Writ Petition No. 4567 of 2007

1st February, 2013

Petitioner Counsel: P.S. Dani,Shardul Singh,Viral Amin,Miss Meghna Vyas,B.Amin & Co.
Respondent Counsel: S.D. Rayrikar,R.V. Govilkar,Rahul Hakani,K.H. Hakani

Cases Cited:
Ghanshyam Chandumal Harwani Vs. State of Maharashtra, 2007(5) ALL MR 386 [Para 7]
Blanc Co-operative Housing Society Limited Vs. State of Maharashtra, 2007(3) ALL MR 32=2007 (2) Bom.C.R. 533 [Para 15,16,17,21]
Vinod Subhashrao Shinde Vs. State of Maharashtra, 2007(5) ALL MR 540=2008 (1) Bom.C.R. 485 [Para 15]
Matru Ashish Co-op. Hsg.Soc.Ltd. Vs. State of Maharashtra, 2012(4) ALL MR 639=2011 (6) Bom.C.R. 307 [Para 15,21]
Twin Star Venus Co-op. Housing Society Ltd. Vs. G.N.Sainani, 2006(2) ALL MR 262=2006 (Supp.) Bom.C.R. 423 [Para 15]
Sunanda Janardan Rangnekar Vs. Rahul apartment No.11 Co-op. Housing Society Ltd., 2006(2) ALL MR 244=2006 (Supp.) Bom.C.R. 254 [Para 15]
State of Maharashtra Vs. Karvenagar Sahakari Griha Rachana Sanstha Maryadit, 2000 (Supp.) Bom.C.R. 864 [Para 22]

JUDGMENT

JUDGMENT :- The petitioner society takes exception to the concurrent orders i.e. order dated 10th May 2007 passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai, thereby dismissing the revision application filed by the petitioner and upholding the order passed by Deputy Registrar, Co-operative Societies dated 7th August 2006 thereby allowing the application filed by respondent No.2 for declaring him as deemed member in respect of plot No.25 in the petitioner society.

2. The facts, in brief, giving rise to the present petition are as under:

The petitioner society is originally registered under the Bombay Co-operative Societies Act, 1925 and, now, deemed to be registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter 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 Rs.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 certificate No.24 with right in plot No.25 in favour of respondent No.2 on 30th March 2005. The said applications, undisputedly, were made in the requisite form annexed to the Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as the "said Rules" for short). Along with application form, a demand draft of Rs.25,000/- was also submitted. On 14th April 2005, a communication was addressed by the petitioner-society to respondent No.2 basically stating therein that the transfer fee offered was inadequate in view of regulation 6A of the Society. It was informed that on the face of it the application was not acceptable, however, the same would be kept before the Managing Committee. It is the case of the petitioner that the communication was addressed to Harshad Patel on 25th April 2005 stating therein that the Managing Committee had fully endorsed the views expressed in the letter dated 14th April 2005 and further authorised him to take necessary action so that society's interest is not harmed.

3. It appears that further communication was addressed to respondent No.2 by the Secretary of the petitioner-society on 11th November 2005 pointing out to him that he was already informed vide communication dated 14th April 2005 that his application has been rejected. On the basis of this communication, it appears that an application is filed by respondent No.2 on 14th December 2005 to the Deputy Registrar, Co-operative Societies for grant of deemed membership. However, another proceeding purported to be an appeal came to be filed by respondent No.2 before the Deputy Registrar. The Deputy Registrar vide order dated 7th August 2006 held that respondent No.2 had become a deemed member of the petition-society. Being aggrieved thereby a revision was preferred by the petitioner before Divisional Joint Registrar which also came to be dismissed. Being aggrieved thereby present writ petition is filed by the petitioner.

4. Heard Shri Dani, learned counsel for the petitioner and Shri Govilkar, learned counsel for respondent No.2.

5. Shri Dani, learned counsel appearing for the petitioner submits that the petitioner is a Tenants Owners Housing Society where the land is owned by the society and is leased out to the members for construction of house thereon. Learned counsel submits that not only the bylaws of the society put restriction on the transfer 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.

6. 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 below. Learned counsel further submits that in this respect the finding of authorities below that respondent No.2 was not intimated by the petitioner was totally contrary to the factual position inasmuch as respondent No.2 was specifically informed by the petitioner. He submits that in any case since the application of the transferor was not allowed there is no question of considering the application of the transferee and as such, there was no necessity to communicate the transferee. Learned counsel, therefore, submits that the impugned order is liable to be quashed and set aside and the application filed by respondent No.2 is liable to be dismissed.

7. Mr.Dani further submits that question of deemed sanction would arise only if the original application made by the applicant is in accordance with law. It is submitted that since the application of respondent No.2 was not permissible in view of regulation-6A, the concept of deemed sanction is not applicable. Reliance is placed on the judgment of Division Bench of this Court in the Ghanshyam Chandumal Harwani v. State of Maharashtra, 2007(5) All MR 386. Learned counsel further submits that the Apex Court in the case of the petitioner itself i.e. in Civil Appeal No.542/2005 has held that the covenant of the deed executed between the members and the society is binding on the members and, as such, covenant cannot be brushed aside.

8. Shri Govilkar, learned counsel appearing for respondent No.2, on the contrary, submits that reliance of the petitioner is only on the regulations framed by the Managing Committee of the Society. It is submitted that the bylaws are required to framed with the approval of General Body. However, nothing is placed on record that regulation-6A is approved by the General Body. Learned counsel further submits that in any case, bylaws or regulations, if are in conflict with the directions issued by the State Government under section 79A of the said Act, will not have any legal effect in so far as it is inconsistent with the directions issued under section 79A. Learned counsel specifically submits that since the State Government vide notification dated 9th August 2001 has put the maximum limit of Rs.25,000/- as a premium for transfer of membership, the demand of the petitioner for an amount of Rs.2 crore was not at all sustainable. It is submitted that from the perusal of the 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 nonpaymnt of Rs.2 crore as demanded by the society.

9. 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.

10. 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 knowledge about said government notification and in spite of that granted his approval to the said regulation. He, therefore, submits that it will have to be presumed that the Deputy Registrar was aware that the said government orders would not be applicable to the present Tenant Owner Housing Society. Learned counsel submits that the Deputy Registrar is a high functionary and, therefore, it will have to be presumed that when a high functionary performs his duty in official capacity, the orders passed by him should be valid.

11. For appreciating rival contentions, it will have be relevant to refer to sections 22(2); 23 and 79-A of the said Act.

22. Person whom may become member

(1) ... ... ... ... ...

(2) Where a person is refused admission as a member of a society, the decision (with the reasons therefor) shall 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. 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. 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 being heard to all the concerned parties.

23. Open membership

(1) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of this Act and its by-laws.

(1A) Where a society refuse to accept the application from an eligible person for admission as a member, or the payment made by him in respect of membership, such person may tender an application in such form as may be prescribed together with payment in respect of membership, if any, to the Registrar, who shall forward the application and the amount, if any so paid, to the society concerned within thirty days from the date of receipt of such application and the amount; and thereupon if the society fails to communicate any decision to the applicant within sixty days from the date of receipt of such application and the amount by the society, the applicant shall be deemed to have become a member of such society. 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 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 such person is already registered as a member of any other such society, in the same zone or the area of operation.]

79A. Government's power to give directions in the public interest, etc.

(1) If the State Government on receipt of a report from the Registrar or otherwise, is satisfied that in the public interest or for the purposes of securing proper implementation of co-operative production and other development programmes approved or undertaken by Government, or to secure the proper management of the business of the society generally, or for preventing the affairs of the society being conducted in a manner detrimental to the interests of the members or of the depositors or the creditors thereof, it is necessary to issue directions to any class of societies generally or to any society or societies in particular, the State Government may issue directions to them from time to time, and all societies or the societies concerned, as the case may be shall be bound to comply with such directions.

(2) The State Government may modify or cancel any directions issued under sub-section (1) and in modifying or cancelling such directions may impose such conditions as it may deem fit.

(3) Where the Registrar is satisfied that any person was responsible for complying with any directions or modified directions issued to a society under sub-sections (1) and (2) and he has failed without any good reason or justification, to comply with the directions, the Registrar may by order-

(a) if the person is a member of the committee of the society, remove the member from the committee and appoint any other person as member of the committee for the remainder of the term of his office and declare him to be disqualified to be such member for a period of six years from the date of the order;

(b) if the person is an employee of the society, direct the committee to remove such person from employment of the society forthwith, and if any member or members of the committee, without any good reason or justification, fail to comply with this order, remove the members, appoint other persons as members and declare them disqualified as provided in clause (a) above:

Provided that, before making any order under this sub-section, the Registrar shall give a reasonable opportunity of being heard to the person or persons concerned and consult the federal society is affiliated.

Any order made by the Registrar under this section shall be final.

12. 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, sub-section (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 appeal to the Registrar against the decision of the society refusing him admission to its membership. Sub-section (3) of section 23 gives finality to the decisions of the Registrar in such appeal. Section 79A of the said Act speaks about Government's power to give directions in the public interest. Sub-section (1) thereof provides that the State Government in the public interest or for the purposes of securing proper implementation of co-operative production and other development programmes approved or undertaken by the Government or to secure the proper management of the business of the society generally or for preventing the affairs of the society being conducted in the manner detrimental to the interests of the members or of the depositors or creditors thereof, may issue directions to any class of societies generally or to any society or societies in particular as the case may be and the societies concerned shall be bound to comply with such directions.

13. In this background, we will have to consider the factual position of the present case. Undisputedly, respondent No.2 and the original member Shri Harshad Patel had applied in requisite form to the petitioner society on 30th March 2005. The said application was accompanied by demand draft of Rs.25,000/- and other documents. For the first time on 14th April 2005 respondent No.2 has been informed by the petitioner society that the action taken by the parties is inconsistent with the by-laws of the society. It has been stated that the society was kept totally in dark and even the transfer fee offered is inadequate according to regulation-6A of the society. In the said communication which is addressed by one Shri Mohan Patel, who appears to be the Secretary of the society, it is further stated that on the face of it the application is not acceptable and the actions are subject to disciplinary proceedings. He has, however, stated that he would place the said letter before the next meeting of the Managing Committee which will deliberate upon the same and the final decision would be conveyed to respondent No.2. Thereafter, on 25th April 2005, the said Shri Mohan Patel, Secretary of the Society addressed a communication to Harshad Patel stating therein that the meeting of the Managing Committee was held on 24th April 2005 and the issues were discussed. It is further stated that the society has fully 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.

14. 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 applied to the society on 30th March 2005, there is no communication to him regarding rejection of his application except one which placed on record i.e. letter dated 11th November 2005. The respondent No.2 has, immediately, applied to the Registrar on 14th December 2005 after a period of one month. However, by way of abundant precaution, respondent No.2 has also filed appeal, as provided under subsection (2) of section 23 of the said Act on 20th March 2006. It is to be noted that neither sub-section (2) of section 22 nor section 23 of the said Act provides for limitation to file appeal. However, even though specific period is not prescribed it is expected that the party should approach in a reasonable time. From the material placed on record, it reveals that respondent No.2 has approached the Registrar after a period of one month. In that view of the matter, it cannot be said that respondent No.2 has approached at belated stage so as to throw away his application or appeal.

15. The Division Bench of this Court in the case of Mont Blanc Co-operative Housing Society Limited v. State of Maharashtra, 2007 (2) Bom.C.R. 533 : [2007(3) ALL MR 32] was considering validity of similar government notification dated 1st August 2001 issued under section 79A of the said Act thereby imposing ceiling of 10% of non-occupation charges. The Division Bench observed thus:.

17. Having given our anxious considerations to the grounds on which the impugned order came to be challenged, we are satisfied that the same is issued to secure the proper management or the business of the co-operative housing societies in general and for preventing the affairs of such societies being conducted in a manner detrimental to the interests of the members of such societies. The order does not suffer from the vice of arbitrariness and it cannot be termed as an unfair or unjust act by the State Government so as to deprive the societies from their legal, just and proper levies. It is a bonafide exercise by the State to avoid litigations/disputes and to bring in a uniform levy of non-occupancy charges without linking the same to the income derived by the concerned member who cannot occupy the premises/flat. It is also an action of the State Government preventing the exploitation of minority members who were called upon to pay exorbitantly high non-occupancy charges. The co-operative housing societies concerned were 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 order dated 1/8/2001 raised in this petition is devoid of merits and the same must fail. The petition is, therefore, dismissed. However, we clarify that Clause 3 of the impugned order regarding exemption from the payment of non-occupancy charges will not be applicable to the near relations like son-in-law, brother-in-law (sister's husband), sister-in-law (wife's sister) and sister-in-law's (wife's sister) husband and the same exemption shall be applicable only to the members of the family, including a married daughter and grand children.

The Division Bench of this Court in another judgment in the case of Vinod Subhashrao Shinde v. State of Maharashtra, 2008 (1) Bom.C.R. 485 : [2007(5) ALL MR 540] also taken a view that the directions issued by the State Government under section 79A have a statutory effect and, therefore, binding on the society. Another Division Bench of this Court in the case of Matru Ashish Co-op. Hsg.Soc.Ltd. v. State of Maharashtra, 2011 (6) Bom.C.R. 307 : [2012(4) ALL MR 639] also taken a similar view. Learned single Judges of this Court in the cases of Twin Star Venus Co-op. Housing Society Ltd. v. G.N.Sainani, 2006 (Supp.) Bom.C.R. 423 : [2006(2) ALL MR 262] and Sunanda Janardan Rangnekar v. Rahul apartment No.11 Co-op. Housing Society Ltd., 2006 (Supp.) Bom.C.R. 254 : [2006(2) ALL MR 244] have also taken a similar view.

16. It can, thus, clearly be seen that the Division Bench of this Court in Mont Blanc Co-operative Housing Society Limited v. State of Maharashtra, [2007(3) ALL MR 32] (supra) in an unequivocal terms held that notification dated 1st August 2001 which imposes ceiling in respect of non-occupancy charges was a bonafide exercise by the State to avoid litigations/disputes and to bring in a uniform levy of non-occupancy charges without linking the same to the income derived by the concerned member who cannot occupy the premises/flat. The Division Bench also held that it is also an action of the State Government preventing the exploitation of minority members who were called upon to pay exorbitantly high non-occupancy charges. The Division Bench in clear terms has held that the co-operative housing societies were using the power under the by-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.

17. In the present case also the Government vide notification dated 9th August 2001 has directed the uniform rates to be charged for effecting transfer of the tenements/flats. In so far as municipal corporations are concerned, the premium has been determined as Rs.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, [2007(3) ALL MR 32] (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.

18. In so far as the contention of Shri Dani that since the Deputy Registrar has approved the by-laws of the society subsequent to the notification dated 9th August 2001, the by-laws will have to be given more weightage than the directions under section 79A is concerned, I am unable to accept the said contention. No doubt, Shri Dani is right in contending that when an official act is done by a senior officer of the State it should be presumed to be valid. However, such presumption cannot be to such an extent that the officer of the State in ignorance of statutory directions issued by the State Government under section 79A does something which is contrary to the directions issued by the State Government. As has been stated hereinabove, in view of the judgment of the Division Bench the directions issued by the State Government under section 79A are binding on all the societies including that of petitioner society.

19. In the present case, though it is sought to be strenuously urged by Mr.Dani that membership was denied on account of not taking prior permission prior to assignment of rights is concerned, the perusal of the pleadings would reveal that the main ground for refusing transfer is that the transfer fee deposited by respondent No.2 was grossly inadequate and not in accordance with the by-laws and regulations of the society. In paragraph-17 of the written statement/reply filed by the petitioner society before the Deputy Registrar, the society has stated thus:

"17. ........ It is further submitted that the market value of the said plot No.25 admeasuring about 1495 sq.yds. will be approximately Rs.20,00,00,000/- and 10% thereof comes to Rs.2,00,00,000/- which the Appellant is bound and liable to pay to the Respondent on the transfer. As the Appellant offered to pay a meagre sum of Rs.25,000/- only the Respondent justifiably rejected the purported Application of Transfer."

20. It is, thus, clear that the main ground for refusing to transfer the membership in favour of respondent No.2 by the petitioner is nonpayment of Rs.2 crore as transfer fee and offering to pay only Rs.25,000/-. I find that in view of the view taken by me hereinabove, the petitioner was bound to comply with the directions issued by the State Government under section 79A of the said Act and could not have charged premium more than Rs.25,000/-.

21. In so far as judgment of the Apex Court in the case of petitioner itself (in Civil Appeal No.5426/2008) is concerned, no doubt, 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 work notice was not sustainable. However, the facts and circumstance of the present case are somewhat different. Respondent No.2 along with original member had applied to the petitioner society for transfer of shares in accordance with law. The petitioner society in order to exploit respondent No.2 to get an amount of Rs.2 crore from him, firstly, sat on the application of respondent No.2 and thereafter rejected the same mainly on the ground that respondent No.2 has offered meager amount of Rs.25,000/- instead of Rs.2 crore, to which, according to the society, the society is entitled. In my considered view, the stand taken by the petitioner society is not only contrary to the law laid down by aforesaid Division Bench judgments in the cases of Mont Blanc Co-operative Housing Society, [2007(3) ALL MR 32] and Matru Ashish Co-op. Hsg. Soc. Ltd., [2012(4) ALL MR 639] (cited supra) but it is also against the public policy.

22. In so far as judgment of the Apex Court in the case of State of Maharashtra v. Karvenagar Sahakari Griha Rachana Sanstha Maryadit, 2000 (Supp.) Bom.C.R. 864 is concerned, in the said case, the by-laws of the society provided that allottee can construct house on one tenement for his own use. There was specific provision restricting the use for any commercial purpose. However, it appears that since one of the members i.e. respondent No.5 in the appeal before the Apex Court was refused permission to construct multi storied building, orders were issued under section 79A to amend the by-laws so as to provide for construction of multi storied building on the plots who in turn will form co-operative societies of their own. The Apex Court found that directions under section 79A could be issued in the interest of society and since the directions issued were not in the interest of society, the Apex Court upheld the decision of this Court which had allowed the petition filed by the society. No doubt, while issuing directions under section 79A the interest of society has to be taken into consideration but at the same time the members of the society cannot be permitted to act in such a manner which would amount to exploitation of the persons who are applying to be the members of the society. In that view of the matter, the said judgment would not be applicable to the facts of the present case.

23. In the above view of the matter, no case is made out for interference with the concurrent orders passed by the authorities below. The petition is, therefore, dismissed.

24. At this stage, Mr.Dani, learned counsel for the petitioner seeks stay of the impugned orders for a period of eight weeks from today. As a matter of fact, while this Court granted rule, leave aside there being an order of stay, the learned single Judge who was exercising present jurisdiction at the relevant time, vide order dated 3rd March 2008, had issued certain directions to the petitioner society directing to admit respondent No.2 as member subject to respondent No.2 complying with all formalities. No doubt, those directions have not been complied with for some or other reasons and, as such, I am not inclined to go into that aspect of the matter. In that view of the matter, I do not see any case is made out for stay of the impugned orders. The prayer is, thus, rejected.

Petition dismissed.