1 608.11-wp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.608 OF 2011 WITH NOTICE OF MOTION NO.214 OF 2011 IN WRIT PETITION NO.608 OF 2011 Rajas Coop. Housing Society Ltd. ....Petitioner Versus Dy. Registrar of Coop. Society & Ors. ....Respondents Mr.P.J.Coutinho for the petitioner. Mr.C.P.Deogirikar for respondent Nos.5 and 6. Mr.S.L.Satelkar, AGP for respondent State. CORAM: S.J.KATHAWALLA , J. DATED : 11th JULY, 2011. P.C.: 1. By the above Writ Petition, the petitioner has impugned the order dated 16th February, 2006 passed by the Dy. Registrar of Cooperative Societies, K-East Ward, Wadala, Mumbai (respondent No.1) and the order dated 14th July, 2008 passed by the Collector, Mumbai Subruban District, Bandra, Mumbai (respondent No.3) and has prayed that the said orders be set aside/quashed by this Court. 2. The petitioner is a Cooperative Housing Society, registered under the provisions of the Maharashtra Cooperative Housing Societies Act,1960 (the said Act). Flat No.24 in the building of the petitioner Society was held by Shri S.D.Kanekar who was the original member of the Society. The respondent Nos.5 and 6 had purchased the said flat by an agreement dated 27th December, 2001. Thereafter, an application for membership 2 608.11-wp was submitted to the petitioner Society which was received by the petitioner society on 5th April, 2002. The Society failed to take any decision within a period of three months and therefore, an application under Section 2(22) of the said Act was filed by the Respondent No.5 before the Divisional Joint Registrar of Cooperative Societies (respondent No.2) for deemed membership. After hearing the parties at length, respondent No.2, by his detailed order dated 16th February, 2006 under Section 23(2) of the said Act approved/sanctioned the deemed membership of the society in favour of respondent No.5 from 6th July, 2002. The translation of the operative portion of the said order which is in Marathi is reproduced hereunder: Using the power granted to me under Section 22(2) of Maharashtra Cooperative Societies Act,1960, I Prasad Oak, Dy. Registrar, Cooperative Society, K-East Ward, Mumbai am approving/sanctioning Deemed Membership of Rajas Cooperative Housing Society Ltd., N.S.Phadke Marg, Andheri (E), Mumbai – 400 069 in favour of Smt. Ruchita Dhiman (Sankhe) from 6.7.2002 and also order to take entries regarding the same in the registration of the society and on the Share Certificate within 3 months. No order in respect of costs. 3. Being aggrieved by the said order dated 16th February, 2006, the society filed a revision application before the respondent No.2 under Section 154 of the said Act. The respondent No.2, after hearing the parties, by his detailed order dated 30th December, 2006 confirmed the order dated 16th February, 2006 passed by the respondent No.1. 3 608.11-wp 4. Being aggrieved by the order dated 30th December, 2006 passed by respondent No.2, the society filed a Writ Petition before this Court being Writ Petition No.1011 of 2007 impugning the order dated 16th February, 2006 passed by respondent No.1 and also the order dated 30th December, 2006 passed by respondent No.2. The Writ Petition was dismissed by the learned Single Judge of this Court by his order dated 9th July, 2007. In the said order, it is categorically stated by the learned Single Judge that he has found no infirmity in the impugned orders. 5. Being aggrieved by the order dated 9th July, 2007 passed by the learned Single Judge dismissing the Writ Petition No.1011 of 2007, the society filed an Appeal before the Hon’ble Division Bench of this court being Appeal No.767 of 2007. From the order dated 26th March, 2008 passed by the Division Bench of this Court, it appears that the society after referring to bye-law 17(c) of the Society submitted before the Hon’ble Division Bench that the society is required to take permission from the Collector for granting membership to any member and that the membership granted is subject to permission from the Collector. It further appears from the said order that in response, the Counsel appearing for respondent No.5 herein submitted before the Hon’ble Division Bench that the defendant No.5 has no objection to comply with bye-law 17(c) of the society but the matter has to be sent for approval to the Collector by the society and once the society takes the necessary steps respondent No.5 shall discharge her obligation under the law. In view thereof, the Division Bench of this Court directed the society to send the case of respondent 4 608.11-wp No.5 to the Collector for approval within a period of four weeks from the date of its order dated 26th March, 2008 and the Collector was directed to take further action in the matter as expeditiously as possible in accordance with law. The Division Bench in the said order dated 26th March, 2008 further recorded that in view of the statements made, nothing survives in the appeal and the same is disposed of. Therefore, from the said order dated 26th March, 2008 passed by the Division Bench of this Court, it is clear that no arguments were advanced by the Society against the impugned orders dated 16th February, 2006, 30th December, 2006 and 9th July, 2007 and that the Division Bench has not interfered with any of the said three impugned orders. 6 Pursuant to the order of the Hon’ble Division Bench dated 26th March, 2008, the society made an application to the Collector and in that application after clearly stating that the original member Mr.Sachidanand Damodar Kanekar has transferred the flat in favour of respondent No.5 by registered sale deed dated 27th December, 2001, sought approval of the Collector as required under bye-law 17(c) of the society. 7. By his order dated 14th July, 2008 in response to the application made by the society, the respondent No.3 granted necessary permission as required under bye-law 17(c) of the society and allowed the transfer. Interestingly, the society which had sought permission from respondent No.3 to transfer the flat in favour of respondent No.5, upon transfer being granted by 5 608.11-wp respondent No.3, impugned the order of respondent No.3 before the Additional Commissioner, Konkan Division (respondent No.4). The respondent No.4, by his detailed order dated 3rd December, 2009 dismissed the appeal filed by the society. The society impugned the order dated 3rd December, 2009 passed by respondent No.4 before the learned single Judge of this Court in Writ Petition No.2727 of 2010 which was dismissed by the learned Single Judge of this Court by his order dated 22nd June, 2010 inter alia recording as follows : “I fail to see how the petitioner society can challenge the order granting the petitioner’s own application for permission. The Writ Petition is rejected summarily.” 8. Being aggrieved by the order dated 22nd June, 2010 passed by the learned single Judge of this Court, the society filed a LPA before the Division Bench of this court being L.P.A.No.21603 of 2010. The Division Bench dismissed the said appeal by its order dated 9th December, 2010 inter alia holding as follows : “In our opinion, the learned Single Judge has rightly held that by making an application dated 17.4.2008 under the bye-law 17(c), the society conceded to the position that respondent No.1 is already admitted as a member of the society, and therefore, to comply with the bye-law 17(c), an application is made by the society itself for approval. We do not see any substance in the appeal. The appeal is rejected.” 9. The society, even thereafter failed to enter the name of respondent Nos.5 and 6 in the membership register. The respondent Nos.5 and 6 therefore sought execution of the order 6 608.11-wp dated 16th February, 2006 by appointing an authorised officer to enter the names of respondent Nos.5 and 6 in the membership register of the society. The petitioner society filed a Writ Petition No.7401/2010 before this Court. The said writ petition filed by the society was disposed of as withdrawn with liberty to the society to file revision application. 10. The society has by the above Writ Petition once again challenged the orders dated 16th February, 2006 passed by the respondent No.1 and the order dated 14th July, 2008 passed by respondent No.3, which orders as stated hereinabove were already challenged earlier by the petitioner and the challenge to the said orders was rejected at every stage including by the Division Bench of this Court. In fact, the society, after the order dated 26th March, 2008 in Appeal No.767 of 2007 passed by the Division Bench of this Court accepted the order dated 16th February, 2006 and pursuant thereto made an application to respondent No.3 seeking his approval to transfer the flat in favour of respondent No.5. The question, therefore, of once again impugning the order dated 16th February, 2006 in the present Writ Petition on any ground whatsoever does not arise. As far as the order dated 14th July, 2008 is concerned, the same was also challenged by the society though the said order was passed by the respondent No.3 pursuant to the application made by the society itself seeking approval of transfer of the flat in favour of respondent No.5. The approval sought by the society was granted by respondent No.3 to the society. The said order dated 14th July, 2008 was confirmed by respondent No.4 and also by the learned Single Judge of this 7 608.11-wp Court and the Division Bench of this Court vide order dated 22nd June, 2010 and 9th December, 2010 respectively. The question therefore of once again impugning the said order dated 14th July, 2008 in the present Writ Petition does not and cannot arise. 11. From the aforesaid facts, it is obvious that the society is determined to cause harassment to respondent Nos.5 and 6 by not transferring the flat in their names despite the society having lost at all stages the challenge raised by them to the transfer of the flat in the names of respondent Nos.5 and 6. In view of the aforesaid facts, I am of the view that the present Writ Petition is nothing but an abuse of the process of Court by the petitioner society and the Writ Petition is therefore, dismissed with costs. 12. In view of dismissal of the Writ Petition, the above Notice of Motion also stands dismissed. (S.J.KATHAWALLA, J.)