*1* wp.8162.10.21.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8162 OF 2010 Velentina Coop. Hsg. Society Ltd.. ..Petitioners -Versus- Milind Sobale and others. ..Respondents .......... Mr.R.V.Govilkar, for the Petitioners. Mr.Vijay Thorat, Senior Advocate with Mr.N.N.Shetty, Mr.Devendra Udani and Mr.Kunal Chima, for the Respondent No.4. Ms.P.S.Cordozo, AGP, for the Respondent Nos.2 and 3. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 13th June, 2011. P.C.: 1 The Petitioner Society is aggrieved by the orders passed by the Registrar and his delegates under Section 22 of the Maharashtra Co- operative Societies Act, 1960. The orders direct the Petitioner to admit the Respondent No.4 as member of the Petitioner Society. 2 The grievance of the Petitioner Society is that the Respondent No.4 is subsequent purchaser of the subject bungalow/ structure and the Society does not permit any non-residential user much less continuing commercial activity. Attempt was made earlier to utilize this bungalow for non-residential purpose and the predecessor-in-title of the Respondent No. 4 was restrained from doing so at the instance of the Petitioner Society by the Co-operative Court in a dispute bearing Dispute No.130/2006 and particularly by the order dated 16.08.2006 which was confirmed on 20.11.2006. Therefore, the Respondent No.4 has purchased this *2* wp.8162.10.21.sxw structure/bungalow knowing fully well that there is a pending dispute and that there is restraint against the user for non-residential purpose. Hence, activity of the Respondent No.4, which is admittedly commercial/ non-residential, should not be permitted. In issuing directions for admitting the Respondent No.4 as member, the authorities have acted beyond the powers conferred on them and interfered with the pending proceedings in the Co-operative Court. 3 This stand of the Petitioner Society is confirmed before me during the course of argument by Mr.Govilkar and he invites my attention to the order passed by the Co-operative Court in Dispute No.130/2006 below Exhibit-5. 4 On the other hand, Mr.Thorat, learned Senior Counsel appearing for the contesting Respondent No.4, submits that when this matter was argued earlier and when this very controversy was raised, this Court after hearing both sides, made an order on 23.11.2010 recording the statement of the Respondent No.4 that he will file an affidavit to abide by the interim order passed by the Co-operative Court. Mr.Thorat has invited my attention to the affidavit and submitted that the use of premises as an Art Gallery is in consonance with the Zonal Regulation, therefore, there is nothing objectionable as far as the user is concerned. Further, the Respondent No.4 has purchased this bungalow which was earlier used for non-residential purpose. Now, different non-residential purpose is being introduced, but that does not mean that there is any contravention of the laws or bye-laws of the Society. For all these reasons, there should be no interference with the orders under challenge. 5 Section 22 of the Maharashtra Co-operative Societies Act, 1960 falling in Chapter-III provides as to who can become a member of the Society. Sub-section (1A) thereof, which was introduced by *3* wp.8162.10.21.sxw Maharashtra Act No.27/1969, provides for qualification for being a member of any specified society or class of societies. Sub-section (1B) of Section 22, which has been inserted by Maharashtra Act No.20/1986, was inserted with specific purpose namely to enable the Registrar to remove a person from membership if he has incurred disqualification. However, sub-section (2) of Section 22 takes care of the situation when the Society refused to admit a person as member and the decision with reasons has to be communicated to such person within 15 days from the date of the decision or within three months from the date of receipt of the application for admission, whichever is earlier. If the Society does not communicate any decision to the Applicant within three months from the date of receipt of such application, the Applicant shall be deemed to have been admitted as a member of the Society. Further, this sub-section (2) has been amended by Maharashtra Act No.7/1997 to deal with the question, whether, a person has become a deemed member or otherwise and this question has to be decided by the Registrar. 6 In the instant case, the Divisional Joint Registrar has observed that earlier member was Mrs.Nisha Budhrani and she was using the bungalow as per the approved plan for commercial purpose. She entered into an agreement for sale dated 06.09.2005 with Mr.Prakash Sunder Dularamani. Thereafter, there is Deed of Transfer dated 30.11.2006 between Prakash Dularamani and the Respondent No.4 before me. The said document has been duly registered and the possession has been handed over to the Respondent No.4. On 03.02.2007 the Respondent No. 4 submitted an application for membership annexing therewith relevant documents. The said application was found to be pending and it is only in the month of March, 2007, the Managing Committee of the Society admitted Mr.Dularamani as a member and also effected the transfer of *4* wp.8162.10.21.sxw shares to his name. The Managing Committee convened a special general meeting on 08.04.2007 and appraised the members about the transfer of bungalow by Mr.Dularamani to the Respondent No.4. It is stated that they considered the application for membership made on 03.02.2007. It is, then, stated by the Registrar that there was a special general meeting convened on 08.04.2007, however, no decision was taken on the application. The agenda and other record pertaining to this meeting was perused by the Registrar and the finding of fact that is recorded is that this meeting was adjourned for 30 days. Thereafter, the meeting was not held for 30 days. The application for membership was submitted on 03.02.2007, the Society was bound to consider it within the period specified by law and communicate its decision with reasons. That was recorded by the Respondent No.4 in its letter dated 02.08.2007. It is stated that the Petitioner Society was to hold Annual General Meeting on 05.08.2007 and item No.5 was to ratify this transfer. In the earlier Special General Meeting held on 08.04.2007, the Petitioner Society was to consider this very subject. The bungalow was sold to the Respondent No. 4, but on 03.08.2007 by letter, which is referred to by Mr.Govilkar, the papers were returned to the Respondent No.4, observing that the Society has filed a dispute in the Co-operative Court against Mrs.Nisha Budhrani who is stated to be predecessor-in-title of Mr.Dularamani and that dispute is pending. Therefore, the Respondent No.4 should comply with specific requirement otherwise the application cannot be considered. 7 The Divisional Joint Registrar has found as a matter of fact that by the time the decision is purportedly taken and communicated, the period specified by law has expired and therefore, the Respondent No.4 is deemed to have become member of the Petitioner Society. That finding of fact is recorded at page Nos.72 to 74 of the paper book. Further, findings *5* wp.8162.10.21.sxw of fact are recorded to confirm the decision of the Deputy Registrar and it is held that the same is consistent with the material produced on record. 8 I am of the opinion that merely because the Divisional Joint Registrar has confirmed the order of the Deputy Registrar and that the Petitioner Society is directed to admit the Respondent No.4 as member of the Society, does not mean that the Society has given up its right and contentions in the pending dispute. The Registrar’s order does not affect the action taken by the Petitioner and does not decide the issue, whether, the bye-laws of the Society are permitting commercial activities and whether, the Respondent No.4 or his predecessor-in-title has violated the bye-laws. These issues are to be decided in the pending dispute. It is well settled that the Respondent No.4 will have to abide by the decision in the dispute. Therefore, in this matter, admission of the Respondent No.4 as member of the Petitioner Society, will always be subject to the pending dispute and the direction of the Registrar must abide by the final orders in the dispute. Therefore, it is not as if the Petitioner Society has lost any of its remedies available in law. Further, finding of fact is based only on the satisfaction which is contemplated by Section 22(2) and the aspect as to whether, the principle of open membership contemplated by sub-section (1) of Section 23 and the decision of the Society could be said to be in contravention of Sections 22 and 23 and particularly, sub-section (2) thereof. In my view, with additional direction that I propose to issue to the Respondent No.4, the apprehension of the Petitioner Society can be taken care of. 9 In the light of the above, the orders under challenge require no interference. The petition is disposed of, but with direction to the Respondent No.4 to file an affidavit in the Co-operative Court, Pune in Dispute No.130/2006 within a period of two weeks from today stating *6* wp.8162.10.21.sxw therein that the Respondent No.4 will not transfer, alienate, encumber, part with possession of the subject bungalow in any manner until the dispute is heard and disposed of finally. Further, until the dispute is heard and disposed of, the subject premises will be used only as Art Gallery/ Studio and this purpose will not be altered or changed in any manner to any other commercial or non-residential activity or purpose. The Respondent No.4 shall permit user of the subject premises strictly in terms of the permissions that are given by the local authorities and shall not violate any of the stipulations in that behalf including keeping open the premises beyond the business hours. Further, the Respondent No.4 shall undertake in this affidavit that he will not cause any nuisance or annoyance to the members of the Petitioners Society in any manner by the commercial activities. It is on filing such affidavit within the stipulated time, the Respondent No.4 can continue to enjoy the deemed membership as granted by the impugned orders. However, merely because such direction is issued and the impugned orders are upheld, does not mean that this Court has expressed any opinion on the merits of the dispute. The dispute shall be decided irrespective of the view taken by the authorities on the issue of membership and confirmation thereof by this Court. The Co-operative Court shall make an endeavour to dispose of the dispute expeditiously as possible and preferably by 30th July, 2011. All parties shall co-operate with the Court in expeditiously deciding the dispute. Needless to state that the Petitioner Society shall amend the dispute and implead the Respondent No.4 as party opponent to the dispute and the amendment may be carried out within a period of two weeks from today. Further, needless to state that this order is without prejudice to the rights and contentions of the Petitioner Society not only in the pending dispute, but in any other proceedings that may have been *7* wp.8162.10.21.sxw initiated or are pending. 10 At this stage, Mr.Thorat clarifies, on instructions, that the Respondent No.4 has permitted the licencee, Mr.Arvind Kadam, to conduct the business of Art Gallery from the subject premises and that is under a leave and licence for three years. Mr.Arvind Kadam is in possession of the subject premises, but purely as licencee to carry on the above activities in terms of the licence and he has not claimed any right, title and interest in the subject premises. 11 Needless to state that the Petitioner Society can take action, if it is of the opinion that this activity amounts to inducting a third party in the premises without its approval. All such decisions of the Society will not be affected by any of the orders of the Registrar, Co-operative Court, so also, of this Court. 12 The petition is, accordingly, disposed of. No costs. (S.C. Dharmadhikari, J)