aspects with open eyes. He cannot depend only upon the submissions made to him by the parties. I have seen the order of the Assistant Registrar, which is completely silent on this aspect. It is significant to note that in the appeal, memos this point was specifically, raised by all the three petitioners. It was pointed out that the mandatory notice firstly was never served and secondly the meeting itself was an illegal meeting having been held before the period of one month being elapsed after the notice was given. The Divisional Joint Registrar has merely referred to this point but has not bothered to consider the importance of the matter; He has merely stated that such point was not raised before the Assistant Registrar, Whether such point was raised before the Assistant Registrar or not, the impact of this legal submission was bound to be considered by the Divisional Registrar particularly because the provision in Rule 29 is a mandatory provision. Similar such controversy came up before this court in Writ Petition No. 2601 / 1990, decided on 20-11-1990 (M. S. Deshpande, J.) wherein this Court has taken the view that Rule 29 is of a mandatory nature and non-compliance with the same will make the resolution illegal. The decision being of co-ordinate bench of this court is binding on me. The provision being a mandatory provision, merely because the question was not raised before the Assistant Registrar, it would not absolve the authority by simply saying that the mandatory provisions of law were complied with by the society before the expulsion resolutions were passed.
4. Both the authorities thus have erred in law in according approval to the resolution which has been passed in a meeting which itself was illegally held. The impugned orders arc, therefore, liable to be set aside.
5. In the result, petitions succeed and both the impugned orders passed by Assistant Registrar, Co-operative Societies, Yavatmal and the Divisional Joint Registrar, Amravati in each writ |petition are quashed and set aside. Impugned resolutions also consequently stands quashed and set aside. Rule is made absolute in terms above. In the circumstances of the case, however there shall be no order as to costs.
6. Petitions allowed.