agk WP9135/09 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9135 OF 2009 Mitramandal Co-operative Housing Society Ltd .. Petitioner versus Shamprasad Vishwanath Deo .. Respondent Mr.S.P.Thorat for the petitioner. Mr.Shamprasad Vishwanath Deo, respondent No.1 present in person. Mr.A.V.Anturkar i/by Mr.Sugandh B. Deshmukh for respondent No.2. CORAM : A.S.OKA, J. DATE : 23rd September 2010. JUDGMENT: . The submissions of the learned counsel appearing for the petitioner were heard on 15th September 2010. On the request made by the learned counsel appearing for the petitioner order was not passed on that day and today the petition is placed for passing orders. 2 With a view to appreciate the submissions made by the learned counsel appearing for the petitioner, it will be necessary to advert to the facts agk WP9135/09 (2) of the case in brief. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 3rd March 2008 passed by the Deputy Registrar of Co-operative Societies, Pune which has been confirmed by judgment and order dated 16th March 2009 passed by the Divisional Joint Registrar of Co-operative Societies in a Revision Application under section 154 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the said Act). 3 It is the case made out by the respondents that initially one Jagannath Abhyankar was a member of the petitioner society and by virtue of his membership, Plot No.484/104 was granted to the said Jagannath Abhyankar. The said Jagannath Abhyankar died in 1979. On the basis of nomination made by the deceased member, on 15th October 1979 the membership was transferred in the name of the 2nd respondent. 4 It appears that after membership was transferred to the 2nd respondent, there was a dispute between the legal representatives of the deceased member which resulted into the filing of a suit for partition. It appears that in final decree proceedings arising out of the suit for partition, a consent decree was passed by which the plot allotted to the original agk WP9135/09 (3) member was divided into four plots. Under the consent decree, one of the said plots was allotted to the share of the 2nd respondent. Under the consent decree, all the legal representatives of the deceased member agreed that the membership of the petitioner society shall continue to be in the name of the 2nd respondent. 5 It was the case made out before the Deputy Registrar by the 1st respondent that the plot allotted to the share of the 2nd respondent was transferred to him by the 2nd respondent by a duly registered document dated 9th June 2005. An application dated 18th June 2006 for transfer of membership was made by the 1st respondent to the petitioner-society by Registered Post A.D along with a cheque in the sum of Rs.40,200/-. It is the case of the 1st respondent that he made necessary compliance by submitting necessary documents to the petitioner Society. A decision of the petitioner on the said application was not communicated to the 1st respondent within the time stipulated by law. The 1st respondent thereafter filed an application under sub-section 2 of section 22 of the said Act before the Deputy Registrar to declare the 1st respondent to be a deemed member of the petitioner Society in as much as decision on the application for membership was never communicated to the 1st respondent within the time stipulated by law. agk WP9135/09 (4) 6 The application made by the 1st respondent was opposed by the petitioner. It was contended that a communication dated 2nd July 2006 was issued by the petitioner to the 1st respondent informing that the application for membership was incomplete and necessary documents were not annexed. It was submitted that the said letter has been suppressed by the 1st respondent while filing the application. By order dated 3rd March 2008, the application of the 1st respondent was allowed and that the 1st respondent was declared as a deemed member. In revision application, the order of the Deputy Registrar has been confirmed. 7 The learned counsel appearing for the petitioner submitted that a communication was issued by the petitioner Society to the 1st respondent on 2nd July 2006 stating that the application made by the 1st respondent was incomplete. He submitted that outward register of the petitioner Society was produced to show that such a letter was issued to the 1st respondent. He submitted that therefore the order passed by the Deputy Registrar is illegal in as much as deemed membership cannot be granted to the 1st respondent in view of the said communication dated 2nd July 2006. He submitted that the consent decree passed in final decree proceedings will not bind the agk WP9135/09 (5) petitioner Society and in any case, the consent of the petitioner Society was not obtained. He submitted that the 2nd respondent is only one of the legal representatives of the deceased member and therefore without producing consent of the other co-sharers, the petitioner Society was justified in not granting membership. He submitted that the 1st and 2nd respondents ought to have produced consent of the other legal representatives of the deceased member. He submitted that hyper-technical view has been taken by the authorities by recording a finding that there is no proof of service of letter dated 2nd July 2006 produced by the petitioner. Lastly, he submitted that there is non- compliance with Rule 19A of the Maharashtra Co-operative Societies Rules, 1961. 8 I have given a careful consideration to the submissions. It is not in dispute that after demise of the original member Jagannath Abhyankar, the membership was transferred in the name of the 2nd respondent on the basis of the nomination made by the deceased member. There was a dispute inter-se between the legal representatives of the deceased member which led to filing of a suit for partition by the other legal representatives of the deceased member against the 2nd respondent. There was a consent decree passed between the parties in final decree proceedings under which a plot agk WP9135/09 (6) out of larger plot of the deceased member was allotted to the share of the 2nd respondent. Clause 12 of the consent decree provides that the 2nd respondent will continue to be the member of the petitioner Society and will own and possess the five shares held by the original member of the said Society. The consent decree provides that all parties shall be entitled to transfer plots allotted to their respective shares to the purchasers of their choice and it shall not be necessary to obtain consent of others for such transfers. It was provided in the consent decree that the 2nd petitioner will continue to be a member and other parties to the suit will be entitled to become associate members. Thus, there was a consent decree passed in final decree proceedings to which all the legal representatives of the original member were parties and the consent decree provides that the 2nd respondent will be entitled to continue as a member of the petitioner Society. On the basis of the registered document executed by the 2nd respondent, the 1st respondent acquired the plot held by the 2nd respondent and submitted an application for membership on 18th June 2006 to the petitioner along with transfer form and other documents duly signed by the 2nd respondent together with a cheque in the sum of Rs.40,200/-. 9 The petitioner is relying upon alleged communication dated 2nd July agk WP9135/09 (7) 2006. The finding of the authorities below is that there was no evidence produced to show that the said letter was duly served to the 1st respondent. What was sought to be produced by the petitioner was the outward register which may at highest show dispatch of the said letter. Even in this writ petition no material is placed on record to show that the letter dated 2nd July 2006 was duly served to the 1st respondent or the 2nd respondent. 10 The 2nd respondent was admittedly made member on the basis of nomination. The consent decree to which all legal representatives of the original member are parties records that the 2nd respondent will be entitled to continue membership and to hold all five shares of the petitioner society. In view of the consent decree, the petitioner could not have insisted upon formal no objection of the parties to the suit in which the consent decree was passed. It is not in dispute that necessary forms and documents along with a cheque were received by the petitioner. In absence of proof of service of letter dated 2nd July 2006, the authorities below were right in invoking sub- section 2 of section 22 of the said Act as the decision on the application of membership was not communicated to the 1st respondent within the period provided by the statute. Reliance placed on Rule 19A of the said Rules is totally misplaced as the said rule applies where section 23(1A) is invoked. agk WP9135/09 (8) The petitioner society is admittedly aware of the consent decree. There is no legal ground to deny membership to deny membership to the 1st respondent. Hence, there is no merit in the petition and the same is accordingly rejected with no orders as to costs. (A.S.OKA, J)