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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R. M. SAVANT, J.
Mrs. Glady Francis D'Souza a widow - Petitioner
Vs.
The Divisional Joint Registrar Cooperative Societies, Mumbai Division - Respondents
WRIT PETITION NO.2780 OF 2014
Decided On : 8th July, 2014
The Revisionary Authority i.e. the Divisional Joint Registrar has totally misdirected himself, the question here was not in respect of any document of title by way of any agreement or conveyance. Here the document was the nomination in form No. 14 which nomination has to be in terms of the rules applicable to a Co-operative Society and the bye laws of the Co-operative Society. The Deputy Registrar had therefore rightly proceeded to consider the application on the basis as to whether there is a compliance of the rules in the matter of the nomination and on a consideration of the said nomination as also on consideration of the fact that the said nomination had not received the approval of the managing committee and there was no record of its acceptance in the society’s record, held that the respondent No. 4 was disentitled to the membership.
The Divisional Joint Registrar has erroneously applied the judgments of the Single Judges of this Court. The issues before the Single Judges in the said cases were as regards the documents of title on the basis of which membership was claimed or the legality of the structure in respect of which membership was sought. Such are not the facts in the instant case as in the instant case, the membership is sought solely on the basis of the nomination form. Therefore, the Divisional Joint Registrar has erred in exercising the revisionary jurisdiction to set aside the order passed by the Deputy Registrar. The impugned order passed by the Divisional Joint Registrar would therefore have to be quashed and set aside and is accordingly quashed and set aside.
1. Rule. With the consent of the learned Counsel for the parties i.e. Ms Nagotanekar for the Petitioner, the Learned AGP for the Respondent Nos.1, 2 and 5 and the Learned Counsel Mr. D'Souza for the Respondent No.4, made returnable forthwith and heard. In so far as the Respondent No.3 is concerned, Committee Member Mr. Pramod Surve is personally present in Court with the record of the society and states that he has no objection to the Petition being decided.
2. The Writ Jurisdiction of this Court is invoked against the order dated 20-1-2014 passed by the Divisional Joint Registrar by which order, the Revision Application filed by the Respondent No.4 herein came to be allowed and resultantly the order dated 23-7-2012 passed by the Deputy Registrar Cooperative Societies G/N Ward, came to be set aside and the Respondent No.3 society was directed to admit the Respondent No.4 as a member of the said society.
3. The facts necessary to be cited for adjudication of the above Petition in brief be stated thus: The Respondent No.3 is a Cooperative Housing Society of which one Dulcine A. D'Souza was a member in respect of flat bearcing No.C101. It appears that the said Dulcine expired on 21-8-2010. The Petitioner is the daughter in law of the said Dulcine, and the Respondent No. 4 is the daughter of the said Dulcine. On her death, the Respondent No.4 herein filed an application for being made a member on the basis of an alleged nomination made by the said Dulcine in her favour. It appears that the Respondent No.3 society did not act upon the said application as a result of which the Respondent No.4 approached the Deputy Registrar Cooperative Societies G/N Ward, by way of an application under Section 22(2) of the said Act. It appears that before the Deputy Registrar Cooperative Societies G/N Ward, the society though a party, did not appear before him. The Deputy Registrar Cooperative Societies G/N Ward, by his order dated 23-7-2012 rejected the said application inter alia on the ground that the nomination was blank in so far as the names of the witnesses were concerned, the nomination though bears the alleged thumb impression of the original member Dulcine, the same had not been witnessed by the witnesses and that the managing committee of the society has not passed any resolution to accept the said nomination and make an entry of the same in the record of the society. Aggrieved by the said order passed by the Deputy Registrar Cooperative Societies G/N Ward, dated 23-7-2012, the Respondent No.4 filed a revision before the Divisional Joint Registrar. The Divisional Joint Registrar as indicated above has by the impuged order allowed the said Revision Application and thereby set aside the order passed by the Deputy Registrar Cooperative Societies G/N Ward, and directed the society to accept the Respondent No.4 herein as a member.
4. The gist of the reasoning of the Divisional Joint Registrar was that the Deputy Registrar Cooperative Societies G/N Ward, had erred in going into the legality and validity of the documents as the said documents could only be gone into by a Civil Court. The Divisional Joint Registrar also held that the Deputy Registrar Cooperative Societies G/N Ward, erred in rejecting the application in the absence of the society being before him. The Divisional Joint Registrar as can be seen has relied upon the Judgments rendered by Learned Single Judges of this Court in Harish Commercial Premises Coop Soc. Ltd. Vs. Varsha Dinesh Joshi & ors. 2006 CTJ 544 and Usha Jhaveri Vs. State of Maharashtra & Ors., wherein the Learned Single Judges have held that whilst considering an application for membership, the authorities cannot go into the legality and validity of the documents on the basis of which membership is sought. As indicated above the Divisional Joint Registrar has by the impugned order dated 20-1-2014 allowed the Revision Application filed by the Respondent No.4 herein which order is impugned in the present Petiti
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