1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8458 OF 2007 Ramesh G. Chandiramani ..Petitioner V/s. Seva Samiti Co-op.Housing Society ..Respondents Ltd. and ors Mr.S.G.Deshmukh, advocate, for petitioner Mr.K.J.Hakani i/b.Mr.Ramesh Pathai, advocate, for respondent No.1 CORAM : S.C.DHARMADHIKARI, J. DATE : 12TH MARCH, 2008 P.C. . One Sundri was an occupant of the building in the first respondent-society. Since the building required demolition and re-construction she vacated tenament and handed over possession of that structure to the society. She claimed to be an occupant of the said structure as a tenant. It appears that she got possession of the new tenament/flat. Therefore, she applied for nominal membership and the said nominal membership was granted on 27th July, 1980. She was called upon to take possession of the society's newly constructed 2 premises. That premises which were earmarked for her occupation have been taken possession of and she has made necessary payment including deposit. 2. It appears that one Gangaram Hiranand was a member of the society and held Share Certificate. He was allottee/occupant of building No.9 in Block No.42. There was a scheme of re-developemnt which was adopted by General Body and said Gangaram was held to be entitled to two flats in exchange of the existing structure. It appears that Gangaram gave that necessary undertaking and the above allotment was finalized but said Gangaram had inducted the above mentioned Sundri in the premises. Sundri carried on correspondence. It has been categorically stated in the order passed by the Assistant Registrar that said Gangaram expired and even said Sundri expired on 13/07/1996. The petitioner is a son of Sundri and has been residing with the said Sundri from the date of the allotment. That is his case and therefore, he applied for membership of the society. That application was made on 12th April, 2005 and the 3 case before the Assistant Registrar was that the society did not take any decision within a period prescribed by law. The application before membership was made on 26th April, 2004 and since nothing was communicated, the case of the petitioner is that he is deemed to have become a member of the society. However, the society disputed all this and that is why the petitioner had to apply to the Assistant Registrar on 12th April, 2005. 3. The Assistant Registrar issued a notice to the 1st respondent and after hearing both sides by a detailed order referred to the above facts and held that said Gangaram has expired on 11th August, 1979. Allotment of new tenament was made to the said Gangaram in the year 1980 and from the year 1980, the petitioner is residing with said Sundri. There is nothing on record to show that any person, other than this petitioner and Sundri, had any right or interest in the said flat. In such circumstances, the Assistant Registrar directed that the petitioner be enrolled as a member of the first 4 respondent-society by his order dated 29th August, 2005. 4. That order was challenged before the Divisional Joint Registrar and by the impugned order dated 30th August, 2007, he allowed Revision Application of the society and set aside order of the Assistant Registrar. 5. As a result of the above order, the petitioner is not treated as a member of the society. After this matter was argued for some time Mr.K.J.Hakani appearing for the first respondent makes a statement on instructions that the society would not have any objection to enrol the petitioner as a nominal member provided the petitioner complies with necessary requirements in that behalf. However, as far as regular membership is concerned, the stand of the society is that the petitioner may not be entitled to the same on account of the status of the society as a tenant partnership society. 5 6. In my considered view, the Divisional Joint Registrar was in obvious error in reversing the order. The Divisional Joint Registrar did not even consider the issue of nominal membership of the petitioner. Now, that the petitioner is to be enrolled as a nominal member, the order of the Divisional Joint Registrar will have to be set aside. It is accordingly quashed and set aside by consent of partners. However, as far as regular membership of the petitioner is concerned, it would be open for the petitioner to apply for such membership and such application shall be considered in accordance with law. 7. Since the petitioner is to be enrolled as nominal member, the society will make necessary changes in the society's record and accept sums which are payable towards the dues of the society/monthly out going from the petitioner. This order is passed after Mr.S.G.Deshmukh makes a statement that the petitioner continues to be in possession of the subject flat so also entitled to the same otherwise in law. 6 8. Petition is disposed of in the above terms with liberty as above. (S.C.DHARMADHIKARI, J.)