Dismissed

Skylark Co. Op Hsg.Socy. Ltd. v. State of Maharashtra and Ors.

Bombay HC10 Mar 2005APP/750/2001

Case brief

AI extract

What is this about?

The High Court dismissed appeals and a writ petition regarding the valid enrollment of non-Air India employees as members of a cooperative housing society. The court held that the society's open membership principle under the MCS Act prevailed over temporary bylaw restrictions, and the members could not be denied admission despite the society's claim of employee exclusivity.

What did the court decide?

Both appeals and the writ petition were dismissed; the enrolled members are affirmed as valid members of the society.

Skylark Co. Op Hsg.Socy. Ltd. Vs State of Maharashtra… — Cooperative Societies | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION
 Appeal No. 750 of 200l
 in
 Writ Petition No. 23l2 of 2000
 M/s Skylark Coop Housing Society Ltd.. Appellant
 vs
 State of Mah and others.. respondents
 Shri.Y.S.Jahagirdar Sr Counsel i/b D.A.Nalawade for
 appellant
 Shri. R.M.Sawant GP for respondent nos l to 3
 Shri.E.P.Bharucha with Ms Rajashree Gadhvi i/b
 Kashmira Bharucha for respondent nos 4 to 29
 with
 Appeal Lodging No 557 of 2004
 in
 Writ Petition No.l663 of 2004
 M/s Skylark Coop Hsg Society Ltd.. appellants
 vs
 Shri.Subhash Aware and others... respondents
 Shri.Y.S.Jahagirdar Sr Counsel i/b D.A.Nalawade for
 appellant
 Shri.Ravi Kadam i/b Prajakta Shinde for respondent
 nos.l to 58
 Shri.Sawant GP for State
 Shri E.P.Bharucha with Ms Rajashree Gadhvi i/b
 Kashmira Bharucha for respondent nos.65 to 92
 except nos 73,75 and 78
 with
 Writ Petition No.l663 of 2004
 M/s Skylark Coop Hsg Society Ltd.. petitioner
 vs
 Shri.Subhash Aware and others... respondents
 Shri.Y.S.Jahagirdar Sr Counsel i/b D.A.Nalawade
 for appellant
 Shri.Ravi Kadam i/b Prajakta Shinde for respondent
 nos.l to 58
 Shri.Sawant GP for State
 Shri E.P.Bharucha with Ms Rajashree Gadhvi i/b
 Kashmira Bharucha for respondent nos.65 to 92
 except nos 73,75 and 78

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CORAM: A.P.SHAH & S.J.VAZIFDAR JJ.

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 Dated l0.3.2005

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 Per A.P.Shah J.

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 l. These Appeals and Writ Petition involve common
 questions of law and fact and can be conveniently
 disposed of by a common judgement and order. Both
 Appeals and Writ Petition are preferred by M/s
 Skylark Cooperative Housing Society Ltd, a
 cooperative society registered under the
 Maharashtra Cooperative Societies Act,

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 l960,hereinafter referred to as ‘the MCS Act’. The
 said society is hereinafter referred to as the
 petitioner society. Appeal No. 750 of 200l is
 directed against the order of single Judge
 dismissing writ petition preferred by the
 petitioner society. The respondents to the Appeal
 are, firstly, the State of Maharashtra, Collector
 of Mumbai, and Additional Commissioner for Revenue,
 Konkan Divisionn who are impleaded as respondent
 nos.l to 3. Respondent nos. 4 to 29 claim that

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 they have been enrolled as members of the
 petitioner society. According to the petitioner
 society, the membership of the society is
 restricted to the employees of the Air India and,
 therefore, the respondent nos 4 to 29 are not
 entitled to become members of the petitioner
 society. Appeal Lodging No. 557 of 2004 is
 directed against the order of the learned single

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 Judge declining to grant interim relief in Writ
 Petition No.l663 of 2004 but since writ petition
 itself is being heard, this Appeal is rendered
 infructuous. Writ Petition No.l663 of 2004 arises
 out of proceedings under section 9l of the MCS Act
 and the respondent nos 4 to 29 are impleaded in
 this petition as respondent nos.65 to 92 except
 nos. 73,75 and 78. The other respondents to the
 writ petition are members of the petitioner
 society. The only question that falls for
 consideration is whether the respondent nos. 4 to
 29 are validly enrolled as members of the
 petitioner society.

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 2. This litigation has extremely chequered
 history. The dispute between the parties

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 originates from the grant of land bearing S.No.l64,
 Versova Mumbai admeasuring 9l86 sq mtrs to the
 petitioner society under an agreement dated
 28.3.l989 between the State Government and the
 petitioner society. By this agreement the
 petitioner society was put in possession of the
 plot of land on condition to utilise the same for
 residential purpose only . Condition no. 8 of the
 said agreement provides that new members should be
 enrolled with the permission of the Collector. The

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 petitioner society has been registered under the
 MCS Act with open membership. It appears that the
 byelaws of the petitioner society were amended on
 30.5.l989 to restrict the membership to the Air
 India employees. This restriction was particularly
 introduced as the petitioner society was keen on
 obtaining a group housing loan from the Air India.
 Since however, the scheme for group housing was
 given up, the byelaws were again amended with
 effect from l9.7.l992 and open membership was
 restored. The said amendment was approved by the
 Deputy Registrar with effect from 30.7.l992.
 Respondent nos. 4 to 29 were enrolled as members
 of the petitioner society vide resolution passed at
 the Annual General Meeting dated l9.7.l992.
 Membership of these respondents was confirmed in
 the Managing Committee meeting of l3.8.l992. These
 respondents have made substantial contribution
 towards the construction totalling to about Rs.49
 lacs. By letter dated 2l.l0.l993 the Collector
 returned to the petitioner society the documents
 with regard to the respondent nos 4 to 29 on the
 ground that complaints were filed with the
 Registrar of the Cooperative Societies regarding
 mismanagement of the society.

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 3. On 5.ll.l993 the Collector issued a show cause
 notice listing out charges against the petitioner
 society of violation of the provisions of the
 agreement dated 28.3.l989. The Collector by his
 order dated 22.6.l994 resumed the land as the
 petitioner society had violated various clauses of
 the agreement dated 28.3.l989 and through
 Tahasildar took possession of the said land of the
 society on 23.6.l994. The petitioner society
 alongwith respondent nos. 4 to 29 and one Sea View
 Shopping Arcade filed appeals before the Additional
 Commissioner,Revenue, Konkan Division against the
 order dated 22.6.l994 passed by the Collector. The
 Additional Commissioner by his order dated 4.2.l995
 regularised the membership of the non Air India
 employees i.e. respondent nos. 4 to 29 and
 directed the Collector to return the land to the
 society at the market rate. By this order the
 Additional Commissioner inter alia held that the
 membership of these respondents was legal and would
 have to be upheld. Against the decision of the
 Additional Commissioner appeals were filed by the
 petitioner society and Sea View Shopping Arcade
 before the Revenue Minister. The respondent nos.
 4 to 29 also filed appeal to the Revenue Minister
 challenging the order dated 4.2.l995 and prayed for

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 release of additional FSI to accommodate them in
 the petitioner society. The appeal filed by the
 respondent nos. 4 to 29 was allowed by the then
 Revenue Minister Shri Vilasrao Deshmukh, who by his
 order dated l0.3.l995 confirmed the order of the
 Additional Commissioner with modification that the
 additional FSI be released to the petitioner
 society and the membership of the respondent nos 4
 to 29 be approved and the said respondents be
 considered against the additional FSI. There was a
 change in the Government in l995. The new Revenue
 Minister Shri Sudhir Joshi decided to suo moto
 review the order dated l0.3.l995 under section 258
 of the Maharashtra Land Revenue Code. The appeals
 filed by the petitioner society and Sea View
 Shopping Arcade were also put up for hearing before
 the Minister. The respondent nos. 4 to 29 filed
 Writ Petition No. l565 of l995 challenging the
 decision of the new Minister suo moto reviewing the
 order of the earlier Minister by raising objection
 that the new Minister was the President of the
 trade union of Air India employees viz Air India
 Cabin Crew Association. This court on 2l.8.l995
 dismissed the writ petition in limine, but kept
 open the contentions of the respondents to raise
 them before the Minister.

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 4. The Revenue Minister Shri Sudhir Joshi heard
 both the appeals on l7.l0.l995 and reviewed the
 order dated l0.3.l995 of the earlier Revenue
 Minister. The Revenue Minister vide order dated
 l6.l2.l995 set aside the order dated l0.3.l995 of
 the earlier Revenue Minister and order dated
 4.2.l995 being the order of the Additional
 Commissioner on the ground that the land was only
 meant for the Air India employees and dismissed the
 appeal of M/s Sea View Shopping Arcade and
 cancelled benefit of l5% additional FSI granted to
 the society for commercial purpose. He further
 directed to return to the petitioner society the
 land and buildings on payment of a penalty of
 Rs.2.5 lacs. The respondents nos 4 to 29 filed
 Writ Petition No.26l of l996 challenging order
 dated l6.l2.l995 passed by the Revenue Minister
 Shri Joshi. This Court vide order dated 27.ll.l998
 quashed and set aside the order dated l6.l2.l995
 passed by the Revenue Minister Shri Joshi on the
 ground that he was disqualified from hearing the
 appeals as he continued to be the President of Air
 India Cabin Crew Association. The order dated

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 l0.3.l995 passed by the earlier Revenue Minister
 Shri Vilasrao Deshmukh was also quashed and set

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 aside and a de novo hearing of all the appeals
 against the order dated 4.2.l995 of the Additional
 Commissioner was ordered before the Revenue
 Minister.

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 5. By a common order dated l7.7.l999 passed by the
 Minister for State for Revenue Shri.Udayanraje
 Bhonsale disposed of the appeals challenging the
 order dated 4.2.l995 passed by the Additional
 Commissioner. By the said order the Revenue
 Minister allowed the appeal of the petitioner
 society and the orders of the Collector and the
 Additional Commissioner were quashed to the extent
 that they impose penalty on the petitioner society
 on return of land. The Revenue Minister dismissed
 the appeal of the respondent nos 4 to 29 and Sea
 View Shopping Arcade. The Revenue Minister held
 that the land given on concession only meant for
 Air India employees and directed the non Air India
 persons to collect their monies from the petitioner
 society. Thereafter the respondent nos 4 to 29
 filed review application seeking review of the
 order dated l7.7.l999 passed by the Revenue
 Minister Shri Bhonsale under section 258 of the
 Maharashtra Land Revenue Code. This review
 application was admitted and the then Chief

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 Minister Shri Narayan Rane granted stay of the
 order dated l7.7.l999. The review petition
 challenging the order dated l7.7.l999 was finally
 heard by the new Revenue Minister Shri Ram Raje
 Nimbalkar who passed an order dated 5.l0.2000 by
 which the order dated l7.7.l999 was quashed and set
 aside. The appeal filed by the respondent nos 4 to
 29 was allowed and it was directed that membership
 of the society should not be denied to the
 respondent nos 4 to 29 merely on the ground that
 they were not employees of the Air India. It was
 ordered that concessional rate for additional FSI
 should be charged to these respondents who were
 granted membership of the society to construct
 their flats in the additional FSI. It was further
 ordered that the order dated 4.2.l995 of the
 Additional Commissioner should be retained and
 these respondents should not be denied membership
 of the society on the ground that they are not
 employees of the Air India. Being aggrieved the
 petitioner society challenged the order dated
 5.l0.2000 by filing Writ Petition No.23l3 of 2000.
 The writ petition was directed against that part of
 the order whereby it was directed that the
 petitioner society should not deny the membership
 to the respondent nos 4 to 29 merely on the ground

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 that they are not Air India employees. The learned
 single Judge (Kochar J.) by his order dated
 6.7.200l dismissed the writ petition. Against the
 decision of the learned single Judge, present
 appeal being Appeal No. 750 of 200l is filed.

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 6. Writ Petition No.l663 of 2004 arises out of the
 dispute under section 9l of the MCS Act raised by
 the respondent nos.l to 59 to the writ petition
 being Case No. 394 of l993 where the enrollment of
 respondent nos 4 to 29 was challenged mainly on the
 ground that they were non Air India employees. By
 order passed by the Division Bench comprising of
 Palshikar and Mohite JJ. the Cooperative Court was
 directed to take up the dispute for adjudication as
 expeditiously as possible as in the opinion of the
 Bench it was necessary that the dispute is decided
 first and if the dispute results in granting
 membership to the respondents nos. 4 to 29 the
 Appeal itself will not survive. The 4th Coop Court
 vide its order dated 4.l2.2003 held that the non
 Air India employees i.e. the respondent nos 4 to
 29 were eligible to be enrolled as members of the
 petitioner society. The Cooperative Court also
 rejected the contention of the petitioner society
 that the resolutions of the enrollment were forged

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 and fabricated .The petitioner society filed Appeal
 No 8 of 2004 against the order dated 4.l2.2003 and
 respondent nos.l to 59 filed Appeal No. 6 of 2004
 being original disputants. The Coop Appellate
 Court passed a common order dated 7.5.2004 in both
 the appeals whereby it was held that the respondent
 nos 4 to 29 are entitled to exercise all membership
 rights except day to day management of the
 petitioner society. Being aggrieved by the said
 order present writ petition is filed.

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 8. Shri.Jahagirdar, learned counsel appearing for

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 the petitioner society strenuously contended that
 as per the Government Resolution dated l2.5.l983
 the housing societies formed by persons who are
 employees of public sector Corporation like Air
 India could have members belonging to any of the
 four income categories mentioned in the said
 Government Resolution, but persons who are not
 employees of public sector corporations cannot
 become members of a housing society formed
 exclusively of employees of public sector
 undertaking, in this case the Air India. The
 learned counsel urged that the land was allotted
 only to the permanent employees of the Air India
 and outsiders who were inducted as members of the

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 society as per the order of the Addl Commissioner
 have no right of membership as their enrolment is
 in clear violation of the directives issued by the
 State Government from time to time. The learned
 counsel relying upon the correspondence between the
 State Government and the petitioner society prior
 to the allotment of the land submitted that the
 allotment is only meant for the permanent employees
 of the Air India.He also referred to the minutes of
 meetings of the AGM dated 23.8.l994, l3.ll.l994 and
 6.2.l994 which state that the society comprises of
 permanent employees of the Air India and no
 outsider is eligible to become member of the said
 society. The learned counsel submitted that the
 Minister of Revenue committed a serious error in
 entertaining the review application under section
 258 of the MLR Code without there being any
 discovery of any new and important matter of
 evidence which was earlier not within the knowledge
 of the respondent nos. 4 to 29 nor there was any
 error apparent on the face of record in respect of
 the earlier order dated l7.7.l999 passed by his
 predecessor. He also submitted that the minutes of
 the meeting of the AGM of l9.7.l992 were fabricated
 and the then Chief Promoter Shri Das alongwith
 other members of the then managing committee

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 fabricated the records of the society for their
 personal gain. The Coop Court and Coop Appellate
 Court failed to appreciate this material on record
 in correct perspective and recorded an erroneous
 finding that the respondent nos 4 to 29 are validly
 enrolled as members of the petitioner society.
 Shri Kadam, learned counsel appearing for the
 respondent nos.l to 57 in the writ petition adopted
 the submissions of Shri Jahagirdar.

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 9. In reply, Shri.Bharucha, leaned counsel
 appearing for the respondent nos 4 to 29 submitted
 that section 23 of the MCS Act provides that no
 society shall without sufficient cause refuse
 admission to membership to any person duly
 qualified therefor under the provisions of the MCS
 Act and its byelaws. Section 22 of the MCS Act
 provides inter alia that any individual who is
 competent to contract under the Indian Contract
 Act, l872 can be admitted as a member of a society.
 There is no restriction in the bye laws of the
 society to the admission of members. Membership is
 not restricted to employees of the Air India and
 such restrictions in the byelaws, even if any, are
 contrary to the statute and cannot prevail and
 therefore the respondents cannot be barred from

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 membership .He submitted that the agreement dated
 28.3.l989 does not restrict membership to the
 society . He pointed out that by order dated
 7.4.l989 the land was allotted by the government to
 the petitioner society which was registered with
 open membership under the MCS Act . In any event,
 according to him the petitioner society is estopped
 from denying membership to the respondents since
 large amounts were collected from the respondents
 and were utilised for construction of building A,B
 and D. He submitted that the petitioner society
 having utilised the funds of the respondents in the
 construction of its buildings cannot now deny to
 the respondents the right of membership of the
 society. He submitted that there is concurrent
 finding of fact recorded by the Coop Court as well
 as Coop Appellate Court that the respondents are
 validly enrolled as members of the petitioner
 society and they are entitled to the allotment of
 flats. Shri Bharucha submitted that though
 respondents were originally allotted flats in
 buildings A and B the respondents have no objection
 if they are accommodated in building C now to be
 constructed. The respondents are also willing to
 pay for the additional FSI required and additional
 cost of construction for construction of building

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C.

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 l0. Shri Rajendra Sawant, learned Additional State

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 Government Pleader appearing for the State
 submitted that the Government has not stipulated
 any restrictions confining membership to the
 employees of the Air India. The letter of intent,
 agreement, final allotment letter did not contain
 any such restrictions. The only condition for
 enrolment of member is the approval of the
 Collector. Shri Sawant submitted that the

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 Government Resolution dated l2.5.l983 does not in
 any manner restrict membership to the public sector
 undertakings. He also clarified that the
 additional FSI was released by the Government only
 with a view to accommodate the respondent nos.4 to
 29 who were left high and dry by the petitioner
 society after accepting from them substantial
 amount.

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 ll. Since the controversy involved in the present

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 case would to some extent turn upon the
 interpretation of the provisions of sections 22 and
 23 of the MCS Act, the said provisions are
 extracted below :

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 "22. Person who may become member- (l)

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 Subject to the provisions of section 24, no
 person shall be admitted as a member of a
 society except the following that is to say:

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 a) an individual, who is competent to
 contract under the Indian Contract Act,

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 l872.

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 b) a firm, company or any other bod
 corporate constituted under any law for the
 time being in force, or a society registered
 under the Societies Act, l860.

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 c) a society registered, or deemed to be
 registered under this Act,

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 d) the State Government or the Central

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 Government.

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 e) a local authority,

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 f) a public trust registered under any law

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 for the time being in force for the
 registration of such trusts.

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 Provided that, the provisions of clause (a)

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 shall not apply to an individual seeking
 admission to a society exclusively formed
 for the benefit of students of a school or
 college.

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 Provided further that,subject to such terms
 and conditions as may be laid down by the
 State Government by general or special
 order, a firm or company may be admitted as
 a member of a society which is a federal or
 urban society or which conducts or intends
 to conduct an industrial undertaking.

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 Provided also that, any firm or company,
 which is immediately before the commencement
 of this Act, a member of a society deemed to
 be registered under this Act, shall have,
 subject to the other provisions of this Act,
 the right to continue to be such member on
 and after such commencement".

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 Section 23 dealing with "open membership" in so far
 as it is relevant reads as under:

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 "23. Open membership- (l) No society shall,
 without sufficient cause, refuse admission
 to membership to any person duly qualified
 therefor under the provisions of this Act and
 its bye-laws.

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 (lA)........

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 (2).......

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 (3).......

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 (4)......."

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 l2. Section 23 of the MCS Act embodies one of the
 basic principles underlying the cooperative
 movement which is the principle of open membership.
 The marginal note to section 23 is entitled "open
 membership". The principle of open membership lies
 at the very foundation and the root of the
 cooperative movement. In Talmakiwadi Coop Housing
 Society Ltd Bombay vs Divisional Joint Registrar
 Societies, Bombay reported in l999(l) Mah L J 406,
 A.V Savant J., as he then was, upheld the decision
 of the Divisional Jt Registrar of Cooperative
 Societies to the effect that a bye law of a
 cooperative society which confines membership to
 person who belonged to the Kanara Saraswat
 Community was contrary to the provisions of

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 sections 22 and 23 of the MCS Act . In Zoroastrian
 Radih Society vs. Mrs Pervin Nariman Gogina and
 anr , (200l) (3) Mah L J 450,H.R Gokhale J., held
 that the statutory provisions of the Maharashtra
 Ownership Act l963 and the MCS Act are binding on
 the society concerned and any byelaw or restriction
 to the contrary would be hit by those provisions.
 In St Anthony’s Coop Society Ltd vs. Secretary
 Cooperation & Textile Department Mumbai, 2000 (4)
 Mah L J 642,D.Y.Chandrachud J., held that byelaw of
 a cooperative society imposing a condition or
 qualification restricting membership to a
 particular religious group would violate the
 principle of open membership and is not consistent
 with the provisions of sections 22 and 23 of the
 MCS Act. To the same effect is the judgment of the
 division bench of the Gujarat High Court in
 Zoroastrian Coop housing Society Ltd vs District
 Registrar of Coop Societies ( Urban) reported in
 AIR l997 Gujarat l36 and the judgment of the Madhya
 Pradesh High Court in The Maharashtra Brahman
 Sahakari Bank Ltd Indore vs State of Madhya Pradesh
 reported in AIR l980 MP 84.

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 l3. It is a common ground that the petitioner
 society was registered as a society with open

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 membership. The byelaws of the society did not
 restrict the membership to the employees of the Air
 India but there was an open membership to any
 individual who was competent to contract. The said
 bye laws were however, amended first time to
 restrict the membership to the employees of Air
 India with a view to obtain collective loan from
 the Air India. This amendment was dated 30.5.l989
 in the bye law registered on 24.2.l989. It appears
 that since the society did not succeed in getting
 the loan from the Air India, in a subsequent
 amendment to the byelaws the restrictions on the
 membership were removed and it was left open to all
 persons. This later amendment was approved by the
 Dy Registrar on 30.7.l992. Thus the restriction on
 the membership continued at best only for the
 period from 30.5.l989 to l9.7.l992 and for the
 other span of the period the membership was open.
 Even the agreement dated 28.3.l989 with the
 Collector did not contain such restriction on the
 membership and it was agreed that the land would be
 used for residential purpose of the members of the
 society i.e. open members. It is pertinent to
 note that the land was allotted on 7.4.l989 by the
 government when the society was registered with
 open membership under the registered bye laws. It

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 appears that in the year l99l pursuant to the new
 development control rules coming into force, the
 additional FSI of 3l23 sq mtrs became available to
 the society and hence it could consider additional
 third building with 27 flats by utilizing the
 additional FSI in addition to buildings A and B .
 The respondents were admitted as members in the
 annual general meeting of the society held on
 l9.7.l992 subject to approval of the Collector and
 subject to release of the additional FSI. It is
 not disputed before us that the respondents have
 paid a sum of Rs.49 lacs and some of them had paid
 full cost of the flats. In our opinion, it is not
 permissible for the petitioner society now to deny
 the membership to the respondents, particularly
 when the State Government released additional FSI
 for the purpose of accommodating the respondent
 nos. 4 to 29.

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 l4. Our attention was drawn to the judgment of
 M.L. Pendse J. in the case of Smt Sheela vs State
 of Maharashtra, l983(2) BCR 242 where in similar
 circumstances the decision of the Government to
 deny membership to non-governmental employees was
 quashed and set aside. In that case l8 officers in
 the Revenue and Forest Department made a proposal

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 to the Secretary of the Revenue and Forest
 Department for an allotment of a government plot
 for a proposed cooperative housing society. The
 Government of Maharashtra passed a resolution
 allotting the plot of land . A list of members was
 appended. The names were to be approved by the
 Government.Twenty members were enrolled as there
 were 2- buildings to be constructed. The
 construction could not proceed as the members were
 unable to secure the loan promised by the
 Government, as a result, some of the members left
 the society. In l975 some of the non -governmental
 employees learnt that membership in the society was
 available and applied for flats in the society.

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 The Secretary of the society accepted the
 applications of the non-governmental employees and
 enrolled them as members, subject to the approval
 of the Government. The petitioners therein
 contributed substantial amounts towards the
 construction, which was completed in l98l.The
 Government, however, refused memberships to the
 petitioners therein on the ground that they were
 non government employees, inspite of them having
 contributed almost entire cost of construction. It
 was held by this court as follows:

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 "It is undoubtedly true that the Government
 approval is required for enrollment of
 additional members, but as the Memorandum
 did not set out the terms or conditions on
 which the approval has to be granted or
 withheld, the Government is not entitled to
 withhold the approval for the reason which
 is totally extraneous to the object of
 formation of the society. The object of
 grant of Government land was to form a co-
 operative housing society and provide for
 accommodation to people who were without any
 shelter.. the reason that the proposed
 member is not an employee working in the
 Revenue and Forest Department of the
 Government is totally foreign to the object
 in forming the Society and respondent nos.
 1 and 2 were clearly acting refusal to grant
 approval to the Petitioners solely on the
 ground that they are not employees of the
 Government cannot be sustained."

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 l5. In the present case even in the agreement
 between the Government and the society membership

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¶90

 is not restricted to the employees of the Air
 India. In the circumstances it is not open to the
 society to contend that the non Air India employees
 cannot become members of the society. The argument
 of Shri Jahagirdar that there was no ground for the
 Revenue Minister to review the earlier order under
 section 258 of the Land Revenue Code is also
 without any merit. The earlier Revenue Minister
 had not properly considered the decision of this
 court in l983(2) BCR 242 and had not appreciated
 the principles of open membership. The letter of
 intent, agreement eligibility criteria for
 membership etc were also not considered and there
 was complete misdirection in that regard. Bye law
 of the society did not restrict on the relevant
 date membership to Air India employees only.
 Considering the totality of the circumstances and
 interest of justice and equity the decision of the
 Revenue Minister ( Nimbalkar) is just and fair and
 need not be interfered with.

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 l6. Reliance placed by Mr.Jahagirdar on the
 Government Resolution dated l2.5.l983 is equally
 misconceived. The said Government Resolution
 provides allotment of land at a concessional rate
 under Rule 27 of the Maharashtra Land Revenue

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 (Disposal of Government Lands) Rules, l97l read
 with section 40 of the Maharashtra Land Revenue
 Code based on family income which included husband
 and wife. The resolution granted concession to
 employees of income below Rs.3000 and this criteria
 is based on the family income and not income of the
 employee of the public sector undertaking as
 contended by Mr. Jahagirdar. Mr. Sawant has
 clarified that there is nothing in the said
 Government Resolution which prevents respondent nos
 4 to 29 from being members of the petitioner
 society. Mr. Sawant also submitted that even
 after the grant is given the State has right to
 modify the terms and conditions to meet the ends of
 justice. According to him Government has power to
 add to, amend or vary the grant and Government has
 rightly directed the petitioner society to
 accommodate the respondent nos 4 to 29 in the land
 allotted to the petitioner society by constructing
 flats on the basis of additional FSI released by
 the State Government for that purpose. We may also
 add that several instances were also cited before
 us showing that government policy does not restrict
 membership to a class to which promoters belong.
 In the circumstances it is impossible to accept the
 submission of Mr.Jahagirdar that membership of the

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¶95

 petitioner society was restricted to the employees
 of Air India Employees only.

¶96

 l7. We have also carefully gone through the entire
 records with the assistance of the learned counsel
 appearing for the parties. In our opinion the
 concurrent findings of fact recorded by the
 Cooperative Court and Cooperative Appellate Court
 do not warrant any interference. Both the courts
 have negatived the case of the petitioner society
 that minutes were forged and fabricated and
 recorded a categorical finding that the outsiders
 joined the petitioner society on the basis of
 representation made by its office bearers and the
 moneys paid by them were used for construction of
 the society’s buildings. The respondents have been
 made to suffer since l992 and have been dragged
 through innumerable proceedings inspite of agreeing
 to pay the cost of additional FSI and the cost of
 construction. It is also pertinent to note that
 before the Minister for Revenue Shri Vilasrao
 Deshmukh a statement was made on behalf of the
 petitioner society which was recorded by the
 Minister in his order dated l0.3.l995 that the 29
 appellants ( respondent nos 4 to 29 ) are taken in

¶97

 -27-

¶98

 the society against the additional FSI and when
 Government release additional FSI then only these
 29 appellants can be accommodated. The society had
 also made a solemn statement through its counsel
 before the Division Bench of this court that in the
 event there is an increase in the FSI the present
 respondents can be accommodated in the third
 building that may be constructed and therefore the
 respondent nos 4 to 29 need not be accommodated in
 the buildings A and B which are under construction.
 It is clear that the society having taken the
 benefit of the additional FSI on the pretext of
 accommodating respondent nos. 4 to 29 is now
 backing out of the said statement made by the
 society.

¶99

 l8. In the circumstances, we do not find any merit
 in the case of the petitioner society that the
 respondent nos. 4 to 29 are not entitled to
 membership of the petitioner society, and the
 Appeals and writ petition are liable to be
 dismissed.

¶100

 l9. At the time of admitting the petition the
 learned single Judge vide order dt l4.l2.2000
 directed the petitioner society to deposit in this

¶101

 -28-

¶102

 court Rs.48 lacs which is lying deposit in this
 court. Thereafter vide order dated l8.l0.200l the
 Division Bench in a notice of motion in the above
 Appeal No.750 of 200l ordered the petitioner
 society to deposit a further amount of Rs.36 lacs
 by way of interest and shortfall which was
 deposited. This amount along with the accrued
 interest be transferred to the society’s account to
 be utilised for the construction of building "C".
 It is needless to state that the entire cost of the
 construction of building C and the cost of
 additional FSI shall be borne out by respondent
 nos.4 to 29.

¶103

 20. In the result both appeals and writ petition
 stand dismissed with costs.

¶104

 . Mr. Nalawade, at this stage applies for stay

¶105

 of this order. Application is rejected.

Skylark Co. Op Hsg.Socy. Ltd. v. State of Maharashtra and Ors.

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Skylark Co. Op Hsg.Socy. Ltd. v. State of Maharashtra and Ors.

Case brief

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What the court decided

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