Mumbai: The Bombay High Court refused to entertain a petition by a member of a housing society in Mumbai suburbs who challenged an order granting it deemed conveyance. “The right to question the deemed conveyance rests with the society alone,” said Justice Amit Borkar on Feb 24.The petition by Awadhesh Jha, an advocate, said the area conveyed by the deputy registrar, cooperative societies, Thane district, to New Shree Pooja Sudarshan CHSL was less than what had to be granted. Justice Borkar said the issue is not about measurement or entitlement in isolation. “The real issue is whether an individual member has an independent legal right to maintain such a challenge when the conveyance stands in favour of the collective body, namely the society,” he added.He referred to the Supreme Court’s 1985 judgment that held that once a person becomes a member of the society, he loses his individuality and has no independent rights except those given to him by the statute and the bye-laws. He must act and speak through society. He may have an internal voice within the society, but cannot step outside and litigate in substitution of the society.Justice Borkar said this position has been followed in subsequent decisions. Applying it to the present case, he said it is clear that deemed conveyance has been granted in favour of the housing society. Any grievance regarding the area conveyed or that the order is adequate or erroneous, “belongs to the society.” A society, through its general body or managing committee, may choose not to challenge the order. “However, dissatisfaction with such a decision does not automatically confer a separate right upon a member to institute proceedings in his personal capacity,” he explained. Permitting challenges by members taking conflicting stands, “would defeat the very concept of collective functioning under co-operative law.”Justice Borkar said an aggrieved member may seek, under co-operative law, directions or pursue other proceedings to compel appropriate action by the society. “What is impermissible is bypassing the society and directly challenging the conveyance order as though the member was the legal holder of the right,” he added. If, at a later stage, the society challenges the order, “it will be examined on its own merits in accordance with law.” At present, however, “the petition is not maintainable,” the judge concluded.
