Dewan Niketan Premises ... vs State Of Maharashtra And Ors
2017 Latest Caselaw 7326 Bom

                                                      p-505-app-wp-4368-2017



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION
                                   
                       WRIT PETITION NO. 4368 OF 2017

 Dewan Niketan Premises Co-operative
 Society Ltd.                                                ...Petitioner
       Versus
 State Of Maharashtra And Ors.                                ...Respondents

                               ----
 Mr.Amol Tembe i/b Mr.Kishor Vishwanath Tembe for the Petitioner.

 Ms.Veena Dewan Respondent No.4 in person present in Court.

 Mr.S.H. Kankal, AGP for Respondent Nos.1 to 3.
                                ----

                                       CORAM : M. S. SONAK, J.

                                       DATE    :  20th SEPTEMBER 2017

 ORAL JUDGMENT :

1. Not on board. Upon production, taken on board.

2. Heard Mr.Amol Tembe for the petitioner and Ms.Veena

Dewan respondent No.4 in person.

3. The challenge in this petition is to the orders dated

15-04-2015 made by the Deputy Registrar of Co-operative Societies

and order dated 15-02-2017 made by the Divisional Joint Registrar

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(Revisional Authority) directing the petitioner-society to enroll

Ms.Veena Dewan (respondent No.4) and her sister Ms.Madhu Abrol

as members of the society.

4. Mr.Tembe, the learned counsel for the petitioner

submits that in this case, there is no valid application made by

Ms.Veena Dewan and Ms.Madhu Abrol seeking membership. In the

absence of any such valid application form as prescribed under the

bylaws, there was no obligation on the part of the petitioner society

to enroll the two persons as members of the society.

5. Mr.Tembe submits that even this Court, being not fully

satisfied as to whether Ms.Madhu Abrol have indeed applied to be

enrolled as a member of the society had issued direction that

Ms.Madhu Abrol files an affidavit in the matter. Mr.Tembe points

out that Ms.Madhu Abrol has now, purportedly filed an affidavit

dated 15th July 2017. Mr.Tembe submits that this affidavit bears no

signature of Ms.Madhu Abrol, it contains only a thumb impression.

Mr.Tembe also points out that on 24 th July 2017 Ms.Madhu Abrol

has addressed a letter to the society which bears her signature,

whereas the latest affidavit, bears thumb impression. Mr.Tembe

points out that there is no reason disclosed in the affidavit as to why

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Ms.Madhu Abrol has put her thumb impression. No medical

certificate has been annexed.

6. Further, Mr.Tembe points out that the Section Officer of

this Court, before whom the affidavit has been sworn, merely says

that the affidavit was read over but there is no endorsement that the

same was explained to the deponent.

7. Mr.Tembe further states that Ms.Madhu Abrol has

indicated her address at Flat No.16, Pushpanjali CHS, Sion, Tombay

Road, Chambur. However, when members of the society visited

this apartment, it was found that Ms.Madhu Abrol was actually

admitted in BHM Health Care Hospital at Andheri.

8. For all these reasons, Mr.Tembe submits that the society

was justified in not enrolling the said two persons as members and

the two orders impugned in this petition are in excess of jurisdiction

and may be set aside.

9. Ms Veena Deewan, senior citizen, who appears in

person states that not only her sister Ms Madhu suffers from serious

illness, but she herself, suffers from cancer. She points out that the

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petitioner-society, being fully conscious of these facts, is attempting

to take undue advantage of the situation and harass the two sisters.

She submits that the petitioner-society, by raising every possible

frivolous objection seeks to delay the enrollment of the two sisters

as Members, so that the members of the Managing Committee of the

Society, can appropriate the suit premises to themselves. There

appears to be much substance in the contention of Ms.Veena

Dewan.

10. In this case, there is absolutely no dispute that

Shri.Bhimsen R. Dewan was the member of the society. There is

also no dispute that Ms.Veena Dewan and Ms.Madhu Abrol are the

daughters of Mr.Bhimsen Dewan. There is also no dispute that in

terms of the law, the two daughters, succeed the interest of

Mr.Bhimsen Dewan and accordingly, are very much entitled to claim

the benefits of membership of the petitioner-society. It is not even

the case of the petitioner-society at any stage that there is any

serious or substantive objection to the enrollment of the two sisters

as members of the society. The objections raised, at the highest are

procedural and hyper technical. There is reason to believe that such

hyper technical objections are being raised only in order to take

advantage of the situation and to deprive the two sisters

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membership, which, now, at least two authorities have directed the

petitioner society to award.

11. In view of the insistence on the part of the society that

the application seeking membership was not signed by Ms.Madhu

Abrol, this Court, directed Ms.Madhu Abrol to file an affidavit

clarifying whether she had also applied for membership along with

her sister Ms.Veena Dewan. In compliance, Ms.Madhu, has filed an

affidavit which is sworn before the Section Officer of this Court. If

the, petitioner-society, was genuinely interested in ensuring

procedural compliances, this should have been the end of the

matter. However, as is reflected from the submission of Mr.Tembe

the society, chooses to raise further objections as regards this

affidavit and on the said basis prolong and increase the agnoy of the

two sisters.

12. Mr.Tembe submits that Ms.Madhu in her letter dated

24th July 2017 addressed to the society had put her signature on the

same. Mr.Tembe reasons that the thumb impression on the affidavit

is therefore suspicious. He submits that there is no endorsement

that the Section Officer of this Court has explained to her contents

of the affidavit. The contents state that the affidavit has been read

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over.

13. Mr.Tembe's contentions cannot be accepted in the facts

and circumstances of the present case. In first place, there is really

no material on record that the letter dated 24 th July 2017 was in fact

written by Ms.Madhu. Secondly, the affidavit has been sworn

before the Section Officer of this Court, who has, verified the

identity of the affiant. There are no clear cut allegations that

somebody other than Ms.Madhu Abrol has sworn the affidavit

before the Section Officer of this Court. In the affidavit itself it is

stated that the affiant has enclosed her Adhar Card copy and BARC

Life Member Health Card. In fact xerox copies of these two

documents are appended to the affidavit. Ms.Madhu Abrol has been

identified by Ms.Veena Dewan, her sister and respondent No.4 in

the present petition. The Section Officer has recorded that he

personally knows Ms.Veena Dewan and therefore, he has accepted

the identification by Ms.Veena Dewan.

14. That apart, Mr.Tembe submitted that the members of

the Managing Committee of the Society actually visited the address

which Ms.Madhu Abrol has indicated in her affidavit and obtained

information that she is presently admitted at Health Care Center at

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Andheri. Mr.Tembe, sought leave to produce on record details of

even the room number in which Ms.Madhu Abrol is presently

admitted. Mr.Tembe submits that this is yet another cause for

suspicion.

15. The contention of the petitioner-society apart from

being frivolous, depicts complete lack of sensitivity. Ms.Veena

Dewan points out that her sister Ms.Madhu Abrol is also extremely

ill and therefore, admitted at a Health Care Center. This explains

the thumb impression on the affidavit. There is no merit in the

hyper technical contention that the Section Officer has merely stated

that the affidavit was read over before Ms.Madhu Abrol but not

explained to her. The petitioner-society, in the facts and

circumstances of the present case, cannot be permitted to raise such

frivolous objections.

16. In this case, it is not as if Ms.Veena Dewan has applied

for membership solely for herself. She has applied for joint

membership along with her sister. Both the sisters had offered

indemnity. This is more than sufficient compliance. The members

of Managing Committee of the Society are not at all justified in

raising doubts and objections of this nature only with a view to deny

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two sisters the benefits of the memberships. The two authorities

have concurrently held against the society and there is absolutely no

case made out to interfere with the impugned orders.

17. The conduct of the petitioner also does not entitle the

petitioner to any equitable relief. On the contrary, this is a fit case

for dismissal of the petition, with exemplary costs. Such costs have

to be recovered from the members of the Managing Committee of

the Society who are responsible for raising such frivolous objections

to the enrollment of the two sisters as members, despite full

knowledge that the two sisters are aged and are suffering from

serious ailments. This petition is accordingly dismissed with costs

assessed at Rs.1 lakh i.e. Rs.50,000/- to Ms Dewan and balance

Rs.50,000/- to Ms Abrol.

18. The petitioner-society to pay costs of Rs.50,000/- to

Ms.Veena Dewan within a period of four weeks from today by

means of Demand Draft.

19. The petitioner-society is further directed to pay costs of

Rs.50,000/- to Ms.Madhu Abrol. Such costs shall be paid to

Ms.Madhu Abrol either at address indicated by her in her affidavit

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or at the Health Care Center at Andheri. The Managing Committee

Members of the petitioner-society have already taken the trouble of

finding out the address details where the Ms.Madhu Abrol has been

admitted. This exercise must be completed within four weeks from

today.

20. The petitioner-society is further directed to enroll

Ms.Veena Dewan and Ms.Madhu Abrol as members of the society

and comply with directions in the impugned orders within a period

of two weeks from today.

21. Though, initially, the amount of costs should be borne

by the petitioner-society, later on, the society, should recover such

costs from each of the members of the Managing Committee, so

that, the other members of the society, do not unnecessarily suffer

on account of the members of the Managing Committee to

fomenting and prosecuting such frivolous litigations. The Registrar

of Co-operative Societies to ensure that the order, not only for

payment of cost to the two sisters but further, recovery of such costs

from the members of the Managing Committee is complied with.

22. Mr.Anup Sharma, the Chair person of the society is

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directed to file an affidavit in this Court as regards the compliance

of this order including in particular, compliance with regard to the

direction for payment of costs.

23. If for any reason, other than interim reliefs from the

Hon'ble Apex Court, this order is not complied with, the Chair

person to remain personally present in the Court after six weeks i.e.

on 24th November 2017.

24. The petition is dismissed with costs as aforesaid.

                                                       (M. S. SONAK, J.)




   N.S. Kamble                                                            page 10 of 10