Respected Sirs,
Note :
Complainant is a joint purchaser (second name in Agreement) and also holds a Share Certificate as the Second member of the CHS.
Entrance fees and Share Application money for both owners/members have been paid long back when the property was purchased in 2008. Due Documentary evidence was also produced both before the MC and during the proceedings.
In September,2014 MC wrote to the First Member ( complainant’s wife) that the complainant is not a member.
1. A complaint under section 23 of MCS Act was filed with DY. Registrar of co-op. societies in March, 2015.
2. The Dy. Registrar issued an order rejecting complaint in Oct. 2015.
3. A Revision Application was filed with Honb’le Divisional Joint Registrar in Nov. 2015.
4. After prolonged delay Hon’ble DJR passed an order in July, 2018, setting aside the order of the Dy. Registrar and remanded the matter back to the Dy. Registrar for fresh hearing.
5. Honb’le DJR held that:
Respondent Dy. Registrar had not considered documentary evidence produced by the Applicant.
Respondent Dy. Registrar has not considered facts and has not followed due process of law while deciding the case.
Impugned order suffers from the violation of Principle of Natural Justice.
Therefore, the impugned order is set aside and the matter is remanded back to the Respondent Dy. Reg. for afresh consideration and decision on its own merits.
6. In Aug. 2018, Dy. Reg. was approached for conducting afresh hearings. There were 6 hearings on different dates and the matter was closed for order in Jan. 2019.
7. Despite persistent follow-up, NO Order has been passed so far.
8. Recently, when enquiry was made, it was orally informed that it is decided to conduct re-hearing and a date in Sept. was conveyed.
9. When asked about the reason for the re-hearing no direct or satisfactory reply is forthcoming. But it is understood and it is likely that process under section 91 instead of section 23 will be insisted.
MY QUERY :
a) Although the initial order passed by DY.Reg. in Oct. 2015, went against the complainant, the matter was obviously heard and disposed off under section 23 as the order itself bears an inscripttion to the effect that it is an Order under section 23 of MCS Act, 1960.
b) Hon’ble DJR , while bringing out various infirmities in the order of Oct. 2015, has not questioned the applicability of section 23, but has set aside the said order on account of illegalities mentioned in para no. 5 above.
In the aforesaid circumstance, and especially since the matter has been remanded back for the limited purpose of AFRESH HEARING, can the present Dy. Reg. send complainant to co-op. court at this late stage? This will not only force the complainant to start the whole process de-novo but will also be vexatious for him. How can this be avoided? Can estoppel or res-judicata be invoked saying that the earlier decisions of the two authorities to consider and hear the matter under section 23, being a judicial decision, is correct and it should be followed for the AFRESH HEARING as well.
I await your guidance.
