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Khandelwal Engineering Co. Vs. Modern Usha Colony Co-operative Housing Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberMisc. Petition No. 484 of 1977
Judge
Reported in(1981)83BOMLR601; 1982MhLJ129
AppellantKhandelwal Engineering Co.
RespondentModern Usha Colony Co-operative Housing Society Ltd.
Excerpt:
.....societies act, 1960, must be read in its normal and ordinary sense as both moveable and immoveable property. to read the word 'property' in this sub-section as moveable property only, would be contrary to the plain reading of the sub-section itself. it cannot be said that immoveable property is expressly or even by necessary implication excluded from the normal meaning, scope and ambit, of the word 'property' which embraces both moveable and immoveable property.;likewise there is nothing in section 80(1) to commend the contention that the society's immoveable property is incapable of seizure. the contention that the words 'misappropriated', 'misapplied', 'seizing' and 'taking possession of' in section 80(1) can apply to moveable property and not to immoveable property is..........is that the land and structures in the petitioner's possession were incapable of seizure, as immoveable property is not contemplated by section 160(2) or section 80(1) of the act which according to the petitioner, pertain only to moveable property. it is not difficult to repel this contention. section 160(1) provides for the retiring chairman handing over records and property of the society to the new chairman of the committee. sub-section (2) on which great emphasis was laid on behalf of the petitioner, reads as under:if the retiring chairman fails or refuses...to hand over the papers and property of the society as aforesaid, the registrar, or any person empowered by him in this behalf, may by order in writing direct him to forthwith hand over such charge and property.the word.....
Judgment:

Lentin, J.

1. [After narration of facts and events His Lordship proceeded.] The petitioner is not concerned with the seizure of the moveables of the Society. The petitioner, however, takes umbrage to the seizure of the lands and structures from the petitioner's possession and over which it claims a charge and lien by virtue of the documents referred to earlier. The petitioner's grievance is that the land and structures in the petitioner's possession were incapable of seizure, as immoveable property is not contemplated by Section 160(2) or Section 80(1) of the Act which according to the petitioner, pertain only to moveable property. It is not difficult to repel this contention. Section 160(1) provides for the retiring chairman handing over records and property of the Society to the new chairman of the committee. Sub-section (2) on which great emphasis was laid on behalf of the petitioner, reads as under:

If the retiring Chairman fails or refuses...to hand over the papers and property of the society as aforesaid, the Registrar, or any person empowered by him in this behalf, may by order in writing direct him to forthwith hand over such charge and property.

The word 'property', must be read in its normal and ordinary sense as both moveable and immoveable property. To read the word 'property' in this subsection as moveable property only, would be contrary to the plain reading of the sub-section itself. It cannot be said that immoveable property is expressly or even by necessary implication excluded from the normal meaning, scope and ambit of the word 'property' which embraces both moveable and immoveable property. To construe the word 'property' in this sub-section as 'moveable property' only, would be doing violence to its language and placing an unnatural interpretation of the plain reading thereof. It is manifest that what the outgoing chairman is obliged to hand over to the new chairman is not only the Society's papers and charge of the Society, but also such and every bit of the Society's property, be it moveable or immoveable. To put any other construction would be to defeat the very purpose for which this sub-section is enacted and would provide a loophole and a ready excuse to the outgoing chairman to hand over to the new chairman only papers and moveable property of the Society and sit tight on or otherwise deal with the immoveable property of the Society, to its detriment. The result would be a premium on malpractice, evasion and dishonesty. No such interpretation can even be contemplated, much less countenanced.

2. Likewise there is also nothing in Section 80(1) to commend the petitioner's contention that the Society's immoveable property was incapable of seizure. Section 80 pertains to the Magistrate's powers of seizure. Sub-section (1) reads as under:

Where the Registrar is satisfied that the books and records of a society are likely to be suppressed, tempered with or destroyed, or the funds and property of a society are likely to be misappropriated or misapplied, the Registrar or the person authorised by him may apply to the Executive Magistrate within whose jurisdiction the society is functioning for seizing and taking possession of the records and property of the society.

A plain reading of this sub-section clearly reveals that no limitation has been placed on the word 'property' so as to exclude expressly or by necessary implication immoveable property. It is manifest that the word 'property' embraces both moveable and immovable property as must appear from the plain reading of the sub-section itself. To place any other construction would result in violence to the language of this sub-section and in absurdity, inasmuch as no immoveable property could be seized even though belonging to a Society despite the likelihood of its being misapplied or misappropriated. I do not agree with the contention urged on behalf of the petitioner that the words 'misappropriated' and 'misapplied' and 'seizing' and 'taking possession of' can only apply to moveable property and not to immoveable property. They apply both to moveable and immoveable property. Reliance was placed on the judgment of the Division Bench of the Punjab High Court in Tikka Balbir Singh Bedi v. Bakhshi Saligram (1966) (2) L. J. 497, where construing certain sections in the Punjab Co-operative Societies Act, similar to Sections 80 and 160 of the Bombay Act, it was held that though the word 'property' has a very wide significance and would ordinarily include both moveable and immoveable properties, a perusal of Section 28 of that Act (which corresponds in pan materia to Section 80(1) of the Bombay Act'), left no doubt that it is confined only to moveable property. To start with, that decision was based on first impressions as is stated towards the end of that judgment itself. Be that as it may, the reasoning on which the Punjab High Court has come to its finding is that it is difficult to conceive how land can be misappropriated or misapplied or how land can be shelled and handed over to anybody. With deep respect, I do not at all find it difficult to conceive otherwise. Moveable property as well as immoveable property is capable of being misappropriated or misapplied. Misapplication is to make wrong use of some thing, be it moveable or immoveable. Surely, immoveable property can be wrongly made use of just as moveable property can be. Similarly, immoveable property can as well be misappropriated as can moveable property. I also fail to see why immoveable property cannot be seized and taken possession of, as urged on behalf of the petitioner. To seize something is to take suddenly and forcibly. Surely, immoveable property can be taken Just as suddenly and forcibly as moveable property. Any property, moveable or immoveable, is capable of being seized and taken possession of. Sub-section (2) makes no distinction between moveable and immoveable property and to hold that it does would, to my mind, be a mistake.

3. I hold that Sub-section (2) of Section 160 and Sub-section (1) of Section 80 of the Act apply both to moveable and immoveable property. There is no warrant to give the word 'property' the narrow and restricted meaning I am invited to do.

4. The petitioner queried the invocation of Section 160(2) and Section 80(1) on the ground that by virtue of the lien and charge created in the petitioner's favour by the documents referred to in paras. 2 and 4 of this judgment, the property in question did not fall within the mischief of those sub-sections. This contention is fallacious. The word 'property' in these sub-sections must be read in its natural sense and must be given its natural meaning. Property is property, be it move-able or immoveable as held earlier, or whether it is under a charge and lien. Neither of these sub-sections expressly or by necessary implication seek to make any such distinction. To read any such distinction would be unnatural and do violence to the plain reading of these sub-sections and would be tantamount to placing on the language an unwarranted construction not intended by the legislature.

5. With these general submissions out of the way, I shall proceed to deal specifically with each impugned order.

6. [The rest of the judgment is not material to this report.]


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