ash 1 wp-4583.97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 4583 OF 1997 Shri Advya Laxman Nomulwar, ) R/at 675, Sadashiv Peth, ) Kumthekar Road, Pune – 30. ).. Petitioner Vs 1. Shri Baswant Siddhappa Mahamuni, ) since deceased through Lrs: ) 1A. Shri Narendra Baswant ) Mahamuni, ) 1-B. Shri Mahendra Baswant ) Mahamuni, ) R/at 373, Shaniwar Peth, ) Pune – 30. ) 2. Kasturbawadi Cooperative Housing ) Society Ltd., Vishrantwadi, ) Pune – 15. ) 3. The Deputy Registrar, ) Co-operative Societies, Pune City (II), ) Pune. ) 4. The Joint Registrar, ) Co-operative Societies (Appeals), ) Pune Division, Pune, Gultekdi, ) Market Yard, Pune – 37. ).. Respondents -- Shri Anurag Jain for the Petitioner. Shri V.B. Tapkir for Respondent Nos.1-A and 1-B. Shri S.D. Rayrikar, AGP for Respondent Nos.3 and 4. -- ash 2 wp-4583.97 CORAM ; A.S. OKA, J DATED : 22ND AUGUST, 2011 ORAL JUDGMENT : . Submissions were heard in the last week. On account of paucity of time, judgment could not be dictated. 2. I have heard the submissions of the learned counsel appearing for the Petitioner, learned counsel appearing for the Respondent Nos.1-A and 1-B as well as the learned AGP appearing for the 3rd and 4th Respondents. 3. It will be necessary to make a reference to the facts of the case in brief. 4. The Petitioner is claiming on the basis of the agreement for sale dated 21st November, 1987 executed by the deceased first Respondent in respect of the Plot No.B-4 admeasuring 5000 sq. feet more particularly described in the said Agreement. The said plot is held by the second Respondent Co-operative Society. On the basis of the said agreement, the Petitioner made an application to the second Respondent Society for grant/transfer of membership. As there was a refusal to grant membership, an Appeal under Section 23(2) of the Maharashtra Co-operative Societies Act, 1960 ( hereinafter referred to ash 3 wp-4583.97 as “the said Act”) was preferred by the Petitioner before the Deputy Registrar of the Co-operative Society. By communication dated 22nd January, 1988 issued by the Second Respondent Society, it was stated that the Managing Committee of the second Respondent society has permitted the first Respondent to transfer the said Plot No.B-4 to the Petitioner subject to compliance with the certain terms and conditions. The first Respondent was directed to return the allotment letter and other documents in respect of the said plot to the second Respondent. The first Respondent was directed to pay royalty of Rs.5,000/-. The Petitioner was directed to deposit a sum of Rs.5,000/- by way of construction deposit and certain other amounts totalling to Rs.5,108/-. By communication dated 10th May, 1991, the second Respondent informed the Petitioner and the first Respondent that the permission granted by the second Respondent has been revoked on account of non- compliance by the Petitioner and the first Respondent. 5. In the Appeal preferred by the Petitioner, the second Respondent filed a reply contending that the Petitioner was required to approach the Co-operative Court under Section 91 of the said Act. It was contended that the Petitioner and the first Respondent have not complied with the terms and conditions of the agreement. In the reply filed by the first Respondent, it was contended that the first Respondent has executed the agreement for development dated 11th September, ash 4 wp-4583.97 1986 in favour of the Petitioner and has executed a power of attorney. It was contended that the agreement was for development and not for sale. It was contended that the application made by the Petitioner for grant of membership to the second Respondent was bogus and in fact by a notice dated 23rd January, 1996 the agreement dated 11th September, 1986 has been cancelled. The Deputy Registrar of the Co- operative Societies passed an order allowing the Appeal and directing the second Respondent society to transfer the membership in the name of the Petitioner. A Revision Application was preferred by the first Respondent for challenging the impugned order dated 30th July, 1997. The Revision Application was allowed and the order of the Deputy Registrar was set aside. 6. The present Writ Petition has been preferred by the Petitioners for challenging the order of the Revisional Authority. This Court directed the Petitioner to deposit a sum of Rs.11,000/- and issued a notice before admission. Accordingly, the Petitioner has deposited the sum of Rs.11,000/-. On 2nd December, 1997, the rule was issued and ad-interim relief granted in terms of prayer clause (c) was continued as the interim relief. During the pendency of the Petition, the first Respondent died and his legal representatives were brought on record. 7. The learned counsel appearing for the Petitioner has taken ash 5 wp-4583.97 the Court through the impugned order as well as the order passed by the Deputy Registrar of the Co-operative Societies. He submitted that the first Respondent had submitted his resignation from the membership which has become operative. He submitted that the agreement between the Petitioner and the first Respondent was an agreement for sale and, therefore, the Petitioner was entitled to transfer the membership. The learned counsel appearing for the Petitioner invited the attention of the Court to the correspondence made between the parties. He submitted that on plain reading of the agreement executed by the first Respondent, the Petitioner was entitled for transfer of membership. He pointed out that recitals in the agreement executed by the first Respondent on 21st November, 1987 show that the transaction was of sale of the said plot. He submitted that the said agreement has been completely overlooked. He pointed out the letter dated 27th November, 1987 submitted by the first Respondent. 8. The learned counsel appearing for the legal representatives of the first Respondent supported the impugned order passed by the Revisional Authority. He submitted that the document relied upon by the Petitioner was disputed by the first Respondent and hence the Writ Petitioner ought to have been filed an appropriate legal proceedings for enforcing the alleged agreement. The learned AGP supported the impugned order. None appears for the 2nd Respondent-society. ash 6 wp-4583.97 9. I have carefully considered the submissions. A reference has been made to a civil suit being Special Civil Suit No.1503 of 1997. A true copy of the Plaint is tendered on record. The suit was filed by one Vijayendra Shankarrao Bhosale and Laxman Shankarrao Bhosale against the Petitioner and first Respondent herein for enforcing the specific performance of agreement dated 31st March, 1993. The said suit has no bearing on the controversy involved in this Petition. It is true that the agreement dated 11th September, 1986 executed by the first Respondent in favour of the Petitioner appears to be an agreement for development. However, there is a subsequent agreement of 11th November, 1987 which is clearly an agreement for sale of the said plot and contemplated a transfer of the said plot to the Petitioner. The said agreement also records that a sum of Rs.15,000/- has been received by the first Respondent under the Agreement dated 11th September, 1986 and that a sum of Rs.30,000/- was received by a cheque dated 21st November, 1987 by the first Respondent and therefore, total consideration of Rs.45,000/- has been paid by the Petitioner. As far as the stand taken by the first Respondent is concerned, his case is that earlier development agreement was terminated. It will be necessary to make a reference to a power of attorney executed on 27th October, 1991 by the first Respondent in favour of the Petitioner which authorizes the Petitioner to apply to the ash 7 wp-4583.97 Society for transfer of the said plot. The Application dated 27th November, 1987 made by the first Respondent to the second Respondent society clearly reflects the intention of the first Respondent to transfer the plot in the name of the Petitioner. On the very day, an application was made by the Petitioner for grant of membership. By a communication dated 27th January, 1988, the second Respondent called upon both, the Petitioner and the first Respondent, to comply with certain requirements where a demand was made for payment of Rs. 10,108/-. On 3rd August, 1989 the Petitioner and the first Respondent jointly applied to the second Respondent society requesting the society not to insist upon payment of amount on the ground that their case was not governed by the Resolution dated 13th December, 1987. It appears that the first Respondent did not deposit the amount of Rs.5,000/- with the society which was to be deposited by the first Respondent as per the communication dated 22nd January, 1988 sent by the second Respondent. 10. The first Respondent has not challenged the subsequent agreement for sale of the year 1987 and the power of attorney in any Court of law. It must be noted here that the Deputy Registrar recorded a finding that there was already a resolution passed by the Managing Committee for transfer of membership to the Petitioner. The Revisional Authority has observed that the second Respondent had informed the ash 8 wp-4583.97 Petitioner and the first Respondent that they had not complied with the requirements prescribed in the letter of approval dated 22nd January, 1988. The Revisional Authority has relied upon the letter dated 22nd January, 1988 by which the second Respondent society conveyed the approval for transfer of membership subject to compliance of certain terms and conditions. 11. The said letter was issued on the basis of the joint application made by both the Petitioner and the first Respondent. The said communication issued by the second Respondent was never challenged by the first Respondent. There is no proceeding filed by the first Respondent or his legal representatives in a civil Court seeking any declaration as regards the agreement dated 21st November, 1987. Thus, in view of the documents available on record, the Revisional Authority has committed a gross error by setting aside the order of the Deputy Registrar. It appears that the second Respondent society granted approval for transfer of membership to the Petitioner on the basis of the joint application made by the Petitioner and the second Respondent. Both of them applied to the second Respondent society for waiving the condition of deposit of amount incorporated in the letter dated 22nd January, 1988. Hence, now the first Respondent cannot oppose to grant of membership to the Petitioner. As stated earlier, the Petitioner has deposited a sum of Rs.11,000/- in this Court. Hence, I ash 9 wp-4583.97 pass the following order:- ORDER : (i) The Rule is made absolute in terms of prayer clause (a). The order of the Deputy Registrar of the Co- operative Societies ( Exhibit-K to the Petition ) is restored. (ii) It will be open for the second Respondent Society to withdraw a sum of Rs.11,000/- deposited by the Petitioner in this Court with interest accrued thereof. (iii) There will be no orders as to costs. ( A.S. OKA, J )