Haresh K.Samtani v. Sam Eruch Daruwalla and Ors.

Bombay HC20 Apr 2006WP/575/2003

Case brief

AI extract

What is this about?

The High Court suspended an order granting cooperative society membership to a legal heir and directed remand to a civil suit to determine title over a flat, as society membership rights depend on established proprietary interest in the specific premises.

What did the court decide?

The impugned order granting membership is suspended for 3 months; parties are relegated to the remedy of filing a dispute under Section 91 or a civil suit to establish title.

What the court decided

AI extract

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO. 575 OF 2003

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 Haresh K. Samtani .. Petitioner .

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 vs.
 Sam Bruch Daruwalla

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 & Ors. .. Respondents.

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 Mr. B. G. Vaidya for the petitioner.

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 Mr. Veenit Naik i/by Mrs. Javer Mamniya

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 for respondent no.1.

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 Mr. Kamal Khata i/by Nitya Sunil & Asso.

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 for respondent no. 2.

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 Ms. Mamta Sadh, AGP., for R. No. 4.

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Haresh K.Samtani Vs Sam Eruch Daruwalla and Ors. — Cooperative Societies | Bombay HC (2006)

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 . The present petition is filed challenging
 the membership granted in favour of respondent no.
 1 by the Registrar, Co-operative Societies. Some of
 the material facts of the present case are as under
 :-

¶18

 2
 situate Opposite Oval Maidan, near Eros Cinema on
 Plot No. 130, Queens Road, Bombay 400 020 was
 constructed some time in 1935. In 1940 Col. Jal
 Cooper, along with his wife Dr. (Mrs.) Shirin Jal
 Cooper acquired tenancy in respect of Flat No. 3 in
 the said Motabhoy Mansion and as tenants they were
 in use and occupation thereof till 25.5.1963. The
 said Col. Jal Cooper died leaving behind his wife
 Dr. (Mrs. Shirin Jal Cooper as a tenant of the
 said flat. On 20.6.1966 the then landlord of the
 building issued a circular to all the parties
 including Dr. (Mrs.) Shirin Jal Cooper stating
 therein that he is not interested in continuing the
 landlordship of the said building and is proposing a
 cooperative housing society of tenants/occupants of
 the said building. He asked all the tenants
 including Mrs. Shirin Jal Cooper to become member
 of the said society. It seems that large number of
 tenants accepted the said proposal but few tenants
 including Dr. Shirin Jal Cooper did not accept the
 said proposal to join as a member of the said
 society. In fact Dr. Shirin Jal Cooper by her
 letter dated 24.6.1967 refused to accept membership
 because she was not interested in making the payment
 of the purchase amount of Rs. 21,500/- as proposed
 by the landlord. It seems that thereafter some of
 the tenants including Mr. K.R. Samtani, Mr. K.
 M. Munim who was the landlord and Mr. F.E.
 Merchant proposed a society. On 17.4.1967 the

¶19

 3
 society was registered as a tenant co-partnership
 housing society under the provisions of the
 Maharashtra Cooperative Societies Act. It is the
 case of the petitioner that on 27.5.1967 one Mr.
 Lalwani got himself admitted as a member of the said
 society in relation to the said flat being flat no.
 3 of the said building which was in occupation of
 Dr. Mrs. Shirin Jal Cooper as a tenant. On
 10.6.1967 a document of indenture of assignment has
 been executed by and between the original landlord
 and the society with various members being joined as
 confirming parties. It is the case of the
 petitioner that after the said Mr. Lalwani became
 the member of the society, the said deceased Mrs.
 Shirin Jal Cooper was paying rent to the said Mr.
 Lalwani and she accepted him as her landlord.
 During 1967 to 1969 the said Mr. Lalwani filed
 suits in the Small Causes Court as well as before
 the Co-operative Court seeking possession of the
 said property. Sometime in or about 1970 the said
 Mr. Lalwani left India and appointed one Mr.
 Vishnu M. Uttamchandani as his constituted
 attorney. Sometime on or about 6.2.1973 the said
 Mrs. Shirin Jal Cooper applied for membership of
 the society but by that time the record shows that

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 Mr. G.I. Lalwani was already a member and the
 share certificate was issued to him on 25.6.1967.
 The said application of Dr. (Mrs.) Shirin Jal
 Cooper was not considered by the society. Sometime

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 in or about 1973 the said Mr. Lalwani supposed to
 have gifted the said flat to one Mrs. Nina Thadani
 being the daughter of the Chief Promoter and by
 virtue of the said gift deed the said Mrs. Nina
 Thadani claimed the right, title and interest in the
 said property. On 15.6.1983 the said Dr. (Mrs.)
 Shirin Jal Cooper again made an application for
 membership of the respondent no. 2 society. The
 said application was rejected by the society on
 25.7.1983. On 30.3.1988 Mrs. Thadani executed a
 gift deed in favour of the petitioner who is the son
 of the deceased Chief Promoter Kundanmal Samtani.
 In 1988 the said Dr. (Mrs.) S.J. Cooper filed an
 appeal before the Deputy Registrar, Co-operative
 Societies under Section 23 of the Maharashtra
 Co-operative Societies Act challenging the rejection
 of her application for membership. On 29.12.1998
 the said Deputy Registrar decided the application in
 favour of Dr. (Mrs.) Shirin Jal Cooper and granted
 her membership. The said order further directed
 that the said Dr. (Mrs.) Shirin Jal Cooper has to
 contribute her share in the assets of the respondent
 society. The petitioner herein challenged the said
 order by preferring a revision being Revision
 Application No. 32 of 1989 and the society filed a
 revision application being Revision Application No.
 7 of 1989 before the Divisional Joint Registrar. By
 an order dated 4.12.1990 both the revision
 applications were allowed and the order passed by

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 5
 the Deputy Registrar was set aside. Against the
 said order, the said Dr. (Mrs.) Shirin Jal Cooper
 preferred a second revision application before the
 State Government which also came to be dismissed by
 an order dated 8.7.1992. On 16.8.1992 the
 petitioner was admitted as a member in respect of
 the said flat no. 3 by the 2nd respondent society
 and the share certificate was transferred in favour
 of the respondent no. 3. On 14.10.1993 Dr. (Mrs.)

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 Shirin Jal Cooper filed a writ petition in this
 Court being Writ Petition No. 5342 of 1993
 challenging the order of the Minister passed on
 revision under Section 154 of the Maharashtra
 Co-operative Societies Act. The said writ petition
 came to be admitted by this Court but no interim
 relief was granted. On 11.7.1994 the said Dr.
 (Mrs.) Shirin Jal Cooper expired. Sometime in or
 about 2001 the respondent no. 1 claiming to be the
 legal heir of the deceased Dr. Shirin Jal Cooper
 filed an application for becoming the member of the
 said society. However, his application was not
 decided. Therefore he applied to the Registrar for
 an order under the provisions of Section 23 (1A) for
 a direction that he has become a deemed member of
 the said society. In the said proceedings, by an
 order dated 10.8.2001, the respondent no. 3 has
 granted the membership to the respondent no. 1 and
 it is being directed that the said respondent no. 1
 should be shown as a member in respect of the said

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 flat no. 3. Against the said order, the petitioner
 preferred a revision application being Revision
 Application No. 479 of 2001 before respondent no.
 4. Thereafter by an order dated 18.10.2002 the said
 revision application No. 149 of 2001 came to be
 dismissed and thereafter the present writ petition
 is filed challenging the said order.

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 hearing before me along with the present Writ
 Petition being Writ Petition 575 of 2003 on
 17.4.2006. In view of the fact that Dr. (Mrs.)
 Shirin Jal Cooper has expired on 11.7.1994 I had
 disposed of the petition as infructuous by holding
 that the membership being personal right of Dr.
 (Mrs.) Shirin Jal Cooper on her death the said
 application cannot be granted nor the validity of
 the order can be considered. However, I had made it
 expressly clear that in so far as respondent no. 1
 is concerned, if he is held to be a legal heir then
 it is open for him to press for his application
 which has been granted and which has been challenged
 by the petitioner in the present writ petition can
 be independently considered. Accordingly, the
 present writ petition is heard by me.

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 submitted the impugned order is illegal and bad in
 law because the petitioner was already a member of
 the said society and therefore, the application by
 the respondent no. 1 to become a deemed member was
 not maintainable nor the same could have been
 granted by the Deputy Registrar. He has further
 submitted that the application which was preferred
 by Dr. (Mrs.) Shirin Jal Cooper has already been
 rejected and the writ petition has become
 infructuous and, therefore, the respondent no. 1
 who is claiming to be her legal heir and the said
 rights of the legal heir are not accepted by the
 petitioner herein, he is not entitled to become a
 member of the said respondent no. 2 society in the
 present proceeding.

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 6. The learned counsel for the petitioner has
 thereafter contended that Dr. (Mrs.) Shirin Jal
 Cooper failed to make payment of purchase price and
 refused to accept the offer to become member of the
 said society and, therefore, she had abandoned her
 right to become member of the said society and after
 lapse of many years it is not permissible for her to
 claim membership because in the intervening period
 the right, title and interest in respect of the said
 flat has been granted in favour of Mr. Lalwani and
 the said right, title and interest has been further
 transferred in favour of the petitioner herein
 through Mrs. Thadani. It has been submitted that

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 thus the petitioner is the owner of the said flat
 and the petitioner is a rightful member thereof and
 in that light of the matter the respondent no. 1 or
 for that matter Dr. (Mrs.) Shirin Jal Cooper could
 not claim membership of the said flat. At the
 highest her status is only of the tenant in respect
 of the said flat and not as a member thereof. It
 has been therefore submitted that the impugned order
 granting the membership rights in favour of the
 respondent no. 1 is liable to be quashed and set
 aside and application granted in favour of the
 respondent no. 1 is liable to be rejected.

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 7. The learned counsel for the respondent no.
 1 has on the other hand contended that the
 petitioner has no locus to maintain the present
 petition. The petitioner has failed to establish
 any right whatsoever in respect of the said
 property. He has submitted that there is no
 document on record to indicate that Lalwani has
 purchased any right from any person in respect of
 the said property. It has been submitted that if
 Lalwani has no right, title and interest in the
 property, no right, title and interest could be
 granted in favour of the petitioner because he is
 claiming through Lalwani. It has been further
 submitted that in any event the society is a tenant
 co-partnership. Pursuant to Bye Law 6 (2) of the
 Bye Laws of the Society no membership can be

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 Dr. (Mrs.) Shirin Jal Cooper was a tenant and thus
 except her no other person could have been granted
 the membership in respect of the said flat. It has
 been further submitted that the so-called membership
 of the petitioner has ben in fact terminated by
 passing of resolution dated 2.9.2001 and in the said
 meeting of the society, the petitioner himself was
 present. The society by the resolution has held

¶40

 that the shares of the respondent no. 1 should be
 forfeited and he should be ceased to be a member of
 the society in view of the fact that in spite of
 repeated demands, the petitioner is not producing
 any document indicating any right, title or interest
 either in favour of Lalwani or through Lalwani in
 his favour. It is therefore further submitted that
 the record of the society indicate that there are no
 documents whatsoever on record and it seems that a
 fraud has been perpetrated by said Lalwani in
 collusion with one of the Chief Promoter Mr.
 Kundanmal Samtani and the petitioner herein is the
 son of the said deceased Chief Promoter. It has
 been thus submitted that the petitioner’s membership
 having been terminated by a resolution passed by the
 society which has not been challenged by the
 petitioner himself even though five years have
 lapsed, the said resolution is legally binding on
 him. In that light of the matter, the contention of

¶42

 the respondent no. 1 that the petitioner has a
 valid membership during the subsistence of the
 membership of the petitioner, the respondent no. 1
 could not have been made member has no merit and the
 same is required to be rejected.

¶43

 8. The learned counsel for the respondent no.
 2 society has contended that the record of the
 society indicates that there are no documents of any
 nature whatsoever to indicate that Lalwani had
 acquired any right, title or interest in the flat so
 as to enable the society to confer membership on the
 said Mr. Lalwani and consequently the transfer of
 membership in favour of the petitioner herein. The
 learned counsel for the 2nd respondent has drawn my
 attention to the correspondence which has been sent
 by the 2nd respondent to the petitioner demanding
 the documents in respect of the right, title and
 interest, if any, claimed by the petitioner in
 respect of the said flat.

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 9. I have heard the parties and I am of the
 opinion that in the present case the contention of
 the learned counsel for the petitioner that during
 subsistence of his membership the application could
 not have been granted to the respondent no. 1
 cannot be accepted. At the first instance even
 before me the learned counsel for the petitioner has
 failed to produce any documents to establish any

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 right, title and interest having been acquired by
 said Lalwani and/or through Lalwani by him. He has
 produced before me that the deed of assignment dated
 10.6.1967 which has been executed by the landlord in
 favour of the society to which various members are
 confirming parties and in that the name of Lalwani
 is also mentioned. He has also produced before me
 two letters one dated 10.8.1967 which has been sent
 by the then landlord to Dr. (Mrs.) Shirin Jal
 Cooper stating that her tenancy has been attorned to
 Gobind I. Lalwani and the letter by which the Dr.
 Mrs. Shirin J. Cooper has made payment of the rent
 to said Mr. Lalwani. In my opinion, this does not
 establish any acquisition of the property right in
 respect of the said flat no. 3 by the said Lalwani
 so as to claim any membership in respect of the said
 flat no. 3. I am conscious of the fact that this
 issue cannot be determined in a proceeding under
 section 23 of the Maharashtra Co-operative Societies
 Act and the parties are required to file a
 substantive proceeding either under section 91 of
 the Maharashtra Co-opeative Societies Act or file a
 regular civil suit so as to establish their right,
 title and interest in the property. I am however,
 also of the opinion that unless the petitioner
 establishes his right, title and interest in respect
 of the said flat he cannot claim any right of
 membership in the said flat merely by virtue of the
 fact that his name is indicated on the share

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 the opinion that unless a person has an interest in
 the property in respect of their respective
 premises, no stranger can be made a member of the
 society and in that view of the matter, I am of the
 view that both the parties i.e. the petitioner and
 the respondent no. 1 are required to be relegated
 to the remedy of filing of an appropriate civil
 proceedings either under the provisions of Section
 91 of the Maharashtra Co-operative Societies Act or
 a civil suit as may be permissible in law. I am
 also of the further opinion that the impugned order
 granting membership to the respondent no. 1 herein
 is required to be suspended for a period of time so
 as to enable the parties to obtain appropriate
 relief in substantive proceedings which is required
 to be filed between the parties. I am also of the
 view that the claim of the petitioner that he is a
 member cannot be sustained by virtue of the
 resolution passed on 24.9.2001 and which has not
 been challenged by the petitioner in appropriate
 legal proceedings. In that view of the matter, even
 today the petitioner cannot be treated as a member
 since the resolution of the society is to terminate
 the membership of the petitioner herein. The
 petitioner is also required to file an appropriate
 proceedings to challenge the said resolution. The
 petitioner has not done so. In that light of the

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 aforesaid, I am of the view that the impugned order
 which is challenged before me is suspended for a
 period of three months from today and relegate both
 the parties herein to the remedy of filing either a
 dispute under Section 91 of the Maharashtra
 Co-operative Societies Act or a civil suit as they
 may be advised. The membership rights will be
 governed by the appropriate orders passed by the
 Court in civil proceedings or in a proceedings under
 Section 91 of the Maharashtra Co-operative Societies

Haresh K.Samtani v. Sam Eruch Daruwalla and Ors.

Case brief

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What did the court decide?

What the court decided

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Parties & counsel

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