Holding

Section 27’s one member‑one vote provision prevails over the society’s bye‑law, so every member admitted to the cooperative is entitled to a separate vote.

Summary

The dispute arose in the Merry Niketan Cooperative Housing Society Ltd., a group housing cooperative, where several members of the same family owned multiple flats. The society’s bye‑laws sought to limit voting to "one family one vote" and prepared a final voter list accordingly, excluding additional family members. The excluded members challenged the list, leading to the rejection of their nominations, dismissal of appeals under Section 152(A) of the Maharashtra Cooperative Housing Societies Act, and a writ petition. The Bombay High Court held that, under Section 27 of the Maharashtra Cooperative Housing Societies Act, 1960, each member admitted to the society is entitled to one vote, irrespective of the bye‑law definition of family. On appeal, the Supreme Court affirmed that a legislative act prevails over subordinate legislation; therefore, the statutory provision of one member‑one vote cannot be overridden by a bye‑law prescribing one family‑one vote. Consequently, the appeal was dismissed, upholding the High Court’s decision that every admitted member may vote.

Issues considered

Whether the bye‑laws of a cooperative housing society can limit voting to one per family when Section 27 of the Maharashtra Cooperative Housing Societies Act, 1960 provides one member‑one vote.
Whether a legislative enactment prevails over subordinate legislation (bye‑laws) in the context of voting rights in cooperative societies.

Subjects

cooperative housing societyvoting rightsone member one votebye‑law interpretationlegislative supremacyfamily votingsection 27Maharashtra Cooperative Housing Societies Act

Judgment

---{-

A VEENA KUMAR! TANDON
v.
NEELAM BHALLA AND ORS.

NOVEMBER 2, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Maharashtra Cooperative Housing Societies Act, 1960-s. 2 7-
Voting by members ofsame family-Entitlement-Held: Each member
c offamily admitted to membership ofSociety is entitled to vote despite
definition of 'family' contained in Bye-Law 3(XXV)-S.27 clearly
provides for one member-one vote-Legislative Act would prevail over
subordinate legislation-Bye-Laws must conform to the provisions of
the Act and cannot act in derogation thereof-Bye-laws 3(XXf1, 8(a),
D 9(a) and 9(b), l 9(iii) ofthe Merry Niketan Cooperative Housing Society
Ltd.
......(
' .
Legislative intent-IfLegislative Act providesfor a concept, bye-
law cannot create another concept so as to defeat the legislative object.
E ~he Managing Committee of the Group Housing Co-operative
society, respondent No.17 adopted a resolution to prepare final lists
of members eligible to vote on the purported basis of Bye-laws 8(a),
9(a) and 9(b) of the Merry Niketan Cooperative housing Society
Ltd., whereby the member holding more than one flat or membership
F in the name of his/her family members would be eligible to one vote
~
only. Objections thereto were submitted. Respondent No. 1 besides
other members fded nomination for contesting the election. The same
was rejected . An appeal thereagainst was also dismissed. A writ
petition was filed. High Court on interpretation of s.27 of the
G Maharashtra Cooperative Housing Societies Act, 1960 opined that
each member 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.

H
960
VEEN A KUMAR! TANDON v. NEELAM BHALLA 961

In appeal to this Court appellant contended that in a Group A
Housing Cooperative Society, 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'. B
Dismissing the appeal, the Court
HELD: 1. 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. [Para 11] [965-E, F] C
2. S.27 of Maharashtra Cooperative Housing Societies Act,
1960 provides for one member - one vote. 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- b
law provides for a member's right to be allotted flats in the name of
his family members; but the ~ame 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 E
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. S.27 is absolutely clear F
and unambiguous. It does not admit of two meanings. If the literal
rule ofinterpretation is to be applied, all members of the family who
have been admitted to the membership of the Society would be
entitled to vote. [Para 12 and 14] [965-F, G; 966-A, B, DJ
G.
A. Jithendernath v. Jubilee Hills Cooperative House Building
Society and Anr., [2006] 10 SCC 96, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5130 of
2007.
H
962 SUPREME COURT REPORTS (2007] 11 S.C.R.

A From the final Judgment and Order dated 30.04.2004 of the High
Court of Judicature at Bombay in Writ Petition (Lodging) No. 874 of
2004.
P. Shah, Jay Savla, Reena Bagga, Meenakshi and Akshit for the
B Appellant.
Asha Gopalan Nair, Shridhar, Y. Chitale and Abhijat P. Medh for
the Respondents.
The Judgment of the Court was delivered by
C S.B. SINHA, J. 1. Leave granted.
2. Interpretation of Section 27 of the Maharashtra Cooperative
Ho!-15ing 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
D 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.
E 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
F 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
G 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
H
VEENA KUMAR! TANDON v. NEELAM BHALLA 963
[SINHA,J.]
A
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 B
~ 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 c
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
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. D
f-
' . 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 E
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 tl1an one flat do not constitute majority, a formula has
been adopted in the Bye-Laws, namely 'one family one vote'. F
~ 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
G
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:- H
,~ t
SUPREME COURT REPORTS [2007] 11 S.C.R. 'I-
964

"i-
A "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.
B (2) Where there is a ·wilful failure on the part of the committee to
hold the election to the committee before the expiration ofits 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
c 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."
D
9. The Society has framed'its own Bye-Laws.
A 'flat' has been defined under Bye-Law 3(vi) to mean:
..
~-4.

" 'Flat' means a separate and self contained set of premises used
or intended to be used for residence, or office, or show-room or
E
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 partof a building and includes
an apartment; "

F '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;"

G Bye-Law 19 provides for the 'conditions for membership', clause
(iii) whereofreads as under:-
"19.(A) An individual who is eligible to be the member and who
r.
has applied for membership of the society in the prescribed form,
may be admitted as member of the committee on complying with
H
VEEN A KUMARI TANDON v. NEELAM BHALLA 965
[SINHA,J.]

the following conditions :- A

*** *** ***
(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 B
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 011:e C
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 D
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 E
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. F
12. Section 27 of 1960 Act in no unmistakable terms provides fur
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 G
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
H
966 SUPREME COURT REPORTS [2007] 11 S.C.R.

A become member of the society. A difference between ownership of flat -+- ~

and membership must be kept in mind. When orie 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
B 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. t
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 v.
c Jubilee Hills Cooperative House Building Society and Anr., [2006]
10 sec 96 para 54 is undoubtedly correct but the same would not mean
that invalid bye-law shall be pennitted to operate and that too in
· derogation to the legislative act.

D 14. Section 27 of the 1960 Act is absolutely clear and unambiguous.
It does not admit of two meanings. If the literal rule of interpretation is to
-~
be applied and there is no re~on 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,
E cannot prevail over the statutory provision.
15. We, therefore, do not find any infinnity 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).

F D.G. Appeal dismissed.
:{

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