BEFORE THE DIVISIONAL JOINT REGISTRAR,
CO-OPERATIVE SOCIETIES MUMBAI DIVISION MUMBAI
APPEAL NO. OF 2019
IN THE MATTER OF APPEAL
UNDER SECTION 152 OF THE
MAHARASHTRA CO-OPERATIVE
SOCIETIES ACT , 1960 AGAINST
AN EX PARTE DECREE PASSED
UNDER SECTION 79(2)(A)
DATED 1 APRIL , 2019 BY THE
ST
RESPONDENT NO. 1, THE DY.-
REGISTRAR CO-OP. SOCIETY,
D-WARD, MUMBAI THEREBY,
INTER ALIA, DIRECTING THE
APPELLANT TO RESTORE THE
CAR PARKING SPACE TO THE
RESPONDENT NO. 2, AND
ALSO, RESTRAINED ALL
PERSONS, NOT TO INTERFERE
WITH THE PARKING SPACE
GIVEN TO RESPONDENT NO.2
Bhaveshwar Niketan Co-Operative
Housing Society Ltd., a society duly
registered under the Maharshtra Co-
Op. Societies Act , 1960 bearing no.
B-3133 of 6th May , 1961 having its
address at “Bhaveshwar Niketan” ,
August Kranti Marg, Mumbai – 400
036.
…Appellant
Versus
1. The Dy. Registrar of Co-operative
Societies, D-Ward, Mumbai
having its office at 6th Floor ,
Malhotra House, Opp. GPO, Fort,
Mumbai – 400 001.
2. Mrs. M.D. Saraiyya
An adult residing at flat nos. 14
& 15, Bhaveshwar Niketan ,
August Kranti Marg , Mumbai –
400 036
….Respondents
THE APPELLANT ABOVENAMED STATES AS UNDER:
1) That the Appellant is a Co-operative Society, which is duly registered under the
provisions of the Maharshtra Co-operative Societies Act, 1960 (for short “the said
Act”) under No. B-3133 as of 6th May, 1961. The Respondent No. 1 is the Dy.
Registrar of Co-operative Societies, D-Ward, Mumbai , who is designated under the
said Act for exercise of administrative powers. The Respondent No. 2 is the member
of Appellant society and the owner of Flat No. 15. The Respondent No. 2 also jointly
holds a garage bearing No. 7 along with her husband, however, she parks her car
in the “open car parking space” (for short “the said parking space”). The
Respondent No. 1 passed an Order in favour of Respondent No. 2 after the
Appellant had cancelled the said parking space and provided the same to another
member.
2) That the appellant has filed the Appeal assailing the illegal and perverse Order
dated 1st April, 2019 passed under Section 79(2) (a) of the said Act by the
Respondent No. 1, which takes rights of the Appellant qua the said parking space,
thereby granting absolute rights of said parking to Respondent No. 2 without
having the jurisdiction to pass such an Order. Hereto annexed and marked as
Exhibit - “A” is a copy of the said Order dated 1st April, 2019.
3) That the brief facts of the case with a view to understand the factual matrix of the
matter are as under :-
(a) That the said Appellant is the owner of the said building including,
but not limited to open car parking spaces within the boundary of the
said society. However, due to scarcity of space, several members are
forced to park their cars outside the society premises on the public
road. As such, there is always a danger of causing damage and/or
theft of cars. Needless to mention, the case of scratching of the body
of cars has become as often as routine.
(b) Being faced with the aforesaid situation, several members of the
Appellant society, had applied to it for allotment of car parking space
within the society compound. In contrast there are certain members
like Respondent No. 2, who despite having a separate garage
deliberately encroached upon open parking space, to the complete
prejudice of the other members of the society. As this was not
enough, the Respondent No. 2 also used to and, still continues
default in clearing the maintenance and related dues.
(c) Taking cognizance of the above situation, the Appellant during its
Annual General Body meeting held on 30th September, 2018 resolved
to take necessary action to address the above grievance. Hereto
annexed and marked as Exhibit-“B” is a copy of the Minutes of the
Meeting of the Annual General Body Meeting held on 30 th September,
2018. Accordingly, the Secretary of the Appellant society vide letter
dated 29th December,2018 communicated to the Respondent No. 2
that her parking has been cancelled in the light of the decision taken
by the majority in the AGM and her unpaid dues. Hereto annexed and
marked as Exhibit-“C” is a copy of the said letter dated 29th
December, 2019.
(d) Upon receipt of said letter, the Respondent No. 2 did not move her car
out of the said parking space. Even on requests of the member to
whom the above said parking space was allotted, the Respondent No.
2 did not move her car.
(e) The Respondent No. 2 approached Respondent No. 1 and procured an
illegal Impugned Order against the Appellant whereby Respondent
No. 1 has granted complete immunity to Respondent No. 2. Vide, the
said Order, the Respondent No. 1, inter alia, directed the Appellant to
restore the said parking space upon Respondent No. 2 and with
direction in rem that no person shall interfere with the said parking
of Respondent No. 2.
(f) The Appellant complied with the Order passed by Respondent No. 1
with immediate effect to avoid undue litigation. The Appellant states
that on 22nd April, 2019, the Appellant society handed over the Ledger
Account denoting bifurcation of maintenance bill as per Clause No.
67 of approved Bye-laws of the society. The Respondent No. 2 has
also made duly acknowledgement of receipts of bifurcation of
accounts by signing on the covering letter of the Appellant society on
23rd April, 2019. Annexed hereto and marked Exhibit-“D” is the copy
of duly acknowledged covering letter of the Appellant Society dated
22nd April, 2019.
(g) It is further pertinent to note that as on 9th April, 2019 itself, the
Appellant society has cancelled the newly marked flat number on the
space where the Respondent No. 2 had been parking their cars and
put their flat no. 14 and 15 in place of the earlier marked flat no. 1
and 23. The Appellant society can prove the above said facts through
photographs. Annexed hereto and marked as Exhibit-“E” are
photographs of the two open car parking spaces wherein the
Respondent No. 2 has parked their cars.
(h) This is most pertinent to note that in spite of compliance of order
dated 1st April, 2019 by providing bifurcation of maintenance bills on
22nd April, 2019 and by marking flat numbers of the Respondent No.
2 on open parking space on 9th April, 2019 , the Respondent No. 1
had issued order dated 27th July, 2019 and had appointed Mr. U.D.
Pingle, Co-Operative Officer Grade-2 to comply the order and directed
him to supply compliance report to the office of Respondent No. 1.
The same compliance report has not been shared with the Appellants
even after multiple applications for the same.
(i) The Respondent No. 2 through her Advocate Ms. Shubhangi Sarang
filed fresh Application dated 07th August, 2019 for dissolution of
Management Committee u/s 79(3) of Maharashtra Co-operative
Societies Act, 1960 by alleging non-compliance of the order. Likely
Advocate Ms. Shubhangi Sarang filed another application u/s 79(3)
for enforcement of Order dates 01st April, 2019 wherein she seeks
new prayer which is not prayed in her earlier application nor in the
Orders passed by Respondent No. 1 till date. The fresh prayer of
herein Respondent No. 2 by her statements/allegations “But till date
the parking is not given back to the complainant by any
communication or allotment letter and only it is marked by
charcoal by the officer from this Authority’s office”. By the said
sentence of the Respondent No. 2 itself shows the compliance of the
order passed by Respondent No. 1 and further orders thereon.
Annexed hereto and marked as Exhibit-“F” the application of
Respondent No. 2 filed through its advocate Ms. Shubhangi Sarang.
(j) On the basis of the said Application dated 07th August, 2019, the
Respondent No. 1 had issued Show Cause Notice dated 13th
September, 2019 u/s 79(3) along with section 73( c)(a) of
Maharashtra Co-operative Societies Act, 1960.
(k) Being so aggrieved by the impugned order dated 01st April, 2019, the
Appellant begs to challenge the same on the following amongst other
grounds which are without prejudice to each other:
GROUNDS
i. That the Learned Authority completely erred in accepting the blanket
statement of the Respondent No. 2 that she is using the parking since
35-40 years, which is false to the knowledge of Respondent No. 2;
ii. That the Respondent No. 2 illegally parking her car in the said
parking , as the Respondent No. 2 has not followed due process of
obtaining the parking spot as per the bye laws;
iii. That the Learned Authority turned a complete blind eye to the fact
that Respondent No. 2 was already in possession of a garage bearing
No. 7 in addition to the parking space;
iv. That the Learned Authority ignored the factor that Respondent No. 2
has not paid maintenance dues for the past 4 to 5 years;
v. That the Learned Authority failed to understand that Respondent No.
2 was disentitled of her open parking spaces for want of payment of
arrears;
vi. That the Learned Authority failed to appreciate the true importance of
the Resolutions passed in the AGM and the letters issued in
pursuance thereto by the Appellant;
vii. That the Learned Authority completely overlooked the fact that the
Respondent No. 2 has admitted and acknowledged the stand of the
Appellant and made part payments toward the same;
viii. That the Learned Authority completely overlooked the fact that the
Respondent No. 2 is deliberately avoiding payment of arrears and was
addressing letters to merely protract and avoid payments;
ix. That the Learned Authority has passed the impugned order without
jurisdiction;
x. That the Learned Authority by virtue of the impugned order has in
fact permitted the Respondent No. 2 to take advantage of its own
wrong;
xi. That the Learned Authority has passed this order without any
application of mind;
xii. The impugned order is without any proper justification and without
talking into consideration the prejudice , it will cause to the other
members of the society;
xiii. The impugned order is perverse and deserves to be quashed and set
aside;
xiv. The impugned order is in complete disregard to the MCS Act and
Rules provided thereunder;
xv. The impugned order is passed without any authority and/or
jurisdiction;
xvi. That the Learned Authority failed to appreciate that the Respondent
No. 2 is misusing and abusing the process of law and that mere
intention of Respondent No. 2 to make payment cannot be a ground
to take away other members rights with respect to the said open
parking space;
xvii. That the Learned Authority did not even think fit to comment upon as
to why the Respondent No. 2, though holding a separate garage, she
is deliberately parking her car in the open parking space;
xviii. That none of the submissions as made by the Respondent No. 2
before the Learned Authority are based on cogent evidence;
4) The Appellant craves leave of this Hon’ble Authority to add, alter, amend, modify,
and/or delete any of the foregoing grounds.
5) That the impugned order suffers from defects and various infirmities, which are
fatal and irreparable, as also without jurisdiction. The Appellant has made out
strong prima facie case to set aside the impugned order dated 1st April, 2019 and
for allowing the present Appeal. The Appellant, therefore, submits that these facts
and circumstances of the impugned order passed by the Respondent No. 1 under
section 79 (2) (a) of the Maharashtra Co-operative Societies Act, 1960, is illegal and
requires to be set aside in the interest of Justice and in the larger interest of the
members of the said society.
6) That is just, proper, necessary and in the interest of justice that pending the
hearing and final disposal of this Appeal the effect and operation of the impugned
order dated 01st April, 2019 may be stayed. The Appellant that submits that if the
order passed by the Respondent No. 1 is stayed, no harm loss or prejudice would
be caused to the Respondents whereas if the said order is not stayed grave harm,
irreparable loss and prejudice would be caused to the Appellant at large, which
cannot be compensated in terms of money. The balance of convenience is in favor
of the Appellant.
7) The Appellant has not filed any other proceedings against the impugned order
before this authority or before any Court of Law.
8) The Appellant, therefore, prays:-
a. That the Appeal be allowed;
b. That the paper and proceedings pertaining to the impugned order No.
dated (Exhibit-“A” hereto) be called from office of the Respondent No. 1
and after examining legality and propriety thereof the said impugned order
dated 1st April, 2019 be quashed and set aside;
c. That pending the hearing and final disposal of the Appeal this Hon’ble
Authority may please to stay the effect, operation and implementation of the
impugned order no. dated (Exhibit-“A” hereto) passed by the
Respondent No. 1.
d. Interim and ad-interim stay in terms of prayer (c.) above.
e. Such other relief as the Hon’ble Authority may deem fit and proper.
f. That cost of Appeal be provided for,
Place: Mumbai
Dated: day of November, 2019
Advocate for the Appellant
Appellant
