The rejection of a membership application based on disputes over open space and garden was extraneous to the requirements of Section 23 of the MCS Act. The society cannot investigate the title of the transferor, and the jurisdiction of the Registrar under Section 23 does not extend to determine the validity of documents executed in favor of the concerned person.

JUDGMENT:

1. This petition under Article 226 of the Constitution of India, challenges an order dated 31.3.2019 passed by the Divisional Joint Registrar, Coop. Societies, Mumbai Division, Mumbai whereby a Revision Application filed by the petitioner under section 154 of the Maharashtra Cooperative Societies Act, 1960 (for short 'the MCS Act') against an order dated 10.10.2008 passed by the Deputy Registrar, Cooperative Societies, 'D' Ward, under section 23 (2) of the MCS Act granting membership of the petitioner's society to respondent nos.1 and 2, stands confirmed.

2. Briefly, the facts are :

The petitioner is a Cooperative Housing Society registered under the MCS Act.

3. Respondent no.1 is a purchaser of flat no.1 situated on the first floor of the petitioner's premises known as "Punam" situate at Malabar Hill Division, Nepean Sea Road, Mumbai alongwith a covered garage below the children's play area. (for short, the 'said flat'). Respondent no.2 is an Associate Member along with respondent no.1. Respondent no.1 purchased the said flat under a registered Deed of Transfer dated 30.5.2007 executed by the erstwhile owners of the flat namely Mr.Pratap Issardas Bhatiya, Ramesh Issardas Bhatiya and others for consideration of Rs.4 crores. From a reading of the Deed of Transfer, it appears that these vendors were the residents of Dubai, U.A.E. The record indicates that the transfer was effected after issuance of a public notice inviting objections, as issued on behalf of respondent nos.1 and 2. The transferors also submitted a letter of consent for transfer of the share certificates qua the said flat in favour of respondent nos.1 and 2. Perusal of the correspondence between the parties prior to entering of the Deed of Transfer indicates that there were some issues in regard to the open space adjoining flat no.1. In this regard in the minutes of the 42nd Annual General Meeting held on 30.7.2006, the following was recorded :

“11. To apprise, discuss and decide matters pertaining to the open space adjoining to flat no.1 and similar open space on the higher floors.

Mr. Kiran Bajaj has thrown light on past history of the open space adjoining to flat no.1 and how it was under use of present occupant member and the then occupant member. He stated this space was also under the common se of society members and their children. According to the opinion of an advocate, any open space in the society its always belongs to the society and remains with society.

After long discussion, it was decided that management can issue No objection letter only for transfer of shares in respect of concerned flat. Open space should be kept open for the common use by the society members.

Further similar objections in case of terrace on 8th floor was raised & since it is the property of the society, it was decided to take possession of the same at the earliest by taking appropriate measures."

4. As the vendors/transferors had not come forward to execute the agreement despite receiving part consideration, respondent no.1 was required to approach this Court by filing Suit No.179 of 2007. In a Notice of Motion No.302 of 2007, the learned Single Judge of this Court (S.A.Bobde, J. as His Lordship then was) was pleased to pass the following order on 24.1.2007.

“1. This is an application for ad interim relief. The defendants do not appear inspite of service on the advocates. Apparently, the defendants have disengaged the services of the advocate as is apparent from the affidavit of service and the affidavit dated 24.1.2007. The suit is based on an agreement referred to in a document styled as receipt dated Rs.10.2.2006. Prima facie, it appears that the plaintiff agreed to buy the property referred to in the receipt for a sum of about Rs.4 crores. The agreement was to be signed upon the plaintiff paying a sum of Rs.1,90,00,000/on or before 15.4.2006 to the owners i.e the defendants. There are apparently five co-owners. On 6.4.2006 the plaintiff wrote to the defendants letter showin