SSK/903 1 WP.2377.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2377 OF 2011 Linkway Estate Premises Co.op. Soc. Ltd. ....Petitioner Versus Sameer Vashi & Anr. ...Respondents Mr. P. M. Shah, Advocate for the petitioner. Mr. Mukesh Vashi a/w. Mr. Virendra Pereira a/w Ms. Devika Nigade i/b. M/s. Divya Shah & Associates for respondent no.1. Mr. R. M. Patne, AGP for respondent no.2. CORAM : RANJIT MORE, J. DATED : 31st MARCH, 2011. P.C.: Heard Mr. Shah, Advocate for the petitioner and Mr. Vashi, learned counsel for respondent no.1. 2. The petition arises out of membership proceedings under Section 22(2) of the Maharashtra Co-operative Societies Act, 1960 (in short “the Act”). The respondent no.1 claims to have purchased four units along with open terrace from the developer by a registered agreement dated 18th December, 2004. The petitioner-society was registered subsequently in the year 2007-2008. The 1st respondent applied for membership to the petitioner-society. Since the petitioner-society did not communicate any decision to respondent no.1, the respondent no.1 approached the Assistant Registrar under Section 22(2) of the said Act and the Assistant Registrar SSK/903 2 WP.2377.11 after hearing both the sides granted deemed membership of the petitioner- society to respondent no.1. The petitioner’s revision before the Joint Registrar is rejected, and therefore, the present petition. 3. Mr Shah, learned counsel for the petitioner submitted that construction of the four units which claim to have been purchased by the respondent no.1 from the Developer are not in accordance with the Development Control Rules. He also submitted that under the guise of purchasing these four units, the respondent no.1 claims right to entire open terrace. The petitioner has already filed a suit in this regard under the Maharashtra Ownership of Flats Act, 1963. He lastly submitted that the petitioner-society has approached the Corporation for necessary action. 4. Mr. Vashi, learned counsel for respondent no.1 on the contrary invited my attention to the averment made by the petitioner in para 6 of the petition in which it is stated that after registration of the petitioner-society, the 1st respondent changed the plan without the knowledge and consent of the petitioner-society and obtained approval of the revised plan from the Mumbai Municipal Corporation for the construction of the four units on terrace. Relying upon this averment, Mr. Vashi, submitted that it cannot lie in the mouth of the petitioner that the construction is not in accordance with Development Control Rules. 5. The present petition arises out the membership dispute. The deemed membership of the petitioner-society is granted to respondent no.1 by the Assistant Registrar and this action is confirmed by the revisional authority viz. Divisional Joint Registrar. The agreement in favour of respondent no.1 is registered one and the petitioner does not dispute the validity of the same. It is also not disputed that the petitioner did not take any action for a period of three months from the date of respondent no.1’s SSK/903 3 WP.2377.11 application for membership. In the above facts and circumstances, I do not find any error in the order passed by both the lower authorities. 6. Needless to mention that the petitioner-society is at liberty to prosecute the proceedings filed under Maharashtra Ownership of Flats Act, 1963 independently before the Original Side of the High Court as well as proceedings before the Municipal Corporation. The impugned order shall always be subject to the final outcome of these proceedings. With these observations, the petition is dismissed. 7. Mr. Shah, learned counsel for the petitioner makes a statement that respondent no.1 will be enrolled as petitioner-society’s member in respect of the four units within a period of six weeks from today. The statement is accepted. (RANJIT MORE, J.)