WP 1832/10 1 SSK/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1832 OF 2010 Kokan Women Youth & Student Development Central Society, Chiplun. ....Petitioner Versus Rahul Garden Flat Owners Co-operative Housing Society Limited & Ors. ...Respondents Mr. R. V. Govilkar, Advocate for the Petitioner. Mr. G. J. Sabnis, Advocate for Respondent No.1. Mr. Asma Khan, Advocate for Respondent No.2. Mr. R. M. Patne, AGP for Respondent Nos.3 & 4. CORAM : R. V. MORE, J. DATED : 5th AUGUST, 2010. P.C.: Heard learned Counsel for the respective parties. 2. Rule. By consent, Rule is made returnable forthwith and taken up for hearing as short point is involved. 3. The Respondent No.1 is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960. The said Society consists of 20 buildings. The Petitioner is registered under the M.C.S.Act, and the Bombay Public Trusts Act, 1950. The Petitioner is WP 1832/10 2 SSK/6 engaged in several social and educational activities like gymnasium, schools, family consultation and advice centre. One Shri Khemka- Respondent No.2 owned Building No.10. The Respondent No.2 donated this building to the Petitioner-Trust by registered Gift Deed. The Petitioner- Trust proposed to use this building for residential accommodation/hostel for the students and staff of D.Ed College for mentally retarded students. The Petitioner accordingly made an application to Respondent No.1 on 4th September 2008 requesting to enroll them as members. The Respondent No.1-Society did not take any action for a statutory period of three months under section 22 of the M.C.S.Act and ultimately rejected the said application by communication dated 3rd April, 2009. The Petitioner’s proposal to enroll them as member was rejected mainly on the ground that running of the hostel in society’s building would amount to commercial activity. The Petitioner thereafter, preferred an appeal under section 23(2) of the M.C.S. Act before the Assistant Registrar, Co-operative Societies, Chiplun, The said Registrar by his order dated 6th May, 2009 after hearing both the sides allowed the Petitioner’s application and directed Respondent No.1 to enroll Petitioner as member. The Respondent No.1-Society, however, challenged the above order by filing revision no. 2 of 2009 before the Divisional Joint Registrar and the Divisional Joint Registrar by the order impugned in this petition allowed Respondent No.1’s revision thereby quashing and setting-aside the order of the Assistant Registrar. WP 1832/10 3 SSK/6 4. Having considered the rival submissions of the respective parties and having gone through the impugned order alongwith compilation of writ petition, I find merit in the petition. There is no dispute that Respondent No.2 purchased all the tenements in Building No.10 and thereafter donated this Building to the Petitioner-Society by a registered gift deed. The Respondent No.1 – Society initially raised objections that the gift deed could not have been executed without Respondent No.1 – Society’s consent. However, learned Counsel for Respondent No.1 could not point out any provisions under which the consent of the Respondent No. 1-Society is required to be obtained by Respondent No.2 for execution of the gift deed in favour of the Petitioner. The validity of the gift deed is not at all challenged by the Respondent No.1-Society. The only objection which the Respondent No.1 raised for refusing membership to the Petitioner was that the Petitioner wanted to undertake commercial activity in the residential complex and same will cause nuisance to their existing members. The learned Divisional Joint Registrar while allowing the appeal filed by the Respondent No.1 held that the Petitioner intends to run School in Building No.10 and therefore, same is covered by the commercial activities and as such the Respondent No.1-Society cannot be compelled to enroll the Petitioner as member. The objection of the Respondent No.1 as well as the reasoning of the Divisional Joint Registrar in my view are not correct. The Petitioner has annexed copy of the application made for the purpose of WP 1832/10 4 SSK/6 enrollment at Exhibit “A”. The application specifically show that the Building No.10 will be used as residential complex/hostel for students and for accommodation of staff of the School. The user of Building No.10 for residential purpose of the students cannot be termed as commercial activity. Mr. Govilkar, learned Counsel for the Petitioner in this regard also made solemn statement on instructions of the Petitioner that the said Building will be used only for accommodating the students and staff of the School and same will not be used for running a School. The Divisional Joint Registrar’s finding that the Petitioner wants to conduct School in Building No.10 is also factually incorrect. The proposed user of Building No.10 of the Petitioner-Society being residence, the Respondent No.1-Society cannot refuse enrollment of the Petitioner as member. After enrollment, the Petitioner is duty bound to act in accordance with the Bye-Laws of Respondent No.1-Society and Respondent No.1-Society is always at liberty to take action in case of breach of the same by the Petitioner-Society. 5. In the light of the above observations, in my opinion, the impugned order cannot be sustained and same is accordingly quashed and set-aside. The order of the Assistant Registrar dated 6th May, 2009 is restored. In view of the hardship caused to the Petitioner, the Respondent No.1-Society shall comply with the order of the Assistant Registrar at the earliest. WP 1832/10 5 SSK/6 Rule is made absolute accordingly. (R. V. MORE, J.)