Bombay High Court · Judgment · 17.07.2021
Membership cannot be refused because of alleged encroachment
The Bombay High Court upheld an order admitting the holder of a ground-floor office to membership, holding that a society cannot refuse membership on the ground of unauthorised construction or encroachment; that is a civil dispute.
Key points
- Membership is decided under the Act, Rules and bye-laws, not on external factors such as whether the premises are legally constructed.
- Whether construction is unauthorised, or whether a gift deed is valid, is for the civil court; neither the society nor the Registrar can decide it to refuse membership.
- The society remains free to take separate action in law over the alleged encroachment.
The facts
The dispute concerned a store-room-cum-office on the ground floor of the Parijat building at Marine Drive, held under a long lease. The respondent received it by a gift deed in 2012 and applied for membership. The society refused, saying he had demolished a load-bearing wall and merged the premises with the adjoining unit, and pointing to a difference between the area in the original assignment (about 156 sq.ft.) and the gift deed (524 sq.ft.). The Assistant Registrar upheld the refusal; the Divisional Joint Registrar, relying on Videocon Appliances v. Maker Chambers V, set it aside and directed the society to admit him and transfer the shares.
What the Court held
The Court dismissed the society’s petitions. Following Videocon Appliances and later decisions such as Snehsadan CHS, it held that a society cannot refuse membership on the ground that construction is unauthorised or that there is an encroachment. Those questions are civil in nature. The respondent was in possession under a gift deed and was paying the society’s dues; the society and the co-operative authorities could not decide the validity of the gift deed or the alleged encroachment. The Court expressed no view on the merits of the society’s allegations, which could be pursued separately.
Why it matters
Committees sometimes withhold membership to put pressure on a member over alterations or encroachment. This judgment, like the line of cases it follows, says the two issues must be kept apart: decide membership under the bye-laws, and pursue the construction issue before the civil court or the planning authority.
Judgment in English (copy from Indian Kanoon). This page summarises the decision for general information; it is not a substitute for the full text and not legal advice. Check whether the decision has since been appealed, modified or overruled.
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