Co-operative society cannot refuse membership under Section 23 of MCS Act on grounds of non-residential use, lease prior consent breach, or unauthorised construction unless expressly disqualifying under Act, Rules or Bye-laws.

JUDGMENT :

AMIT BORKAR, J.

1. By the present petition instituted under Articles 226 and 227 of the Constitution of India, the petitioner Housing Society has invoked the supervisory and writ jurisdiction of this Court to assail the judgment and orders passed by the authorities under the Maharashtra Co-operative Societies Act, 1960, whereby respondent no. 1 has been directed to be admitted as a member of the society. The challenge arises from the factual matrix set out hereafter.

2. The petitioner is a tenant ownership co-operative society duly registered under the provisions of the MCS Act. Plot No. 62 was allotted on 31 May 1985 to the predecessor of respondent no. 1, namely Shri Patel, on leasehold basis under a registered lease deed of the same date. Respondent no. 1 asserts that he has acquired right, title and interest in the said plot by virtue of a deed of assignment dated 25 July 2014. It is the case of the petitioner that respondent no. 1 has undertaken unauthorised construction in the compulsory open space appurtenant to the plot, in consequence whereof the Pune Municipal Corporation issued a demolition notice in respect of such construction.

3. According to the petitioner, respondent no. 1, alleging refusal on the part of the society to admit him as a member, approached respondent no. 2 on 06 July 2015 by invoking Section 23 (2) of the Act. Respondent no. 2, after affording opportunity of hearing to both sides, passed a judgment and order dated 16 June 2016 rejecting the petitioner’s objections and granting relief to respondent no. 1.

4. Aggrieved thereby, respondent no. 1 preferred Revision Application No. 07 of 2015 challenging the order dated 16 June 2016. The Revisional Authority, by its order dated 12 January 2018, allowed the revision application. It is this order which is impugned in the present proceedings.

5. Mr. Patwardhan, learned Advocate for the petitioners, submitted that the conveyance in favour of respondent no. 1 contains a specific recital that respondent no. 1 has taken over the management of Tejas Education Society and that the building situated on Plot No. 62 shall be utilised for educational purposes. He contended that such user is impermissible in a purely residential co-operative society. He further pointed out that this Court, in Writ Petition No. 2831 of 2023, restrained respondent no. 1 from operating a school in an unauthorised structure erected in the open space of the petitioner society, and that the said order has been affirmed by the Supreme Court.

6. It was further submitted that the application dated 01 June 1985 made by the predecessor of respondent no. 1 to the Collector clearly disclosed an intention to use the plot for school purposes, which, according to the petitioner, was impermissible from the inception. Learned counsel urged that respondent no. 1 effected the purchase without obtaining prior permission of the society. Reliance was placed upon Condition No. 11 of the lease deed, which mandates prior consent of the society before any transfer of the plot. It was contended that respondent no. 1 failed to comply with this mandatory condition.

7. Drawing attention to the order dated 18 October 1972 passed under