Case Note & Summary
The writ petition was filed by Tedco Exports Pvt. Ltd. challenging the order of the Maharashtra State Cooperative Appellate Court which allowed the appeal of the respondent society and directed the petitioner to hand over possession of the suit flat. The suit flat was originally owned by Khemchand Ghorumal Mehrotra, who died in 1973, leaving his son Vishwambhar Khemchand Mehrotra as his only heir. Vishwambhar was residing in London and his wife, Smt. Aruna Vishwambhar Mehrotra, got the flat transferred in her name without the consent of the society. Subsequently, she transferred the flat to the petitioner. The society filed a dispute seeking possession of the flat on the ground that the petitioner was in illegal occupation. The Cooperative Court dismissed the dispute, but the Appellate Court reversed that decision. The High Court upheld the Appellate Court's order, holding that the transfer of the flat without the society's consent was invalid and that the petitioner was in illegal occupation. The court also held that the dispute was not barred by limitation and that the Cooperative Court had jurisdiction to decide the matter.
Headnote
A) Cooperative Housing Society - Tenant Copartnership Housing Society - Transfer of Flat - Validity - The transfer of a flat by the wife of the legal heir without the consent of the society is invalid as per the Bye-laws of the society and the provisions of the Maharashtra Cooperative Societies Act, 1960. The court held that the petitioner, who claims through such invalid transfer, is in illegal occupation and liable to be evicted. (Paras 1-31)
B) Cooperative Law - Jurisdiction - Section 91 of the Maharashtra Cooperative Societies Act, 1960 - The Cooperative Court has jurisdiction to decide disputes regarding possession of society's property. The court held that the dispute filed by the society for possession of the suit flat from the petitioner is maintainable. (Paras 1-31)
C) Limitation - Applicability - Section 91 of the Maharashtra Cooperative Societies Act, 1960 - The period of limitation for filing a dispute under Section 91 of the MCS Act is not applicable when the dispute relates to recovery of possession of society's property from a person in illegal occupation. The court held that the dispute is not barred by limitation. (Paras 1-31)
Issue of Consideration
Whether the transfer of the suit flat by the wife of the legal heir without the consent of the society is valid and whether the petitioner is entitled to retain possession of the suit flat.
Final Decision
The High Court dismissed the writ petition and upheld the order of the Appellate Court, directing the petitioner to hand over possession of the suit flat to the respondent society.
Law Points
- Transfer of flat in a Tenant Copartnership Housing Society without consent of the society is invalid
- Bye-laws of the society are binding on members and their legal heirs
- Cooperative Court has jurisdiction to decide disputes regarding possession of society's property
- Limitation period for filing dispute under Section 91 of the MCS Act is not applicable when the dispute relates to recovery of possession of society's property from a person in illegal occupation.
Case Details
2015 LawText (BOM) (07) 67
Writ Petition No.1384 of 2015
Ms. Mamta Sadh i/by Mr. Rahul Karnik for the Petitioner, Mr. A G Damle, Senior Advocate with Mrs. Bina H Jariwala & Mr. Shivaji Haral i/by M/s. Auroma Law for the Respondent No.1, Mrs. Tanmayee Gadre – Rajadhyaksha i/by Mr. S J Khera for the Respondent No.2
Suleman Chambers Cooperative Housing Society Ltd. & Vishwambhar Khemchand Mehrotra
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the order of the Maharashtra State Cooperative Appellate Court allowing the appeal of the respondent society and directing possession of the suit flat.
Remedy Sought
The petitioner sought to quash the order of the Appellate Court and restore the order of the Cooperative Court dismissing the society's dispute.
Filing Reason
The petitioner claimed to be the owner of the suit flat by virtue of a transfer from the wife of the legal heir, which the society contended was invalid.
Previous Decisions
The Cooperative Court dismissed the society's dispute on 12/07/2013. The Appellate Court allowed the society's appeal on 19/09/2014, setting aside the Cooperative Court's order and allowing the dispute.
Issues
Whether the transfer of the suit flat by the wife of the legal heir without the consent of the society is valid.
Whether the petitioner is entitled to retain possession of the suit flat.
Whether the Cooperative Court has jurisdiction to decide the dispute.
Whether the dispute is barred by limitation.
Submissions/Arguments
The petitioner argued that the transfer was valid and that the society had no right to evict them.
The respondent society argued that the transfer was invalid as it was made without the consent of the society, and the petitioner was in illegal occupation.
Ratio Decidendi
In a Tenant Copartnership Housing Society, any transfer of a flat without the consent of the society is invalid. The legal heir of a deceased member cannot transfer the flat to a third party without the society's approval. The Cooperative Court has jurisdiction to decide disputes regarding possession of society's property, and such disputes are not barred by limitation when the claim is for recovery of possession from a person in illegal occupation.
Judgment Excerpts
The dispute relates to Flat No.22, situated on the 3rd Floor of the building of the Respondent No.1 herein.
The transfer of the suit flat by the wife of the legal heir without the consent of the society is invalid.
The petitioner is in illegal occupation of the suit flat.
Procedural History
The respondent society filed Dispute No.CC/I/1032 of 1993 before the Cooperative Court No.I, Mumbai, seeking possession of the suit flat. The Cooperative Court dismissed the dispute on 12/07/2013. The society appealed to the Maharashtra State Cooperative Appellate Court, which allowed the appeal on 19/09/2014, setting aside the Cooperative Court's order and allowing the dispute. The petitioner then filed the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: Section 91
- Constitution of India: Article 227
