1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.6992 of 2003 Sulochana Kirtikumar Shah ... Petitioner v/s. Chetali Narendra Shah & ors. ... Respondents Mr.I.V. Rao for Petitioner. Ms.P.S. Cardozo, AGP for Res.Nos.3 to 6. Mr.S.K. Shinde i/by Mr.Sagar Kasar for Res.No.1. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 9th March, 2010 P.C. : 1. The Petitioner claims that Respondent No.1 could not have been made a member of Respondent No.2-Society in view of the fact that the documents got executed by Respondent No.1 have been fraudulently executed. These allegations are in respect of a Gift Deed stated to have been executed by the Petitioner in favour of Respondent No.1 and an agreement for sale stated to have been executed by the Petitioner s sister in favour of the wife of Respondent No.1. Along with these documents certain application for 2 transfer forms was also got executed. The application was made by Respondent No.1 in the name of the Petitioner for transfer of membership to Respondent No.2-Society. 2. The petitioner came to know of this. Certain advertisements have been published in newspapers by the Petitioner, her sister and her mother, alleging fraud against Respondent No.1. The Petitioner wrote to the Society to withdraw her application for transfer. The Society returned the papers of the Petitioner. The transfer was not effected. 3. Respondent No.1 applied to the Deputy Registrar, Co- operative Societies, Mumbai. He passed an order for transfer under Section 23(1) of the Maharashtra Co- operative Societies Act, 1960 (MCS Act), on the ground that the Society could not refuse the admission of the member without sufficient cause and that the document of transfer, which in that case was a Gift Deed, was shown to the Society. 4. In a Revision therefrom, that order has been set aside by the Divisional Joint Registrar, Co- operative Societies, Mumbai Division, Mumbai upon the premise that since the application of the Petitioner was withdrawn and returned by the 3 Society, there was no question of admitting Respondent No.1 in the Society as a member. 5. Respondent No.1 has filed a further Revision therefrom. The Government of Maharashtra, Co- operation and Textile Department, represented by the Secretary, Co-operation, passed a further order setting aside the order of the Divisional Joint Registrar. That order is stated to be without jurisdiction and, therefore, a nullity. 6. The Petitioner has relied upon a judgment in the case of Virendra Bhanji Rathod & ors vs. Anand Vihar Co-operative Housing Society Ltd., Mumbai & ors., 2004 (1) Maharashtra Law Journal, 656 in which it has been held that after a revisional power is exercised by the revisional Authority, second Revision is not permissible. The Petitioner claims that consequently the order of the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai, dated 31.3.1989 stands under the Revision against the Deputy Registrar, is allowed and it is held that there was no question of making Respondent No.1 a member of the Society. That appears to be an attractive proposition of law. 7. The membership of the Society itself does not confer 4 title upon the member in respect of the immovable property which the member holds - in this case a flat in the Society. The membership of the Society is in respect of the shares of the Society. The Petitioner has challenged the execution of the Gift Deed in the Civil Court. The Civil Court alone shall decide the title of the Petitioner / Respondent No. 1. The question of membership thereafter would fall from the determination of title. 8. The Petitioner contends that all the requirements of Rule 19 of the Maharashtra Co-operative Societies Rules, 1961, Bye-laws 19 and 40 of the Model Bye- laws have not been complied inasmuch as the transfer fee was not paid by the Petitioner. The correspondence with the Society shows that a sum of Rs.100/- by way of transfer fee was not paid. It is also on this ground that the Petitioner contends that the conditions have not been complied and hence the membership could not be conferred upon Respondent No.1. 9. Respondent No.1 has produced a letter dated 11.10.2003, under which Respondent No.2-Society sought directions from the Deputy Registrar for issue of share certificates in view of the Writ Petition filed by Respondent No.1 herein. The 5 Deputy Registrar, Co-operative Societies, by his letter dated 31.10.2003, directed the Society to take action for the issue of share certificates as the requisite fee for transfer as well as for the payment of share certificates was paid. Respondent No.1 has shown Rs.2,800/- being paid on 22.11.2003 to Respondent No.2-Society. Respondent No.1 contends that the transfer is effectuated. 10. The Petitioner has filed a further Affidavit after this disputed question of fact was brought out in the Writ Petition showing that the Constituted Attorney of Respondent No.1 had intimidated some of the Society members, threatening them that if the order of the Secretary, Co-operation, was not implemented, he would cause an Administrator to be appointed. 11. The issue of the letter and the confirmation of membership has not been challenged by the Petitioner in any civil proceeding. Respondent No.2-Society has already conferred membership. The Petitioner has filed a Civil Suit. The title of Respondent No. 1 has been challenged despite the membership being conferred upon Respondent No.1. 12. Once Respondent No.1 shows that he has become a 6 member pursuant to a transfer effected in his name, which has not been challenged or adjudicated upon in a Civil Court, he would be entitled to become a member under Section 22 of the MCS Act. Consequently, the Society would not be entitled to refuse the admission to membership of any person otherwise qualified under Section 23(1) of the MCS Act. Further the Appeal to the Registrar under Section 23(2) of the MCS Act would be filed by the person aggrieved refusing to admit him to membership of the Society. That order would be final only subject to Revision. 13. The Petitioner contends that in this case upon the Society returning the papers to the Petitioner upon withdrawal of the application of membership by the Petitioner, Respondent No.1 filed an application under Section 23(2) of the MCS Act, which was allowed and which order in Revision came to be reversed. The Petitioner further contends that that order stands and, therefore, the membership of the Society cannot be conferred upon Respondent No.1. 14. After the order of the Secretary, Co-operation was passed on 23.1.2003 in the further Revision, the Society in its Managing Committee meeting dated 29.8.2003, considered the application for membership 7 of Respondent No.1. The Society considered the documents along with the Demand Draft sent by Respondent No.1 for payment of the various dues, including the transfer fee and the share fee. The Society decided to transfer the membership of the Society to Respondent No.1. 15. Thereafter, by its letter dated 11.10.2003, the Society requested certain directions from the Deputy Registrar, Co-operative Societies, for issue of the share certificates. By his letter dated 13.10.2003, the Deputy Registrar, Co-operative Societies, stated that the Society had taken the transfer fee as well as the share amount and hence the Society must take action for the issue of the share certificates immediately. 16. Consequently, the membership has been conferred upon Respondent No.1. That, of course, shall not affect the title of the Petitioner in respect of the premises in question. 17. The Petitioner claims that thereafter the Society has filed what is stated to be a corrigendum Affidavit dated 18.5.2004, showing that under the circumstances mentioned in that Affidavit only the process was initiated for making Respondent No.1 a 8 member of the Society. The Petitioner claims that Respondent No.1 is, therefore, not a member of the Society. Respondent No.1 claims that she has been made a member of the Society. Respondent No.1 has shown a payment of Rs.8,400/- made to the Society on 29.9.2004. The Petitioner has shown 3 bills issued by the Society upon the Petitioner on 31.7.2004, 1.4.2005 and 1.4.2006 in respect of the maintenance charges from the year 2002 until March 2006. 18. There are a number of disputed questions of fact involved in the Writ Petition. These cannot be decided except upon evidence. The civil dispute between the parties is pending adjudication. The title of the premises in dispute would be decided in the Civil Suit. The dispute with regard to the membership would follow as a matter of course. The order in the second Revision of the Secretary, Co- operation dated 23.1.2003 could not have been passed as a second Revision was not maintainable. That order has been impugned in this Writ Petition. That order directs Respondent No.2-Society to grant membership to Respondent No.1. Pending the civil dispute and the adjudication of title in respect of the very transfer of property, pursuant to which the transfer of membership is claimed, the transfer of membership cannot be effectuated. The order of the 9 Secretary, Co-operation, dated 23.1.2003 shall not be acted upon. The Society shall consider the membership of Respondent No.1 after and upon the final adjudication of the dispute between the Petitioner and Respondent No.1 in the Civil Court. 19. In the circumstances aforesaid, the Writ Petition is allowed only to that extent and Rule is made absolute only to that extent accordingly. 20. No order as to costs. (SMT.ROSHAN DALVI, J.)