Neeta Sawant 1/24 WP-11903-2022(Resd-FC)

7 September 2023.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 11903 OF 2022

Mistry Park CHS Ltd., 77

Bhulabhai Desai Road, Mumbai-

400 026. ...PETITIONER

: V/s. :

1. Dr. Bharat Prem Shivdasani

2. Dr. Haresh Prem Shivdasani

R/at. Flat No.9/26, Shyam

Niwas, 77, Bhulabhai Desai

Road, Mumbai-400 026.

3. Deputy Registrar, Co-

operative Societies, D-Ward,

Mumbai.

4. The Divisional Joint Registrar

of Co-operative Societies,

Malhotra House, GPO, Mumbai. ...RESPONDENTS

Mr. G.S. Gobbole, Senior Advocate i/by. Mr. S.P. Kanuga a/w. Ms.

Sapna Math, for Petitioner.

Mr. Mustafa Doctor, Senior Advoate a/w. Mr. Lalan Gupta a/w. Mr.

Rohit Iyengar i/by. Mr. Shardul Amarchand Mangaldas co. for

Respondents No.1 and 2.

Mr. P.P. Pujari, AGP for State-Respondents No.3 and 4. 2023:BHC-AS:26181

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CORAM : SANDEEP V. MARNE, J.

Resd. On : 28 August 2023.

Pron. On : 7 September 2023

JUDGMENT :

1. Petitioner, a Co-operative Housing Society, is aggrieved

by order dated 18 October 2021 passed by the Deputy Registrar of

Co-operative Societies declaring that Respondents No.1 and 2 have

become its members and directing it to record their names in the

Membership Register, Share Certificate etc. Aggrieved by the

decision of the Deputy Registrar, Petitioner-Society filed Revision

before the Joint Registrar of Co-operative Societies, which is rejected

by order dated 22 March 2022 upholding the decision of the

Deputy Registrar. Petitioner-Society is accordingly challenging the

decisions of the Deputy Registrar and the Divisional Joint Registrar

in the present Petition.

2. It is Petitioner-Society’s case that on 8 March 1966,

lessors of the plot executed a lease in favour of the Society and one of

the conditions for lease in Clause-2(f) was not to use the building for

any purpose other than as private residences and further not to use

motor garages for any purpose other than for garaging the motor

cars. The Developer-Mistry Construction Company constructed two

buildings consisting of residential flats on upper floor and garages on

the ground floor. One Dr. Prem Kalyandas Shivdasani purchased ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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garage ‘A’ from the Developer. He does not own any residential flat

in the building. The occupiers of the building have formed

Petitioner Co-operative Housing Society and have adopted Bye-laws,

which are registered with the Registrar on 18 February 1965. Bye-

law No.6 limits admission of membership to the number of

tenements or plots available for allotment. It is Petitioner-Society's

case that only a flat owner or plot owner can become member of the

Society. Under Clause-7(a), there is a provision for admission of

nominal member, who does not enjoy any right of membership or

receive any advantage or benefit of dividend. Dr. Prem Kalyandas

Shivdasani was admitted as a nominal member of the Society.

3. Dr. Prem Kalyandas Shivdasani was using the garage for

running his clinic, which according to the Society is not permissible

in law. He expired in the year 1992, leaving behind his wife Nirmala

and two sons, Dr. Bharat and Dr. Haresh. Smt. Nirmala Prem

Shivdasani held a nomination from her husband and was brought on

record as a nominal member. Smt. Nirmala Shivdasani expired on 9

September 2018. On her death, Respondents No.1 and 2 made an

application on 10 October 2019 stating that the mother had

nominated them to hold 60% (Dr. Bharat) and 40% (Dr. Haresh)

shares in the garage. They requested the Society to add them as

nominal members by submitting applications in the prescribed

format. On 28 November 2020, Respondents No.1 submitted an

application for issuance of Share Certificate/Sinking Fund

Certificate. ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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4. On 25 March 2021, Respondents No.1 and 2 filed

Appeal before the Deputy Registrar of Co-operative Societies for

grant of regular membership and issuance of Share Certificate. The

Appeal was resisted by the Petitioner-Society by filing reply.

5. After hearing both the sides, the Deputy Registrar passed

order dated 18 October 2021 and declared that Respondents No.1

and 2 have acquired membership in Petitioner-Society in respect of

Shop No.1. The Society has been directed to enter their names in

various records including Share Certificate.

6. Aggrieved by the order of the Deputy Registrar,

Petitioner-Society preferred Revision Application No.699/2021

before the Divisional Joint Registrar. However, by order dated 22

March 2022, the Divisional Joint Registrar has proceeded to reject

the Revision Application. Petitioner-Society has challenged the

orders of the Deputy Registrar dated 18 August 2021and the

Divisional Joint Registrar dated 22 March 2022 in the present

petition.

7. Mr. Godbole, the learned senior advocate would appear

on behalf of the Petitioner-Society and challenge the orders passed

by the Deputy Registrar and Divisional Joint Registrar. He would

invite my attention to the Bye-laws of the Society, under which

garage owner can only become a nominal member and not a regular ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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member. He would invite my attention to the membership

form/Indemnity Bond submitted by Respondents No.1 and 2 in

which they sought only nominal membership. That even application

dated 28 November 2020 was for issuance of Share

Certificate/Sinking Fund Certificate. That Petitioner-Society has

been issuing only Sinking Fund Certificate to nominal members.

That there was absolutely no cause of action for Respondents No.1

and 2 to file any proceedings before the Deputy Registrar as their

request for grant of nominal membership was acceded to by the

Society.

8. Mr. Godbole would rely on Section 23 of the

Maharashtra Co-operative Societies Act, 1960 (Act of 1960) in

support of his contention that Appeal under sub-section (2) of

Section 23 would lie to the Registrar only against a decision of the

Society to refuse admission to its membership. That since the

Society has not refused admission to membership, there is no

decision and therefore Appeal filed by Respondents No. 1 and 2 was

clearly not maintainable. He would then submit that on the other

hand, if the Society fails to take any decision on application for

membership, there is a remedy under sub-section (2) of Section 22

for seeking a declaration of deemed membership. That in the

present case, application was filed by Respondents No.1 and 2 for

admission as nominal members which is not refused but infact

granted and therefore there is neither a failure to take decision, in

respect of which declaration could be sought under Section 22(2), ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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nor a refusal which could be challenged by filing Appeal under

Section 23(2). That no application was filed for grant of regular

membership and therefore even jurisdiction under Section 22(2)

could not have been exercised by the Registrar. He would therefore

submit that the impugned order passed by the Deputy Registrar is

wholly without jurisdiction.

9. Mr. Godbole would then invite my attention to Section

13 of the Act of 1960 providing for amendment of Bye-laws. That

under Section 14, the Registrar has a power to direct amendment of

Bye-laws. He would submit that as of today, there is no amendment

to the Bye-laws. Without directing an amendment to Bye-laws in

any proceedings filed under Section 14, Registrar could not have

granted membership against the provisions of Bye-laws by a

sidewind. That if a specific order was passed under Section 14 of

directing amendment of Bye-laws, the Society could have exercised

remedy of filing Appeal under Section 152 of the Act. He would

therefore submit that the order passed by the Deputy Registrar

purportedly under Section 23(2) has the effect of directing

amendment of Bye-laws under Section 14 in absence of any

proceedings seeking such an amendment.

10. Mr. Godbole would then submit that garage is not

covered by expression ‘flat’ and therefore occupiers of garage cannot

become members of a Society. In support of his contention, he

would place reliance on the judgment of the Apex court in ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative

Housing Society Ltd., 2010 9 SCC 536. That despite inviting

attention of both the Registrars to the said judgment, there is no

discussion on this aspect in the impugned orders passed by the

Deputy Registrar and Divisional Joint Registrar. He would further

submit that the Divisional Joint Registrar has erroneously relied

upon Model By-laws which have not been adopted by the Petitioner-

Society. That the findings of the Divisional Joint Registrar that

garage is a flat is in teeth of the judgment in Nahalchand

Laloochand (supra). He would therefore pray for setting aside both

the impugned orders.

11. Per-contra, Mr. Doctor the learned senior advocate

would appear on behalf of Respondents No.1 and 2 to oppose the

petition. Inviting my attention to the reply filed by the Society

before the Deputy Registrar, he would submit that all the points

argued by Mr. Godbole were never raised in the application. That

the only defence taken before the Deputy Registrar by the Society

was that garage is not a flat. That therefore the points of jurisdiction

now sought to be argued is nothing but an ingenuity on the part of

the Petitioner-society directly before this Court. He would rely on

the provisions of Section 154B-5 of the Act of 1960 under which an

Housing Society is permitted to admit to its membership, persons

equivalent to the number of flats. He would then invite my attention

to the definition of the term ‘flat’ under Section 154B-1(13), under

which every separate and self-contained part of any immovable ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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property constitutes a flat. He would submit that the premises in

question have always been used as a Dispensary and have never been

used as a Garage even as per the admission of the Society. That being

a self-contained unit, the premises are infact a flat. That Chapter-

XIII-B in the Act of 1960 has been inserted w.e.f. 9 March 2019 i.e.

after the judgment of the Apex Court in Nahalchand Laloochand

and therefore the definition of the term ‘flat’ under Chapter XIII-B

would prevail over interpretation made by the Apex Court based on

the provisions of the Maharashtra Ownership of Flats (Regulation of

the Promotion of Construction, Sale, Management and Transfer) Act

of 1963 (MOFA Act). That there is no concept of nominal member

under Chapter-XIII-B of the Act of 1960 as definition of ‘Member’

under Section 154B-1(18) includes only Associate Member, Joint

Member or Provisional Member. That the Registrars have recorded

a finding of fact to the effect that the premises concerned is a flat and

therefore this Court would be loathe in disturbing the said finding of

fact in exercise of its jurisdiction under Article 227 of the

Constitution of India.

12. Mr. Doctor would then rely on the application dated 15

December 2020 preferred by four shop owners including

Respondents No.1 and 2 for grant of original/regular membership

alongwith the Share Certificate. He would submit that Respondents

No.1 and 2 have thus infact made an application for grant of regular

membership and therefore all objections of jurisdiction raised by the

Petitioner are untenable. That though the factum of submission of ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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application dated 28 November 2020 is specifically raised in para-

5(xii) of the Affidavit-in-reply, Petitioner-Society has maintained

silence about the same in its rejoinder. He would pray for dismissal

of the petition.

13. After considering the submissions canvassed by the

learned Counsels for the parties, two issues that arise for my

consideration are about Deputy Registrar’s jurisdiction to pass order

directing admission of Respondents No.1 and 2 as Society members

and entitlement of Respondents No.1 and 2 to become Members of

the Society.

14. So far as the first issue of jurisdiction is concerned, the

objection of jurisdiction is premised on absence of cause of action to

file Appeal under the provisions of Section 23(2) of the Act of 1960.

It is the contention of the Petitioner-Society that Respondents’

application for grant of nominal membership was granted and that

therefore there was no cause of action for them to file Appeal under

the provisions of Section 23(2). It is contended that an Appeal

under sub-section (2) of Section 23 would lie only against a decision

of the Society refusing to admit to the membership. It would

therefore be necessary to refer to the provisions of Section 23 which

reads thus :

23. Open membership.- (1) No society shall, without sufficient cause,

refuse admission to membership to any person duly qualified therefor ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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under the provisions of this Act and its bye-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 [within a

period of sixty days from the date of decision of the society]. [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.” ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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15. The other submission is that the Registrar is also vested

with jurisdiction to make a declaration of deemed membership

under the provisions of sub-section (2) of Section 22 on Society’s

failure to take a decision on membership application. Provisions of

Section 22 read thus :

“22. Person who may become member

(1) Subject to the provisions of section 24, no person shall be

admitted as a member of a society except the following, that is to say--

-----

-----

-----

(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.

16. Thus, statutory scheme is such that Section 22 deals with

eligibility of a person to become member of a Society. Sub-section

(2) of Section 22 provides that where the Society refuses admission

to the membership of Society, the decision shall be communicated

within fifteen days of the date of the decision or within three months

from the date of application for admission. There is a deeming

fiction where failure to communicate the decision to the Applicant ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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within three months from the date of receipt of application entails

deemed membership to the Society. The Registrar is empowered to

decide any dispute about coming into effect deemed fiction and can

make a declaration as to whether such applicant has become a

deemed member or not. Thus, Section 22 deals with a situation

where the Society accepts an application and either rejects it or fails

to take a decision within a period of three months.

17. Situation where the Society fails to accept the application

from an eligible Applicant for admission as a member is dealt with in

Section 23, in which case the Applicant can approach the Registrar

and tender his application and the Registrar forwards the application

to the Society. The Society is required to decide the application and

failure to take decision entails deemed membership. The Registrar is

again empowered to declare whether the Applicant has become a

deemed member or not.

18. Cases where Society refuses to admit a Member by

taking a decision is dealt with by sub-section (2) of Section 23 where

a remedy is created against the Society’s decision. The decision of

the Society refusing to admit an Applicant to membership can be

challenged by filing an Appeal before the Registrar.

19. Thus the provisions of Section 22(2) deals with a

situation where the Applicant can approach the Registrar for a

declaration of deemed membership, when Society fails to take a ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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decision on his application within prescribed period. On the other

hand, sub-section (2) of Section 23 deals with a situation where the

Society has taken a decision of refusal to admit the Applicant to

membership of the Society, in which case, such an Applicant can file

Appeal before the Registrar. For the purpose of present controversy,

we need not discuss the situation where Society fails to accept the

application for membership in which case, Registrar can forward

such application to the Society.

20. In the present case, Respondents Nos. 1 and 2 initially

submitted Form in Appendix-III on 10 October 2019 intending to

become nominal members of the Society. The purpose of the Form is

to declare that Applicants would use the unit for the purpose of

which the same was originally allotted by the Developer and that no

change of user would be made. It appears that there is another

document of Indemnity Bond by which Respondents No.1 and 2

informed the Society that they were nominated by Late. Nirmala

Prem Shivdasani under Rule 25 of the Maharashtra Co-operative

Societies Rules, 1961 to the extent of 60% and 40% shares

respectively in the Garage/Shop No.1. In that document,

Respondents No.1 and 2 made a statement that as per Bye-law

No.34 of the Society, they are entitled to make an application for

nominal membership and accordingly they have made such an

application for nominal membership. They indemnified the Society

and the Office Bearers in respect of any proceedings arising out of

transfer of nominal membership in their name. A statement was ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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made in the said writing that Respondents No.1 and 2 were fully

aware of the fact that they were being admitted to the nominal

membership only on the basis of Indemnity Bond and Undertaking.

21. It appears that on 28 November 2020, a letter was

submitted by Dr. Bharat Shivdasani-Respondent No.1 to the

Secretary of the Society stating that subsequent to the earlier

application resulting in transfer of Shop No.1 in the name of

Respondents No.1 and 2, the Society bills were being generated and

paid by them and therefore a request was made to issue the Share

Certificate/Sinking Fund Certificate in their names.

22. Based on the Form and documents dated 10 October

2019 and 20 November 2019, Mr. Godbole has contended that

application made was for admission of Respondents No.1 and 2 to

the nominal membership of the Society, which has been granted to

Respondents No.1 and 2.

23. Respondents No.1 and 2 thereafter approached the

Deputy Registrar of Co-operative Societies by filing Appeal under

Section 23(2) of the Act of 1960 stating that the Society issued

Sinking Fund Certificate No.43 amounting to Rs.4601/- in the

name of Mr. N.P. Shivdasani and that the Society has been treating

them as nominal members but refuses to accept them as regular

members. They relied upon Membership Application dated 28 ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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November 2020 stating that the Society forced them to sign

Indemnity Bond for being accepted as nominal members.

24. In the light of the above factual background, the issue

that is sought to be raised by Mr. Godbole is that there is neither a

failure to take decision nor refusal of membership and therefore

there was no cause of action for Respondents No.1 and 2 to file an

Appeal under Section 23(2) of the Act of 1960 before the Deputy

Registrar. I find this objection to be highly technical. In the Appeal,

Respondents No.1 and 2 have relied upon application dated 28

November 2020. The said application is for issuance of ‘Share

Certificate/Sinking Fund Certificate’. Though it is sought to be

contended by the Society that Sinking Fund Certificate is issued

only to a nominal member, the application also demands issuance of

Share Certificate, which according to the Society is issued to a regular

member. Therefore, it would be difficult to hold that there was no

cause of action for Respondent Nos. 1 and 2 to approach the

Registrar. Whether they could have filed an appeal under Section

23(2) in absence of a refusal or whether they ought to have

approached for a declaration under Section 22(2) becomes highly

technical as both application/appeal would lie before same authority.

25. Even otherwise, the dispute before the Registrar was

whether Respondents No.1 and 2 are entitled to be granted regular

membership. Reliance is placed by Mr. Doctor on letter dated 15

December 2020 submitted by occupants of four shop by which ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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request was made for their admission as regular members. Mr.

Godbole is right in contending that there is no reference to this

application either in the Appeal or in the order of the Registrar. At

the same time, the Society has not denied receipt of the application

dated 15 December 2020 in its rejoinder. Be that as it may, a clear

dispute was raised before the Deputy Registrar that the Society was

refusing to admit Respondents No.1 and 2 as regular members. If

submission of Mr. Godbole is accepted, what ought to have been

done by Respondent Nos.1 and 2 is to file application for grant of

regular membership of the Society and if the Society refused to

accept the application, take a route under Section 23(1A) and

approach the Society for acceptance of application. On the other

hand, if the Society accepted the application, then wait for a decision

of the Society. If Society was to reject the application, file an Appeal

under Section 23(2). If the Society fails to take a decision on the

application, approach the Registrar for declaration of deemed

membership under Section 22(2). While Mr. Godbole may not be

entirely wrong in insisting for this procedure to be followed, once

there is a clear dispute between Petitioner-Society and Respondents

No.1 and 2 about entitlement of admission as regular member, in

my view, non-following of circuitous route of filing a fresh

application for regular membership by Respondents No.1 and 2

could not have been a reason for the Deputy Registrar to reject the

Appeal for technical reasons. ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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26. Also of relevance is the fact that the issue of lack of

jurisdiction was never raised or pleaded by the Society before the

Registrar. Far from taking a stand that Respondent Nos. 1 and 2

never filed an application for regular membership, the Society joined

issue with Respondents No.1 and 2 for their entitlement to become

regular members by placing reliance on its Bye-laws. Thus the issue

of jurisdiction, which is strenuously canvassed by Mr. Godbole, was

never raised by the Society before the Deputy Registrar. This issue

was vaguely raised in para-12 of the reply dealing with the issue of

limitation wherein the Petitioner-Society stated that ‘The Appellants

are conspicuously silent about when said application for so-called

full- fledged membership was made, when it was rejected by the

Society. This is not an accidental mistake but purposely done since

the Appellants are aware that there is a time limit prescribed u/s

23(2) of the Maharashtra Co-operative Societies Act, 1960 to file

Appeal u/s 23(2) within 2 months from the date of rejection of

membership’. It is difficult to accept that these contentions are

raised to contest jurisdiction of the Registrar or to suggest lack of

cause of action. They were raised only in the context of limitation.

27. Thus the Registrar did not have an occasion to decide

the issue of alleged lack of cause of action or lack of jurisdiction.

Having not raised the issue of jurisdiction before the Registrar, the

Petitioner-Society cannot now be permitted to raise the said issue

directly before this Court. The Petitioner-Society has not placed on ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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7 September 2023.

record copy of the Appeal Memo filed before the Divisional Joint

Registrar. However, from the order it appears that Petitioner-Society

raised the issue of failure to file proper application for membership

as required under the law by Respondent Nos. 1 and 2. However,

even that assertion does not appear to be made in the context of

absence of cause of action or lack of jurisdiction. Even otherwise,

even if it is assumed that Petitioner-Society did raise an objection of

failure to file application for regular membership and absence of

cause of action, in my view, the said objection is highly technical in

the facts and circumstances of the present case where both the parties

joined the issue on the question of entitlement of Respondent Nos.

1 and 2 for being admitted as regular members of the Society. If the

objection raised by Mr. Godbole is upheld, all that will happen is to

make Respondent Nos. 1 and 2 to file a fresh application and invite

fresh decision of the Deputy Registrar and Divisional Joint Registrar.

The objection would merely result in another round of litigation,

which can be avoided in view of the fact that both the sides have

placed their respective pleas on merits before the Deputy Registrar

and Divisional Joint Registrar about right of Respondents No.1 and

2 for being admitted as regular members of the Society. The

objection of Mr. Godbole about absence of cause of action and lack

of jurisdiction is therefore repelled.

28. Mr. Godbole has also contended that once it is found

that jurisdiction did not vest in the Registrar, his mere opinion that a

order can be passed would not render the order so passed a valid ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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order. Since Mr. Godbole’s objection about jurisdiction is rejected,

this issue sought to be raised by him becomes academic.

28. Coming to the next issue of entitlement of Respondents

No.1 and 2 for being admitted as regular members of the Society,

regular membership is denied by the Petitioner-Society on the

ground that what is occupied by Respondents No.1 and 2 is a mere

Garage which does not fall within the definition of ‘Flat’. Reliance is

placed on Bye-laws of the Society under which a garage owner

cannot become a regular member of the Society. By-law-7(a) reads

thus :

“A person may be admitted as a nominal member on payment of Rs.1/-

only as entrance fee for the purpose of occupying a

shop/Godown/Garage in the Society. A nominal member shall not

exercise any right of membership or receive any advantage, or benefit of

dividend etc.”

Thus as per Bye-laws of the Society, a person occupying a Shop,

Godown or Garage in the Society can only be admitted as nominal

member. Thus, going strictly by the Bye-laws of the Society, even a

shop owner cannot be admitted as a regular member and can only be

admitted as a nominal member.

14. Mr. Godbole has relied upon judgment of the Apex

Court in Nahalchand Laloochand (supra) in support of his

contention that garage cannot be treated as a Flat. In para-41 of the

judgment, the Apex Court has held as under : ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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“41. It is clear to us that stand alone “garage” or in other words

“garage” as an independent unit by itself is not a “flat” within the

meaning of Section 2(a-1) and we answer Question (i) in the negative.

The judgment of the Bombay High Court in K.R. Agarwal (Dr.) v.

Balkrishna Jawar, 4 AIR 1972 Bom 343 to the extent the expression “or

garage” has been read after the word “godown” in para-5. (Clause 2) of

the Report does not state the correct legal position in what we have

already said above.”

In Nahalchand Laloochand, the Apex Court has decided the issue as

to whether the stand alone “garage” can be treated as an independent

unit like a flat within the meaning of Section 2(a-1) of the MOFA

Act. The said issue arose in the light of the dispute between a

member and the Society over possession of parking space in the stilt

portion of the building. It is in the context of that dispute, that the

Apex Court decided whether a standalone “garage” can be treated as

a flat within the meaning of provisions of MOFA. The judgment in

Nahalchand Laloochand was delivered by the Apex Court on 31

August 2010.

15. The provisions of the Act of 1960 came to be amended

on 9 March 2019 by inserting Chapter-XIIIB in the Act dealing with

Co-operative Housing Societies. The word ‘Flat’ has been defined

under Clause (13) of Section 154B-1 as under :

S.154B-1.Definitions

(13) “Flat” means block, chamber, dwelling unit, apartment, office,

showroom, shop, godown, premises, suit, tenement, unit or by any other

name, means a separate and self-contained part of any immovable ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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property, including one or more rooms or enclosed spaces, located on one

or more floors or any part thereof, in building or on a plot of land, used

or intended to be used for any residential or commercial use such as

residence, office, shop, showroom or godown or for carrying on any

business, occupation, profession or trade, or for any other type of use

ancillary to the purpose specified.”

Thus, for the purpose of application of the provisions of the

Act of 1960 and for deciding the question about admission of the

Applicant to membership of a Society, the definition of Flat under

Clause-(13) of Section 154B-1 would be relevant and the

interpretation of the term ‘flat’ in Nahalchand Laloochand made in

the context of provisions of MOFA Act may not apply to the present

case. In that sense, reliance of Mr. Godbole on findings recorded by

the Apex Court with regard to the definition of ‘flat’ under the

MOFA in Nahalchand Laloochand would not be of much relevance

for the present case.

16. As per definition of the term ‘Flat’ in Clause-154B-1,

even a separate and self-contained part of immovable property

including one or more rooms or enclosed space is covered by

definition of the term ‘Flat’. It is Petitioner’s own case that the

concerned garage was always being used by father of Respondents

No.1 and 2 for running dispensary. In this regard, following

statement is made in the petition.

“The present Petitioner now learnt that the said purchaser started

using the said garage for running a Clinic which is not permissible in

terms of law.” ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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For the purpose of the present petition, the issue as to change of user

of the garage is not relevant and the same can be decided in

appropriate proceedings as and when filed by either by the parties.

The Society admitted Respondents’ father as a nominal member in

terms of its Byelaws. Therefore, the issue whether holder of a garage

(which has always been used as a clinic) can be admitted to the

membership of the Society is not disputed in the light of readiness

on the part of the Society to admit them as nominal members. The

only issue is whether they can be treated as regular members or not.

17. Both, Deputy Registrar and Divisional Joint Registrar

have made reference to the Model Bye laws under which “Flat”

includes a “Garage”. Model Bye-law No.3 referred to by the

Divisional Joint Registrar in his order reads thus:

“3. Interpretations of the words and terms.

(vi) ‘Flat’ means a separate and self-contained set of premises used or

intended to be used for residence, or office, or showroom, or shop, or

godown and includes a garage, or dispensary, or consulting room, or

clinic or flour mill or coaching classes, or palnaghar, beauty parlour, the

premises forming part of a building and includes an apartment.”

It is true that the Society has not yet adopted the Model Bye-laws.

Mr. Godbole has submitted that the Registrar has a power to direct

amendment of Bye-laws under Section 14 and as long as the Byelaws

are not amended, the provisions of the existing Bye-laws would

continue to apply. This submission of Mr. Godbole about non- ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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amendment of Bye-laws is also referable to provisions of Section

154B-31 of the Act of 1960 which contains a saving clause providing

that the Bye-laws existing on the date of commencement of the

Amendment Act, 2019 shall continue to apply till expressly

modified. Thus here again, Mr. Godbole expects Respondents No.1

and 2 to first take the route of filing proceedings for amendment of

Bye-laws and then apply for regular membership. The question

again is whether the findings recorded by the Deputy Registrar and

Divisional Joint Registrar would be rendered perverse for failure on

the part of Respondent Nos. 1 and 2 in not seeking amendment of

Bye-laws.

18. In my view, the findings recorded by the Deputy

Registrar and Divisional Joint Registrar about entitlement of

Respondents No.1 and 2 to become regular members cannot be

treated as perverse as the same appear to be in tune with the

provisions of Clause-13 of Section 154B-1 as well as Model Bye-

laws. Though Mr. Godbole may be technically right in contending

that without seeking direction to amend Byelaws to bring it in tune

with the Model Bye-laws, Respondents No.1 and 2 cannot directly

seek membership as per the Model Bye-laws. The Deputy Registrar

and Divisional Joint Registrar cannot be faulted in giving relief to

Respondents No.1 and 2 which appear to be in tune with not just

the Model Bye-laws but also with definition of the term ‘Flat’ within

the meaning of Clause-(13) of Section 154B-1. Since no perversity

can be found in the findings recorded by the Deputy Registrar and ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::

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Divisional Joint Registrar and since the view taken is plausible, it

would be difficult for this Court to reverse their decisions and arrive

at a conclusion that Respondents No.1 and 2 cannot be admitted as

regular members of the Society.

19. The orders passed by the Deputy Registrar and

Divisional Joint Registrar appear to be unexceptional. Writ Petition,

being devoid of merits is dismissed without any order as to costs.

SANDEEP V. MARNE, J. ::: Uploaded on - 08/09/2023 ::: Downloaded on - 30/08/2025 17:40:53 :::