Writ Petition Nos.10847-10849 of 2013,Writ Petition Nos.10851-10852 of 2013,Writ Petition Nos.10854-10856 of 2013,Writ Petition Nos.11241-11242 of 2013

12th March, 2014.

Petitioner Counsel: Mr. PRASAD S DANI
Respondent Counsel: Mr. VINEET B NAIK, Sr.Adv. with Mr. CYRUS ARDESHIR and Mr. AMIT MEHTA i/by MAHIMTURA & CO. Mr. R M PATNE AGP

Cases Cited:
John D’Souza Vs. Joint Registrar, Co-op. Society and ors, WP /9881/2010 [Para 11]
Harish Commercial Premises Co-op. Society Vs. Smt.Varsha Dinesh Joshi, 2006(2) ALL MR 1=2006 CTJ 544 [Para 11,13,14]
Usha Jhaveri Vs. State of Maharashtra and ors., WP/659/2011 [Para 11]
Videocon Appliances ltd. Vs. Maker Chambers V Premises Co-op. Socy. Ltd & ors., 2006(1) ALL MR 97 [Para 13,14]
Kale and others Vs. Deputy Director of Consolidation and others., (1976) 3 SCC 119 [Para 13,17]

JUDGMENT

JUDGMENT :- Rule in all the Petitions, with the consent of the learned counsel for the parties made returnable forthwith and heard.

2. The above group of Petitions take exception to the common order dated 23/09/2013 passed by the Divisional Joint Registrar, co-operative Societies, Mumbai Division, Mumbai by which order the Revision Applications filed by the Petitioner-Society above named came to be dismissed and resultantly the order dated 30/08/2012 passed by the Deputy Registrar, Co-operative Societies H/W Ward, Mumbai came to be confirmed. As a consequence, the membership of the Petitioner-Society of the Respondent No.2 to each of above Petitions came to be confirmed.

3. By treating Writ Petition No.10847 of 2013 as the lead matter, the facts giving rise to the above Petitions can be summarized thus :-

The Petitioner-Society is comprised of the flat/shop purchasers who have purchased the flats/shops in the building known as R.N.A. Classic situated at Plot No.32, North Avenue Road, Street No.5, Santacruz (W), Mumbai - 400 054. The said building was constructed by M/s. Anil Builders & Developers of which Shri Anil Agarwal was the proprietor. The agreements entered into in respect of the flats/shops purchased by the members was with M/s. Anil Builders & Developers. The flat/shop purchasers constituted themselves into a Petitioner-Society. It appears that in respect of the unsold flats/shops, the said Anil Agarwal has issued a declaration that he has transferred the flats/shops in question in favour of his sister Mrs.Manju Gupta by virtue of family settlement. The said declaration of Shri Anil Agarwal is dated 7/1/1999.

4. The Respondent No.2 in Writ Petition No.10847 of 2013 applied for the membership of the Petitioner-Society by making an application in the prescribed form. Similar applications were made by the Respondent No.2 in the companion Petitions. The said Application was made in or around August 2011. In the said Application it was mentioned by the Respondent No.2 that she has been gifted the flat No.201 by Mrs.Manju Narendrapal Gupta. The said Application it seems was accompanied by the cheques for the payments which were required to be made to the Petitioner-Society. The said Application was accompanied by the registered Gift Deed dated 10/08/2011. In the recital in the said Gift Deed a reference to the family settlement and the declaration dated 7/1/1999 by virtue of which the donor had become absolute owner of the property in question has been mentioned. It appears that to the said Gift Deed the declaration dated 7/1/1999 was annexed.

The following tabular statement indicates the premises in respect of which membership is claimed by the Respondent No.2 in each of the above Petitions :-

Sr. No.	Name	Writ Petition No.	Flat No.	Shop No.	Remarks	Stamp No.
1	Tina Aggarwal	10847/20133	201			31602
2	Tina Aggarwal	10848/20133	502			31612
3	Monisha Jain	10849/20133	602			31600
4	Monisha Jain	10851/20133	503			31616
5	Monisha Jain	10852/20133		3		31618
6	Monisha Jain	10854/20133		4		31615
7	Monisha Jain	10855/20133		2		31613
8	Monisha Jain	10856/20133	801			31609
9	Puja Aggarwal	11241/2013	603			32510
10	Puja Aggarwal	11242/2013	504			32509

5. The said Application made by the Respondent No.2 was replied to by the Petitioner-Society vide its letter dated 22/09/2011. In the said reply, the Respondent No.2 was called upon to furnish the entire chain of agreements from the builder till date and as to how the same have been arrived at. It was further mentioned in the said letter that on the Respondent No.2 complying with the requisitions made by the Petitioner-Society, the Petitioner-Society would be eager to admit the Respondent No.2 as a member provided the Respondent No.2 recognizes the right of all the members in the open spaces of the Petitioner-Society building including the Society common terrace, the Petitioner-Society compound, etc. It was further mentioned that the builder has got a limited right to sell the premises i.e. the right to sell flat, which is a separate and self-contained set of premises.

6. The said letter 22/09/2011 was replied to on behalf of the Respondent No.2 by her Advocates Kotak & Associates by their letter dated 16/12/2011. The said Advocates informed the Petitioner-Society that it does not have authority to withhold the membership of the Respondent No.2 and since the period of three months after submitting all the necessary transfer documents to the society have lapsed, the Respondent No.2 is now a deemed member under Section 22(2) of the Maharashtra Cooperative Societies Act, 1960 (for brevity shake herein after referred to as "the Said Act"). By the said reply the Advocates called upon the Petitioner-Society to admit the Respondent No.2 as a member.

7. The said letter of the Advocates of the Respondent No.2 was replied to by the Petitioner-society by its Advocate's letter dated 5/1/2012. It was mentioned in the said letter that the Respondent No.2 has not complied with various formalities pertaining to the membership as also the dues of the Society were not cleared. The Respondent No.2 was therefore informed that it is only thereafter the question of looking at the membership arises meaning thereby unless the compliances are made and dues are paid, the issue of membership would not be considered. It was lastly mentioned in the said letter that the Respondent No.2 was free to approach any authority and take action as deemed fit by the Respondent No.2. By the said letter the Petitioner-Society in a way communicated the rejection of the Application of the Respondent No.2 for membership of the Petitioner-Society.

8. In view of the said letter dated 5/1/2012 of the Advocates for the Petitioner-Society communicating the rejection of the application for membership for the reasons mentioned in the said letter, the Respondent No.2 filed an Appeal under Section 23(2) of the said Act before the Deputy Registrar, Cooperative Societies, H/W Ward, Mumbai. It was the case of the Respondent No.2 in the said Appeal that despite the compliance of all the requirements, the Respondent No.2 was not made a member of the Petitioner-Society and the membership has been refused on some irrelevant grounds. It was the case of the Respondent No.2 that she was eligible for being a member of the Petitioner-Society in all respects and the Petitioner-Society therefore could not deny her membership of the Society.

9. The said Appeal filed by the Respondent No.2 was opposed to on behalf of the Petitioner-Society. The Deputy Registrar considered the said Appeal and by his order dated 30/8/2012 allowed the said Appeal filed by the Respondent No.2 by holding that the Petitioner-Society could not have refused the membership to the Respondent No.2. The Deputy Registrar accordingly directed the Petitioner-Society to admit the Respondent No.2 as a member of the Society within a period of 15 days.

10. The Petitioner-Society aggrieved by the said order dated 30/8/2012 passed by the Deputy Registrar, Co-operative Societies, H/W Ward Mumbai had filed Revision Applications before the Divisional Joint Registrar, Co-operative Societies, Mumbai being Revision Application Nos.552 of 2012 and 562 of 2012 (In Writ Petition No.10847 of 2013). The said Revision Application came to be dismissed by the Divisional Joint Registrar by his order dated 7/1/2013 for the reasons mentioned in the said order. The said order dated 7/1/2013 was challenged by the Petitioner-Society by filing a Petition in this Court being Writ Petition No.1455 of 2013 and companion matters. The principal contention urged was that the Revisional Authority could not have decided the Revisions on merits when the parties were heard only on the stay applications filed by the Petitioner-Society. The said ground was found acceptable by a learned Single Judge of this Court who by her order dated 16/7/2013 allowed the said Writ Petitions and set aside the order dated 7/1/2013 and remanded the Revision Applications back to the Revisional Authority i.e. the Divisional Joint Registrar for a denovo consideration of the Revisions. It is pursuant to the said remand that the Revision Applications were heard denovo and by the impugned order dated 23/9/2013 the same have been dismissed.

11. The gist of the reasoning of the Divisional Joint Registrar was that the issues which are sought to be raised by the Petitioner-Society impinged upon the question of title to the flats/shops in question in respect of which the membership is sought by the Respondent No.2. The Divisional Joint Registrar relied upon the judgments of this Court in the case of John D'Souza v/s. Joint Registrar, Co-op. Society and ors, in Writ Petition No.9881 of 2010; and in the case of Harish Commercial Premises Co-op. Society v/s. Smt.Varsha Dinesh Joshi reported in 2006 CTJ 544 and also the judgment in the case of Usha Jhaveri v/s. State of Maharashtra and ors. in Writ Petition No.659 of 2011 wherein it has been held that whilst considering an application for membership the authority is not required to go into the title of the property. It has been held in the aforesaid judgments that the society is not concerned with the disputes between the parties relating to the right, title and interest in respect of the immovable property and that the membership is to be conferred by the society to recognize somebody so as to collect the maintenance and other dues and to ensure that the same is paid regularly. The Divisional Joint Registrar held that the stand taken by the society was contrary to the stand taken in the suit filed by it in the City Civil Court wherein the Petitioner-Society has claimed various reliefs against the R.A.N. Builders (N.G.) and Mrs. Manju N Gupta styling them developers/builders of the building of the Applicant-Society. The Divisional Joint Registrar held that since the Gift Deed in question on the basis of which the Respondent No.2 has applied for the membership of the Society was stamped. There is a compliance of the circular dated 18/2/1994 issued by the State Government. As indicated above, this is the common order dated 23/9/2013 which is taken exception to by way of the above Writ Petition.

12. SUBMISSIONS ON BEHALF OF THE PETITIONER BY THE LEARNED COUNSEL SHRI PRASAD S DANI.

A] That the Deputy Registrar had erred in allowing the Appeal filed by the Respondent No.2 when the Respondent No.2 had in fact not complied with the requisitions made in the letter of the Petitioner-society dated 22/09/2011;

B] That the Deputy Registrar and the Divisional Joint Registrar had failed to take into consideration the fact that the documents on the basis of which the Gift Deed had been executed by Mrs.Manju Gupta was not stamped i.e. the declaration dated 7/1/1999;

C] That the Deputy Registrar or the Divisional Joint Registrar ought to have impounded the said document i.e. the declaration of the family settlement and sent it to the authority for adjudication in view of the circular of the State Government dated 18/02/1994;

D] That both the authorities below have failed to record any finding as to how the rejection of the application by the Petitioner-Society was wrong;

E] That both the authorities below have erroneously construed the request made by the Petitioner-Society in the documents which are mentioned in the letter dated 22/09/2011 as an investigation into the title of the property;

F] That the Petitioner-Society was only seeking to protect the government revenue was lost sight of by the authorities below;

13. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 BY THE LEARNED SENIOR COUNSEL SHRI VINEET B NAIK.

i] That no fault can be found with the orders passed by the authorities below in allowing the application for membership as the Respondent No.2 had supplied all the requisite documents and being eligible for membership could not have been denied membership as has been done by the Petitioner-Society in the instant case;

ii] That the document i.e. the declaration containing family settlement was very much part of the documents which were submitted to the Petitioner-Society along with the application for membership;

iii] That in seeking to raise a contention as regards stamping of the document i.e. the declaration of family settlement, the Petitioner-Society was in fact entering into the realm of investigation of the title of the flat which has no relevance in so far as the application for membership under Section 22 of the said Act is concerned;

iv] That whilst considering the application for membership, an investigation into the title of the premises in question need not be gone into. In support of the said contention, the learned Senior Counsel for the Respondent No.2 relied upon the judgments of a learned Single Judge of this Court reported in 2006(2) ALL MR 1 in the matter of Harish Commercial Premises Co-op. Soc. Ltd. v/s. Smt. Varsha Dinesh Joshi and ors and, reported in 2006(1) ALL MR 97 in the matter Videocon Appliances ltd. v/s. Maker Chambers V Premises Co-op. Socy. Ltd & ors.

v] That the document in question i.e. the declaration of the family settlement was not required to be registered as it only records the family settlement which had taken place earlier. In support of the said contention the learned Senior Counsel for the Respondent No.2 placed reliance on the judgment of the Apex Court reported in (1976) 3 SCC 119 in the matter of Kale and others v/s Deputy Director of Consolidation and others.

vi] That the Gift Deed on the basis of which the application for membership was made by the Respondent No.2 in each of the above Petitions was duly stamped and it is only the said document which is relevant for consideration of the application for membership;

vii] That the rejection of the application for membership was on grounds which were not germane to the consideration of the application for membership.

CONSIDERATION

14. Having heard the learned counsel for the parties, I have considered the rival contentions. As indicated above, the issue which arises for consideration is the claim for membership made by Respondent No.2 in each of the above Petitions. It is required to be noted that along with the application for membership, amongst the documents submitted was the Gift Deed executed by Manju Gupta in favour of the Respondent No.2 in respect of the flat/shop in question, which Gift Deed was registered with the Registrar, Bandra. To the said Gift Deed, a declaration of the family settlement dated 7/1/1999 was appended. The other requirements for membership i.e. payment of transfer fees etc were also submitted with the application. The Petitioner-Society by the letter dated 22/09/2011 replied to the said application and as indicated above asked the Respondent No.2 to furnish the entire chain of agreements from the builder till date. The said letter was replied to on behalf of the Respondent No.2 through her advocate M/s. Kotak & Associates by a letter dated 16/12/2011 who informed the Petitioner-Society that all the compliances have been made by the Respondent No.2. The said letter was replied to by the Advocates for the Petitioner-Society by which it was communicated to the Respondent No.2 that unless the compliances are made, the application for membership would not be processed with and that the Respondent No.2 may approach the concerned authority if she so deems it fit. There is therefore merit in the submission of the learned Senior Counsel appearing on behalf of the Respondent No.2 that the Petitioner-Society whilst considering the application for membership was entering into the realm of enquiry into the title of the Respondent No.2 to the flat/shop in question. In the said context, it is required to be noted that by the judgments in Harish Commercial Premises (supra), and Videocon Appliances ltd. (supra) the scope of inquiry whilst considering the application for membership has been enunciated by a learned Single Judge of this Court. It would therefore apposite to refer to the said judgments at this stage. In Harish Commercial Premises (supra) case, the agreement on the basis of which the membership was claimed was sought to be questioned by the society concerned therein. The learned Single Judge of this Court held that the society has not taken any steps by filing civil proceedings or civil suit challenging the said agreement and seeking cancellation thereof. The learned Single Judge whilst so holding held that the jurisdiction of the Registrar under Section 23 does not extend to determine the validity and/or otherwise of the documents which are already executed in favour of the concerned person because that is the jurisdiction of the civil court and if any person seeks to raise any challenge to the said agreement he is required to file appropriate civil suit. In so far as Videocon Appliances (supra) case is concerned, the membership of the society was denied to the applicant on the ground that the flat in respect of which the membership was sought was constructed contrary to and in breach of Section 7 of Maharashtra Ownership Flats Act, 1963 as the consent of the existing unit holders was not obtained by the builder. In the said context, the learned Single Judge held that whether the construction is authorised or unauthorised is a matter which is a civil dispute and has to be determined by the Civil court and neither the cooperative society nor the Deputy Registrar nor the higher authority is empowered to go into the aspect for determining whether a person is entitled to be a member or not. The learned Single Judge has further held that the aspect as to whether a person has to be granted membership has to be considered on the touchstone of the rules, regulations and bye-laws and not on the basis of external factors such as whether the construction of the premises which is sought to be purchased by him is legal, illegal or authorized or unauthorised. In the light of the aforesaid pronouncements the scope of an inquiry pursuant to an application for membership is enunciated. The Petitioner-Society in my view, could not deny the membership to the Respondent No.2 on the ground that there was non-compliance in the matter of providing the chain of agreements as was sought by the letter dated 22/9/2011. In requisitioning the said information the Petitioner-Society was virtually embarking upon an exercise of investigation into the title of the flat/shop in respect of which the membership was claimed by the Respondent No.2 which it was not entitled to it. Hence in so far as the said aspect is concerned, the orders passed by both the authorities below cannot be faulted with.

15. In view of the fact that the document on the basis of which the membership was claimed by the Respondent No.2 was submitted by the Respondent No.2. It was not open for the Petitioner-Society to deny the membership to the Respondent No.2 on the ground that the chain of agreements leading to the last agreement were required to be furnished to the Petitioner-Society. It is required to be noted that the Gift Deed on the basis of which the Respondent No.2 was claiming membership was submitted along with the application as also the declaration of the family settlement dated 7/1/1999 on the basis of which Manju Gupta acquired title to the flat/shop in question. The Respondent No.2 had therefore furnished all the relevant documents, and therefore the orders passed by the authorities below allowing the Appeals, thereby granting membership to the Respondent No.2 cannot be faulted with. The orders passed by the authorities below therefore in so far as they result in granting membership to the Respondent No.2 cannot be faulted with.

16. However, one aspect remains for consideration. The record discloses that the Petitioner-Society had raised an issue about stamping of the declaration of the family settlement dated 7/1/1999. The reply filed by the Petitioner-Society as also the correspondence inter alia discloses that the Petitioner-Society had raised an issue about stamping of the said declaration of family settlement by virtue of which the said Manju Gupta had acquired the title to the flat/shop in respect of which the membership was sought by the Respondent No.2.

17. In terms of the circular dated 18/2/1994 issued by the State Government it is incumbent upon the managing committee of the society before the application is made for transfer of flat to ensure that the registration fee and the stamp duty is paid. The relevant excerpt of the said circular is reproduced herein under for ready reference.

"(2) Registration of an agreement between the transferor and the transferee in respect of Transfer of Flat.

It has come to notice that the agreements entered into between the flat holder and the flat purchaser at the time of transfer of a flat in a Cooperative Housing Society, are not registered. As such the State Government does not get stamp duty with the result, there occurs financial loss to the State Government. To avoid this loss, whenever transfer proposals come before the Managing Committee for consideration, the Managing Committee should ensure that the registration fee and stamp duty is paid. The committee should demand he receipt of payment of registration fee and stamp duty along with transfer proposal. Membership or transfer should not be effected if the agreement is not registered with the Government.

Since in the instant case the Respondent No.2 had filed an Appeal under Section 23(2) of the said Act, the mandate of the said circular was required to be followed by the Deputy Registrar. Following the mandate of the said circular cannot be said to result in Deputy Registrar embarking upon an exercise of investigation into the title of the transferor. The object of the said circular is to see to it that the stamp duty is paid by the parties so that revenue of the Government is protected. In the instant case, though an objection is raised on behalf of the Petitioner-Society as regards stamping of the said declaration of the family settlement, the Deputy Registrar on the ground that he is not entitled to investigate the title has not entertained the objection raised by the Petitioner-Society in that regard. In my view, the Deputy Registrar has erred in not impounding the document and sending it to the competent authority for adjudication as to whether stamp duty is payable in respect of the said document. The payment of stamp duty is an aspect which has to be considered in the context of which the circular has been issued. It is not necessary for this Court to consider the contention of the learned Senior Counsel appearing on behalf of the Respondent No.2 that the said document is not required to be stamped in support of which reliance is placed on the judgment of the Apex Court in the case of Kale and others v/s Deputy Director of Consolidation and others (supra). It would be for the Respondent No.2 to raise such contentions as are available in law before the competent authority in the proceedings relating to stamping of the document that would be initiated by the competent authority pursuant to impounding of the said document. In my view, therefore, for the said limited purpose the matter would have to be relegated back to the Deputy Registrar before whom the original of the declaration of the family settlement dated 7/1/1999 would be produced by the Respondent No.2 who would impound the said document and would remit it to the Collector of Stamps, Mumbai Suburban District, Mumbai for adjudication of the stamp duty payable on it. The above Writ Petitions are accordingly allowed only to the said limited extent and the following directions are issued :-

[1] The orders passed by the authorities below in so far as they result in granting of membership to the Respondent No.2 in each of the above Petitions are not interfered with;

[2] The Learned Senior Counsel Shri Vineet Naik appearing on behalf of the Respondent No.2 in both the group of Petitions i.e. the above group of Petitions as well as the group of Petitions wherein Writ Petition No.10845 of 2013 is the lead matter makes a statement that Ms Manju Gupta who is concerned for the Respondent No.2-RNA Builders (NG) in Writ Petition No.10853 of 2013 as a Proprietress undertakes to produce the original of the declaration of family settlement dated 7/1/1999 before the Deputy Registrar. The said undertaking is accepted. On remand for the limited purpose as mentioned in the order, the said Ms. Manju Gupta would appear before the Deputy Registrar "H" West Ward either in person or through her Advocate on 27-3-2014 at 3.00 p.m. and produce the original of the declaration of family settlement dated 7/1/1999. The Deputy Registrar to impound the said document and remit it to the Collector of Stamps, Mumbai Suburban District, Mumbai who has jurisdiction in that regard. The Collector of Stamps, Mumbai Suburban District, Mumbai would immediately commence the adjudication process and determine whether the stamp duty is payable in respect of the said document and if found payable would determine the stamp duty payable.

[3] It would be open for the said Ms.Manju Gupta to raise such contentions are as available in law in respect of the stamping of the said document. The Collector of Stamps, Mumbai Subrban District, Mumbai would take into consideration the contentions of the Respondent No.2 and would thereafter pass appropriate orders in accordance with law.

[4] Rule in all the above Petitions is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the Petitions.

At the this stage, the learned Counsel appearing on behalf of the Petitioner-Society Shri Prasad Dani prays for continuation of the ad-interim relief which is operating in the above Petitions. The same is opposed by the learned Senior Counsel Shri Vineet Naik appearing on behalf of the Respondent No.2. In the facts and circumstances of the case where the issue is about the membership of the Petitioner-Society, the said prayer for continuation of the ad-interim relief is rejected.

Ordered accordingly.