Allowed

Sukhamani Juhu Himalaya Go-Op.Housing Soc.Ltd. v. N.L.Peshwani and Ors.

Bombay HC23 Apr 2007WP/5477/2004

Case brief

AI extract

What is this about?

The High Court set aside orders impugning a co-operative society's rejection of a membership application due to defective forms and unpaid fees. The registry's insistence on admission without compliance was held erroneous. The respondent is permitted to apply afresh.

What did the court decide?

Impugned orders dated 7th November 2001 and 3rd March 2004 set aside. Respondent allowed to apply afresh for membership.

Sukhamani Juhu Himalaya Go-Op.Housing Soc.Ltd. Vs… — Property and Title | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 APPELLATE SIDE

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 WRIT PETITION NO. 5477 of 2004

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 Sukhamani Juhu Himalaya Co.op.

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 Housing Society Ltd. .. Petitioner

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 versus

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 M.L. Peshwani & Ors. .. Respondents

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 Mr.P.N. Joshi for the petitoner.

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 Ms.Manisha Vivkhare i/b Bhavesh Parmar for respondent

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 no.1.

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 CORAM : D.G. KARNIK, J

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 DATED : 23rd April 2007.

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 P.C.:

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 1. Rule returnable forthwith.

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 2. In view of the order of this court dated 6th

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 July 2004 directing that the matter would be disposed
 of at the stage of admission, and by consent the
 petition is heard forthwith.

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 3. Issuance of Rule to respondent nos.2 to 4 is
 dispensed with as they are formal parties.

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 4. Petitioner is a Co-operative Housing

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 Society. One Mr.Madhok was a member to whom a flat

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 bearing no. B-4 (hereinafter referred to as "the
 said flat") in the petitioner society was allotted.
 According to the respondent, by an agreement dated
 1st December 1994, the original member Mr.Madhok

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 agreed to sell the said flat to the respondent no.1,
 and also executed a Power of Attorney in his favour.
 In pursuance of an agreement to purchase, the
 respondent no.1 applied to the petitioner society for
 transfer of membership. The application of
 respondent no.1 for membership was considered by the
 Society in its meeting held on 30th July 2000. In
 the said meeting, it was resolved to reject the
 application of the respondent no.1 for membership and
 communicate the same to the respondent no.1.
 Accordingly by a letter dated 2nd July 2000, the
 petitioner informed to the respondent no.1 that his
 application for membership was rejected for the

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 reasons mentioned in the said letter. In particular,
 the letter mentioned that the general power of

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 attorney was not in order as it was not properly
 stamped and was written on stamp paper of Rs.50/-
 instead of Rs.100/- as required by law. A more
 substantial reason for the rejection was that the
 application was not in the form prescribed. Two
 other reasons for rejection as mentioned in the
 letter were that entrance fee of Rs.10/- for
 membership as also the transfer fee of Rs.15,000/-
 payable as per the bye-laws of the society was not
 paid. The letter stated that the respondent no.1 may
 apply again after complying with the requirements
 pointed out. Instead of rectifying the defects, the
 respondent no.1 chose to file an appeal before the
 District Deputy Registrar of Co-operative Societies
 under section 23 of the Maharashtra Co-operative
 Societies Act 1960. By the impugned order dated 7th
 November 2001, the District Dy. Registrar allowed
 the appeal of the respondent and directed the
 petitioner society to admit the respondent no.1 as a
 member of the society.

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 5. Learned counsel for the petitioner submitted

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 that the petitioner society had rejected the
 membership of the respondent no.1 in view of the fact
 that he had not made the application in the

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 prescribed form nor paid the arrears in respect of
 the flat nor paid entrance fee nor the transfer fee.
 He also submitted that the power of attorney was not
 properly stamped and therefore, there was no valid
 consent given by the original member for transfer.
 The consent given by the attorney of the original
 owner on the basis of the power of attorney was not
 proper as the power of attorney was insufficiently
 stamped.

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 6. I have perused the impugned order dated 7th
 November 2001. The District Dy. Registrar has not
 given any valid reasons for his order. The order
 consists of three parts. In the first part, the
 District Dy. Registrar has extracted the contentions
 of the petitioner. In the second part, he extracted
 the contentions of the respondent no.1 and by the
 third part, he has given his decision without any
 reasons. In paragraph no.4 of the final part of the
 order, the District Dy. Registrar has observed that
 the respondent no.1 would pay the arrears and the
 transfer fee but on that ground, the application
 should not have been rejected. In paragraph no.5, he
 has noted that there were irregularities in the
 application of respondent no.1 but those could be got

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 corrected.

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 7. It may be noted at this stage that the
 petitioner society has not irrevocably rejected the
 application of the respondent no.1. By the letter
 dated 2nd August 2000, the petitioner society pointed
 out the defects in the application of the respondent
 no.1 and stated that the respondent no.1 might remove
 the said defects and apply again. Learned counsel
 for the petitioner stated that if the respondent no.1
 removes all defects and applies again, the
 application would be considered by the petitioner
 society on its own merits.

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 8. There appears to be no dispute between the
 parties that the application was not fully in order
 and was defective. In fact, the District Dy.
 Registrar has also noted that the application was
 defective but has stated that the defects could be
 got cured by the petitioner society. In fact that
 exactly what the letter of the society stated. It
 called upon respondent no.1 to cure the defects and
 apply again. In the circumstances, the action of the
 petitioner society was proper and could not be
 faulted. It appears that the original

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 member-transferor was in arrears. The arrears were

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 not paid and even the transfer fee was not paid. The
 petitioner was right in contending that the payment
 should be made first before accepting the respondent
 no.1 as a member. In the circumstances, the District
 Dy. Registrar clearly erred in directing that the
 respondent no.1 should be admitted as a member on the
 basis of the defective application without
 compliance.

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 9. The order dated 7th November 2001 was

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 challenged by the petitioner in revision before the
 Divisional Joint Registrar who confirmed the same. I
 have already noted that the original order of
 District Dy. Registrar was contrary to law and is
 therefore liable to be set aside. Divisional Joint
 Registrar could not have confirmed the same. The
 order of the Divisional Joint Registrar dated 3rd
 March 2004 confirming the order of the District Dy.
 Registrar is also therefore liable to be set aside.

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 10. In the circumstances, Writ Petition is

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 allowed and the impugned orders are set aside.

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 11. It is clarified that the respondent no.1 is

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 entitled to apply afresh for membership. If such an
 application is made the petitioner shall consider the
 application in accordance with law.

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 (D.G. KARNIK, J)

Sukhamani Juhu Himalaya Go-Op.Housing Soc.Ltd. v. N.L.Peshwani and Ors.

Case brief

What is this about?

What did the court decide?

Sukhamani Juhu Himalaya Go-Op.Housing Soc.Ltd. v. N.L.Peshwani and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

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