By I C Naik
A 21st Century judgment of the Supreme Court of India on a matter which was hailed as a hallmark of cooperative society law in these words; “The Bombay Cooperative Societies Act of 1925, the first provincial Act to be passed, among others, introduced the principle of one-man one-vote.” NATIONAL COOPERATIVE UNION OF INDIA in a paper on History Of Indian Cooperatives. Voting right is to an individual and not to the capital or economic participation say a flat.
This is about a Supreme Court judgment delivered on 02/11/2007 in Veena Kumari Tandon vs Neelam Bhalla And Others by a division bench of Justices S.B. Sinha and Harjit Singh Bedi (CASE NO. :Appeal (civil) 5130 of 2007). In this case the facts are quite amusing though it revolves round a very basic cooperative principle namely “one member one vote.”
It is pertinent to note here that Section 9 of the M C S Act 1960 envisages the Registrar’s satisfaction before a cooperative society is registered “that its proposed by-laws are not contrary to this Act or to the rules” Any such Bye-Law found to be violating any provision of the M C S Act 1960 or the M.C.S. Rules 1961 either the Registrar asks the promoters to correct suitably or refuse registration of the Society.
One of the Respondents was a Group Housing Cooperative Society. Contesting parties were its members. Some of the members of the said Group Housing Cooperative Society belonged to one and the same family.
1.The dispute arose amongst the members of the Society when process of election to committee started in January 2004. A resolution was adopted by the Managing Committee to prepare a list of members eligible to vote on the purported basis of bye-laws that member holding more than one flat or membership in the name of his/her family members will be eligible to one vote only.
2.Few Members raised objections thereto. Nominations of Respondent No. 1 besides other members filed for contesting the election were rejected ignoring the objections. Committee stuck to “One Family One Vote” over-ruling “One Member One Vote” maxim established in 1925
3.Appeals were preferred under Section 152(A) of 1960 Act which were dismissed by the Deputy Registrar of Cooperative Societies H/West Division, Mumbai on 17th March, 2004 upholding One Member One Vote maxim.
4.Respondents were not relenting. A writ petition was filed there against.
5.Some interim orders were passed by the Bombay High Court directing the votes of the members, whose names had been excluded in the final voter list on the ground that they are members of the same family, to be kept in a separate sealed cover.
6.The High Court by reason of its impugned judgment, on interpretation of Section 27 of the 1960 Act, opined that each member of the Society is entitled to cast his/her vote despite the definition of ‘family’ contained in Bye-Law 3(xxv) of the Bye-Laws of the Society.
7.Mr. P. Shah, learned counsel appearing on behalf of the appellant inter alia submitted that the High Court committed a manifest error in so far as it failed to take into consideration that the provisions of the 1960 Act are required to be read along with the Bye- Laws framed by the Society that is to say, the M C S Act 1960 and Registered Bye-Laws both are at par in relation to each other and neither can be ignored !!! He added that a formula has been adopted in the Bye- Laws, namely ‘one family one vote’ (the Registrar overlooked and registered the bye laws).
8.Learned counsel P Shah refused to accept the superiority of the provision of section 27 of the M C S Act 1960 reading “no member of any society shall have more than one vote in its affairs;”
9.Counsel P Shah also forgot a well settled principle of law that a Legislative Act shall prevail over the subordinate legislation. Bye-Laws must, therefore, conform to the provisions of the Act and cannot act in derogation thereof.
What a waste of time of Deputy Registrar of Societies, High Court and Apex Court to come to terms with a simple basic rule established nearly 100 years ago. If India wants to move fast, this is not the way. There should be a predetermined penalty for every “obvious to lose” petitions. There should be a Cell taking a pre-view of every petition with an authority to fix a non-appealable probable penalty in case the petitioners were sure to loose in the opinion of the Preview Cell. Only after consent to the estimated penalty the petition should be placed before the judges. And opinion of the Preview Cell shall prevail and not appealable.
