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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, J.
Varashree Narayan - Appellant
Vs.
Sagar Tear Co-Operative Housing Society Limited - Respondent
Writ Petition No. 925 of 2011
Decided On : 05-07-2019
Constitution of India,1950 – Article 226 - Maharashtra Co-operative Societies Act, 1960 – Section 22(2),154 and 23(2) - Agreement for sale - Construction of garage - Petitioner that by an agreement for sale between one and petitioner herein, petitioner purchased a garage in the basement on terms and conditions recorded in the said agreement for sale - Said agreement was registered - It is the case of petitioner that constructed a residential building of respondent and also constructed garages including said garage which was purchased by petitioner on plots of land - Petitioner made an application to Secretary of Cooperative Housing Society Limited - Petitioner also enclosed a cheque in favour of the said society towards share amount and entrance fee - Petitioner that since respondent no.1 failed to consider application of petitioner for membership, petitioner filed an application/appeal before the Deputy Registrar under section 23(2) of the MCS Act - Whether he had any supporting document about deposition made by him in affidavit – Held, in court view, in view of this cross examination of said one , even if affidavit is considered by this court in this writ petition at this stage, it would not advance case of the petitioner - Said affidavit has to be read with cross examination of said one which clearly falsifies the case of petitioner that leasehold rights of said one were assigned in respect of plot bearing city survey in favour of respondent society - For reasons aforesaid, court unable to accept the submission of petitioner that petitioner had been paying maintenance charges in respect of the said garage to the respondent society - In court view since leasehold rights in favour of said builder in respect of the plot bearing city survey was not assigned by said builder in favour of respondent society, question of the respondent enrolling the petitioner as a member of said society in respect of said garage did not arise - Question of any deemed membership in favour of petitioner thus did not arise - In court view the said application/appeal filed by the petitioner before the Deputy Registrar itself thus was not maintainable. Both the authorities below have considered all these documents and submissions advanced by both parties and have rendered various findings of fact - Those findings of fact rendered by the two authorities below being not perverse, cannot be interfered with by this court in this petition filed under Article 226 of Constitution of India - Petition is devoid of merits - Writ Petition is dismissed.
JUDGMENT :
R.D. Dhanuka, J.
By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned the order dated 5th April, 2011 passed by the Divisional Joint Registrar confirming the order dated 22nd July, 2005 passed by the learned Deputy Registrar rejecting the application filed by the petitioner for deemed membership under section 22(2) of the Maharashtra Co-operative Societies Act, 1960 (for short "MCS Act"). Some of the relevant facts for the purpose of deciding this petition are as under :
2. It is the case of the petitioner that by an agreement for sale dated 8th October, 1991 between Mohansingh Nainwal and the petitioner herein, the petitioner purchased a garage bearing no.56(II) admeasuring 200 sq. ft. in the basement of Dariya Mahal No.2, 80 Napeansea Road, Bombay - 400 006 on the terms and conditions recorded in the said agreement for sale. The said agreement was registered on 8th October, 1991. It is the case of the petitioner that Mr.Maliram Mittal constructed a residential building of the respondent no.1 and also constructed 110 garages including the said garage which was purchased by the petitioner on plots of land bearing plot bearing C.S. Nos.940 and 941.
3. It is the case of the petitioner that on 19th July, 1993, the petitioner made an application to the Secretary of Sagar Tear Cooperative Housing Society Limited, Dariya Mahal "A", Bombay for membership of the said society. The petitioner also enclosed a cheque for Rs.260/- in favour of the said society towards the share amount and entrance fee. It is the case of the petitioner that since the respondent no.1 failed to consider the application of the petitioner for membership, the petitioner filed an application/appeal before the Deputy Registrar under section 23(2) of the MCS Act.
4. By an order dated 21st September, 2002, the Deputy Registrar dismissed the said Application No.10 of 2002 filed by the petitioner. The petitioner thereafter filed a revision application under section 154 of the MCS Act before the Divisional Joint Registrar, Cooperative Societies. By an order dated 13th January, 2005, the Divisional Joint Registrar rejected the said Revision Application No.26 of 2003 filed by the petitioner. The petitioner challenged the said order dated 13th January, 2005 by filing a Writ Petition (913 of 2005) in this Court.
5. By an order dated 11th April, 2005 passed by this Court, this Court disposed of the said writ petition by consent of the petitioner and the respondent no.1. This Court quashed the order of the Deputy Registrar, Co-operative Societies dated 21st September, 2002 and the order of the Divisional Joint Registrar dated 13th January, 2005 without expressing any opinion on the merits of the rival contentions of the parties. This Court remanded the matter back to the Deputy Registrar, Co-operative Societies D-Ward, Mumbai and directed the petitioner to appear before the Deputy Registrar for directions on 25th April, 2005. This Court granted an opportunity to the parties to file such documents as they desire in respect of their respective cases before the Deputy Registrar. This Court directed the Deputy Registrar to pass a fresh order on the application of the petitioner for membership within a period of three months.
6. On 22nd July, 2005, the Deputy Registrar after hearing the parties dismissed the application filed by the petitioner under section 23(2) of the MCS Act. The petitioner filed a revision application before the respondent no.2 bearing No.438 of 2005. By an order dated 5th April, 2011, the learned Divisional Joint Registrar dismissed the said revision application filed by the petitioner. The petitioner filed this writ petition inter-alia impugning the said order dated 5th April, 2011 passed by the respondent no.2 and also the order dated 22nd July, 2005 passed by the Deputy Registrar rejecting the application filed by the petitioner.
7. Ms. Varashree Narayan, who appeared in person invited my attention to some
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