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CASE NO.: Appeal (civil)  5130 of 2007

PETITIONER: Veena Kumari Tandon

RESPONDENT: Neelam Bhalla and others

DATE OF JUDGMENT: 02/11/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO  5130 OF 2007 (Arising out of SLP (C) No. 525 of 2005)

S.B. SINHA, J.

1.      Leave granted.

2.      Interpretation of Section 27 of the Maharashtra Cooperative  Housing Societies Act, 1960 (1960 Act) vis-a-vis Bye Laws of the  Merry Niketan Co-operative Housing Society Ltd. is in question in  this appeal which arises out of a judgment and order dated 30th April,  2004 passed by a Division Bench of the Bombay High Court whereby  the writ petition filed by the respondents herein declaring that each  member of the 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 of the members of  the said Group Housing Cooperative Society are members of the same  family.  They were, however, admitted to the membership of the  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 of the 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 of bye-laws 8(a), 9(a)  and 9(b) of the Bye Laws of the society meaning thereby that member  holding more than one flat or membership in the name of his/her  family members will be eligible to one vote only.  On the said basis a  final list of members was published.  Objections thereto were  submitted.  Respondent No. 1 besides 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 of Cooperative 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 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.  Indisputably in the final voters list which was prepared  showing only one member of the family to be a voter, despite the fact  that more than one member of the same family had been allotted more  than one flat.   6.      The High Court by reason of its impugned judgment, on  interpretation of Section 27 of the 1960 Act, opined that each member

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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 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  of the same family by reason of having been allotted more than 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 of the 1960 Act reads as under :-

"27.    Voting powers of members :- (1) Save as  otherwise provided in sub-sections (2) to (7), no member  of any 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 of an equality of votes  the Chairman shall have a casting vote."

       Section 73(H) of the 1960 Act reads as under :-

"73H - Responsibility of committee to hold election  before expiry of term   (1) It shall be the duty of the committee of every society  to arrange for holding the election of its members before  the expiry of its term. (2) Where there is a wilful failure on the part of the  committee to hold the election to the committee before  the expiration of its term, the committee. shall cease to  function on the expiration of its term and the members  thereof shall cease to hold office and the Registrar may  himself take over the management of the society or  appoint an Administrator (who shall not be from amongst  the members of the committee the term of which has so  expired) and the Registrar or Administrator shall hold  election within a period of six months and the committee  shall be constituted before the expiration of that period."

9.      The Society has framed its own Bye-Laws.   A ’flat’ has been defined under Bye-Law 3(vi) to mean :

" ’Flat’ means a separate and self contained set of  premises 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 part of a building and  includes an apartment; "

       ’Family’ has been defined in Bye-Law 3(xxv)  to mean :

"       ’Family’ means Group of persons which includes  husband, wife, father, mother, sister, brother,. Son ,  daughter, son-in-law, brother-in-law, sister-in-law,  daughter-in-law, grandson/daughter; "

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       Bye-Law 19 provides for the ’conditions for membership’,   clause (iii) whereof reads as under :-   "19.(A) An individual who is eligible to be the member  and who has applied for membership of the society in the  prescribed form, may be admitted as member of the  committee on complying with 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 of the members of his  family, anywhere in the area of operation of the  society."

       Bye-Law 62 provides for holding of flat by members in the  following manner :-

"62.    Individual member of the Society may hold more  than one flat, in the buildings of the Society in his name  or in the name of any of the members of his family."                  Bye-Law 107 reads as under :- "107.   At a general body meeting of the 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 of the 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 of the Act and cannot act in  derogation thereof.  12.     Section 27 of 1960 Act in no unmistakable terms provides for  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  of a family cannot become member of the society.  A difference  between ownership of flat and membership must be kept in mind.   When one member of the family within the meaning of Bye-Law 19  (iii) applies for allotment of another flat, he/she may be asked to  disclose the details in regard to allotment of flat in favour of any other  member of the family.  But if the members of the family have been  allotted flat or admitted to the membership of the Society, for the  purpose of exercising the right to vote the statutory provisions shall  apply.    13.     Submission of learned counsel that the Society must act in  terms of Bye-Laws as has been observed by this Court in A.  Jithendernath  vs.  Jubilee Hills Cooperative House Building Society  and another : (2006) 10 SCC 96 para 54 is undoubtedly correct but  the same would not mean that invalid bye-law shall be permitted to  operate and that too in derogation to the legislative act.

14.     Section 27 of the 1960 Act is absolutely clear and  unambiguous.  It does not admit of two meanings.  If the literal rule of

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interpretation is to be applied and there is no reason as to why it  should not be, all members of the family who have been admitted to  the membership of the 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 infirmity in the impugned  judgment of the High Court.  This appeal is accordingly dismissed  with costs.  Counsel’s fee assessed at Rs.10,000/- (Rupees ten  thousand only).