JUDGMENT :

1. This Writ Petition is filed by a tenant co-partnership housing society, challenging concurrent findings of the impugned (i) judgment and order dated 30th April, 2011 passed by the Divisional Joint Registrar, Co-operative Societies, Division Mumbai and (ii) judgment and order dated 17th November, 2008 passed by the Deputy Registrar, Co-operative Societies “D” Ward, Mumbai; whereby the proposed amendments to the Bye-laws of Petitioner No.1 society was rejected.

FACTS

2. Petitioner No.1 housing society is registered on 29th March, 1963. Petitioner no.2 is the secretary of the Petitioner no.1 society. The said society was holding a free hold land on which the building “Blue Haven” was constructed through a developer. In all there are 66 members of this residential housing society. At the time of registration the Petitioner no.1 society approved and registered Bye-laws made by the promoter members.

3. On or about 16th January, 1989, the petitioner society adopted the Model Bye-laws. Relevant part of such Bye-laws under chapter VII, clause 17 (a) & (b) read as under:-

17. (a) An individual, who is competent to contract under the Indian Contract Act, 1872 and who resides or intends to settle down and reside in the area of operation of the society and who does not own a house, a plot or a flat in his name or in the name of any of the members of his family, in the area of operation of the society, or who owns it but gives an undertaking in the area of operation of the society, or who owns it but gives an undertaking under the Bye-law NO.19 (vi), may be eligible for membership of the society.

(b) A minor or a person of unsound mind, inheriting shares and/or interest of the deceased member in the capital/property of the society, may be eligible for admission to membership of the society through his guardian or legal representative on an application in the prescribed form, along with undertakings/declaration, in the prescribed forms, mentioned in the application.

4. On 19th September 2008, the members of Petitioner no.1 society held its Special General Body Meeting, and unanimously resolved, vide Resolution No.3 as under:-

(1) the following clause may be added after clause (b) of the Bye-law no.17 on page no.5 and numbered as clause (bb)

“(bb) Notwithstanding anything contained hereinabove, a person cannot be admitted as a Member of the society if he along with other existing members of the community to which they belong, constitute more than 5% of the total membership of the society.”

(2) the following clause may be added after clause (viii) of the Bye-law no.19 on page no.6 and numbered as clause (ix)

“(ix) He does not belong to a community, who including himself would constitute more than5% of the total membership of the society”

5. The petitioner no.1 society thereafter following the procedure laid down under Section 13 of Maharashtra Co-operative Housing Society Act, 1960, read with Rule 12 of Maharashtra Co-operative Housing Society Rule, 1961, on 15th October, 2008 submitted a proposal to Deputy Registrar, Cooperative Society “D” Ward, Mumbai, praying for registration of the proposed amendment so as to amend its Bye-laws, Clause No.17 and Clause No.19.

6. The Deputy Registrar, Co-operative Societies, however, after considering the proposal of the petitioner society, by its order dated 17th November, 2008 refused to approve the proposal of the petitioner society to amend its Bye-laws, clause no.17 and 19; on the grounds that the subject provisions are inconsistent with the provisions made in Section 22(1), 22(2) and 23 of the Maharashtra Co-op. Societies Act, 1960, and the proposed amendment is not in the interest of society.

7. Being dissatisfied by the judgment and order passed by the Deputy Registrar, Co-operative Societies, the petitioners filed an appeal, under Section 152 of the Act before the Divisional Joint Registrar, Co-operative Societies, Mumbai. The Divisional Joint Registrar, Co-operative Society, after hearing the par