Bijay Khosla vs Registrar, Co-operative Societies, Engineers Hostel No.1, Dhurwa And Ors

This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order passed by the Registrar, Co-operative Society Jharkhand, Ranchi dated 30.05.2019 passed in Misc. Case No.14 of 2019 is under challenge, whereby and whereunder, the objection having been raised by the petitioner against the enhancement of service charge by the Jamshedpur Co-operative Housing Building Society, has been rejected by the Registrar acting in exercise of power conferred under Section 48 of the Jharkhand Co-operative Societies Act, 1935 hereinafter referred as the Act, 1935.

It is the case of the petitioner that he is one of the flat owner situated in Jamshedpur Co-operative Housing Building and also member of the society created for the purpose of looking after the services upon the member of the Societies but the rate of the service charge as has been fixed by the meeting conducted of the general body is exorbitant, therefore, the same has not been agreed upon by the petitioner, however, the decision has been taken with the consent of majority of the flat owners but the petitioner being aggrieved with the said enhancement, has invoked the jurisdiction of the Registrar as conferred power under the provision of Section 48 of the Cooperative Societies Act, 1935.

The Registrar, acting in pursuance to the provision of Section 48 of the Act, 1935, has called upon the members of society who have put their appearance and thereafter an enquiry has been sought to be conducted by the order of the Registrar and to that effect the order was passed basis upon which an enquiry report was submitted by the Assistant Registrar, Co-operative Society, Jamshedpur and placing reliance upon the same the objection raised by the petitioner before the Registrar, has been rejected and the enhancement has been allowed, against which, the present writ petition has been filed.

Mr. Rahul Kumar, learned counsel for the petitioner has assailed the said order on the ground that the members were present on the day when general body meeting was conducted, was not as per the provision of by-laws rather the tenants who are residing in the flat in said society situated and being managed by the society have also been allowed to be participated and after taking their consent the enhancement has been approved the objectors one of which is the petitioner and as such, the decision for enhancement has been taken contrary to the terms and conditions stipulated in the by-laws therefore, not sustainable, however, the same has not been appreciated by the Registrar hence the order impugned is not sustainable.

Mr. Rupesh Singh, learned G.P.-V appearing for the State of Jharkhand, has defended the order passed by the Registrar by submitting that the decision for enhancement has been taken in a meeting conducted by the members of the society in the annual general body meeting and the decision since has passed with the majority, therefore, the enhancement has been approved and now all the members are making payment of the enhanced service charges, save and except, the co-members one of them is petitioner.

He has also raised the question of jurisdiction of this Court under Article 226 of the Constitution of India by taking the factual aspect as to what service is being provided by the society and how the flat owners are benefited the same pertains to the factual aspect and the service charge always depends upon the service which is being provided by the service provider and therefore, if the service provider considering the service which is being provided by it enhanced the service charges, the same cannot be adjudicated by this Court sitting under Article 226 of the Constitution of India.

This Court after hearing the learned counsel for the parties on appreciating their rival submissions and after going across the finding recorded in the impugned order by the Registrar in exercise of power under Section 48 of the Act, 1935 whereby and whereunder the question has been agitated before the Registrar by the petitioner against the decision taken by the society for enhancement of the charges for providing of the services to the members of the flat owners residing therein.

The petitioner is raising the legality of the coram of the general body who has conducted its meeting by taking decision for enhancement of the service charges.

The petitioner contends that the tenants have also been included in the said meeting while the by-laws does not suggest to that effect.

The question herein is although by-laws does suggest that tenants will not be the member of the general body but when the flat owners are not living in the flat and subletting it to the tenants who are getting the benefit of services which is being provided by the service provider and making payment on behalf of the flat owners for getting the service used, the tenant will have to say in the meeting as to whether they are inclined to make payment which is now sought to be determined either by the enhancement or by way of its reduction.

Since the tenants have to make payment, therefore, as has been contended by the learned counsel for the petitioner that the presence of the tenants is contrary to the condition of by-laws is not acceptable to this Court it is for the reason that the general body is to be constituted by the actual owners of the flats but so far as the making payment of the service charges the tenant who is to make payment as per the condition entered in between the tenants and flat owners will be necessary affecting party as would appear from the impugned order that the flat owners including the tenants have consented to make payment of the charges adding upon the letter of service is to be provided by the service provider and the same has been assessed by the report submitted by the Assistant Registrar, Cooperative Society, therefore, a conclusive fact finding has been adjudged by the Registrar in allowing the said enhancement and once the Registrar, as per the report submitted by the Assistant Registrar, Co-operative Society, wherein justification has been shown for enhancement of the charges for providing services, which has been concurred by the Registrar in exercise of power under Section 48 to the Act, 1935, it would not be proper for this Court sitting under Article 226 of the Constitution of India to disturb the said finding by assuming the power of appeal since the writ court is not meant to exercise the power of appeal, therefore, this Court is not inclined to interfere with the order impugned.

Accordingly, the writ petition stands dismissed.