Bombay High Court
Simla House Chsl vs Mr. Yayati Ramesh Vairale And Ors. on 18 April, 2026
2026:BHC-AS:18335
WP-6211-2018(J) C2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by
HUSENBASHA
HUSENBASHA RAHAMAN
CIVIL APPELLATE JURISDICTION
RAHAMAN NADAF
NADAF
Date:
2026.04.18 WRIT PETITION NO. 6211 OF 2018
19:02:11 +0530
Simla House Co-op Hsg. Soc. Ltd.
51/B, Laxmibai Jagmohandas Marg,
Napeansea Road, Mumbai 400 036 ... Petitioner
Versus
1. Mr. Yayati Ramesh Vairale.
Age Years,
R/o- Gala No. D/54,
Sımla House Co-op Hsg. Soc. Ltd.
51/B, Laxmibai Jagmohandas Marg,
Napeansea Road, Mumbai 400 036.
2. The Dy. Registrar, Co-Op Societies
D-Division, Mumbai
Add: Malhotra House, 6th Floor,
Nr. GPO, Fort, Mumbai-01.
3. The Divisional Jt. Registrar,
Co-Op Societies D-Division, Mumbai
Add: Malhotra House, 6th Floor, Nr. GPO,
Fort, Mumbai-01.
4. The State of Maharashtra
Through the Govt Pleader (A.S). ...Respondents
***
Mr. Chirag Mody a/w Mr. Yash Momaya, Mr. Munaf Virjee, Ms. Nehaa
M. Shah & Mr. Pranav Shetty i/b AMR Law for the Petitioner.
Mr. Akshay Patil a/w Ms. Devika Madekar, Mr. K. S. Wankhade i/b
Mr. A. P. Bhuibhar for Respondent No. 1.
Mr. Hamid Mulla, AGP for Respondent Nos. 2 to 4 - State.
***
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CORAM : M.M. SATHAYE, J.
RESERVED ON : 10th DECEMBER, 2025
PRONOUNCED ON : 18th APRIL, 2026
JUDGMENT :
1. The Petitioner, a Co-operative housing society, is taking
exception to the judgment and order dated 28.02.2017 passed by
Divisional Joint Registrar, Co-operative Societies, Mumbai Division,
Mumbai in Revision Application No. 119 of 2016, by which the said
revision filed by the Petitioner is rejected, thereby confirming the
order dated 21.01.2015 passed by Deputy Registrar Society, D-Ward,
Mumbai under Section 22(2) of the Maharashtra Co-operative
Societies Act, 1960 (‘MCS Act‘ for short).
2. Few facts necessary for the disposal of this petition, are as
under:
2.1. Sometime in December, 1969, father of Respondent No.1 (Mr.
Ramesh Vairale) entered into an agreement with one M/s. Ishwardas
Haridas Bhatia (Promoter) for purchase of Garage No.54 on the
ground floor of the Petitioner’s society building for Rs.15,000/- (‘the
said garage’ for short). Father of Respondent No.1 was admitted as a
nominal member of the Petitioner’s society with such status
continued during lifetime of Respondent No.1’s father.
2.2 In October 2000, father of Respondent No. 1 submitted a
nomination form (in favour of Respondent No. 1) in respect of his
membership of the Petitioner society.
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2.3 On 10-10-2001, father of Respondent No. 1 passed away.
2.4. On 29.09.2003, the Petitioner society accepted the application
made by Respondent No. 1 for transfer of membership and
Responder No. 1 was admitted as a nominal Member.
2.5. On 31.08.2010, the Hon’ble Supreme Court rendered the
judgment of Nahalchand Laloochand Private Limited Vs. Panchali
Cooperative Housing Society Limited (2010) 9 SCC 536.
2.6. On 24.09.2013, Respondent No. 1 submitted an application for
transfer of membership as heir under by-law No. 35. Since this
application was not decided, Respondent No. 1 applied under Section
22(2) of the MCS Act before the Deputy Registrar.
2.7. On 21-01-2015, the Deputy Registrar allowed the application
under Section 22(2) of the MCS Act.
2.8. The Petitioner’s society filed the aforesaid revision application
under section 154 of the MCS Act.
2.9 By impugned order dated 28.02.2017, the Divisional Joint
Registrar dismissed the revision application.
2.10. In April 2017, present petition is affirmed, which is
subsequently numbered.
2.11. During pendency of this petition, Chapter XIII-B was inserted in
MCS Act, modifying the meaning of ‘member’ with effect from
09.03.2019.
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2.12. On 07.09.2023 learned single Judge of this Court rendered the
judgment of Mistry Park Chs Ltd., Mumbai Vs. Dr. Bharat Prem
Shivdasani and Ors. (2023 SCC OnLine Bom 3002)
2.13. On 24.02.2025, learned single Judge of this Court rendered
the judgment of The Vivina Co-operative Housing Society Ltd. Vs.
The State of Maharashtra and Ors. (WP/3938/2024, Judgment dated
24.02.2025).
3. In the meantime, the Respondent No.1 filed Affidavit-in-Reply
dated 28.01.2020 specifically contending inter alia that the deceased
father of Respondent No.1, ever since its purchase in 1969, has used
it for commercial purpose for more than 50 years with necessary
licence from the Shop and Establishment Act. He has also further
contented that from the time of his father, such use for commercial
purpose was not obstructed by the Petitioner society for decades. It is
also contended that the Petitioner society had never contested the
membership of father of Respondent No.1 and same has been
contested only after his death. Respondent No.1 has also shown
readiness and willingness to pay commercial assessment or additional
property tax if levied by the Corporation.
SUBMISSIONS
4. Learned counsel Mr. Mody appearing from the Petitioner
Society submitted as under.
4.1. That the case is squarely covered by judgment in Nahalchand
Laloochand (Supra). That Respondent No.1 claims right in the said
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garage only and since inception both Respondent No.1 and his father
have accepted that they are concerned with only garage and they are
accordingly charged maintenance dues.
4.2. That under under Section 2(a-1) of Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 (‘MOFA’ for short) the term
‘flat’ is defined and it is interpreted in Nahalchand (Supra) by the
Hon’ble Supreme Court, holding that a stand-alone garage would not
be included in the ambit of term ‘flat’ and therefore, since father of
Respondent No. 1 has not acquired a ‘flat’ as defined under MOFA he
is not entitled to membership of Petitioner Society formed under
MOFA.
4.3. He relied on Section 10 of MOFA, which contemplates that the
takers of ‘flats’ to form the society and not takers of ‘garages’ or any
other type of premises which is not a flat.
4.4. That definition of ‘flat’ in MOFA is pari materia with definition
of ‘flat’ as provided under Section 154B-1(13) of MCS Act and
therefore, the view taken in Nahalchand (Supra) binds this Court.
That definition of ‘flat’ in bye-laws of Petitioner’s society, bye-law
No.3(vi), is also pari materia with definition in MOFA. Therefore,
holding a flat is a sine qua non for admission to membership and
failing such ownership of flat, a concerned person is not entitled to
membership.
4.5. That the judgment of Mistry Park Chs Ltd., Mumbai (Supra) is
not applicable and is entirely distinguishable on facts because in
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Mistry Park Chs Ltd. (Supra) the Deputy Registrar came to a finding
that membership was acquired in respect of a shop, which is not the
present case. That alternatively, the judgment of Mistry Park Chs Ltd.
(Supra) is per incurium. That the Order of Dr. Vasant P. Jain Vs.
Secretary / Chairman Suvarna – Sapna CHS Ltd. and 2 Ors.
(WP/44/2025, Order dated 19.03.2025) is binding, since it considers
both Nahalchand (Supra) and Mistry Park Chs Ltd. (Supra),
especially paragraph No. 15 thereof.
4.6. That nothing is produced on record to show that the said
garage is shown as ‘commercial unit’ in sanctioned plan of municipal
corporation and therefore the judgment of Dr. Vasant P. Jain (Supra)
is applicable and binding.
4.7. That in case of conflict with the statute, the bye-laws must
cede.
4.8. He also relied on following other judgments in support of his
case.
i. Jaydeep Apartment CHS Ltd. Vs. The Divisional Joint
Registrar, Co-Operative Societies, Mumbai Division,
Mumbai & Ors. – (WP(L)/8003/2024 Bombay High
Court decision dated 20.02.2025).
ii. Rajesh Mishra and Beena R. Mishra Vs. Shree Ahuja
Properties Pvt. Ltd and Ors. – 2021 SCC OnLine Bom
2945.
iii. Ahmedabad Pvt. Primary Teachers’ Assn. Vs.
Administrative Officer and Ors. – (2004) 1 SCC 755.
iv. Babaji Kondaji Garad Vs. Nasik Merchants Co-operative
Bank Ltd., Nasik and Ors. – (1984) 2 SCC 50.
v. Cooperative Central Bank Ltd. and Ors. Vs. Additional
Industrial Tribunal, Andhra Pradesh and Ors. – (1969) 2
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SCC 43.
vi. K.M. Sonia Bhatia Vs. State of U.P. and Ors. – (1981) 2
SCC 585.
5. On the other hand, Mr. Patil appearing for Respondent No. 1
submitted as under.
5.1. That the issue that falls for consideration is whether the
decisions of lower authorities granting deemed membership to
Respondent No. 1 with respect to the said garage is legal and valid.
5.2. That the agreement between father of Respondent No. 1 and
promoter / developer is binding on the Petitioner society and
pursuant to the agreement, father of Respondent No. 1 has paid
various amounts towards share money and other expenses.
5.3. That father of Respondent No. 1 was entitled to active
membership as defined under bye-law No.3 (xxiv)-(a). That said bye-
law indicates that person who holds right, title & interests in the
property, individual or jointly, is entitled to become member of
Petitioner society. That the expression active member includes a
person who has purchased and owns a flat / unit in the society and a
person who does not hold right, title & interest in the property is
entitled to become a nominal member under bye-law No. 3(xxiv)(c).
5.4. That considering that father of Respondent No.1 owned a unit
in the society (the said Garage No. 54), father of Respondent No.1
and subsequently Respondent No.1 is entitled to active membership.
5.5. That Respondent No. 1 fulfills the eligibility criteria as
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stipulated under bye-law No. 17 for membership.
5.6. That definition of ‘flat’ in bye-law No.3(vi) includes the garage.
5.7. That father of Respondent No.1 purchased a self-contained unit
being an enclosed from all four premises, having amenities such as
sanitary washing and other conveniences which are in common, and
it cannot be equated with parking space or parking slot.
5.8. That assuming that ‘flat’ does not include garage, garage is
certainly a ‘unit’ in the building of the Petitioner society and
therefore, Respondent No.1 is entitled for membership.
5.9. He relied upon The Gulbahar Co-op. Housing Society Ltd. Vs.
The Joint Registrar, Co. Operative Societies & Ors. (WP/1572/2024
Judgment dated 07.08.2006 Bombay High Court), New Vijay
Cooperative Housing Society Limited Vs. Smt. Flora Ignatius D’Souza
& Ors. (WP/1814/2007 Judgment dated 13.08.2014 Bombay High
Court) and Mistry Park Chs Ltd., Mumbai Vs. Dr. Bharat Prem
Shivdasani and Ors. – 2023 SCC OnLine Bom 3002 in support of his
case.
5.10. He supported the interpretation of learned Single Judge of this
Court in Mistry Park Chs (Supra) and submitted that the learned
Single Judge of this Court has relied upon Section 154B-1(13) which
is an all-encompassing definition. He further submitted that the
observations of the Hon’ble Supreme Court in Nahalchand (Supra)
regarding stand-alone garage not being a flat, is not applicable for
determining the issue of membership. He submitted that the
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judgment in Nahalchand (Supra) is based on provisions of MOFA,
while an issue of membership is primarily governed by MCS Act and
the bye-laws of the society. That in Nahalchand (Supra) Hon’ble
Supreme Court interpreted MOFA for the purpose of promoters right
to sell common areas and concluded that stand-alone garage is not a
flat.
5.11 That ownership of Respondent No. 1 is not disputed about the
said garage and it is also not disputed that said garage forms part of
the society building.
5.12. That the definition of ‘flat’ under bye-laws or Section 154B–
1(13) includes variety of units which are separate and self-contained
and this statutory definition shifts the focus from the traditional
nature of garage to a self-contained character, in the context of co-
operative society.
5.13. That the jurisdiction vested in the authorities below is confined
to examining whether the documents prescribed under the Act and
bye-laws have been duly furnished and they are neither empowered
nor required to conduct inquiry into disputed facts which are sought
to be urged by the Petitioner society.
5.14. Relying on The Vivina Co-operative Housing Society Ltd. Vs.
The State of Maharashtra and Ors. (WP/3938/2024 Judgment dated
24.02.2025 Bombay High Court), it is submitted that the aspect of
nominal membership is no more res-intigra because in the said
judgment it is held that admission of a nominal member has been
completely removed qua co-operative housing societies and every
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person who has purchased a unit in the building has right to be a
member and participate in the management of the affairs of the
society.
6. I have considered the rival submissions and perused the record.
REASONS AND CONCLUSIONS.
7. At the outset, the conduct of the Petitioner society must be
noted. From the record it is seen that during pendency of the
petition on 07.05.2025, the petition was heard and it was listed for
final disposal at the request of learned Counsel for the Petitioner. On
the listed date, immediately after 2 days, on 09.05.2025, it was
submitted that the Petitioner society has changed the advocate on
record and adjournment was sought. After noting this conduct, this
Court held that though the petition could have been disposed of in
view of various submissions recorded in the said order, hearing is
required to be deferred at the request of the Petitioner society for the
reason of change of advocate mid-way. This Court therefore
adjourned the matter by imposing costs of Rs. 25,000/- upon the
Petitioner. In this backdrop, the arguments advanced by learned
Counsel for the Petitioner, at the instructions of new advocate, needs
to be seen.
8. At the further outset, it is necessary to note that when first
order was passed allowing application of Respondent No. 1 on
21.01.2015 under Section 22(2)of MCS Act, the judgment of
Nahalchand (Supra) was in existence. However, from the reading of
both the impugned orders, it is seen that this judgment was not relied
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upon on behalf of the Petitioner’s society. Even argument that ‘flat’
does not include ‘garage’ as per interpretation under MOFA is not
advanced.
9. It is after the impugned order and during pendency of this
petition, the judgments of Mistry Park Chs (Supra), Dr. Vasant P. Jain
(Supra) and Vivina CHS (Supra) have been rendered during
pendency of the present petition in September 2023 and February
and March 2025. However, learned counsel appearing for both the
sides have relied upon subsequent judgments of this Court.
10. Similarly, even Chapter XIII-B was inserted in MCS Act after
the impugned orders are passed and during pendency of the petition
with effect from 09.03.2019. Despite this, learned counsel for the
parties have chosen to rely upon the amended provisions of MCS Act.
11. It is therefore necessary to deal with arguments based on
subsequent judgments and subsequent amendments.
12. At the time when the Deputy Registrar allowed application of
the Respondent No. 1, only Nahalchand (Supra) was in existence.
Perusal of the judgment of Nahalchand (Supra) clearly indicates that
the Hon’ble Supreme Court was considering the argument on behalf
of the promoter/builder that even if the stilt parking spaces do not
fall within the definition of flat, they are nevertheless sellable as
independent units. Since right to sell such spaces flows from bundle
of rights associated with ownership of property and Section 10 and
11 of MOFA, it was contented on behalf of the promoter / developer
that stilt parking space being a garage was an independent unit and
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is covered by definition of flat under Section 2(a-1) of MOFA. In this
context, where the promoter was trying to contend before the
Hon’ble Supreme Court that the stilt parking or garages are capable
of being sold, the Hon’ble Supreme Court framed following issues.
“In view of the contentions outlined above, the questions that
arise for consideration are: (i) whether stand alone “garage” or
in other words “garage” as an independent unit by itself is a
“flat” within the meaning of Section 2(a-1) of MOFA? (ii)
whether stilt parking space/open parking space of a building
regulated by MOFA is a “garage”? (iii) if the answer to the
aforesaid questions is in the negative, whether stilt parking
space / open parking space in such building is part of “common
areas and facilities”? and (iv) what are the rights of the
promoter vis-Ã -vis the society (of flat purchasers) in respect of
open parking space(s)/stilt parking space(s)?”
13. Issue Nos.1 and 2 have been answered in negative. Issue No. 3
has been held in affirmative and Issue No.4 is answered by holding in
paragraph Nos.61 & 65 that promoter has no right to sell ‘stilt
parking spaces’ as these are neither a ‘flat’ nor appurtenant or
attachment to a ‘flat’.
14. Therefore, it is clear that the said findings about ‘garage’ not
being included in the definition of ‘flat’ was rendered in the context
of what can be sold by the promoter/builder.
15. Now let us consider the context in which present application
for membership is made. At the relevant time, the MCS Act provided
the meaning of ‘Member’ under section 2(19)(a) as a person duly
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admitted to membership of a society after registration and includes a
nominal, or associate member. Under Society’s bye-law No.3(vi), ‘flat’
means a separate and self contained set of premises used or intended
to be used for residence, or office, or show-room or shop, or godown
and includes a garage, or dispensary, or consulting room, or clinic, or
flour mill, or coaching classes, or palnaghar or beauty parlour, the
premises forming part of a building and includes an apartment.
Under bye-law No. 3(xxiv), ‘Member’ means a person duly admitted
to membership of a Society after Registration and who holds the
right, title and interest in the property individually or jointly. Under
bye-law No. 3(xxiv)(a), ‘active member’ means one who has
purchased and owns a flat / Unit in the Society. Under bye-law
No.3(xxiv)(b), ‘associate member’ means a member who holds the
right, title and interest in the property individually or jointly with
other, but whose name does not stand first in Share Certificate. Under
bye-law No. 3(xxiv)(c), ‘nominal member’ means a person who ‘does
not hold’ the right, title and interest in the property individually or
jointly and admitted to membership as such after registration.
16. Therefore, it is clear that at the relevant time when the Deputy
Registrar considered the application of Respondent No.1, the flat was
defined only under bye-laws and not under MCS Act and for the
purpose of application of MCS Act and bye-laws, the flat included the
garage. Going by these definitions, which were in place at the
relevant time, the Respondent No. 1 clearly fell under the category of
‘active member’ as a person having right, title and interest who has
purchased a unit. ‘Unit’ is also mentioned in bye-law No.17 Note (3)
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as equivalent to ‘flat’ while limiting the number of society members.
There is no dispute about Respondent No. 1 owning the said garage
and there is also no dispute that the Petitioner society did not
communicate any decision to Respondent No.1 within the statutory
period. Therefore the order of deemed membership was passed by
the Deputy Registrar under Section 22(2) of the MCS Act.
Considering various definitions explained above, no fault can be
found with the decision arrived at by the Deputy Registrar.
17. From the perusal of the impugned order, it is clear that there is
no dispute that original owner Mr. Ramesh Vairale had nominated
Respondent No. 1 (his son) as nominee and after the death of
original member, Respondent No. 1 had applied for membership and
had demanded change of status from nominal membership to full-
fledged membership.
18. It is argued that the Petitioner Society is not empowered to
convert nominal membership into full-fledged membership. Here it is
necessary to note that at the relevant time, admittedly the bye-laws
provided for classes of memberships including ‘associate member’ and
‘nominal member’. The Petitioner Society’s own bye-laws provided
that one who has purchased a unit in the Society is ‘active member’
and a person who does not hold the right title and interest in the
property is a ‘nominal member’. There is no dispute about
Respondent No. 1 owning the said garage after the death of his father
and since Respondent No. 1 owned the unit. Therefore the argument
that ‘Society was not empowered to convert nominal membership
into full-fledged membership’ runs afoul of their own bye-laws and
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therefore, rightly rejected.
19. At the cost of repetition, it is noted that the argument
advanced before this Court by learned Counsel Mr. Mody for the
Petitioner Society about application of Nahalchand (Supra) do not
appear to have been raised before the Divisional Joint Registrar and
is being advanced in this Court for the first time. On that count alone,
the argument can be rejected; however since the argument is akin to
legal submission based on interpretation of a term, the same is being
considered. It is important to note that the Petitioner Society is not
contending that the said garage is not a self-contained unit. Star
argument of the Petitioner Society is that ‘garage’ does not fall within
the definition of ‘flat’.
20. Therefore, so far as the application of MCS Act is concerned
and for deciding the question about ‘membership or its eligibility’, the
interpretation of the term ‘flat’ in Nahalchand (Supra) will not apply.
This view is directly supported by the judgment of Mistry Park Co-
operative Housing Society (Supra).
21. After the amendment of MCS Act and introduction of Chapter
XIII-B, both the terms ‘flat’ as well as ‘member’ have been redefined
under Section 154B-1(13) and 154B-1(18) respectively. It is
important to note that this chapter and modifications have been
introduced w.e.f. 09.03.2019, which is after the impugned order is
passed. Nonetheless, since both the learned counsel for the contesting
parties have relied upon these provisions also, it is necessary to
consider it.
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22. As on today, so far as co-operative societies are concerned,
under Section 154B-1(13), the definition of ‘flat’ includes ‘a unit or
by any other name’ and ‘a separate and self-contained part of any
immovable property including enclosed spaces’. This definition is
wide and inclusive. Since a block or chamber by any other name
which is self-contained part of immovable property is included in the
definition of flat, in my considered view, the said garage would be
included in the said definition.
23. Also, it is clear from the definition of ‘member’ as provided
under Section 154B-1(18), there is no provision of ‘nominal member’.
In this respect, useful reference can be made to the view taken by
the learned Single Judge of this court in the Vivina (Supra) where
modified definition of member has been considered and following
observations are made.
“11) Thus, the intention of the Legislature post insertion of
Chapter XIII-B in the Act is that every person who has a right in
respect of a unit constructed in the building of the Society must
be permitted to take part in the management of the affairs of
the Society. xxxx”
“13) xxxx The whole objective of formation and registration
of a Co-operative housing society is to ensure that all the
decisions relating to the management of affairs of the Society
and its building is collectively taken by all the unit purchasers.
In fact, under the Model bye-laws, the membership of the
Society cannot exceed the total number of units constructed in
the Society’s building which again ensures that every unit
purchaser is guaranteed membership of the Society. xxxx”
[Emphasis supplied]
24. It is argued on behalf of the Petitioner Society that when there
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is a conflict between provisions of the Act and bye-laws, the
provisions of the Act will prevail. In this respect, as is clarified above,
when the impugned order was passed, at the relevant time, there was
no conflict between the MCS Act and applicable bye-laws, because
the MCS Act does not provide for definition of ‘flat’ and bye-laws
provided, therefore there is no question of conflict. Also the definition
of ‘member’ is given in MCS Act as well as bye-laws and there is no
conflict between them. Therefore, there is no reason to ignore the
bye-laws and only apply the provisions of the MCS Act. In that view
of the matter the judgment of Babaji Kondaji Garad (Supra) will not
advance the case of Petitioner.
25. So far as the reliance placed on Dr. Vasant P. Jain (Supra) is
concerned, in the said Judgment, the aspect of the subject matter
garage shown in sanctioned plan as parking space was considered
and in that context, the learned Single Judge of this Court held that
the Judgment of Mistry Park Chs (Supra) would apply subject to
garage being shown as commercial unit in the sanctioned plan by
MCGM. In Rajesh Mishra v/s. Shree Ahuja Properties (Supra), the
issue involved was whether the member was entitled to claim
commercial premises in lieu of the garage in proposed new building
and whether the garage was in the sanctioned plan confirmed by
MCGM, Regulation 2(68) of DCPR, 2034 for greater Mumbai was
considered.
26. I have perused the grounds raised in the petition as well as the
grounds in revision application before the Divisional Joint Registrar.
No such contention about garage in question was raised. Apparently,
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this contention has been raised first time in the writ petition.
Whether the said garage is shown as commercial unit in MCGM plan
is a question of fact and cannot be considered first time in writ
jurisdiction on mere argument advanced. If the Society wanted to
contend about the said garage not shown as commercial unit in the
sanctioned MCGM plan, then it was for the Petitioner Society to raise
such contention before the first or at least revisional authority, which
could have been met and countered on facts by the Respondent No.1.
When such factual contention is raised first time in Writ Petition, the
Respondent No. 1 cannot be taken by surprise. Respondent No. 1 has
taken a clear stand, in his affidavit in reply, that commercial use of
the said garage has been accepted by the Petitioner Society for
decades. It therefore squarely falls in the realm of ‘disputed question
of fact’ and no conclusion can be drawn based on such factual
submissions. For these reasons, the judgments of Dr. Vasant P. Jain
(Supra) and Rajesh Mishra (Supra) will not advance the case of the
Petitioner Society.
27. In Jaydeep Apartment (Supra), the issue involved was whether
the society rightly refused membership on the ground that
construction is unauthorized and in contravention of MOFA. In the
facts and circumstances of the present case, such contention is not
even remotely involved and therefore the said judgment is irrelevant
for the purpose of deciding the present petition.
28. So far as the case of Ahmedabad Pvt. Primary Teachers Assn.
(Supra) is concerned, the same is relied upon to stress upon the
argument of ‘pari materia’. This judgment arises out of labour law. It
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is relied upon in support of the contention that the definition of flat
under MOFA is pari materia and therefore must be accepted for the
purpose of membership too. It is already clarified above that at the
relevant time, when the impugned order is passed, Chapter XIII-B
was not introduced and at the relevant time definition of flat was
available only under MOFA and Society bye-laws. The stress of the
argument is that definition of ‘flat’ under provisions of MOFA must
also apply to bye-laws. The submission is ‘if the garage cannot be sold
then its holder cannot claim membership’. It is already held that ‘flat’
explained under Nahalchand (Supra) was in the context of what the
builder/promoter could sell. The issue in present dispute is about
membership. Hence the said argument of pari materia advanced with
the help of Ahmedabad Pvt. Primary Teachers Assn. (Supra) will be of
no use to the Petitioner.
29. So far as the Judgment of K. M. Sonia Bhatia v/s State of UP
(Supra) is concerned, the same is relied upon to contend that the
purpose of garage must be considered in its popular sense. Paragraph
No.10 of the said judgment is relied upon to contend that when
legislature uses certain terms or expression of well known legal
significance or connotation, the Court must interpret them as used or
understood in the popular sense. It is not possible to accept this
submission when the only issue involved is about membership and
garage was included in the definition of flat under bye-laws.
30. In the aforesaid facts and circumstances and for reasons
indicated above, I do not find this to be a fit case to interfere with
concurrent findings in writ jurisdiction of this Court. The view taken
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under the impugned orders is the most probable view and no
perversity is found therein.
31. The petition is accordingly dismissed. No order as to costs.
32. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
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