A co-operative housing society cannot deny membership to flat-owners having valid possession and occupation on the date of registration of the society, the Bombay high court ruled on Monday.
“Once the defendants’ possession and occupation of the suit premises is seen on the date of the registration, the plaintiff society must accept them as members and the defendants cannot be taken to be trespassers,” justice Roshan Dalvi observed. “Such members need not have taken any permission of the plaintiff society for transfer of the premises made to them as the society was not in existence as a legal entity until it was registered,” the judge added while dismissing a suit filed by Santacruz Prakash Co-operative Housing Society.
The society had moved the court seeking possession of one of the flats in its building after declaring its present occupant – Rehmani Begum – as a trespasser on the ground that the original purchaser had transferred the tenement without obtaining permission of the society.
In November 1969, Begum had purchased the flat from the original purchaser, Sitabai Shewaram, who in turn had purchased it from the developer, Jhangiani Gurbuxani Construction Company in 1966. The housing society had relied on a clause in its bye-law which prohibited members from selling or transferring flats to any third party without obtaining permission of the society.
The court, however, found that the registration and framing of bye-laws were subsequent in point of time to the transaction between Shewaram and Begum and, therefore, the former did not require its permission to transfer the flat. It is only from and after the registration of society and the adoption of the byelaws that the byelaws would constitute a contract between its society and its members and govern the society as well as its members, Justice Dalvi said.
The society can allot flats to the members only after it is registered and after it acquires title itself, and must accept every valid occupant, existing on the date of its registration, as its member.