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2019 Supreme(Bom) 1203
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Jay Anant Sagar Co-op. Housing Society - Appellant
Versus
The Divisional Joint Registrar Cooperative Societies & Ors. - Respondents
Writ Petition No. 1765 of 2016
Decided On : 30-07-2019
For the Appellant : Mr. N.N. Bhadrashete.
For the Respondent: Mr. Rajiv Mane, Assistant Government Pleader, Mr. Chandrakant P. Deogirigkar.
Headnote:
Constitution of India,1950 – Article 226 - Maharashtra Co-operative Societies Act, 1960 – Section 23(2),22,79(2),25,22(2),23,23(1),(1A),(2) and (3) – Deemed membership - Seek amendment - One, the father of respondent no.3 is a member of petitioner society and had been allotted flat on the Ground Floor of the building of petitioner society - It is the case of the petitioner that respondent no.3 made an application with the office of learned Assistant Registrar, Co-operative Societies under section 23(2) of the MCS Act praying for deemed membership in respect of the said flat situated on the ground floor of building of the petitioner society - In the said application under section 23(2), respondent no.3 contended that he was granted no objection by petitioner by a letter and admitting him as its member in respect of the said flat - It was contended that the respondent no.3 had agreed to purchase the said flat from his father - Respondent no.3 had allegedly lost/misplaced some of documents in the flood - In the managing committee meeting respondent no.3 was admitted as an associate member in respect of said flat along with his father - It was further contended in the said application by respondent no.3 that without sufficient/reasonable cause, petitioner failed to delete the name of his father from the share certificate and refused to grant membership of petitioner society in respect of the said flat - Petitioner filed its reply to the said application before respondent no.2 - Whether a person has become a deemed member or otherwise, same shall be decided by Registrar after giving a reasonable opportunity of being heard to all concerned parties – Held, In court view, since section 22(2) of MCS Act was not attracted in view of respondent no.3 having failed to prove submission of any application for membership by respondent no.3, learned Assistant Registrar could not have granted an order of deemed membership in favour of respondent no.3. - Divisional Joint Registrar thus ought to have interfered with the order passed by learned Assistant Registrar which jurisdiction he failed to exercise - If according to the respondent no.3 the records of respondent no.3 were destroyed due to flood situation, respondent no.3 having continued to receive the society maintenance bills even in the name of his father would not have accepted such position - Respondent no.3 also did not challenge resolution passed by petitioner accepting him as an Associate Member along with his father till date - Petitioner society was thus required to seek amendment to the petition - In court view, action of Tahsildar, Kurla is absolutely high handed, arbitrary and illegal in appointing authorized person to forcibly take custody of the records of petitioner society and to record name of respondent no.3 in the share certificate and “I” and “J” Registers though was served with copy of the petition by purportedly exercising his powers under section 79(2) of the MCS Act - Action on the part of the respondent no.4 is totally illegal, without authority of law and thus deserves to be quashed and set aside – Order accordingly.
JUDGMENT :
1. By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned the order dated 30th March, 2016 passed by the Divisional Joint Registrar, Co-operative Societies, thereby dismissing the revision application filed by the petitioner and allowing the application filed by the respondent no.3 under section 23(2) of the Maharashtra Co-operative Societies Act, 1960 respectively (for short the said MCS Act). Some of the relevant facts for the purpose of deciding this petition are as under :-
2. Mr.Vishnu Tukaram Sarang, the father of the respondent no.3 is a member of the petitioner society and had been allotted flat no.A/2 on the Ground Floor of the building of the petitioner society. It is the case of the petitioner that the respondent no.3 made an application dated 16th February,2015 with the office of the learned Assistant Registrar, Co-operative Societies under section 23(2) of the MCS Act praying for deemed membership in respect of the said flat no.A/2 situated on the ground floor of the building of the petitioner society. In the said application under section 23(2), the respondent no.3 contended that he was granted 'no objection' by the petitioner by a letter dated 15th February,1999 and admitting him as its member in respect of the said flat. It was contended that the respondent no.3 had agreed to purchase the said flat from his father Mr.Vishnu Tukaram Sarang.
3. The respondent no.3 had allegedly lost/misplaced some of the documents in the flood of 26th July, 2005. In the managing committee meeting dated 27th July, 2011, the respondent no.3 was admitted as an associate member in respect of the said flat along with his father Mr.Vishnu Tukaram Sarang. It was further contended in the said application by the respondent no.3 that without sufficient/reasonable cause, the petitioner failed to delete the name of his father from the share certificate and refused to grant membership of the petitioner society in respect of the said flat A/2. The petitioner filed its reply to the said application before the respondent no.2.
4. It was the case of the petitioner that the respondent no.3 had not made any application for seeking membership of the petitioner society and thus there was no question of any deemed membership of the respondent no.3 in the petitioner society in respect of the said flat no.A/2. By an order dated 28th July, 2015, the respondent no.2 declared the respondent no.3 as a deemed member of the petitioner and directed the petitioner to record the name of the respondent no.3 in the records maintained by the petitioner including the share certificate. The petitioner impugned the said order dated 28th July, 2015 by filing a revision application bearing no.287 of 2015 before the Divisional Joint Registrar under section 154 of the MCS Act. By an order dated 30th March,2016, the learned Divisional Joint Registrar dismissed the said revision application bearing no.287 of 2015 filed by the petitioner. The petitioner has impugned the order dated 28th July, 2015 passed by the respondent no.2 and order dated 30th March,2016 passed by the respondent no.2 in this petition.
5. Mr.N.N.Bhadrashete, learned counsel appearing for the petitioner submits that the father of the respondent no.3 was all throughout member of the petitioner society in respect of the said flat A/2. The respondent no.3 did not make any application for membership at any point of time in respect of the said flat to the petitioner. A question of the petitioner thus refusing to admit the respondent no.3 as a member in respect of the said flat did not arise and consequently there was no question of the respondent no.2 granting deemed membership in favour of the respondent no.3 in respect of the said flat in the petitioner society. He submits that the respondent no.3 did not produce any document or proof of submitting the application for membership along with other document to the petitioner society as provided under bye-law of t
