Om Jai Shri Gurukrupa ... vs Mrs. Vasudha Vasant Dhavale And ...
2004 Latest Caselaw 785 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition takes exception to the judgment and order passed by the Maharashtra State Co-operative Appellate Court, Bombay, dated November 26, 1990 in Appeal No. 238 of 1988. The Petitioner Society filed dispute against the Respondents before the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act for recovery of vacant and peaceful possession of Flat No. 111, 'C' wing in the Society's building. Respondent No. 1 is the member of the Petitioner Society. Whereas the member, after taking possession of the flat from the Petitioner Society, has allowed the Respondent No. 2 to occupy the same. This, according to the Society, was impermissible by virtue of Bye-law No. 12(1)(g) read with Bye-law No. 12(1)(a). The case of the society is that no prior permission in writing has been obtained from the society for permitting the Respondent No. 2 to occupy the said flat whereas the case of the Respondents is that the Respondent No. 1 was enrolled as member, but, in fact, the contribution for the flat has been paid by Respondent No. 2, who happens to be close relative of Respondent No. 1, being husband of the Respondent No. 1's sister. It was further contended that occupation by Respondent No. 2 along with his family of the suit flat did not infract any of the provisions of the bye-law, because the wife of Respondent No. 2 was nominee of the Respondent No. 1. The Co-operative Court, however, rejected the stand taken on behalf of the Respondents and, instead, passed order of eviction holding that the member permitted Respondent No. 2 to occupy the premises, which was in breach of the bye-laws referred to above, as no prior permission in writing from the society was obtained. Against this decision, the matter was carried in appeal by the Respondent No. 2 only. The Appellate Court has not disturbed the finding of fact recorded by the first Court that the Respondent No. 1 was the member of the Society and that no prior permission in writing has been obtained from the Society by the Respondents permitting the Respondent No. 2 and his family to occupy the said flat. The Appellate Court, however, took the view that since the Respondent No. 2 was closely related to the member, Respondent No. 1 herein, and also because the Respondent No. 1 member has nominated the wife of Respondent No. 2 as nominee, it was permissible for the nominee to legitimately occupy the said flat and in such a case, there is no breach of bye-laws referred to above. In the circumstances, on the above reasoning, the appeal came to be allowed and the dispute filed by the Petitioner was dismissed, with no order as to costs. This view is the subject matter of challenge in the present writ petition.

2. Although the Respondents have been served and have entered appearance through Advocate, none appears when the matter is called out.

3. On going through the record with the assistance of the Counsel for the Petitioner, and in particular, the two decisions of the Courts below, to my mind, the principal question is whether bye-law No. 12(1)(g) read with bye-law No. 12(1)(a) would permit the member of the family and in particular who is nominee of the member to occupy the suit flat, that too without obtaining prior permission of the Society in that behalf. To my mind, the answer is in the negative. Even if the Respondent No. 2 is closely related to the Respondent No. 1, who is the member and is the husband of the nominee of Respondent No. 1, who is the member, even so, by virtue of the expansive provision in bye-law No. 12(1)(G), it was imperative for the member to seek prior permission of the society in writing to permit Respondent No. 2 and his family to occupy the said flat instead of the occupation of the same by the member herself. Bye-law No. 12(1)(g) provides that without written prior permission of the managing committee, no member shall let or sub-let or give on caretaker, leave and licence basis for use and occupation by paying guest or dispose of in any other manner any portion of the accommodation. In view of the expansive language of this bye-law, the situation as has occurred in the present case is definitely covered for which reason it was imperative for the Respondent No. 1 member to obtain prior written permission of the Society. As that has not been complied with, the Respondent No. 1 member has acted in breach of the bye-law and the occupation of the subject flat by Respondent No. 2 and his family members was obviously unauthorised user of the flat. Reliance has also been placed by Mr. Deogirikar, on the unreported decision of the Division Bench of this Court in Letters Patent Appeal No. 100 of 1984 decided on October 6, 2000, in the case of Madhukar Vishnu Ghatnekar v. Gopal Vishnu Ghatnekar, to contend that merely because of nomination by the member does not create any right in favour of the nominee, but the right is limited and which fructifies only after the death of the original member. That position is also reinforced by the language of Section 30 of the Act as well as rule 25 of the Rules of 1961. In such a circumstance, it was open to the Petitioner Society to claim eviction of the occupants and the member from the said flat. Viewed in this perspective, no fault can be found with the award passed by the Co-operative Court dated January 29, 1988. Whereas the view taken by the Appellate Court in setting aside that award cannot be sustained. Accordingly, this writ petition succeeds. The impugned judgment and order is set aside, and, instead, the award passed by the Co-operative Court is restored. Petition succeeds on the above terms. No order as to costs.

4. Parties to act on the authenticated copy of this Judgment.