1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.2513 OF 2009 Nasirkhan Akbar Khan & Anr. ...Petitioners Vs. Jai Co-operative Hsng. Soc. Ltd. & Ors. ...Respondents Mr.P.K.Dhakephalkar with Mr. Amol P. Mhatre Advocates for the Petitioners Mr. G.S.Godbole i/b. Mr. S.S.Kanetkar Advocates for Respondent No.1 Mr. R.M.Patne, A.G.P for Respondents 4 & 5 CORAM: SMT. ROSHAN DALVI, J. DATED: 4TH JANUARY 2010 P.C. 1.Rule. By consent made returnable forthwith. The Respondents waive service. 2.The Petitioners applied for membership of Respondent No.1 Society upon sale of the bungalow No.4 by Respondents 2 and 3 who are stated to be members of the plot on which the bungalow was constructed. The Respondent No.1 Society has disputed such membership. Consequently, the Respondent No.1 Society has refused the application for transfer of membership made by the Petitioners to it. 2 3.The Petitioners filed the statutory Appeal before the Deputy Registrar, Co-operative Society, Pune. The Appellate Authority by its order dated 22nd May 2007 rejected the Appeal. The Petitioners filed Revision Application being Revision Application No.356/2007 before the Divisional Joint Registrar, Co-operative Societies, Appellate side, Pune. The Revisional Authority has also rejected the Revision Application by its order dated 29th January 2009. Both the orders are challenged. 4.The Petitioner claims that Respondents 2 and 3 were issued share certificate No.196 on 7th December 1968. The Respondents 2 and 3 claim to have made payments to the Society of an installment of Rs.35,000/-,share money of Rs.250/-, entrance fee of Rs.1/- and other expenses of Rs.10/-totalling to Rs.35,261/- on 27th October 1972 under a receipt issued by the Society. An allotment letter dated 29th October 1972 is stated to be issued. The first Respondent Society has claimed that these are fabricated documents. Mr. Godbole on behalf of Respondent No.1 drew my attention to the fact that if the aforesaid amount has been paid on 25th October 1972 share certificate could not have been issued 4 years prior thereto on 7th December 1968. The Respondent No.1 Society claims that the Respondents 2 3 and 3 were not its members and hence, the membership cannot be transferred to the Petitioner. One of the conditions in the allotment letter dated 29th October 1972 is that the property of the member would not be transferred without prior permission of the Society. No prior permission for sale of the bungalow No.4 was obtained by the Respondents 2 and 3 from the Respondent No.1 also. 5.The Petitioners claim proprietary rights in the bungalow. The Petitioners claim rights of membership in the plot. It is for the Petitioners to show that the Respondents 2 and 3 were members who had constructed the bungalow and that it is authorisedly constructed. The Petitioners have not produced any documents or plans to show the authorisation. Since the membership of respondents 2 and 3 itself is denied, the membership cannot be transferred merely upon the application of the Petitioners. 6.It will have to be seen how the Appellate Authority and the Revisional Authority have considered the Petitioners case. The Appellate Authority was called upon to inquire from the Planning Authority i.e., the Pune Municipal Corporation how the structure being bungalow No.4 came to be constructed upon the contention of the first Respondent Society when it was 4 a wholly unauthorised construction. The Appellate Authority, therefore, corresponded with the Pune Municial Corporation. The relevant officer, Building and Constructions of Pune Municipal Corporation informed that the bungalow No.4 was on the open space for recreation in the first Respondent Society. It, therefore, stands to reason that such a space could not have been allotted to any member. Hence the first Respondent Society has rightly not accepted that the Respondents 2 and 3 were its members and their membership could be transferred to the Petitioners. 7.The Revisional Authority has considered in detail the aspects relating to the right, title and interest, if any of the Petitioners. The title of Respondents 2 and 3 in the bungalow was not shown. The fact that they were members was not substantiated absolutely by any evidence other than the copy of the share certificate and one receipt issued by the Respondent No.1 Society which is disclaimed by Respondent No.1 as forged and fabricated documents. The Revisional Authority has observed that no membership receipt, attendance of General Body Meetings for the last many years also work to evidence the membership of Respondents 2 and 3 in Respondent No.1 Society. The occupation of Respondents 2 and 3 for the long span of 40 years was not shown. 5 8.The Revisional Authority has considered the documents produced by the Respondent No.1 Society. It produced the certified copy of the approved building plan under the commencement certificate dated 16th June 1967 bearing No.1985 and the layout plan. The layout Plan does not show bungalow No.4. The approved plan shows one building with various flats constructed on the plot without any other structure. The Revisional Authority has correctly observed that the certified copy of the approved building plan is conclusive proof of the fact that the bungalow No.4 is not shown therein and is completely unauthorised structure. 9.Since the building plans do not show the bungalow and no sanctioned plans are produced by the Petitioners, the existence of the bungalow itself is not shown. Since the membership of the Respondents 2 and 3 itself is not shown, the transfer of any such membership cannot be effectuated. 10.Mr. Dhakepalkar on behalf of the Petitioners relied upon the judgment in the case of Videocon Appliances Ltd. Vs. Maker Chambers V Premises Co-op. Society Ltd. 2006(1)Bom.C.R.6 in which the member of the Society who has put up certain additions in his premises without the consent of the Society and which was not 6 regularised by the Municipal Corporation was also allowed to transfer his membership to an outsider on the premise that every unauthorised construction which is contrary to the provisions of Section 7 of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Management and Transfer) Act, 1963 was not the reason for disallowing a member from transferring his membership rights in the Society premises. Hence the transferee was allowed to be a member. The reliance upon the judgment is completely misconceived. In that case, the membership rights of the member were admitted. He was the member of a flat in a building of Housing Society. He made certain alterations and additions in his flat. It was disputable whether the alterations can be regularised. Since his membership was not challenged the transfer of membership alone was held to be an issue wholly different from the considerations of the illegality or irregularity of the construction put up by such member. In this case the membership of Respondents 2 and 3 is not at all shown. The building plan shows one building with several flats. It does not show any bungalow. The remainder of the property of the Society is open space. Respondents 2 and 3 are not shown to be members except upon documents disputed as forged and fabricated. It is, therefore, a case of transfer of the membership rights that never was. 7 11.The Appellate Authority as well as the Revisional Authority have rightly considered this fact. The orders do not suffer from any infirmity or irregularity. 12.Writ Petition is rejected. The Rule is discharged. (SMT.ROSHAN DALVI, J.)