9911796707
TMI Blog2013 (2) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the said Act ). The petitioner executed lease-deed in favour of one Dr. Randip O. Shah. By registered deed of assignment said Dr. Randip Shah assigned lease to one Harshad Patel on 14th June 1979. It appears that on account of nonpayment of municipal charges, the Bombay Municipal Corporation put the said plot along with building thereon for auction. The respondent No. 2 was tenant of one of the apartments in the building, namely, Jivanjyot constructed on the said plot. He, therefore, negotiated the matter with said Harshad Patel. It further appears that there was litigation before the Bombay City Civil Court by virtue of Suit No. 5393/2004 i.e. suit filed by one M/s. Shubham Construction Co. against Municipal Corporation; Harshad Patel and respondent No. 2. In the said suit, consent decree was passed wherein said Harshad Patel agreed to sell plot No. 25 to respondent No. 2 for an amount of ₹ 25 lakh. Accordingly, a deed of assignment was registered by said Harshad Patel on 10th December 2004 in favour of respondent No. 2. The original member i.e. Harshad Patel and respondent No. 2 applied to the petitioner society for transfer of share Nos. 116 to 120 and cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer unless a prior permission of the society is obtained but a deed of assignment executed by the society with the vendor of respondent No. 2 specifically provided that unless the member obtains prior permission of the society he shall not further assign his rights to any other person. Learned counsel, therefore, submits that the transfer executed by Shri Harshad Patel in favour of respondent No. 2 was itself illegal being in violation of the bylaws. Learned counsel further submits that rule 24 of the said Rules specifically provides that no transfer of shares shall be effective unless it is made in accordance with the provisions of the by-laws. It is submitted that since the transfer sought to be made was in contravention of regulation-6A the same was not valid. 5. Mr. Dani further submits that even the application as filed by respondent No. 2 was hopeless belated. He submits that rejection of application of respondent No. 2 by the society was in April 2004 and, as such, the application made by respondent No. 2 for deemed membership in December 2005 could not have been entertained. He submits that though this point was raised, same was not considered by the authorities belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pleadings of the petitioner before various authorities it would reveal that the main ground of rejection of application of respondent No. 2 by the petitioner society was nonpayment of ₹ 2 crore as demanded by the society. 8. Shri Govilkar submits that in so far as question of delay is concerned, for the first time respondent No. 2 came to know about rejection of his claim on 11th November 2005 and, thereafter, he immediately made an application to the Deputy Registrar on 14th December 2005. He submits that, however, by way of abundant precaution an appeal was also preferred. It is, therefore, submitted that there is no question of delay or laches as argued by learned counsel for the petitioner. Learned counsel relied upon various judgments of this Court in support of his submission that direction issued under section 79A have statutory force and, therefore, binding upon the society. 9. Shri Dani, in rejoinder, submits that since the permission to amend regulation-6A was granted after 9th August 2001 i.e. the date on which government notification was issued giving direction under section 79A of the Act, it will have to be presumed that the District Deputy Registrar had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties. (2) Any person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar. Every such appeal, as far as possible, be disposed of by the Registrar within a period of three months from the date of its receipt: Provided that, where such appeal is not so disposed of within the said period of three months, the Registrar shall record the reasons for the delay. (3) The decision of the Registrar in appeal, shall be final and the Registrar shall communicate his decision to the parties within fifteen days from the date thereof. (4) Without prejudice to the foregoing provisions of this section, in the case of agro-processing societies or any other society for which a definite zone or an area of operation is allotted by the State Government or the Registrar, it shall be obligatory on the part of such society to admit, on an application made to it, every eligible person from that zone or the area of operation, as the case may be, as a member of such society, unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. Any order made by the Registrar under this section shall be final. 11. It can, thus, be seen that under sub-section (2) of section 22 where a person is refused admission as a member of the society, the decision with reasons thereof should be communicated to that person within fifteen days of the date of the decision or within three months from the date of receipt of the application for admission whichever is earlier. It further provides that if the society does not communicate any decision to the applicant within three months from the date of receipt of such application, the applicant shall be deemed to have been admitted as a member of the society. The said sub-section further provides that if any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of hearing to all the concerned parties. Section 23 of the said Act and, particularly, subsection (1) thereof provides that no society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of the Act and its by-laws. Sub-section (2) thereof provides for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly endorsed the views expressed in letter dated 14th April 2005 and further authorised him to take whatever necessary action so that society's interest is not harmed by the action taken by Harshad Patel and respondent No. 2. The petitioner relies on communication dated 11th November 2005 which refers to the telephonic conversation between Mohan Patel and respondent No. 2. It is stated in the said letter that the application for transfer of shares has already been rejected and communicated to respondent No. 2 on 14th April 2005 and to Harshad Patel on 25th April 2005. 13. It is to be noted that in the letter dated 14th April 2005, said Mohan Patel has informed respondent No. 2 that the matter is kept before the Managing Committee. However, there is nothing on record to show that respondent No. 2 has been communicated after 14th April 2005 regarding decision of the Managing Committee. Not only that but the petitioner has not placed anything on record as to whether, in fact, there was any decision in the meeting of the Managing Committee held on 24th April 2005 about rejecting the application of respondent No. 2. It can, thus, clearly be seen that though respondent No. 2 had ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using the power under the bye-laws to hike the non-occupancy charges at their whims and fancies and, in fact, the societies used this as the source for revenue collections and profits. To bring in an orderly situation, the Government stepped in and exercised its statutory powers under Section 79A by issuing directions to levy non-occupancy charges at 10% of the service charges. However, in clause 3 of the impugned order there appears to be no justification in granting exemption from non-occupancy charges if the flat is occupied by the son-in-law, brother-in-law (sister's husband), sister-in-law (wife's sister) and sister-in-law's (wife's sister) husband. None of these could be called as the members of the family as legally defined. At the same time, the brother's widow could be termed as a member of the family, but the sister's husband or for that matter a deceased sister's husband cannot be treated as a member of the family. We are, therefore, of the view that the exemption granted in clause 3 of the impugned order cannot be made applicable to such relations of the member concerned. 18. In the result, we hold that the challenge to the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged for effecting transfer of the tenements/flats. In so far as municipal corporations are concerned, the premium has been determined as ₹ 25,000/-. It is to be noted that clause (2) of the said notification specifically provides that the said charges are towards transfer of member's tenement/flat and his share and rights in the share capital/ property in the said society. The perusal of the said notification dated 9th August 2001 would reveal that the said notification is applicable to all co-operative housing societies. I am unable to accept the contention of Shri Dani, learned counsel for the petitioner that the said notification is not applicable to the Tenants Owners Co-operative Housing Society. The observations made by the Division Bench in the case of Mont Blanc Co-operative Housing Society (supra) would equally be applicable to the facts of the present case. In order to grab exorbitant money from the new members, who are trying to become member of the society, they are being subjected to exploitation at the hands of the society. 17. In so far as the contention of Shri Dani that since the Deputy Registrar has approved the by-laws of the society subsequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt, the party would be bound by the covenant of a deed of assignment. In the said case, the issue for consideration was that under the terms of the lease-deed which was approved by the municipal corporation whether the lessee could have made any construction without obtaining NOC from the society. The assignee had submitted the plans to the society and obtained NOC. However, subsequently, the said plans were unilaterally changed by him and he also got it sanctioned from the municipal corporation. On the basis of the complaint made by the society, a stop work notice was issued by the corporation. However, subsequently, that was withdrawn. The writ petition was filed before this Court by the appellant society which was dismissed by learned single Judge of this Court. Appeal carried against therefrom was also dismissed. The Apex Court setting aside the orders passed by learned single Judge and the Division Bench observed that the matter was not between the lessee and the municipal corporation alone, but a third party interest of the lessor i.e. present petitioner was also involved. In that view of the matter, the Apex Court found that the action of the Corporation withdrawing stop wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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