Garage owner – Can he become regular member of Coop Housing Society – Interesting facts of the recent decision
Garage owner – Can he become regular member of cooperative housing society although he has no flat in the residential building of society
On 8.3.1966, the lessors of the plot was executed lease in favour of the petitioner – cooperative housing society and one of the conditions was to use buildings for private residences and garages for motor cars only.
However, Dr.Prem Shivdasani – father of the respondent nos.1 and 2 – had purchased Garage “A” from the developer. He was running clinic in the garage. However, he did not own any flat in the said building.
As per the bye-laws, he was nominal member of the society.
After the death of Dr. Prem and his wife, the respondents no.1 made application dated 28.11.2020 for share certificate /sinking fund certificate.
On 25.3.2021, the respondent nos.1 and 2 filed appeal before the respondent no.3 Deputy Registrar of Cooperative Societies for regular membership and share certificate.
By the Order dated 18.10.2021 of the respondent no.3, it was declared that the respondent nos.1 and 2 had acquired membership of the society in respect of shop no.1 and to enter their names in the share certificate.
The revision of the petitioner-society was rejected by the order dated 22.3.2022 of the respondent no.4 Divisional Joint Registrar of the Cooperative Societies.
The petitioner-society filed the writ petition challenging both the orders.
Chapter XIII-B of the Maharashtra Cooperative Housing Societies Act, 1960 dealing with the cooperative housing societies was inserted on 9.3.2019.
The definition of “Flat” defined in Clause (13) of Section 154B-1 is comprehensive and includes shop, godown or a separate and self contained part of any immovable property including one or more rooms or enclosed spaces.
However, the petitioner-society did not amend its bye-laws as per the amendment of 2019 and did not adopt the Model Byelaws.
As per bye-laws of the Society, a person occupying a shop, godown or garage in the society is still given nominal membership.
HELD that the orders about entitlement of the respondent nos.1 and 2 to become regular members is in tune with Clause-13 of Section 154B-1 and also Model Byelaws even if the byelaws of the petitioner-society provide for nominal members. In other words, the provisions of Clause 13 of Section 154B of the Act and the Model Byelaws shall prevail over the existing byelaws of the Society even if model byelaws are not adopted and are not amended as per 2019 Clause 13 definition of “Flat”.
However, it was observed that the question whether garage can be used as clinic and whether change of user is permissible can be decided in appropriate proceedings if any filed by either of the parties.
Similarly, the decision of Supreme Court in Nahalchand Laloochand Pvt Ltd Vs. Panchali Coop Housing Society Ltd (2010 (9) SCC 536), the term “flat” was interpreted as per MOFA Act, it was prior to 2019 amendment and the definition of flat in Clause 13 of Section 154B of the Act.
W.P.No.11903 of 2022 – Mistry Park CHS Ltd, Mumbai Vs. Dr. Bharat Prem Shivdasani and others (generatenewauth.php (bombayhighcourt.nic.in)
Judgment dated 7.9.2023 of the High Court of Bombay
