No Confidence Motion rule against Office Bearer of Housing Society: Bombay High Court
By Legal Bureau
The unamended section 73-ID indicated that the requisition for special meeting in response to a motion of no-confidence was required to be signed by not less than 1/3rd of the total number of members of the committee who are entitled to vote, the quorum for such a meeting was required to be 2/3rd is a fraction it was to be rounded off to the next higher number and finally the amendment, as made by the Maharashtra Act 7 of 1997, the situation has changed so far as it relates to the motion to be passed by majority and the “word 2/3rd majority” has been replaced by the word “simple majority”.
This was stated by Justice B.M. Marlapalle and Justice D.S. Zoting of the Bombay High Court, allowing the writ petition filed by Jayprakash Raosaheb Salunkhe and other vs. states of Maharashtra and others.
The facts of the case were as follows : The petitioners claimed to be the member of the Managing Committee of the Trimurti Stalkply Sahakari Sanstha, Ltd., Basmant, Taluka – Basmat District Hingoli, which is a registered Co-operative Society under the provisions of the Maharashtra Co-operative Societies Act, 1960. The respondent no.4 was the Chairman of the said Managing Committee and other respondents were members of the Managing Committee. It was contended that total members of the Managing Committee were 15.
On 10th April, 2000, the Petitioners submitted a motion of no-confidence before the District Deputy Registrar against the respondent no.4, the Chairman in the prescribed form and ac- cordingly the District Deputy Registrar (Respondent No.2) issued notice on 16th April, 2000 to all the members of the Man- aging Committee informing them that a special meeting of the Managing Committee to discuss the motion of no-confidence and to vote on the said motion was called and fixed on 24th April, 2000. Along with the requisition of no-confidence the list of the Managing Committee members was also submitted by the petitioners-requisitionist.
On 20th April 2000, the Petitioner no.1 submitted a representation to the Respondent no.2 (DDR) inviting his attention to the amended provisions of section 73-ID of the Act, to the effect that the motion of no-confidence was are required of the total number of the Managing Committee members who were entitled to vote at the election of such Managing Committee and the Pro- visions of Rule 57-A(7)(a)(III) of the Maharashtra Co-operative Societies Rules 1961would not operate. In the meanwhile, the meeting as fixed y the respondent no.2 was proceeded on 24th April 2000 and the respondent no.3 as directed by respondent no.2 by a specific order, presided over the said meeting. Respondent no.3 passed an order on 24th April 2000, stating that as required under rule 57-A (7)(G)(III) of the rules, the 2/3rd members of the total members entitled to vote were not present and the motion of no-confidence was rejected. The petition was therefore amended and the order passed on 24th April 2000 by respondent no.3 was also challenged.
The counsel appearing for the respondent no.4 took objections to the maintainability of the petition on the grounds that (1) the petition involved disputed questions of fact (b) petitioners had an alternative and efficacious remedy under section 91 of the Act to approach the co-operative court by way of a dispute etc.
The counsel for added respondent urged that there was no anomaly or inconsistency between the amended provisions of section 73-ID of the Act Rule – 57 – A (7)(G)(III) of the rules and in any case it was not the function of this (High) Court to declare the provisions as inconsistent or to make laws.
Both the counsel endeavoured to impress upon the High
Court that the provisions of section 73-ID(1) of the Act and Rule – 57-A(7)(G)(III) of the Rules operated in different areas viz. for passing the resolution by simple majority ; Provisions of section 73-ID of the act are required to be considered and for deciding the quorum for the special meeting called by the Registrar by following the provisions of Rule 57-A of the Rules, the provisions of sub rule (7)(9)(iii) were required to be followed and in short there was no conflict between there two provisions.
The counsel for the petitioners submitted that the action of Respondent no.3 in insisting on 2/3 majority as a quorum for the meeting was illegal and the quorum for the meeting was to be decided in keeping with provisions of bye-law no.G.3.2. of the said societies bye-laws, which had been duly approved by the competent Authority. On this point the High Court observed that it was well settled by a cater of decisions that provisions of bye- laws were not statutory in nature and they did not have an over- riding effect on the provisions of the Rules, though no doubt, they were referred to an relied upon for the matters for which there was no provision in the statutory Rules and therefore, the High Court was not impressed by the submissions of the counsel of the petitioners, that the quorum for the special meeting scheduled on 24th April 2000 ought to have been followed in keeping with the provisions of Bye-law No.G.3.2. of the Bye-Law of the said society.
The High Court in its judgement quoted fully section 73-ID of the Act (motion of no confidence against officers of Societies) and observed that Rule 73-ID(I) in the original scheme Provided for 2/3rd majority and the said words simple majority by an amended by the Housing Act 7 of 1997.
The High Court observed that if bye laws be mad to the pro- visions of section 73-ID of the act, it must be held that for the meeting which are called by the Registrar for discussing or for holding vote on the motion of no-confidence, the provisions of Rule 57-A of the Rules must be construed to be mandatory and such meeting would be covered only by the procedure set out therein and not the bye-laws.
The unamended Section 73-ID indicated that the requisitions for special meeting in response to a motion of no-confidence was required to be signed by not less than 1/3rd of the total number of members of the committee who are entitled to vote, the quorum for such a meeting was required to be 2/3rd of the members of the Managing Committee and if the 2/3rd is a frac- tion it was to be rounded off to the next higher number and fi- nally motion of no confidence was required to be passed by 2/3 majority. With the amendment, as made by Maharashtra Act 7 of 1997, the situation has changed so far as it relates to the motion to be passed by majority. With the amendment it is contended that (a) fraction it was to be rounded off to the next higher number and finally the motion of no confidence was required to be passed by 2/3rd majority. With the amended it is contended that (a) the requisition for no-confidence shall be signed by 1/3rd of the members (b) the quorum shall be complete with 2/3rd of the members and (C) the vote of no-confidence shall be simple majority. Referring to the arguments of the counsels for the Petitioners as well as for the Respondents, the High Court allowed the Petition holding that the special meeting for discussing the no-confidence motion and casting vote thereon was required to be proceeded on the basis of simple majority.
The High Court therefore directed Respondent No.3 to hold a fresh meeting by giving due notice to that effect of the Petitioners as well as the respondent members.
There was no order as to costs. (In the High Court of Judicature, Bombay Aurangabad Bench, writ petition No.1559 of 2000 decided on 3-5-2000).