Allowed

new vijay co-operative housing soc. Ltd. v. ignatius d souza

Bombay HC13 Aug 2014WP/1814/2007

Case brief

AI extract

What is this about?

The Mumbai High Court upheld orders directing a cooperative housing society to enroll an individual as a member for ownership of a garage. The Court dismissed the Society's challenge, finding no manifest perversity in concurrent findings that the garage was transferred with share certificates and that user clauses did not bar membership.

What did the court decide?

Rule discharged; enrollment order upheld; interim order extended for eight weeks.

new vijay co-operative housing soc. Ltd. Vs ignatius d… — Cooperative Societies | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1814 OF 2007

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New Vijay Cooperative Housing Society Limited ..Petitioner versus Smt. Flora Ignatius D'Souza & ors ..Respondents

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Mr. Kishor V. Tembe for Petitioner.

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Mr. S.U. Dhakephalkar for Respondent No. 1(a) to 1 (d). Mr. J. Saluja, AGP for Respondent Nos.2 & 3.

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CORAM : M. S. SONAK, J.

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Judgment reserved on : 8 August 2014 Judgment pronounced on : 13 August 2014.

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JUDGMENT :-

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1] The petitioner - New Vijay Cooperative Housing Society Limited (Society) invokes the Article 226 of the Constitution of India to question the following orders (impugned orders):

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(a) Order dated 14 June 1999 made by Deputy Registrar, Mumbai directing the Society to enroll the predecessor in title of respondent No.1 (Ignatius ) as member of the Society;

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(b) Order dated 30 December 2006 made by the Divisional Joint Registrar, Mumbai rejecting the Revision Petition against the aforesaid order dated 14 June 1999.

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2] The dispute in the present case concerns the enrollment of Ignatius (predecessor-in-title of respondent No (s).1), who claims ownership in respect of ' garage' in the society's building called as “ New Vijay Cooperative Housing Society Limited ”.

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3] Ignatius claims to have purchased the garage from its former owner by a registered document dated 30 March 1998. However, much prior to the same, Ignatius was in occupation of the garage, which was being used for commercial purposes. To support this, Ignatius had relied upon licences issued by a Municipal Corporation from time to time since 1981, apart from other documents. The Society rejected Ignatius' application for membership, inter alia on the ground that there was no provision to issue a separate share certificate in respect of garage, particularly, as the former owner held shares and was issued certificate, in respect of apartment and garage cumulatively. Further, there was no provision in the Bye-laws of the society to permit user of the garage for any purposes, other than parking.

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4] Aggrieved, Ignatius instituted an Appeal under Section 23(2) of the Maharashtra Cooperative Societies Act, 1960 (said Act), which was allowed by the Deputy Registrar by order dated 14 June 1999. The Divisional Joint Registrar, dismissed the Society's Revision Petition by order dated 11 September 2000. On the ground that the order dated 11 September 2000 contained no reasons, this Court by its order dated 2 February 2005 in Writ Petition No.182 of 2001, with the consent of the parties, set aside the same and remanded the Revision Application to the Divisional Joint Registrar for reconsideration. This Court observed that the Divisional Joint Registrar, who is a quasi judicial authority shall observe the requirement of passing the reasoned order.

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5] On remand, the Divisional Joint Registrar, by order dated 30 December 2006, has once again dismissed the Revision

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Application. Hence, the present petition at the instance of the Society.

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6] Mr.K.V. Tembe, learned counsel for the petitioner-Society, made the following submissions in support of the petition:

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(a) That despite specific directions of this Court in order dated 2 February 2005 made in Writ Petition No.182 of 2001, the Divisional Joint Registrar, in making the impugned order dated 30 December 2006 has failed to consider most of the Society's contentions and further failed to make a reasoned order;

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(b) Mrs. Chokhani, was the owner of apartment as well as garage and therefore, was issued share certificates accordingly. The garage was thus an integral part of the apartment. There is no provision however, for independent sale of garage. Therefore, the Society could not be compelled to issue share certificate or enroll Ignatius as a member with regard to only garage. This aspect has not been properly appreciated in making the impugned orders;

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(c) The Bye-laws of the Society do not permit user of the garage for any purposes, other than parking. In such circumstances, the Society acted well within its right to decline membership to Ignatius, who admittedly had been using garage for commercial purposes. This contention, though specifically raised, has not even been considered in making the impugned orders.

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7] Mr. S.U.Dhakephalkar, learned counsel appearing for the legal representatives of Ignatius submitted that two authorities have concurrently held that Ignatius was entitled to membership and share certificate in respect of garage. There is neither any error apparent on face of record nor any perversity in the findings recorded. Further the definition of ' flat ' under Bye-laws clearly includes a stand alone garage and consequently there can be no legal hurdle to the issuance of share certificates and membership. In so far as change of user is concerned, such aspect is irrelevant at the stage of grant of membership and in any case, there is no prohibition for commercial user, which Ignatius had been carrying on since last over three decades. For all these reasons, Mr.Dhakephalkar submitted that the Society had made out no case to warrant any interference.

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8] The rival contentions, now fall for my determination.

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9] There is no merit in a criticism that the order dated 30 December 2006, made by the Divisional Joint Registrar, contains no reasons or that the Society's contentions have been ignored. Perusal of the order, would indicate that the main contentions raised by the Society, which have been substantially reiterated before this Court, have been duly considered by the Revisional Authority. Same is the position with the order 14 June 1999, made by the Deputy Registrar in exercise of powers conferred by the Section 23(2) of the said Act. Accordingly, in passing the impugned orders, I am not prepared to accept that there has been any failure of natural justice.

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10] From the record, it appears that Mrs. Jhunjhunwala, who was the owner of flat and garage No.4 in the Society building, had let out the said garage in the year 1962 for commercial use. The flat and garage was then transferred to Mrs. Chokani. In the year 1998, Mrs.Chokani transferred the garage to Ignatius, by means of a registered document. There is no dispute that Mrs. Chokani, had been duly enrolled as member of the Society and was issued share certificates in respect of the flat as well as the garage. There is material on record that garage was put to commercial use right from the year 1962. Ultimately, all these are findings of fact recorded by two authorities concurrently. Unless, such findings are manifestly wrong or perverse, there is no real warrant to interfere with the same in exercise of powers of judicial review under Article 226 of the Constitution of India.

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11] Mr. Tembe, was unable to substantiate his submission that there was a bar, either under the said Act or under the Bye-laws of the Society in the matter of transfer of garage, as a stand alone premises. In fact, in The Gulbahar Co.op. Housing Society Ltd. vs. The Joint Registrar, Cooperative Societies & ors. (Writ Petition No.1572of 2004 decided on 7 August 2006), similar contention was rejected by this Court, observing thus :

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5. So far as first reason given by the society is concerned, that a garage can be used for parking of vehicles and as the Respondent No.4 proposes to use the garage as godown and office, he cannot be admitted to the membership of the society. If one looks at the bye-laws of the society, it becomes clear that the reason given is not tenable. Bye-law No.3(vi) defines the "flat". It reads as under:-

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3.vi) "Flat" means a separate and self contained set of premises used or intended to be used for residence, or office, or show-room,

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or shop or godown and includes a garage, or dispensary, or consulting room, or clinic, or flour mill, the premises forming part of a building and includes an apartment;

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It is clear from this provision that a garage is included in the definition of the flat and therefore, as the flat can be used for the office and also as godown the garage can as well be used either as an office or as a garage. Therefore, the first reason that is given by the society is clearly contrary to the provisions of the Bye-laws.

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The second reason given is that the Respondent No.3 cannot transfer the garage only retaining the flat. This reason, in my opinion, is also untenable. The society has admittedly issued two share certificates, one for the flat and the other for the garage, and therefore, I do not find any law prohibiting a member of the society from transferring only garage. Second reason, therefore, also does not stand.”

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12] In so far as user of the garage for commercial purposes is concerned, the record indicates that the garage is being used for commercial purposes right from the year 1962. Such user, is on the basis of permissions obtained from the competent authorities. In any case, there is no reason to delve deeper into this issue, because even after the legal representatives of Ignatius are enrolled as members in respect of garage premises, nothing prevents the Society from taking out appropriate legal proceedings to prevent commercial user, in the event Bye-laws of the Society, indeed prohibit such user. Accordingly, no opinion is expressed in that regard, save and except to observe that in case such proceedings are indeed instituted then the same will be decided by the competent authority in accordance with law, without being

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influenced by the circumstance that the impugned orders, which direct enrollment of Ignatius as a member, are hereby upheld.

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13] Therefore, taking into consideration the totality of the circumstances, I see no reason to interfere with the impugned orders. Rule is, accordingly, discharged. Interim orders, if any, to stand vacated.

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14] There shall be no order as to costs.

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(M. S. SONAK, J.)

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15] At this stage, Mr. Tembe, learned counsel for the petitioner prays for continuation of the interim relief granted by this Court on 10 October 2007, as the petitioner desires to seek recourse against the present judgment. The request is reasonable and in such circumstances the interim order made on 10 October 2007 is extended for a period of eight weeks from today.

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(M. S. SONAK, J.)

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dinesh

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new vijay co-operative housing soc. Ltd. v. ignatius d souza

Case brief

What is this about?

What did the court decide?

new vijay co-operative housing soc. Ltd. v. ignatius d souza

Case brief

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