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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep V. Marne, J.
Mistry Park CHS Ltd. – Petitioner
Versus
Dr. Bharat Prem Shivdasani and ors. – Respondents
Writ Petition No. 11903 of 2022
Decided On : 07-09-2023
Maharashtra Co-operative Societies Act, 1960 - Section 23 - Co-operative Housing Society – Grant of regular membership – Issuance of Share Certificate – Whether they could have filed an appeal under Section 23(2) in absence of a refusal or whether they ought to have approached for a declaration under Section 22(2) becomes highly technical as both application/appeal would lie before same authority – Held, findings recorded by Deputy Registrar and Divisional Joint Registrar about entitlement of Respondents No.1 and 2 to become regular members cannot be treated as perverse as same appear to be in tune with provisions of Clause-13 of Section 154B-1 as well as Model Byelaws - Deputy Registrar and Divisional Joint Registrar cannot be faulted in giving relief to Respondents No.1 and 2 which appear to be in tune with not just Model Bye-laws but also with definition of term ‘Flat’ within meaning of Clause-(13) of Section 154B-1 – Since no perversity can be found in findings recorded by Deputy Registrar and Divisional Joint Registrar and since view taken is plausible, it would be difficult for Court to reverse their decisions and arrive at a conclusion that Respondents No.1 and 2 cannot be admitted as regular members of Society - Writ Petition dismissed
Certainly. Based on the provided legal document, the key points are as follows:
The Petitioner, a co-operative housing society, challenged orders that declared Respondents No.1 and 2 as members and directed their names to be recorded in the society’s membership register and related documents. The Petitioner contended that the orders were without jurisdiction as there was no refusal of membership and the application for nominal membership was granted by the Society (!) .
The Society's bye-laws restrict membership to flat or plot owners, and only nominal membership was intended for garage owners, which is consistent with the bye-laws and the definition of ‘flat’ within the applicable law (!) (!) .
The Respondents, who owned a garage, had initially been admitted as nominal members, and their subsequent applications and conduct indicated their intention to be recognized as regular members. The Registrar’s orders, which declared their entitlement to regular membership, were based on findings that the premises qualified as ‘flats’ under the law’s definition, and these findings were supported by the interpretation of the relevant provisions and bye-laws (!) (!) .
The objections regarding jurisdiction and cause of action raised by the Petitioner were found to be highly technical and not sufficiently supported, especially since the dispute on merits was already before the Registrar. The Registrar’s jurisdiction to decide the matter was upheld, and the objections to jurisdiction were rejected (!) (!) .
The legal provisions stipulate that an appeal under Section 23(2) of the relevant Act is only maintainable against a decision of the Society refusing admission, not where the Society has granted membership or where there has been no refusal. In this case, the applications for membership were granted, and the orders were based on the findings that the premises qualified as flats, thus the appeal was not maintainable on that ground (!) (!) .
The definition of ‘flat’ has been expanded to include garages, offices, shops, and other self-contained premises used for various purposes, which supports the Registrar’s findings that the garage in question qualifies as a flat under the law (!) (!) .
The Society’s bye-laws specify that garage owners can only be nominal members, not regular members, and the law’s interpretation of ‘flat’ supports the view that garages can be considered ‘self-contained units’ eligible for membership, provided the use is consistent with the law’s provisions (!) (!) .
The orders passed by the Registrar and the Divisional Joint Registrar were found to be consistent with the law, the bye-laws, and the definitions, and no perversity was identified in their reasoning. Therefore, the writ petition was dismissed as devoid of merit (!) .
The court emphasized that the findings of fact by the Registrar, based on the law and the bye-laws, could not be disturbed in the absence of perversity, and the procedural objections raised by the Petitioner did not warrant interference (!) (!) .
Overall, the orders of the Registrar and the Divisional Joint Registrar were upheld, and the challenge to their jurisdiction and findings was rejected, affirming the entitlement of Respondents No.1 and 2 to be recognized as regular members of the society (!) .
Would you like a more detailed analysis or assistance with drafting legal arguments based on these points?
JUDGMENT :
1. Petitioner, a Co-operative Housing Society, is aggrieved by order dated 18 October 2021 passed by the Deputy Registrar of Co-operative Societies declaring that Respondents No.1 and 2 have become its members and directing it to record their names in the Membership Register, Share Certificate etc. Aggrieved by the decision of the Deputy Registrar, Petitioner-Society filed Revision before the Joint Registrar of Co-operative Societies, which is rejected by order dated 22 March 2022 upholding the decision of the Deputy Registrar. Petitioner-Society is accordingly challenging the decisions of the Deputy Registrar and the Divisional Joint Registrar in the present Petition.
2. It is Petitioner-Society’s case that on 8 March 1966, lessors of the plot executed a lease in favour of the Society and one of the conditions for lease in Clause-2(f) was not to use the building for any purpose other than as private residences and further not to use motor garages for any purpose other than for garaging the motor cars. The Developer-Mistry Construction Company constructed two buildings consisting of residential flats on upper floor and garages on the ground floor. One Dr. Prem Kalyandas Shivdasani purchased garage ‘A’ from the Developer. He does not own any residential flat in the building. The occupiers of the building have formed Petitioner Co-operative Housing Society and have adopted Bye-laws, which are registered with the Registrar on 18 February 1965. Byelaw No.6 limits admission of membership to the number of tenements or plots available for allotment. It is Petitioner-Society's case that only a flat owner or plot owner can become member of the Society. Under Clause-7(a), there is a provision for admission of nominal member, who does not enjoy any right of membership or receive any advantage or benefit of dividend. Dr. Prem Kalyandas Shivdasani was admitted as a nominal member of the Society.
3. Dr. Prem Kalyandas Shivdasani was using the garage for running his clinic, which according to the Society is not permissible in law. He expired in the year 1992, leaving behind his wife Nirmala and two sons, Dr. Bharat and Dr. Haresh. Smt. Nirmala Prem Shivdasani held a nomination from her husband and was brought on record as a nominal member. Smt. Nirmala Shivdasani expired on 9 September 2018. On her death, Respondents No.1 and 2 made an application on 10 October 2019 stating that the mother had nominated them to hold 60% (Dr. Bharat) and 40% (Dr. Haresh) shares in the garage. They requested the Society to add them as nominal members by submitting applications in the prescribed format. On 28 November 2020, Respondents No.1 submitted an application for issuance of Share Certificate/Sinking Fund Certificate.
4. On 25 March 2021, Respondents No.1 and 2 filed Appeal before the Deputy Registrar of Co-operative Societies for grant of regular membership and issuance of Share Certificate. The Appeal was resisted by the Petitioner-Society by filing reply.
5. After hearing both the sides, the Deputy Registrar passed order dated 18 October 2021 and declared that Respondents No.1 and 2 have acquired membership in Petitioner-Society in respect of Shop No.1. The Society has been directed to enter their names in various records including Share Certificate.
6. Aggrieved by the order of the Deputy Registrar, Petitioner-Society preferred Revision Application No.699/2021 before the Divisional Joint Registrar. However, by order dated 22 March 2022, the Divisional Joint Registrar has proceeded to reject the Revision Application. Petitioner-Society has challenged the orders of the Deputy Registrar dated 18 August 2021and the Divisional Joint Registrar dated 22 March 2022 in the present petition.
7. Mr. Godbole, the learned senior advocate would appear on behalf of the Petitioner-Society and challenge the orders passed by the Deputy Registrar and Divisional Joint Registrar. He would invite my attention to the Bye-laws of the Society, under which garage owner can
Membership in cooperative societies requires compliance with specified contributions and procedures; lacking compliance, tenant status does not automatically confer membership rights.
Membership entitlements under cooperative society laws can be upheld even with delayed contributions if ratified by the society's governing body and presence of equitable factors.
Membership in cooperative societies must strictly adhere to the sanctioned plan, and no membership can exceed the statutory limits established by law.
The Registrar's jurisdiction under the Maharashtra Cooperative Societies Act is limited to determining eligibility based on objective facts, excluding complex disputes regarding ownership or membersh....
The court affirmed that only flat owners can manage a co-operative housing society, and the Deputy Registrar acted within jurisdiction under Section 78A of the Maharashtra Co-operative Societies Act,....
Membership in co-operative housing societies cannot be denied without timely communication of the decision, and disputes regarding dues do not preclude admission.
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