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 directing refund of amounts recovered from Respondents No.1 and 2 in respect of Shop No.1 towards non-occupancy charges or to adjust the same from future maintenance bills. The order is passed in exercise of powers under Section 79(2) (b) of the Maharashtra Co-operative Societies Act, 1960 (Act of 1960). The Managing Committee of the Society is threatened with action under Section 154B-27(2) upon failure to implement the directives. Aggrieved by the decision of the Deputy Registrar, Petitioner-Society filed Revision before the Joint Registrar of Cooperative Societies, which is rejected by order dated 22 March 2022 upholding Deputy Registrar’s decision. 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 Cooperative Society and have adopted by-laws which are registered with the Registrar on 18 December 1965. By-law No.6 limits admission of membership to the number of tenements or plots available for allotment. It is Petitioner-Society's case that only 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 themselves as nominal members by submitting applications in prescribed format. On 28 November 2020, Respondents No.1 submitted an application for issuance of Share Certificate/Sinking Fund Certificate.

4. It appears that the Petitioner-Society has been levying non-occupancy charges from the occupiers of Garage/Shop No.1 on the ground of use of the same for purposes other than for garaging of cars. It appears that the Society adopted a Resolution in its meeting on 12 March 2021 to levy non-occupancy charges only to the extent of 10% of service charges and made the said decision applicable from the date of the meeting. Respondents No.1 and 2 filed application dated 15 March 2021 under Section 154B of the Act of 1960 before the Deputy Registrar praying for refund of non-occupancy charges with interest as well as sought restraint order against the Society from levying non-occupancy charges in future. The application was resisted by the Petitioner-Society by filing reply contending that beyond directing the Society to levy non-occupancy charges to the extent of 10% service charges, the Deputy Registrar did not have jurisdiction to direct refund of levy already made. Plea of limitation was als