Gopal Vishnu Ghatnekar vs Madhukar Vishnu Ghatnekar on 24 June, 1981
3. On going through the record with the assistance of the Counsel for the Petitioner, and in particular, the two decisions of the Courts below, to my mind, the principal question is whether bye-law No. 12(1)(g) read with bye-law No. 12(1)(a) would permit the member of the family and in particular who is nominee of the member to occupy the suit flat, that too without obtaining prior permission of the Society in that behalf. To my mind, the answer is in the negative. Even if the Respondent No. 2 is closely related to the Respondent No. 1, who is the member and is the husband of the nominee of Respondent No. 1, who is the member, even so, by virtue of the expansive provision in bye-law No. 12(1)(G), it was imperative for the member to seek prior permission of the society in writing to permit Respondent No. 2 and his family to occupy the said flat instead of the occupation of the same by the member herself. Bye-law No. 12(1)(g) provides that without written prior permission of the managing committee, no member shall let or sub-let or give on caretaker, leave and licence basis for use and occupation by paying guest or dispose of in any other manner any portion of the accommodation. In view of the expansive language of this bye-law, the situation as has occurred in the present case is definitely covered for which reason it was imperative for the Respondent No. 1 member to obtain prior written permission of the Society. As that has not been complied with, the Respondent No. 1 member has acted in breach of the bye-law and the occupation of the subject flat by Respondent No. 2 and his family members was obviously unauthorised user of the flat. Reliance has also been placed by Mr. Deogirikar, on the unreported decision of the Division Bench of this Court in Letters Patent Appeal No. 100 of 1984 decided on October 6, 2000, in the case of Madhukar Vishnu Ghatnekar v. Gopal Vishnu Ghatnekar, to contend that merely because of nomination by the member does not create any right in favour of the nominee, but the right is limited and which fructifies only after the death of the original member. That position is also reinforced by the language of Section 30 of the Act as well as rule 25 of the Rules of 1961. In such a circumstance, it was open to the Petitioner Society to claim eviction of the occupants and the member from the said flat. Viewed in this perspective, no fault can be found with the award passed by the Co-operative Court dated January 29, 1988. Whereas the view taken by the Appellate Court in setting aside that award cannot be sustained. Accordingly, this writ petition succeeds. The impugned judgment and order is set aside, and, instead, the award passed by the Co-operative Court is restored. Petition succeeds on the above terms. No order as to costs.