Bombay High Court
Ganesh Madhukar Pednekar vs State Of Maharashtra And Ors on 13 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:32455
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4972 OF 2015
Ganesh Madhukar Pednekar
( thr. His Legal Heir)
Ashwin Madhukar Pednekar
Age:- 63 years, Occ : Retired
R/at Room No. 18 Sankalp CHS Ltd.
Plt. No. B-3, Sector -6, New Panvel
(East), Dist - Raigad, 410206 ...Petitioner
Versus
1. State of Maharashtra
Mantralaya, Mumbai
2. Divisional Joint Registrar,
Co-operative Societies, Mumbai
Having office at Malhotra House,
6th floor, Opp. G.P.P., Fort, Mumbai - 400 001
3. Asst. Registrar, E- Ward,
Co-operative Societies, Mumbai
Having office at Malhotra House,
6th floor, Opp. G.P.P., Fort, Mumbai - 400 001
4. Tarabaug Aikyawardhak Co-op. Hsg. Soc Ltd.
A co-operative Housing society
registered under Maharashtra Co-operative
Societies Act, 1960
Having their address at Sheth Motisha Road,
Mazgaon, Mumbai - 400 010
5. Janardan Dashrath Pednekar
Age: Occ:
Saphalya, 4th Floor, Room No. 2,
Tarabaug Aikyawardhak Co-op. Hsg. Soc.
Ltd., Tarabaug, Sheth Motisha Road,
Mazgaon, Mumbai -400 010 ...Respondents
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Adv. K. P. Shetye for the Petitioner.
Adv. Rita Joshi a/w Adv. Rahul Shetty for Respondent No. 5.
Adv. S. D. Chipade, AGP for the State.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : August 1, 2024.
Pronounced on : August 13 ,2024.
JUDGMENT :
1. Rule. Rule made returnable forthwith and taken up for final
hearing with the consent of the parties.
1. By this Petition, challenge is to the order dated 25 th May, 2015
passed in Revision Application No. 228 of 2014 dismissing the Revision
Application of the Petitioner filed against the Directions dated 30 th
December, 2013 passed under Section 79(2)(b) and order dated 5 th
May, 2014 issued by Assistant Registrar of the Co-operative Societies,
E- Ward Mumbai, under Section 80(2) of the Maharashtra Co-operative
Society Act, 1960 (MCS Act).
2. The case of the Petitioner is that the Petitioner's father- late
Madhukar Pednekar was the owner of Room No. 2, 4th Floor, Tarabaug
Aikyawardhak Co-op. Hsg. Soc. Ltd., Mazgaon, Mumbai -400 010 and
the share certificate bearing No. 20 stands in the name of Madhukar
Pednekar. The Respondent No. 5 Janardan Dashrath Pednekar was the
brother of the Petitioner's father and was allowed by the Petitioner's
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father to reside gratuitously along with his family in the said room.
The Respondent No. 5 surreptitiously entered his name in the Society
records, pursuant to which the Society started issuing maintenance
receipts in the name of the Respondent No. 5. The Respondent No. 5
made Application in the year to the Society to transfer the share
certificate from Madhukar Pednekar to his name. The Petitioner's
father had also made an Application in the year 1996 to delete the
name of Respondent No. 5 from the Society records. The Petitioner's
father expired on 15th March, 2002 and the Petitioner along with his
brother being the legal heirs are entitled to the said flat.
3. Respondent No. 2 filed LE Suit No.77 of 2009 against the
Petitioner in Small Causes Court for eviction which came to be
dismissed. On 8th July, 2012, an Application came to be filed by
Respondent No.5 before the Assistant Registrar, Co-operative
Societies, E- Ward stating that he has lost the share certificate and
duplicate share certificate be issued to him. Public notice was issued
in the newspaper about loss of certificate and complaint was lodged
with the Byculla Police Station by the Respondent No. 5 about loss of
share certificate.
4. On 30th December, 2013, the Assistant Registrar passed an
order appointing an authorised officer for issuance of duplicate share
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certificate to Respondent No. 5. On 5 th May, 2014, the Assistant
Registrar, Co-operative Society passed an order directing the Senior
Police Inspector of Byculla Police Station to take action against the
Society/Petitioner and to make available the original share certificate
and concerned record and hand over to the authorized officer.
5. Being aggrieved by the order dated 30th December, 2013 and 5th
May, 2014, Revision Application came to be filed by the Petitioner
before the Divisional Joint Registrar which was dismissed on 25 th May,
2015.
SUBMISSIONS :
6. Mr. Shetye, Learned counsel for the Petitioner would submit
that initially the premises were tenanted premises and subsequently,
an agreement for sale was executed in favour of his father Madhukar
Pednekar. He submits that the Respondent No. 5 entered his name
illegally in Society records and the eviction suit filed against the
Petitioner has been dismissed. He points out the observation of
Assistant Registrar that the Respondent No. 5 has not been issued the
share certificate and would submit that thus no question of issuance
of duplicate share certificate would arise. He submits that the only
reason why the authorized officer came to be appointed for the
purpose of issuance of duplicate share certificate was that the Society
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did not take any action on the directions issued to inspect the records
and to take appropriate action. He would further submit that the case
of Respondent No. 5 was of loss of share certificate when there was
no share certificate issued or transferred in his name.
7. He would point out the agreement for sale and the schedule
noting the name of Madhukar as member. He would further point out
the averments of the Society in the Affidavit-in-reply and would
submit that the Society has supported the case of the Petitioner. He
would further point out the rejoinder filed by the Respondent No. 5 in
the present Petition admitting that the membership of the Society
after his formation was granted in the name of the Petitioner's father.
He submits that the case of the Respondent No. 5 is based on an
alleged transfer of membership form for consideration of Rs. 4,250/-
which is impermissible in law. He submits that the changes made in
Form I and Form J were illegally done based on the alleged purported
transfer. He submits that as there was no valid transfer of the
property and there was no share certificate which was issued in the
name of Respondent No. 5, no direction could be issued for issuance
of duplicate share certificate in the name of Respondent No.5.
8. Per contra, Ms. Joshi, learned counsel for the Respondent No.5
would submit that during the proposed re-development of the Society
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MHADA had certified the list of occupants which shows the name of
Respondent No. 5. She would further submit that during the hearing,
the Society has admitted that Respondent No.5 is the member of the
Society and owner of the suit flat and also paying maintenance
charges regularly to the Respondent No.1-Society and that the Society
is now adopting a different stand. She further submits that though
the Petitioner and the Society were directed to produce original
document as well as the share certificate, however, the same was not
produced and therefore, the Assistant Registrar issued necessary
order under Section 80(2) of the MCS Act. She submits that it is a
specific finding of the Appellate Authority that maintenance bills are
issued in the name of Respondent No.5, the list of members shows
the name of Respondent No.5 as member in respect of the suit flat
and therefore, necessary directions were issued for issuance of the
duplicate share certificate. She would further point out the transfer
form dated 14th August, 1979 and would submit that there has been a
transfer in the name of Respondent No.5. She would further point out
the counterfoil of the share certificate at page No.109 of the Petition
and would submit that name of Respondent No.5 appears in the
counterfoil whereas, the name of the Madhukar has been circled. She
submits that the Society had addressed a communication to the
Assistant Registrar certifying that Janardan Pednekar i.e. Respondent
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No.5 is the owner of the flat and the member of the Society and that
the maintenance bills were paid by Janardan Pednekar and that the
duplicate share certificate was not issued as Civil Dispute was
pending.
9. In rejoinder, Mr. Shetye, would submit that the Application for
duplicate share certificate made on 17th October, 2003 by the
Respondent No.5 states that the Petitioner's father Madhukar had
executed transfer form and other documents in favour of the
Respondent No.5 and after transfer of the documents, the concerned
Society has not issued the share certificate to him till today whereas
the application before the Assistant Registrar is for issuance of
duplicate share certificate.
10. I have considered the submissions canvassed and perused the
record.
11. The impugned order dated 30th December, 2013 exercises
powers under Section 79(2)(b) of MCS Act and appoints an officer for
issuing duplicate share certificate to the Respondent No.5. Section
79(2)(b) empowers the Registrar to ensure compliance of the action
required to be taken by the Society through its authorised officer. The
Assistant Registrar has noted that the copy of the available share
certificate shows the name of Madhukar Pednekar and that in the year
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1979, the Respondent No.5 had made an application for transfer of
the flat and thereafter maintenance bill has been issued in the name
of the Respondent No.5 and in the share register, the name of the
Respondent No.5 is shown. Notably, in the said order, the Assistant
Registrar has held that the Respondent No.5 has not been given the
share certificate by the Society in respect of which the Respondent
No.5 has initiated proceedings before the Small Causes Court in which
certain observations were noted as regards the membership.
12. Despite it being observed that the Society has not issued share
certificate to the Respondent No.5, directions were issued for
issuance of duplicate share certificate. The Judgment of the Small
Causes Court dated 30th September, 2013 though produced, the
Assistant Registrar has failed to take note of the same and in
particular, the observations made therein that the Respondent No.5
had admitted that he did not possess the share certificate of the suit
premises. Considering the observation that the copy of the available
share certificate showed the name of Madhukar Pednekar, the
Assistant Registrar ought to have appreciated that the inquiry to be
conducted was as to the right of transfer of share certificate of
Madhukar Pednekar in name of Respondent No.5 and not into the
issuance of duplicate share certificate. The question of issuance of
duplicate share certificate would arise in an eventuality where the
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share certificate was transferred in the name of the Respondent No.5
and was thereafter lost or misplaced and not in a case where the
share certificate was never transferred in the name of the Respondent
No.5. If it is not demonstrated that the share certificate had been
transferred in name of Respondent No. 5, there could be no direction
for issuance of duplicate share certificate in name of Respondent
No.5. The Assistant Registrar ignored the settled position that no
rights in immovable property could be transferred with valid
registered document of transfer.
13. At this stage few crucial facts needs to be noted. The position
that the Petitioner's father was the original allottee of the said flat
has been demonstrated from the agreement for sale and from the
admission of Respondent No.5 in the rejoinder that the original
tenanted premises stood in the name of the Petitioner's father and
when the society was formed, the membership of the society was
granted in the name of Petitioner's father. The counterfoil of the
share certificate on record indicates that the name of Petitioner's
father was circled and the name of Respondent No.5 is written by
hand. However, there is no signature of Secretary and the Chairman
though stamp is affixed on the counterfoil of share certificate No. 20.
In the application dated 8th July, 2012 filed by Respondent No.5 with
the Society, he has admitted that the Society has not yet issued him
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the share certificate. Therefore, the position existing on the date of
the impugned order was that there was no transfer of the Share
Certificate No.20 in favour of Respondent No.5. The entry in the
register of members by the Society appears to be invalid in view of the
fact that the share certificate was not transferred in name of
Respondent No.5. In both Form I and Form J which is annexed at page
No.111 and 112 the name of Madhukar has been circled and the name
of Janardan has been written by hand.
14. Coming to the foundation of the right in the subject premises
claimed by the Respondent No.5, the transfer form dated 14 th August,
1979 is stated to be executed by the Petitioner's father transferring
the membership. Perusal of the transfer form which is at page No. 106
of the Petition, would indicate that in consideration of sum of Rs.
4250/-, the shares of the society in respect of the flat No.8 was
transferred in favour of Respondent No.5. The procedure of transfer
of shares of the Society by executing a transfer form without any
underlying document of title pertaining to the transfer of the flat
allotted to the member by virtue of being the holder of shares of the
Society is unknown to law. The documents on record will indicate the
possession of the Respondent No.5 of the subject premises but
nothing further. The entering of name of Respondent No. 5 in register
of members appears to be on the basis of transfer form which was not
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rightly entered as the share certificate stood in name of Petitioner's
father.
15. It will also be relevant to consider the affidavit-in-reply of
Respondent No.4-Society. The Deponent of the said affidavit has
deposed that the counterfoil of the original share certificate No.20
which is on record of the Society shows that the entry of Janardhan
was not finalized. Based on the records, the Deponent has stated that
the share certificate was issued by the Society in the name of
Madhukar Pednekar as the premises i.e. flat No. 4/2 was allotted to
Madhukar. It is further stated that, the dispute arose between the
Madhukar and Janardan in the year 1994 and that in the month of
April 2012, a complaint was made by the Janardan that the share
certificate has been lost and the Society had directed Janardan to
follow the procedure to getting the duplicate share certificate. The
Deponent has specifically stated that the Flat No. 4/2 and also the
share certificate was never transferred by the Society in the name of
Janardan Pednekar. The consideration for the purchase of the flat
was deposited by Madhukar Pednekar and thus, in the indenture of
sale dated 07th July 1977, the name of Madhukar appears in the
second schedule at serial No.19 and also in the application for
registration of Respondent No.4 Society.
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16. Admittedly, in the proceedings before the Assistant Registrar
culminating in the order dated 30 th December, 2013, the Petitioner
was not made a party. In the absence of any valid document of title
produced by the Respondent No.5 to demonstrate that the said flat
was transferred by the original allottee there cannot be issuance of
duplicate share certificate without the original share certificate being
transferred in the name of Respondent No.5. The impugned order
dated 30th December, 2013 does not take the relevant factors in
consideration and suffers from infirmity. During the passing of the
order dated 5th May, 2014, the Petitioner was present and instead of
considering the claim of the Petitioner, the Assistant Registrar has
directed the concerned police officer to make available the original
share certificate and the concerned record from the
Petitioner/Society.
17. Despite the material on record making it evident that there
was dispute about the right, title and interest in the subject flat which
could not have been adjudicated by the authority under the MCS Act,
the Assistant Registrar had passed the impugned order.
18. The Appellate Authority in the Appeal filed by the present
Petitioner held that the Madhukar was a member of the Society who
had been issued the share certificate and erroneously observed that
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the present Petitioner i.e. Ganesh Madhukar Pednekar and Janardan
Dashrath Pednekar are the sons of the deceased member. In view of
the factually erroneous findings, the Appellate Authority has then
considered that the subject flat has been transferred in the name of
Janardan. Though being aware of the fact that any dispute regarding
title of the subject flat is required to be adjudicated before the Court
and competent jurisdiction, the Appellate Authority has held that the
membership of the Respondent No.5 is intact and there is no
prohibitory order of the Competent Authority for not issuing the
duplicate share certificate to Respondent No.2 and that the issuance
of a duplicate share certificate will not relinquish or extinguish his
right in the subject property.
19. The Appellate Authority failed to consider that the share
certificate is prima facie evidence of the person holding shares of the
Society and being allotted flat thereof. It was therefore, necessary for
the authority in light of the facts to ascertain whether the issue
involved determination of right, title and interest in the property and
if that being so, the appropriate course was to relegate the parties to
the Civil remedy. In event, the share certificate was shown to have
been transferred in the name of Respondent No.5 and thereafter
lost, the Authority would have been justified in directing the issuance
of the duplicate share certificate. The Authority has however taken
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into consideration the position that the name of the Respondent No.5
appears in the Form I and Form J without any material to show that
the share certificate was duly transferred in the name of Respondent
No.5, the entry of the Respondent No.5 in the Register I and J appears
to be prima facie doubtful. By directing the issuance of the duplicate
share certificate, the Appellate Authority has determined the transfer
of shares in favour of Respondent No.5 without any document of title
being produced by Respondent No.5 which is unsustainable.
20. Considering that the admitted position is that the Madhukar
was the original allottee of the flat and was issued the share
certificate and it appears that subsequently, there were some entries
in the Society's records by virtue of which the name of Respondent
No.5 came to be entered in Register " I" and "J" without there being a
valid registered document of title produced by Respondent No.5 to
demonstrate that the said flat was sold by Madhukar to Janardan,
only by reason of the execution of transfer form in the year 1979, the
duplicate share certificate could not have been directed to be issued.
The Respondent No.5 in the application to the Society states that no
share certificate has been issued by the Society and in the application
to the authorities canvasses a different position that the share
certificate has been lost. The impugned orders fail to consider the
facts of the case which involved a dispute as to the right, title and
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interest in the subject flat which was outside the jurisdiction of the
authorities constituted under the MCS Act. In my view, the impugned
orders are clearly unsustainable and are liable to be quashed ans set
aside.
21. In light of the discussion above, following order is passed :
(a) The impugned order dated 25th May, 2015 passed by
the Divisional Joint Registrar in Revision Application
No. 228/2014 and the orders dated 30th December,
2013 and 5th May, 2014 passed by the Assistant
Registrar are hereby quashed and set aside.
(b) In the facts of the case, the authorities under the
MCS Act are not competent to issue any directions
for issuance of share certificate or duplicate share
certificate, as disputed issues of title are involved.
(c) The parties are at liberty to approach the Civil Court
seeking appropriate relief qua the ownership of the
subject flat. The outcome of the adjudication by
Competent Civil Court will govern the issue of
transfer of the share certificate or issuance of the
duplicate share certificate.
22. Petition is allowed in the above terms. Rule is made absolute.
23. At this stage, request has been made for status quo by the
learned counsel for Respondent No. 5 by stating that duplicate
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certificate has been issued which is at page 151 of the Petition.
Perusal of duplicate certificate at page 151 would indicate that the
same has not been signed either by the Secretary or by the Chairman
of the Society. At the first date of hearing on 4 th June, 2015, this Court
had stayed the orders passed by the Assistant Registrar dated 30 th
December, 2013 and impugned order dated 5th May, 2015. Since the
impugned orders are stayed from year 2015 the same status to be
continued for a period of eight weeks from today.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 13/08/2024 20:54:55
