VEENA KUMARI TANDON v. NEELAM BHALLA AND ORS

Citation: [2007] 11 S.C.R. 960

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

VEENA KUMARI TANDON v. NEELAM BHALLA AND ORS.pdf

Judgment text

---{- VEENA KUMAR! TANDON v. NEELAM BHALLA AND ORS. NOVEMBER 2, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Maharashtra Cooperative Housing Societies Act, 1960-s. 27- Voting bymembers ofsamefamily-Entitlement-Held: Each member offamily admittedto membership ofSociety is entitledto vote despite definition of 'family' contained in Bye-Law 3(XXV)-S. 27 clearly providesfor one member-one vote-Legislative Act wouldprevail over subordinate legislation-Bye-Laws must conform to the provisions of the Act and cannot act in derogation thereof-Bye-laws 3(XXf1, 8(a), 9(a) and9(b), l 9(iii) ofthe Merry Niketan Cooperative HousingSociety ...... ( Ltd. ' . Legislative intent-IfLegislative Actprovidesfor a concept, byelaw cannotcreate another concept so as to defeat the legislative object. ~he Managing Committee ofthe Group Housing Co-operative society, respondent No.

17 adopted a resolution to prepare final lists ofmembers eligible to vote on the purported basis ofBye-laws 8(a), 9(a) and 9(b) of the Merry Niketan Cooperative housing Society Ltd. , whereby the member holding more than one flat or membership in the name ofhis/her family members would be eligible to one vote ~ only. Objections thereto were submitted. Respondent No. 1 besides other members fded nomination for contesting the election. The same was rejected . An appeal thereagainst was also dismissed. A writ petition was filed. High Court on interpretation of s. 27 of the Maharashtra Cooperative Housing Societies Act, 1960 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) ofthe Bye- Laws ofthe Society.

In appeal to this Court appellant contended that in a Group Housing Cooperative Society, a family may be allotted more than one flat but, however, with a view to seeing that members ofthe same family by reason ofhaving been allotted more than one flat do not constitute majority, a formula has been adopted in the Bye-Laws, namely 'one family one vote'. Dismissing the appeal, the Court HELD: 1. 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. [Para 11] [965-E, F] 2. S. 27 of Maharashtra Cooperative Housing Societies Act, 1960 provides for one member - one vote. If, the Legislative Act provides for the concept of'one person one vote', no bye-law can create another concept so as to defeat the legislative object.

Byelaw provides for a member's right to be allotted flats in the name of his family members; but the ~ame would not mean that under no circumstances more than one member of a family cannot become member ofthe society. A difference between ownership offlat and membership must be kept in mind. When one member ofthe family within the meaning ofBye-Law 19 (iii) applies for allotment ofanother flat, he/she may be· asked to disclose the details in regard to allotment offlat in favour ofany other member ofthe family. But if the members ofthe family have been allotted flat or admitted to the membership ofthe Society, for the purpose ofexercising the right to vote the statutory provisions shall apply. S. 27 is absolutely clear and unambiguous. It does not admit oftwo meanings. Ifthe literal rule ofinterpretation is to be applied, all members ofthe family who have been admitted to the membership of the Society would be entitled to vote. [Para 12 and 14] [965-F, G; 966-A, B, DJ G. A.

Jithendernath v. Jubilee Hills Cooperative House Building Society andAnr. , [2006] 10 SCC 96, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5130 of 2007. From the final Judgment and Order dated 30. 04. 2004 ofthe High Court of Judicature at Bombay in Writ Petition (Lodging) No. 874 of 2004. P. Shah, Jay Savla, Reena Bagga, Meenakshi and Akshit for the Appellant. Asha Gopalan Nair, Shridhar, Y. Chitale and Abhijat P. Medh for the Respondents. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted. 2. Interpretation of Section 27 of the Maharashtra Cooperative Ho! -15ing Societies Act, 1960 (1960 Act) vis-a-vis Bye Laws ofthe Merry Niketan Co-operative Housing Society Ltd. is in question in this appeal which arises out ofa judgment and order dated 30th April, 2004 passed by Division Bench of. the Bombay High Court whereby the writ petition filed by the respondents herein declaring that each member ofthe society will have a separate vote was allowed. 3.

Respondent No. 17 is a Group Housing Cooperative Society. Contesting parties hereto are its members. Some ofthe members ofthe said Group Housing Cooperative Society are members ofthe same family. They were, however, admitted to the membership ofthe Society without any reservation whatsoever. 4. The dispute which arose amongst the members of the Society started with preparation of voter list. A provisional list of voters was ~ published by the Managing Committee ofthe Society on 22nd January, 2004 showing the names of 35 members. However, a resolution was adopted by the Managing Committee to prepare a final list of members eligible to vote on the purported basis ofbye-laws 8(a), 9(a) and 9(b) of the Bye Laws ofthe society meaning thereby that member holding more than one flat or membership in the name ofhis/her family members will be eligible to one vote only. On the said basis a final list ofmembers was published. Objections thereto were submitted. Respondent No.

1besides other members filed nomination for contesting the election. The same was rejected whereagainst appeals were preferred under Section 152(A) of 1960 Act by respondent Nos. 1, 3 to 5, and 7 to 11 herein. The said appeals were dismissed by the Deputy Registrar ofCooperative Societies H/West Division, Mumbai on 17th March, 2004. 5. A writ petition was filed thereagainst. Some interim orders were passed by the High Court directing the votes ofthe members, whose ~ ~ names had been excluded in the final voter list on the ground that they are members ofthe same family, to be kept in a separate sealed cover. Indisputably in the final voters list which was prepared showing only one member ofthe family to be a voter, despite the fact that more than one member ofthe same family had been allotted more than one flat. 6.

The High Court by reason of its impugned judgment, on interpretation of Section 27 ofthe 1960 Act, opined that each member ofthe Society is entitled to cast his/her vote despite the definition of'family' contained in Bye-Law 3(xxv) ofthe Bye-Laws ofthe Society. f- ' . 7. Mr. P. Shah, learned counsel appearing on behalfofthe 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 ofthe 1960 Act are required to be read alongwith the Bye-Laws framed by the Society. In a Group Housing Cooperative Society, the learned counsel would contend, a family may be allotted more than one flat but, however, with a view to seeing that members ofthe same family by reason ofhaving been allotted more tl1an one flat do not constitute majority, a formula has been adopted in the Bye-Laws, namely 'one family one vote'. ~ 8. Relevant part of Section 27 ofthe 1960 Act reads as under :- "27.

Voting powers ofmembers:- (1) Save as otherwise provided in sub-sections (2) to (7), no member ofany society shall have more than one vote in its affairs; and every right to vote shall be exercised personally, and not by proxy : Provided that, in the case ofan equality ofvotes the Chairman shall have a casting vote. " Section 73(H) of the 1960 Act reads as under:- ,~ t 'I- "i- "73H - Responsibility ofcommittee to hold election before expiry ofterm (1) It shall be the duty ofthe committee ofevery society to arrange for holding the election ofits members before the expiry ofits term. (2) Where there is a ·wilful failure on the part ofthe committee to hold the election to the committee before the expiration ofits term, the committee.

shall cease to function on the expiration ofits term and the members thereofshall cease to hold office and the Registrar may himselftake over the management ofthe society or appoint an Administrator (who shall not be from amongst the members of the committee the term ofwhich has so expired) and the Registrar or Administrator shall hold election within a period ofsix months and the committee shall be constituted before the expiration ofthat period. " 9. The Society has framed'its own Bye-Laws. ~-4. ..

A 'flat' has been defined under Bye-Law 3(vi) to mean: " 'Flat' means a separate and self contained set ofpremises used or intended to be used for residence, or office, or show-room or shop, or godown and includes a garage; or dispensary, or consulting room, or clinic, or flour mill, or coaching classes, or palnaghar, beauty parlour, the premises forming partofa building and includes an apartment; " 'Family' has been defined in Bye-Law 3(xxv) to mean: "'Family' means Group ofpersons which includes husband, wife, father, mother, sister, brother,. Son , daughter, son-in-law, brotherin-law, sister-in-law, daughter-in-law, grandson/daughter;" Bye-Law 19 provides for the 'conditions for membership', clause (iii) whereofreads as under:r. "19. (A) An individual who is eligible to be the member and who has applied for membership ofthe society in the prescribed form, may be admitted as member ofthe committee on complying with VEENAKUMARI TANDON v.

NEELAM BHALLA 965 the following conditions :- *** *** *** (Iii) he has given the application, as prescribed the particulars in regard to any house, plot or flast owned by him or any ofthe members ofhis family, anywhere in the area ofoperation of the society. " Bye-Law 62 provides for holding offlat by members in the following manner:- "62. Individual member ofthe Society may hold more than 011:e flat, in the buildings ofthe Society in his name or in the name of any ofthe members ofhis family. " Bye-Law 107 reads as under:- "107. At a general body meeting ofthe society, every member of the society, and in his absence, his associate member shall have one vote only. In case of equality of votes, the Chairman ofthe meeting shall have a casting vote. " 10. Bye-Laws of the Society provide for different kinds of membership. Whereas a full fledged member would be entitled to vote, an Associate Member may not be. 11.

It is now a well settled principle of law that a Legislative Act shall prevail over the subordinate legislation. Bye-Laws must, therefore, conform to the provisions ofthe Act and cannot act in derogation thereof. 12. Section 27 of 1960 Act in no unmistakable terms provides fur one member - one vote. It is one thing to say that the object behind the ·slogan 'one family one vote, may be otherwise laudable, but what: is necessary to be seen is as to whether the said concept has any root in the Act. If, the Legislative Act provides for the concept of 'one person one vote', no bye-law can create another concept so as to defeat the legislative object. Bye-law provides for a member's right to be allotted flats in the name of his family members; but the same would not mean that under no circumstances more than one member ofa family cannot -+become member ofthe society. A difference between ownership offlat ~ and membership must be kept in mind.

When orie member ofthe family within the meaning ofBye-Law 19 (iii) applies for allotment ofanother flat, he/she may be asked to disclose the details in regard to allotment of flat in favour ofany other member ofthe family. But ifthe members of the family have been allotted flat or admitted to the membership ofthe Society, for the purpose of exercising the right to vote the statutory provisions shall apply. t 13. Submission oflearned counsel that the Society must act in terms ofBye-Laws as has been observed by this Court in A. Jithendernath v. Jubilee Hills Cooperative House Building Society and Anr. , [2006] 10 sec 96 para 54 is undoubtedly correct but the same would not mean that invalid bye-law shall be pennitted to operate and that too in · derogation to the legislative act. 14. Section 27 ofthe 1960 Act is absolutely clear and unambiguous. It does not admit oftwo meanings.

Ifthe literal rule ofinterpretation is to -~ be applied and there is no re~on as to why it should not be, all members ; :.. ofthe family who have been admitted to the membership ofthe Society would be entitled to vote. The bye-law, it would bear repetition to state, cannot prevail over the statutory provision. 15. We, therefore, do not find any infinnity in the impugnedjudgment of the High Court. This appeal is accordingly dismissed with costs. Counsel's fee assessed at Rs. 10,000/- (Rupees ten thousand only). D. G. Appeal dismissed. :{ -. ft