Non-plot owners ineligible to contest, vote in CHS polls: HC

A single-judge bench of Justice Sandeep V. Marne rejected an appeal, filed by Brenden D’Silva against the Deputy Registrar, Co-operative Societies, H West, and St. Sebastian Homes Co-operative Society, under Section 152 (A) of the Maharashtra Co-operative Societies Act, 1960.

Mumbai: The Bombay High Court on August 14 ruled that non-plot owners are ineligible to vote and contest in a housing society’s election.

Mumbai, India - September 03, 2021: Bombay High Court at Fort, in Mumbai, India, on Friday, September 03, 2021. (Photo by Anshuman Poyrekar/Hindustan Times) (Anshuman Poyrekar/HT PHOTO)

A single-judge bench of Justice Sandeep V. Marne rejected an appeal, filed by Brenden D’Silva against the Deputy Registrar, Co-operative Societies, H West, and St. Sebastian Homes Co-operative Society and others, under Section 152 (A) of the Maharashtra Co-operative Societies Act, 1960.

The court emphasised the legislative intent behind this provision, noting that allowing non-owners like D’Silva to participate in managing the society’s affairs would undermine the principle of collective property management.

Significantly, the ruling came on the same day the elections of the St. Sebastian Homes Co-operative Society were held. The society, eventually, did not allow non-plot/flat owners to vote.

On May 26, HT reported plans to conduct elections at Bandra’s St. Sebastian Homes Cooperative Society following a prolonged legal battle. The society has 119 plots in Bandra West under its purview.

The dispute arose after the society, which owns land and allots plots to its members, excluded Brenden D’Silva’s name from the final voter list and rejected his election nomination, although the names of non-plot owners were mentioned in the provisional voters list.

The petitioner was one of 37 members admitted to the society prior to a legislative amendment, who did not hold any plot within the society. The Maharashtra Act 23 of 2019 had introduced Chapter XIII-B into the MCS Act, specifically Section 154B-5, which limits membership strictly to the number of flats or plots available for allotment. The amendment allows only plot owners or organisations representing flat purchasers to be society members.

Despite the petitioner’s argument that the amendment should apply prospectively, the court found it unnecessary to decide on the retrospective application. Instead, it focused on the petitioner’s right to contest elections, concluding that only members owning property within the society should participate in the decision making processes.

The writ petition was rejected with the legal position that co-operative housing society elections must be confined to bona fide plot or flat owners in accordance with the amended statutory provisions. Justice Marne held that D’Silva’s nomination rejection was valid and that the Deputy Registrar rightly dismissed his appeal.

The housing society was represented by advocates S. Parthasarthy and Darshana Manjrekar.

In another case pertaining to the same society, the high court dismissed a petition seeking to bar certain candidates from contesting the elections. The petitioners had approached the court with a plea to stay the elections until the writ petition was decided. The court dismissed the petition with the stance that election disputes are best resolved post election, preserving the sanctity and continuity of the electoral process.