-: 1 :- wp- 4286/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4286 OF 2010 Gobind Mahal Co-op. Hsg. Society. ..Petitioner. Versus Ms. Pearl Goswami & Others. ..Respondents. Mr. Zaal Andhyarjuna i/b M/s. Thakordas Madgavkar for the petitioner. Ms. S. R. Bhasin for respondent no.1. Mrs. Neha Bhinde, Special Counsel for respondent nos. 2 & 3. Coram : R. V. MORE, J. Date : August 2, 2010. P. C. : 1. Heard learned counsel for the respective parties. 2. The proceedings arises out from the membership dispute under the MCS Act. Petitioner is a co-operative housing society. One Regena Fernandes was the member of the petitioner society and was occupying Flat No.28 on ground floor. On 13th December 1974, said Regena submitted nomination form to the society, therein nominating her daughter Bindiya Goswami as nominee in respect of above flat. Subsequently, on 7th November 1994 Regena submitted new nomination to the petitioner-society therein nominated respondent no.1-her daughter as nominee in respect of above flat. The petitioner society in srp -: 2 :- wp- 4286/10 pursuance of Managing Committee resolution passed on 7th March 1995 recorded the name of respondent no.1 in nomination register on 8th March 1995. In pursuant of this nomination, respondent no.1 applied for membership. The membership was not given and therefore respondent no.1 preferred an appeal to the Assistant Registrar u/s 23(2) of the MCS Act. Said appeal was allowed by Assistant Registrar and therefore the petitioner society preferred a revision before the Divisional Joint Registrar challenging the order passed by Assistant Registrar. By the order impugned in this petition, revision was also dismissed. 3. Mr. Zal Andhyarjuna, learned counsel appearing on behalf of the petitioner–society submitted that Regina has submitted two different nominations; first in favour of Bindiya in the year 1974 and second in favour of respondent no.1 in the year 1994. Then, he submitted that the nomination simplicitor would not result in transmission of ownership of the shares. He lastly submitted that appeal itself, filed under section 23(2) of the MCS Act, is not maintainable before the Assistant Registrar. 4. Learned counsel for the respondent, on the contrary, supported the impugned order and submitted that there is no merit in the writ petition and therefore it deserves to be dismissed. 5. Having heard respective counsel, I do not find any merit in the petition. Regarding the first objection, I find that the petitioner-society -: 3 :- wp- 4286/10 by passing Resolution in the Managing Committee meeting held on 7th March 1995, has accepted the later nomination made by late Regina in favour of respondent no.1 in the year 1994. The resolution was acted upon and name of respondent no.1 was recorded in the nomination register. In the absence of any dispute between the heirs interse, the society cannot object the nomination in favour of respondent no.1. Second ground of objection is also without any substance in view of bye- law no.36, under which it is obligatory on the part of society to transfer the share certificate of deceased member to the nominee. So far as third ground is concerned, I am of the view that the petitioner society on the basis of entry made in the nomination register, ought to have granted membership to respondent no.1. However, society sought unnecessary documents from respondent no.1. Correspondence made by the petitioner society with respondent no.1 goes to show that the society does not intend to grant membership to respondent no.1. If this is so, appeal under section 23(2) is very much maintainable. In my opinion, both the authorities below have approached the matter from correct point of view. 6. By amendment to the writ petition, the petitioner has challenged the order passed by the Deputy Registrar under section 79 of the said Act. Said order was passed since the petitioner did not comply with the -: 4 :- wp- 4286/10 order of the revisional authority. Since the petitioner’s challenge to the order passed by the revisional authority has already failed, the Deputy Registrar, in my opinion, is justified in issuing orders under section 79 of the said Act. In that view of the matter, the amended prayer is also required to be rejected. 7. Taking overall view of the matter, I do not find that any error in the impugned order so as to enable me to interfere with the same in writ jurisdiction of this Court under Article 227 of the Constitution of India. In the result, writ petition is dismissed. (R.V. MORE, J.)