Bombay HC – Membership Rights are statutory traceable to the MCS Act, Rules and the Byelaws -Cannot be Refused without sufficient cause.
The petitioner is the tenant ownership cooperative housing society.
The authority of the society to refuse admission must operate within the four corners of the Act, the Rules framed thereunder, and the registered Bye-laws. A co-operative society derives its existence from statute. Its powers are statutory in character. Consequently, when it considers an application for membership, it discharges a statutory function regulated by Section 23.
Refusal of membership must therefore be based upon grounds traceable to the statute or the Bye-laws. It cannot be founded upon matters which lie outside the statutory scheme. If the Act does not treat a particular circumstance as a disqualification, the society cannot elevate that circumstance into a ground for exclusion. To permit such power would defeat the purpose of Section 23.
Use of land for a purpose other than residence cannot assume the status of a disqualification for admission to membership. The enquiry under Section 23 is confined to eligibility as defined by the Act, the Rules and the registered Bye laws. Unless those provisions expressly declare that a particular form of user disentitles an applicant from being admitted, the society cannot read into the statute a prohibition which is not found there. Disqualification must have a legal foundation.
However, where the Bye-laws do not elevate non-residential user to the status of a disqualification, the society cannot apply an alleged irregularity in user as a bar against membership. To allow such an approach would mix two distinct spheres and would permit the society to exercise a discretion wider than that contemplated by Section 23. Alleged misuse of premises may attract action under planning laws or municipal regulations. It may also invite proceedings under the Bye-laws after a person is admitted as a member. But it cannot, in the absence of a clear statutory or bye-law requirement, justify refusal of membership.
Turning to the second issue, the society has not demonstrated that its registered Bye-laws treat unauthorised construction as a disqualification for admission. The Bye-laws regulate eligibility and conditions of membership. If they expressly provided that a person who has committed building violations within the society’s premises is ineligible for admission, a different consideration might arise. In the absence of such a stipulation, the society cannot enlarge the scope of disqualification by such interpretation. Disqualifications must be clearly expressed.
Judgment dated 6.2.2026 of the High Court of Bombay in Writ Petition No.5858 of 2019 og Girish Sahakari Griharachana Sanstha Maryadit Vs. Mallikarjun Madhavrao Navande and others
