Case Note & Summary
The Petitioner, Mistry Park CHS Ltd., a co-operative housing society, challenged orders dated 18 October 2021 and 22 March 2022 passed by the Deputy Registrar and Divisional Joint Registrar respectively under the Maharashtra Co-operative Societies Act, 1960. The Deputy Registrar had directed the Society to refund amounts recovered from Respondents No.1 and 2 (Dr. Bharat Prem Shivdasani and Dr. Haresh Prem Shivdasani) towards non-occupancy charges for Shop No.1, or adjust the same from future maintenance bills. The Society had levied these charges on the garage owners who were not members of the Society, as they did not own any residential flat. The lease deed of 1966 restricted use of the building to private residences and garages only for parking cars. The Society's by-laws limited membership to flat or plot owners, and the garage owners were only nominal members without voting rights. The Deputy Registrar, under Section 79(2)(b), held that the Society could not levy non-occupancy charges on non-members and directed refund. The Joint Registrar upheld this in revision. The High Court examined the scope of Section 79(2)(b) and held that the Registrar's powers are not unbridled and cannot override the Society's by-laws or lease deed restrictions. The Court noted that the garage owners were not members and the lease deed prohibited commercial use, so the Society was justified in charging non-occupancy charges to prevent misuse. However, since the garage owners were not members, the by-law on non-occupancy charges did not apply. The Court set aside the impugned orders, holding that the Registrar exceeded jurisdiction. The Society was directed to refund the non-occupancy charges but could recover actual maintenance charges from the garage owners. The petition was allowed.
Headnote
A) Co-operative Societies - Section 79(2)(b) of Maharashtra Co-operative Societies Act, 1960 - Powers of Registrar - The Deputy Registrar under Section 79(2)(b) can issue directions to resolve disputes between a society and its members or any person aggrieved, but cannot override the society's by-laws or lease deed restrictions. The order directing refund of non-occupancy charges was set aside as the garage owner was not a member and the lease deed prohibited commercial use. (Paras 1-19) B) Co-operative Societies - By-laws - Interpretation - By-law No.6 of the Society limits membership to flat owners or plot owners; a garage owner who does not own a flat cannot be a member. The Society's by-laws and lease deed restrictions are binding and the Registrar cannot ignore them. (Paras 2-10) C) Co-operative Societies - Non-occupancy charges - Levy - The Society's by-law No.27 permits levy of non-occupancy charges on members who do not occupy their premises. Since the garage owner was not a member, the Society could not levy such charges, but the Registrar's direction to refund was erroneous as the charges were collected under a mistaken belief and the Society was entitled to recover actual maintenance. (Paras 11-19)
Issue of Consideration
Whether the Deputy Registrar under Section 79(2)(b) of the Maharashtra Co-operative Societies Act, 1960 can direct refund of non-occupancy charges collected by the Society from a garage owner who is not a member of the Society, and whether the Society's by-laws and lease deed restrictions justify such charges.
Final Decision
The High Court allowed the writ petition, quashing the orders of the Deputy Registrar dated 18 October 2021 and the Divisional Joint Registrar dated 22 March 2022. The Court held that the Registrar exceeded jurisdiction under Section 79(2)(b) by directing refund of non-occupancy charges, as the garage owners were not members and the lease deed restricted use. The Society was directed to refund the non-occupancy charges but could recover actual maintenance charges from the garage owners.
Law Points
- Section 79(2)(b) of Maharashtra Co-operative Societies Act
- 1960
- By-laws of Co-operative Housing Society
- Lease deed restrictions
- Non-occupancy charges
- Powers of Registrar under Section 79(2)(b)
- Revision under Section 154 of MCS Act
