1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.7796 of 2008 New Janata Co-operative Housing Society Ltd. .. Petitioner v/s. Mr.Rajesh Shankarlal Rajput & ors. .. Respondents Mr.A.S. Desai for Petitioner. Mr.D.L. Khacnandani for Res.No.1. Mr.S.D. Rairikar, AGP for Res.Nos.2 to 4. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 15th January, 2010 P.C. : 1.Heard the learned Advocates for the parties. 2.Rule. Rule is made returnable forthwith. 3.The Petitioner-Society has challenged the order of the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai, confirming the order of the Deputy Registrar, Co-operative Societies, granting membership to Respondent No.1 under Section 22(2) of the Maharashtra Co-operative Societies Act, 1960 (the Act). Respondent No.1 has been transferred flat No.1 in the Petitioner-Society by one Devendra Talwar on 2 8.11.2002. Along with the flat, Respondent No.1 has been transferred otla (porch) in front of the flat and stilt parking opposite the flat. 4.Respondent No.1 applied for transfer of the shares of the Society in respect of the said flat by becoming a member of the Society. Respondent No.1 made an Application in Form No.20, as prescribed. The Petitioner-Society refused to transfer on the grounds that there are arrears of the Society which have not been paid and that the otla and stilt parking cannot be transferred by the transferor as the transferor had no title to those properties and the Society had title in those properties. 5.Respondent No.1 has shown that earlier no arrears were shown against the transferor but Respondent No.1 s Advocate has conceded that if there are any arrears, Respondent No.1 shall pay all the arrears. The only arrears claimed by the Petitioner-Society is a sum of Rs.11,850/-. It was stated to have been paid by the transferor by a certain cheque No.273181, dated 15.3.1984. Only the particulars of the cheque are shown in the letter, showing the admission of liability. That payment has not been substantiated by the transferor, showing his Bank Account being debited and the Society s Account being credited. Nevertheless since 3 Respondent No.1 has agreed to make that payment, the lis does not survive. 6.With regard to the stilt parking, Respondent No.1 claims that it was the property of and legitimately belonged to the transferor, which has been transferred to Respondent No.1. The title in the transferor is sought to be shown under the letter of the then Chairman of the Society one Mr.V.M. Puri addressed to the Society on 12.8.2003, setting out a Notice dated 28th July 2003 and the agenda of the AGM. Item No.3 in the agenda shows that the General Body decided that for a price of Rs.7,000/-, a particular place will be allotted to a member and the member would get the right to sell the same. The record of the Society containing the Minutes Book of the AGM is not produced for substantiation of this item on the agenda. The Society disputes that there was any resolution passed by the Society. It is stated that Mr.Puri was the father-in- law of the transferor of Respondent No.1 and that there have been proceedings between the Society and the father-in-law, who has thereafter ceased to be the Chairman. It is also stated that there are 10 members in the Society with 6 stilt parking spaces and in the absence of any resolution of the Society, no member can claim any stilt parking. It may also be mentioned that consideration amount paid by the transferor of 4 Respondent No.1, is not shown or substantiated. 7.Nothing is shown with regard to the otla which is claimed as having been purchased. The Society claims that it is its own compulsory open space. Since the title in the immovable property claimed to be the otla is not shown in the transferor, there is none that he could have transferred to Respondent No.1. 8.These are disputed facts. These facts do not form a basis of the transfer of membership. The transfer of membership is to be seen from the Application for transfer made under Form No.20. That is made following the prescribed procedure. 9.It may be mentioned that in the case of Videocon Appliances Ltd. vs. Maker Chamber V Premises Co-op. Society Ltd. & ors., 2006 (1) Bom.C.R. 6, this Court held that membership has to be transferred as per Section 22 of the Act upon the procedure established under the Maharashtra Co-operative Societies Act and Rules. In that case, constructions made by the members and alternations in the flat did not allow the Society to resist the transfer of membership. Similar analogy would apply in this case. The impugned order considers the transfer of membership. The impugned order also considers that the parties would have recourse to adopt 5 due process of law in respect of the otla and stilt parking spaces. The impugned order is, therefore, not without jurisdiction and there has been no material irregularity. The observations in the impugned order with regard to the otla and the stilt parking are also correct. Hence the impugned order dated 28.4.2008 cannot be challenged. The membership of the transferor shall be transferred to the Respondent No.1, subject, of course, to Respondent No.1 making payment of Rs. 11,850/- with reasonable interest thereon at the rate of 6% per annum from 15.3.1984 when the amount was stated to be paid, but is not shown to be paid. 10.Consequently, the Writ Petition is allowed. Rule is made absolute accordingly. (SMT.ROSHAN DALVI, J.)