Absolute ownership is of the society not members

By Legal Bureau

The theory that the society is an absolute owner of the land and building including the open spaces and that it can therefore do anything on the basis of its ownership property is not absolute theory adversely affecting the rights of its members who are co-partner tenant members of the society. The society therefore cannot construct an office at the door-step of the flat of the members on the spacious ground that it is an absolute owner of the property. The ownership of the society qua its member has its own limitation and construction of such an office at the doorstep of the flat of the member cannot therefore be done without the consent of such a member merely on the ground that the society is the owner of the property.

Section 4 of the Maharashtra Co-operative Societies Act, 1960 where in it has been laid down that the object of a Co-operative Housing Society inter alia should be the general welfare of the member of the society. Since there are only one member having flat on the ground floor, his general welfare should be the paramount concern for the society in keeping with the spirit of the provisions of section 4 of the Maharashtra Co-operative Societies Act, 1960.

A reference can be made to the 63 Bom. L.R.1001 wherein the full bench of the Bombay High Court has laid down that the Co-partnership tenancy of the member in a Co-partnership tenancy as envisaged under the Bombay Rent Act nor is it tenancy or lease as envisaged under the Transfer of Property Act and that the Co-partnership tenant member has special and peculiar relationship with the Society. (Sea Side Apartment Co-operative Society Vs. M. Swaminathan, 1994 C.T.J. 354).

The Appellant original disputant filed an appeal against judgement of the Co-operative Court. The Appellant is a member of respondent No. 1. society. The membership was disputed by Respondent No.1 and 2. Plea was advanced by the Appellant that through agreement of sale she purchased said unit from Builder. The said flat was than given to her son who in turn inducted Respondent No.2 as licensee. The society stepped into the shoe of the Builder.

It is the case of the society that the agreement between the Builders and the appellant is enforceable by the society against the appellant as the society has stepped into the shoe of the Builders as their successor-in-title. If that is so, then all the provisions of the said agreement including clause (17) thereof which say that the said agreement shall be treated as application by the appellant for membership of the society, are binding on the society also. Under clause (17) of the agreement of sale which the Builder entered into with the Appellant and other Purchasers also, the purchasers of units agreed to become members of the society that was to be formed and the said agreement was to be treated as an Application for membership. The respondent society relying on a letter addressed by the appellant to the Builder in which she complained that there were defects in the unit and the flat was not ready for occupation advanced an argument that the appellant was occupied that flat in contravention of the agreement with Builder which envisaged possession to be given on completion and as such cannot be regarded as occupying the said unit as a member. Although the Builder cured the defects shown to him by the Appellant. The society cannot choose to enforce only the provision regarding payment of the dues in respect of the unit in dispute and not accept clause (17). Since the society has accepted the said agreement as successor -in-title of the Builders, the said clause (17) therein is also deemed to have been accepted by the Society as the appellant’s application for membership.

As regards the alleged dues which the appellant was called upon to pay in respect of the premises in dispute, which the appellant challenged and part of which the Appellant has proved that she paid to the Municipal Corporation of Greater Bombay and to the society also, obviously the society could not call upon the appellant to pay any amount for the period prior to registration of the society. Any amount due for the period prior to registration of the society. Any amount due for the period prior to registration of the society would be payable by the Appellant as a member of the Society. In any case by the society from the Appellant and non-payment thereof could not be used by the society from the Appellant and non-payment thereof could not be used by the society to divest the appellant of her ownership of the unit in dispute.          ( Smt. Mayadevi Krishna Lulla Vs. Byculla Service Industries Premises Co-operative Society Ltd. and Others,1994 C.T.J.22).

In the instant case question involved were –

(i)                   Whether the state Government has power to issue flat to the Registrar to complete housing society to amend its bye laws which are detrimental to the interest of the housing society;

(ii)                 Even assuming that the State Government has such power, whether the exercise of power violates the fundamental rights guaranteed to the society and its members, and

(iii)                Whether the Registrar in exercise of powers under section 14 of the Maharashtra Co-operative Societies Act can compel the housing society amend the bye-laws and permit construction of multi-storeyed buildings by a member.

 

The bye-laws make it crystal clear that the construction is to be raised by the allottee for his own use and the members is not permitted to part with the possession or to sub-let the premises without the prior approval of the society. Inspite of this clear cut agreement, respondent No. 5 insisted that multi-storeyed building can be raised on his plot and respondent No. 5 would dispose of the flats on ownership basis. In the present case the directive was issued by the State Government on ground present case the directive was issued by the State Government on ground that there is dearth of accommodation in the cities like Pune and Bombay. Though there is undoubtedly dearth of accommodation, that does not enable the State to compel the housing society to act contrary to the bye-laws or to foist new members who are not acceptable to the existing members of the society. The members have joined the society in accordance with the bye-laws and the members join a housing society be ascertaining what would be the environments in which they will reside. It is not permissible for the State Government to compel the society to amend its bye-laws so as to defeat the object of formation of the society. In the instant case the society was constituted wit the object of providing peaceful accommodation to the members. The compulsion of the State Government that member should be permitted irrespective of the desire of the majority to erect high rising buildings would totally destroy the basic concept of formation of society. The answer to the dearth of accommodation is not to force the existing registered housing societies to amend bye-laws and permit few members to commercially exploit the plots in violation of agreements under which they were secured. The directive is nothing but a charter to permit breach of such agreements and compulsion to amend bye-laws in only with a view to validate such infraction. Neither section 4 nor section 79-A of the Co-operative Societies Act confers any such power upon the State Government to issue notification. Therefore the notification issued by the State Government is without authority or notification issued by the State Government is without authority or jurisdiction and is therefore required to be struck down.