LexWOODBURN PARK CO-OP. HOUSING SOCIETY LTD. versus CHANDA DEVI TANTIA AND ORS.
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[2008] 5 S.C.R. 1036 A WOODBURN PARK CO-OP. HOUSING SOCIETY LTD. V. CHANDA DEVI TANTIA AND ORS. (Civil Appeal No.2638 of 2005) B APRIL 2, 2008 [DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] ' "*' West Bengal Cooperative Societies Act, 1973 - ss. 73, 86, 138, 139 - Cooperative Society - Owning two plots - c Construction of building for allotment of flats to members - Dispute between members of Society and ·Managing Committee - High Court directed Registrar to take steps for division of assets and liabilities - Registrar passed preliminary order - Names of some members not mentioned therein - D Objections raised as to non-inclusion of their names - Not disposed of - Order of Deputy Registrar to appoint Managing Committee without hearing objectors and disposing of their ' 1' objections - High Court held that Managing Committee so appointed had no legal sanction - On appeal, held: High E Court's order set aside - Registrar directed to hear preliminary objections - Enquiry would be restricted to fact whether there was any resignation. The Society owned two plots in WP Road and EP Road. The said Society desired to construct two F multistoried buildings on these plots for residence of its members. Dispute arose between the members of the Society and the Managing Committee and matter came .. up before the High Court. The High Court directed the Registrar of Co-operative Societies to take steps in terms G of provisions of West Bengal Co-operative Societies Act, 1973 for division of the assets and liabilities of the Co- operative Society situated at EP Road and WP Road. Pursuant to the order passed by the Division Bench, + the Registrar of Cooperative Societies passed a H 1036 WOODBURN PARK CO-OP. HOUSING SOCIETY LTD. 1037 v. CHANDA DEVI TANTIA AND ORS . .._J.. preliminary order on 5th September, 1979 purporting to A divide the assets and liabilities of the Society. It is alleged that the Registrar recognized 38 members of WP society and the names of some members were not mentioned in the preliminary order. They objected to the non-inclusion of their names and filed their objections but they were not B heard and their objections were not disposed of. The final :. order was passed on 23rd June, 1980. Then on 8th August, 1980, further order was passed by the Deputy Registrar purporting to appoint the Managing Committee of the said WP Society without hearing them and disposing of their c objections. Both the orders were challenged before the High Court by filing the writ petition. Single Judge of High Court directed allotment of flats made in respect of the Society by the first Managing Committee of the appellant-society D or the successor of the Managing Committee and held that the same was to be given effect to. He further directed appointment of an Administrator by the Registrar of Co- operative Society. On appeal, Division Bench held that Single Judge E rightly decided the matter since Order dated 23rd June, 1980 was found to be bad and subsequent order dated 8th August, 1980 appointing the Managing Committee cannot survive. If the membership issue had been decided in favour of those persons it was not known what would F t have been the shape of the Managing Committee_. The I Registrar was directed to hear the preliminary obje'Ctions filed by the members in accordance with law to decide who are the members and who are not After the disposal of the question of membership by the Registrar, the G Managing Committee was to be formed in accordance with law. Accordingly, the Division Bench was also of the view that the Managing Committee appointed after 8th August, 1980 had no legal sanction and it was open to the Administrator to take appropriate action in accordance H 1038 SUPREME COURT REPORTS [2008] 5 S.C.R. A with law. In appeal to this Court, appellant contended that whether one was a member has to be tested on the question of bifurcation under s.138. There is a statutory presumption on the basis of entries. If somebody's name 8 is not there, statutory presumption is that he is not a member and audit report is a prima facie evidence for 1979- ,/,! 80 in terms of s.139. The list of members and the list of shareholders clearly show the number to be 60. The year 1979-80 was the period immediately prior to bifurcation. C The total strength of 1979-80 was 124 and the number of shareholders was also 124. In 1978-79 the number was 60. Dis
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