A writ petition challenged the petitioner's disqualification as a housing society managing committee member for having more than two children. The court held Section 154B-23 independently applies to housing societies and upheld the disqualification orders, dismissing the petition.
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Shantanu Dhudum
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 8109 OF 2024
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Having Address AT :35/2 21,
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Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR JAMADAR Date:2024.06.18 19:11:02 +0530
Shantanu Dhudum
Charkop Kandivali Ekta Nagar Chs Ltd.
Co-operative Housing Society Limited
a society registered under the provision of the Maharashtra Co-operative Societies Act, 1960 and the Rules framed thereunder bearing
20 Registration No.BOM(WR) HSG (TO)/7568/93-94, having office at Ekta Nagar Marve Road, Charkop Link Road, Kandivali (West), Mumbai 400 067. ….Respondents
Mr. Swapnil Bangur a/w Mr. Hardik Jain i/b A. V. Jain Associates, Advocate for the Petitioner.
Mr. A. B. Chate Add. G. P. a/w Mr. S. D. Rayrikar, AGP, Advocate for the Respondent-State.
CORAM : AVINASH G. GHAROTE, J.
35 DATE : 13th JUNE, 2024.
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ORAL JUDGMENT :
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petitioner was having more than two children and therefore, in light of the mandate of Section 154B-23 (v) of the MCS Act, he had incurred a disqualification and therefore was liable to be disqualified. This found favour with respondent No.3, on the ground,
10 He thus rendered a finding that the petitioner was having more than two children and therefore, he was disqualified in view of the aforesaid provisions. The said order dated 15.5.2023 has been confirmed by the Divisional Joint Registrar/respondent No.2.
15 relying upon the provisions of Section 154 B (1) of the MCS Act, submits that by virtue of the provisions of Section 154B-1 to B-31 were not made applicable to actions under Chapter XIII-B of the MCS Act and therefore, the respondent No.3 and Divisional Joint Registrar/respondent No.2 could not have held the petitioner to be
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154B (2) excludes Section 73(CA) of the MCS, Act from its applicability to Chapter XIII-B of the MCS, Act on which ground also the findings of disqualification are misconceived. He therefore submits that on this ground the impugned orders are liable to be
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154B. (1) The following provisions of this Act shall apply mutatis
mutandis to the housing societies , namely :—
5 Section 1, clauses (5), (6), (7), (8), (10), (10-ai), (10-aii), (10aiii), (13), (14), (16), (17), (18), (20-A), (21), (24), (26), (27), (28), (29), (29A) and (31) of section 2, sections 3, 3A, 4, 5, 7, 9, 10, 12, 13, 14, 15, 17, 18, 19, 20, 20A, 21, 21A, 22, sub-sections (1), (2) and (3) of section 23, sections 25, 25A, 31, 33, 34, 35, 36, 37, 38, 40, 41, 10 42, except proviso of sub-section (1) of section 43, section 45 and sub-sections (1)(b), (2) and (3) of section 47, section 50, clauses (a) (c), (d) and (e) of section 62, sections 64, 65, 66, 67, 68, 69, 70, 71, 71A, 72, 73, sub-sections (2) to (7) of section 73ID, sections 73C, 73CB, 73CC, 73F, 73I, 75, 76, 77, 77A, 78A, sub-sections, (1), (1A), 15 (1B), (2), (3) and (4) of section 79, sections 79A, 79AA, 80, 81 to 89A, 91 to 100, 102 to 110, 145 to 148A, 149 to 154, 154A and 155 to 168 .
20 Clauses (1)(a) and (b), (2)(a), (b) and (c), (4), (9), (10-aii-1), (10A), (11), (11-A), (12), (14-A), (15), (16-A), (19) (a), (a-1), (b) and (c), (19A), (22), (23) and (25) of section 2, sections 6, 8, 11, 16, 18A, 18B, 18C, 23(4), 24, 24A, 26, 27, 28, 29, 30, 32, 32A, 39, 44,
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44A, 46, 47(1)(a), 47(4), 48, 48A, 49, 51, 52, 53, 54, 55, 56, 57, 58,
59, 60, 61, 62(b), 63, 69B, 72A, 73(1A)(b), 73A, 73AAA, 73-B, 73CA, 73D, sub-section (1) of section 73ID, sections 74, 78, 90, 101, 110A and sections 111 to 144-1A.
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154B-23. (1) Without prejudice to the other provisions of this Act or the rules made thereunder, in relation to the disqualification of being a Member of the Committee, no person shall be eligible to be appointed, nominated, elected, co-opted for being a Member of Committee,—
(ii) if he carries on business of letting, subletting and selling of flats in the housing society of which he is a Member, or
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(iv) if he has incurred any disqualification under this Act or the rules made thereunder, or
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(v) if he incurs any of the disqualification similar to that mentioned in the provisions of clause (vii) , (viii) or (ix) of clause (f) of sub-section (1) of section 73CA .
(2) A Member, who has incurred any disqualification under subsection (1), shall cease to be a Member of Committee and his seat
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shall thereupon be deemed to be vacant.
[(vii) has more than two children :
Provided that, a person having more than two children on the 20 date of commencement of the Maharashtra Co-operative Societies (Second Amendment) Act, 2001 (hereinafter in this clause referred to as “ the date of such commencement ”), shall not be disqualified under this clause so long as the number of children he had on the
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date of such commencement does not increase :
Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose 5 of disqualification mentioned in this clause.
(a) where a couple has only one child on or after the date of such commencement, any number of children born out of a single subsequent delivery shall be deemed to be one entity ;
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not applicable, would make the entire Chapter XIII-B redundant, as on account of such a plea they would become incapable of being resorted to, for the purposes of considering the affairs of the Cooperative Housing Societies, which is impermissible in law,
10 with disqualification of the member, from its applicability to Chapter XIII-B of the MCS Act, however, Section 154B-23 in Chapter XIII-B takes its place vis-a-vis the affairs of the Co-operative Housing Society and provides for disqualification of a Committee and its members on the ground as indicated in Clause (i) to (v) of sub-
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account of Managing Committee member having more than two children has been also provided to be a ground of disqualification in respect of a member of the Managing Committee of a Co-operative Housing Society, by inserting the same in Sec.154 B-23 by way of
5 incorporation. Sec.154 B-23, is an independent provision, and operates independently and would mandate disqualification of a member if he has more than two children. That being position, the exercise of the power by the authorities below, considering the position as indicated above cannot be faulted with on account of
15 petitioner already had a daughter Ms. Mahima Pawan Singh born on 19/4/2001, the position on record indicates that after the commencement date, the petitioner has had three children as indicated above.
20 11. Though, it was contended that Mst. Prabhat Pawan Singh
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was not the child of the petitioner and was only brought to his residence for his studies, considering which I had asked learned counsel for the petitioner to supply the copy of the date of birth certificate of Mst. Prabhat Pawan Singh, he has expressed his
15 13. At this stage, learned counsel for the petitioner seeks extension of the order dated 06.06.2024, by which this Court had postponed the election to the post of Chairman of the respondent No.6-Society till 16.06.2024. The same is vehemently objected by learned counsel for the respondent No.5. Considering that the 20 election already stands postponed till 16.06.2024, by the order
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dated 6/6/2024, passed by the learned Vacation Court, extension of that period for a further two weeks would not cause any prejudice to any of the parties, considering which the interim order dated 06.06.2024 is extended for a period of two weeks.
( AVINASH G. GHAROTE, J.)
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3 issues framed by the court
Whether Sections 154B-1 to 154B-31 apply to Chapter XIII-B despite their non-inclusion in Section 154B(1).
Whether a member of a housing society committee incurs disqualification under Section 154B-23(v) for having more than two children.
Whether the petitioner had more than two children after 7/9/2001.
5 provisions across 1 enactments
Pawankumar Nandkishor Singh
The State of Maharashtra
The Divisional Joint Registrar, Cooperative Societies Mumbai Division
The Deputy Registrar Co-operative Societies Western Suburbs
Deepak Jagdish Tejale
Ramachal Samarth Yadav
Avinash G. Gharote
As recorded by the court registry
3 orders share this CNR
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