1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.5461 of 1991 Sou. Sushila Vasant Miraje .. .. Petitioner v/s. Sou. Shubha Balkrishna Devashri & 2 ors. .. Respondents Mr.A.Y. Sakhare, Sr.Advocate i/by Mr.B.R. Patil & Mr.D.R. More for Petitioner. Mr.P.D. Dalvi for Res.No.2. Mr.Y.R. Naik for Res.No.1. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 19th January, 2010 Date of pronouncing the judgment : 22nd January, 2010 JUDGMENT : 1.The Petitioner has challenged the orders of the Co- operative Court No.2, Kolhapur in the dispute filed by her and the order of the Co-operative Appellate Court in Appeal therefrom. The Petitioner became a member of Respondent No.2-Society in 1979. Prior thereto, for the same plot of the Society of Respondent No.2, Respondent No.1 was the member. She was allotted the plot in 1965. The Society cancelled her allotment/dismembered her/expelled her from the membership of the Society. This was upon the case that 2 Respondent No.1 had not put up construction which was required to be commenced within 1 year and completed within 2 years of the allotment of the plot. The Petitioner contends that that was a conditional allotment and the condition not having been complied, her membership was rightly terminated/allotment of the plot was rightly cancelled/she was rightly dismembered/expelled. 2.This the Petitioner has sought to show from the notice issued by the Society upon Respondent No.1 dated 30.5.1967 stating that her construction has not been put up and that it should be put up by 30th May 1967. Thereafter the Society has sent another notice to her on 3.6.1967 calling upon her to put up construction as per the earlier notice by 30.6.1967. 3.She having not put up the construction as called upon, the Society passed a resolution on 7.2.1971 stating that the construction has not been put up as per the notice and granting her the ultimatum to put up construction by 31.3.1971, failing which the Society resolved that her allotment of the plot would be cancelled and her membership would be terminated. The Society thereafter sent her a notice that her membership is cancelled and offered to pay her deposit back by its Notice dated 29.6.1975. 3 4.Her plot was allotted to one Kulkarni under a Lease Deed executed thereafter. The said Kulkarni also could not construct and agreed to transfer the plot to the Petitioner. 5.Respondent No.1 filed her dispute in Co-operative Court No.2 in Kolhapur in which the main contention of the Petitioner was that the allotment was rightly cancelled because the construction was not put up as per the condition in the lease. The lease was not produced and the condition was not shown. The lawful removal alleged by the Petitioner as well as Respondent No.2-Society was not shown to have been made under any specific provisions of the Maharashtra Co-operative Societies Act, 1960 (the Act) or as per any entitlement in the bye-laws of the Society. 6.The learned Judge observed that the removal is not lawful. The grounds for removal were not established. The Respondents had paid the full price of the plot allotted to her. Her construction was made upto the plinth level. She had not made any acts detrimental to the interest of the Society. The removal was not merited under any of the bye-laws of the Society. No resolution for expulsion was produced by the Society. The procedure of expulsion under Section 35 of the Act 4 was also not followed. Consequently, termination of her membership and cancellation of her plot was held to be invalid and her possession was protected against obstruction by the Petitioner or the Society. The order has been confirmed in Appeal. 7.The Petitioner has not shown the condition upon which the allotment of the plot came to be cancelled. Mr.Sakhare on behalf of the Petitioner argued that the notice of the Society shows the reason for the cancellation of the allotment of the plot. It has to be shown whether that cancellation was justified upon a condition precedent being in breach. The original lease is itself not produced. A copy of the lease of the aforesaid Kulkarni, who is the predecessor-in-title of the Petitioner, does not show any such condition precedent. Mr.Sakhare further argued that the Petitioner was not expelled but only allotment of the plot was cancelled because construction was not put up. The Petitioner has been unable to show what procedure of law was followed for cancellation of the allotment also. 8.All that Mr.Sakhare showed is that one of the objects of the Society shown in the bye-laws of the Society was construction which was required to be put up on the plot. Consequently, the Petitioner has been unable to 5 show how the membership of Respondent No.1 could be validly terminated and how the allotment of her plot could be cancelled. 9.The impugned orders do not suffer from any irregularity. The Writ Petition is without merit. It is, therefore, dismissed. Rule is discharged. 10.There shall be no order as to costs. (SMT.ROSHAN DALVI, J.)