Jayant Patel, J.
1. When Civil Application No.1552 of 2003 in Special Civil Application No.5619 of 1999 is taken up for hearing, with the consent of the parties, the main Special Civil Application itself is taken up for final hearing today.
2. The short facts of the case are that the petitioner is one of the members of a Cooperative Society, which is divided into three Cooperative Societies. The original Cooperative Society was "Vasupujya Smruti Cooperative Housing Society Ltd." and it has been divided into "Vasupujya Smruti Cooperative Housing Society Limited Division-1, Division-2 and Division-3. As per respondent nos.1 to 5, proper procedure was followed. It appears that a proposal was moved for division and the matter was placed before the General Body of the Society. It appears that certain members were intimated personally. However, 72 members were intimated by Under Postal Certificate (U.P.C.). The matter was considered before the General Body of the Cooperative Society and ultimately, a resolution was passed for dividing "Vasupujya Smruti Cooperative Housing Society Ltd." into three societies, as referred to hereinabove. The division came to be sanctioned by the Assistant District Registrar, District Panchayat as per decision dated 3rd December, 1996. It is the case of respondent nos.1 to 4 that such decision came to be implemented by grant of new registration to the other Cooperative Societies, which are formed subsequently on account of the division.
3. The petitioner along with other members preferred an appeal before the Additional Registrar (Appeals), Cooperative Societies, being Appeal No.97 of 1997, against the decision of the Assistant District Registrar of permitting the division under Section 17 of the Gujarat Cooperative Societies Act ("the Act" for short). The pertinent aspect is that in the said appeal, only Assistant District Registrar was impleaded as party and neither the societies, which were formed on account of the division, were joined as parties nor the original society was joined as party. It appears that the Additional Registrar, vide order dated 30th October, 1998, allowed the appeal and set aside the order of the Assistant District Registrar on the ground that proper procedure was not followed and the petitioner, appellant therein, was not issued notice for the purpose of division under Section 17(2) of the Act. The society, namely, Vasupujya Smruti Cooperative Housing Society Limited Division-1 and Division-3, through its Chairman, preferred Revision Application Nos.160 and 161 of 1998 before the State Government against the order dated 30th October, 1998 passed by the Additional Registrar (Appeals). The State Government, vide its judgment dated 13th May, 1999, allowed the Revision Applications mainly on three counts: Firstly, that the appeal is not preferred within stipulated time limit; Secondly, that there is no prejudice or damage caused to the petitioner herein; and, lastly, that the General Body of the society has resolved for division, and the State Government ultimately quashed the order of the Additional Registrar (Appeals) and confirmed the order of the Assistant District Registrar. It is under these circumstances, the petitioner has approached this Court by way of this petition.
4. Mr.C.G.Sharma, learned Counsel appearing for the petitioner, contended that the petitioner was not given any notice for division and the petitioner, being a member of the Cooperative Society, was directly affected by the division of such society. He further submitted that in any case, it was mandatory for the society to give notice to all its members and such notice should have been by Registered Post A.D. and notice issued to the members by U.P.C. cannot be said to be sufficient compliance. He also submitted that only few members i.e. 78 members were issued such notice and in any case, all members were not issued notice. He further submitted that time gap of one month, which was required to be maintained for the purpose of giving option to the members, is also not preserved. He, therefore, submitted that such a notice cannot be said to be a valid notice in the eye of law and since mandatory procedure is not followed, the order passed for division is void and deserves to be quashed.
Mr.Sharma also submitted that the petitioner was not knowing about the order of division and it is only in the suit proceedings, the petitioner came to know about the same and, therefore, there cannot be said to be delay in preferring the appeal and even if the delay is considered, there was justification for condonation of such delay, and therefore also, the order passed by the State Government deserves to be interfered with. Mr.Sharma submitted that since the petitioner is a member of the original Cooperative Society, which is divided, non-following of the procedure itself has caused prejudice to the petitioner and the petitioner, in the capacity as a member of the society, had a right on the assets of the original society and, therefore also, prejudice is caused. He submitted that since such a right is being affected, it is not necessary that individual prejudice should be demonstrated and, therefore also, the order of the State Government deserves to be quashed.
5. Mr.Ravindra Shah, learned Counsel appearing for respondent no.1, as well as Mr.Premal Joshi, learned AGP for respondent no.7, have supported the order of the State Government. Mr.Shah has relied upon a decision of the Apex Court in the case of Daman Singh & Ors. vs. State of Punjab and Ors., reported in AIR 1985 S.C.973, to contend that in the matter of amalgamation, it has been held by the Apex Court that individual member has no such right and the order will not be bad on account of non-service of the notice to each individual member.
6. Having considered the above, there is no dispute on the point that the General Body of the society has approved the division and a resolution thereof is also passed, and only the petitioner, in the capacity as a single member of the society, has challenged the decision of division. As per the scheme of the Act, final authority vests upon the General Body of the society. When the General Body of the society, by majority, has taken the decision for division of the original society into three parts, it cannot be said that the division is bad because the petitioner had no opportunity to object. Moreover, there is a finding of fact recorded by the authority that in any case, some members were intimated personally and 78 members were communicated by U.P.C. Merely because the communication or intimation was given by the society through U.P.C., it cannot be said that notice is not given, as required under Section 17(2) of the Act. Apart from the above, Section 17(2), if read as it is, it appears that a notice is required to be given in writing to its members, creditors and other persons likely to be affected. The mode of notice can be by publication and can be by society affixing on the notice board of the society and can also other such modes with a view to make it known to all members that the meeting of the General Body is to be held for considering the division. The General Body of the society, by majority, has taken the decision of division and, therefore, it is a collective decision of majority. An individual member may be objecting to such a division, but, on such a ground, in the matter of amalgamation or division, the decision of the majority members of the society cannot be nullified unless it is against the Statute or the Act. The Apex Court, in the case of Daman Singh and ors. (supra), had an occasion to consider the right of individual members in the matter of amalgamation. At paragraph-11 of the said decision, it has been observed by the Apex Court as under :
"11. The next submission of the learned counsel was that S. 13(8), (9) and (10) did not make express provision for the issue of notice to the members of the concerned Co-operative Societies and were, therefore, violative of the principles of natural justice. He argued that in the absence of any provision, the rules of natural justice may be read with the provisions and notice to the members of the affected societies was imperative. Otherwise, he argued, members of one society would be forced against their will and without being heard to associate themselves with members of another society. We have no hesitation in rejecting this submission also. Once a person becomes a member of a co-operative society, he loses his individuality qua the society and he has no independent rights except those given to him by the statute and the by-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. So if the statute which authorises compulsory amalgamation of co-operative societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members. That is why S. 13(9)(a) provides for the issue of notice to the societies and not to individual members. S. 13(9)(b), however, provides the members also with an opportunity to be heard if they desire to be heard. Notice to individual members of a co-operative society, in our opinion, is opposed to the very status of a co-operative society as a body corporate and is, therefore, unnecessary. We do not consider it necessary to further elaborate the matter except to point out that a member who objects to the proposed amalgamation within the prescribed time is given, by S. 31(11), the option to walk-out, as it were, by withdrawing his share, deposits or loans as the case may be."
Therefore, it is apparent that in the matter of amalgamation of a cooperative society, the view taken by the Apex Court is that separate notice to individual members of a cooperative society is opposed to the very status of a cooperative society as a body corporate and is, therefore, unnecessary. Section 17 of the Act provides for amalgamation, transfer, division or conversion of societies. The procedure provided under Section 17(2) is common for all such contingencies. If, in the matter of amalgamation of a society, the view taken by the Apex Court is that no separate individual notice to each member is required to be given, it cannot be held that in the matter of division of a society, separate individual notice to each member is required to be given. Even otherwise also, in absence of any special provision for separate individual notice, notice to all the members of the society would be sufficient and such notice can be by various modes for convening a meeting of the General Body for consideration of such division and, therefore, merely because some members had no knowledge about such meeting of the General Body or that they had no separate individual notice for such meeting for considering the decision, in my view, cannot be said to be a valid ground to upset the decision of the division of the society, which is of majority members of the General Body of the society.
7. The aforesaid fact is coupled with the peculiar circumstances that before the Additional Registrar, when the order of division came to be set aside, in the appeal preferred by the petitioner and other members, neither the original society nor the newly divided three societies were impleaded as party. Further, since it is also the case of such newly formed society that the registration came to be granted on the basis of the division, they were directly affected by the outcome of the appeal. There is no dispute on the point that such societies, which were directly affected by the outcome of the decision in appeal, were not impleaded as parties. It is well settled that no order can be passed by the quasi judicial authority without hearing the affected party. The State Government, therefore, has rightly allowed the Revision Applications on such ground.
8. Another ground, which made the State Government to pass the impugned order, is that the petitioner has not been able to show any specific prejudice. The contention raised by Mr.Sharma is that the petitioner has right over the properties of the society and, therefore, since the division is effected or is made, it is a prejudice. Such contention appears to be attractive, but, on close scrutiny, it appears that the society is the owner of the properties and it is on account of allotment of plots or tenements that the members are in occupation. The members, in the capacity as shareholders, do have the financial interest in the properties of the society, but, in a matter of division or amalgamation, it is the decision or wish of the majority of the members to prevail and not of individual member. Merely because an individual member is objecting to such division, the will of the majority of the members cannot be allowed to be nullified. As observed earlier, it cannot be said that there is any procedural lapse on the part of the authority while considering the matter for division of the society. Even if the matter is considered on individual prejudice of the petitioner, then also, the petitioner has not been able to demonstrate any specific prejudice.
Mr.Sharma, during the course of hearing, made an attempt to submit that initially, had the society been continued as one society, the petitioner would have been entitled to 200 sq.mtrs. of land and on account of the division, such area is reduced. However, Mr.Sharma has not been able to show that any such contentions were ever raised before the lower authorities and, therefore, such contention, for the first time in a petition under Article 227 of the Constitution of India, after the matter is examined by the three authorities, cannot be allowed to be raised at this stage.
9. In any event, when the General Body of the society has taken the decision, I am of the view that even if the petitioner had any grievance against the decision of the General Body of the society, proper course for the petitioner was to challenge the said decision under Section 96 of the Act. It is an admitted position that the decision of the General Body of the society is not challenged by the petitioner under Section 96 of the Act and, therefore, if the decision of the General Body of the society is to operate, the will of the majority of the members itself is to prevail for the purpose of division of the society and if such is the situation, it cannot be said that the petitioner, in the capacity as a member of the society, would be justified in challenging the decision of division only on the ground that he is going to be prejudiced or affected. I am inclined to take such a view because the petitioner has not been able to produce any reliable material to show that any prejudice is caused to him. The question of division in case of direct and clear individual prejudice to the member is kept open.
10. In view of the earlier observations, even if the question of condonation of delay is leniently viewed, when on merits, I find that the State Government was justified in allowing the Revision Applications, it may not be necessary for this Court to consider the question as to whether the State Government was justified in quashing the order of the Appellate Authority on the ground of delay or not.
11. In view of the aforesaid observations and discussions, I find that the order passed by the State Government for confirming the order of the Assistant District Registrar and for setting aside of the order of the Additional Registrar in the appeal, is legal and valid, and the State Government has rightly allowed the Revision Applications.
12. In the result, the petition fails and hence, is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Rule is discharged.
13. In view of the dismissal of the main Special Civil Application No.5619 of 1999, no orders are required to be passed in Civil Application Nos.1552 of 2003 and 3198 of 2000. Hence, the Civil Application stands disposed of accordingly. Notice is discharged.