JUDGMENT - KHANDEPARKAR R.M.S., J.:—Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the Rule made returnable forthwith. 2. The short point which arises for consideration in this petition is whether the transaction whereby the premises in the building of the petitioner society is stated to have been vested in the respondent No. 1 is in the nature of transfer of interest in the property of the society as contemplated under the Clause No. 40 of the Bye laws of the petitioner society, and therefore, the respondent No. 1 is liable to pay the amount of premium as demanded by the petitioners in exercise of powers under Clause 40(d)(vii) of the Bye-laws of the petitioner society, or such demand can be maximum to the extent of Rs. 25,000/-. 3. The Bank of Credit and Commerce International (Overseas) Limited, hereinafter called as "the BCCI", was a member of the petitioner society in relation to the suit premises which faced liquidation proceedings consequent to the order of 14th January, 1992 passed by the Grant Court Cayman Islands. On or about 22nd January, 1992 and further on or about 12th February, 1992, the said Grant Court Cayman Islands granted permission to the Official Liquidator to effect the sale of the said BCCI, Mumbai, and further approval was granted for sale of the BCCI, Mumbai, to the State Bank of India by this Court by its order dated 14th February, 1992. Further, by an order dated 29th April, 1994, the transfer of the BCCI to the respondent No. 1, which is subsidiary company of the State Bank of India, was confirmed by this Court. The respondent No. 1 by an application dated 15th January, 2002 applied for enrollment as the member of the petitioner society on the ground that the suit premises have been vested in the respondent No. 1 pursuant to the order of this Court and not by way of transfer. The said claim of the respondent No. 1 was not accepted by the petitioner and was accordingly informed under letter dated 1st February, 2002. The respondent No. 1 thereupon preferred an appeal under section 23 of the Maharashtra Co-operative Societies Act, 1960, hereinafter called as "the said Act", which was contested by the petitioners. The said claim of the respondent No. 1 was not accepted by the petitioner and was accordingly informed under letter dated 1st February, 2002. The respondent No. 1 thereupon preferred an appeal under section 23 of the Maharashtra Co-operative Societies Act, 1960, hereinafter called as "the said Act", which was contested by the petitioners. However, by an order dated 6th July, 2002, the said appeal was allowed by the Deputy Registrar of Co-operative Societies, "A" Ward, Mumbai, and the petitioners were directed to admit the respondent No. 1 as the member of the petitioner society in relation to the suit premises without insisting for the claim of premium under Clause 40(d)(vii) of the Bye-laws. The same was sought to be challenged by way of revision application by the petitioners being Revision Application No. 521 of 2002 which was dismissed by the order dated 3rd February, 2003 passed by the Divisional Joint Registrar, Co-operative Societies, M.D., Mumbai. Hence, the present petition. 4. While assailing the impugned order, it is sought to be contended on behalf of the petitioners that the transaction in question whereby the rights and interests in the suit premises have been acquired by the respondent No. 1 from the BCCI, Mumbai, by way of transaction of sale and purchase, and therefore, it is a transfer within the meaning of the said expression under Clause 40 of the Bye-laws of the petitioner society, and hence, the respondent No. 1 is liable to pay the amount of premium at the rate of Rs. 200/- per sq.ft. of the suit premises to the petitioners. It is the further contention of the petitioners that the acquisition of the interest in the property itself would disclose vesting of the property in the respondent No. 1, however, such vesting has taken place consequent to the transfer of the property from BCCI to the respondent No. 1. The authorities below having totally ignored the aspect have acted illegally while directing the petitioners to enroll the respondent No. 1 as a member of the society without payment of amount of premium which the respondent No. 1 is otherwise liable to pay in terms of the Clause 40(d)(vii) of the Bye-laws of the petitioner society. As regards the circular dated 9th April, 2002, which is said to be restricting the amount of premium to Rs. As regards the circular dated 9th April, 2002, which is said to be restricting the amount of premium to Rs. 25,000/-, it is sought to be contended that the transfer in the case in hand took place by the deeds dated 17th January, 1994 and 17th March, 1994 and the same was confirmed by an order of this Court dated 29th April, 1994. Being so, the circular dated 9th April, 2002 could not have been applied to the transaction which had taken place prior to the date of enforcement of the said circular. According to the learned Advocate for the petitioners, at the time of transfer of the suit premises, there was no restriction imposed upon the quantum of premium which could be charged by the society for transfer of the rights and interests in the premises or transfer of the shares and such restrictions were imposed for the first time by the circular dated 9th August, 2001. However, the same was applicable only to the Co-operative Housing Societies and not to the Premises Co-operative Societies. The suit premises fall in the category of "the Premises Co-operative Societies" and not in the category of the "Co-operative Housing Societies". Being so, the restriction which was imposed in relation to the Premises Co-operative Societies in the matter of maximum limit for collection of the premium for such transfer came into force from 9th April, 2002, much after the transfer of the suit premises in favour of the respondent No. 1, and hence, the said circular could not be applied to the case in hand. 5. On the other hand, the learned Advocate appearing for the respondent No. 1, while fairly conceding that the stand taken before the lower authorities about the denial of transfer being without any substance and candidly admitting that the transaction in question does amount to transfer, submitted that the said transfer is in the nature contemplated under note to Clause 40 of the Bye-laws, the suit premises having been vested in the respondent No. 1 as a Successor of the BCCI. Therefore, according to the respondent No. 1, even assuming that the transfer of such premises is covered by the Clause 40, it will have to be exempted bearing in mind the provisions contained in the note to the Clause 40 of the said Bye-laws. Therefore, according to the respondent No. 1, even assuming that the transfer of such premises is covered by the Clause 40, it will have to be exempted bearing in mind the provisions contained in the note to the Clause 40 of the said Bye-laws. He further submitted that even prior to 9th August, 2001, there was a circular dated 27th November, 1989 applicable to all the co-operative societies and under the said circular, the maximum limit imposed for collection of the premium was Rs. 25,000/-. It is, therefore, sought to be contended on behalf of the respondent No. 1 that the claim of the amount of premium in terms of Clause 40(d)(vii) of the said Bye-laws is totally unwarranted and the membership could not have been refused to the respondent No. 1 on that ground. The learned Advocates for the parties have placed on record the copies of all the three circulars. 6. The Clause 40 of the Bye-laws deals with the subject of transfer of shares and interest in the Capital/Property of the society. Sub-clause (a) thereof provides that a member, desiring to transfer his shares and interest in the capital/property of the society, shall give 15 days notice of his intention to do so to the Secretary of the society in the prescribed form, alongwith the consent of the proposed transferee in the prescribed form. In terms of sub-clause (b) thereof, the Secretary of the society, on receipt of such notice, should place the same before the meeting of the Committee and call for a decision in terms of the provisions of section 29(2)(a) of the said Act. In terms of sub-clause (c), in the event of ineligibility of the member to transfer his share or interest in the capital/property of the society, the Committee shall direct the Secretary of the society to inform the member accordingly within 3 days of the decision of the Committee. In terms of sub-clause (c), in the event of ineligibility of the member to transfer his share or interest in the capital/property of the society, the Committee shall direct the Secretary of the society to inform the member accordingly within 3 days of the decision of the Committee. According to sub-clause (d), if the Committee is satisfied that the member is prima facie eligible to transfer his shares and interest in the capital/property of the society and that the admission of the transferee is not in any manner prejudicial to the interests of the society and/or its existing members, the Committee shall direct the Secretary of the society to inform the member within 3 days of the decision of the Committee to comply with certain requirements enumerated in the said clause and they include, submission of an application for transfer of his shares and interest in the capital/property of the society in the prescribed form along with the share certificate, an application for membership of the proposed transferee in the prescribed form, to disclose valid reasons for the proposed transfer, to discharge all the liabilities to the society, to submit No Objection Certificate required under any law for the time being in force, to furnish the undertaking/declaration in compliance with the provisions of any law for the time being in force, to comply with the provisions of the Income Tax Act, as also to pay the transfer fee of Rs. 500/-, and to remit entrance fee of Rs. 100/- payable by the proposed transferee, and further to pay the amount of premium at a rate to be fixed by the general body meeting or Rs. 200/- per sq.ft. whichever is higher. The note to the said clause reads thus : "Note : The condition at Sr. No. (vii) above shall not apply to transfer of shares and interest of the transferor in the capital/property of the society to the member of his family or his heir/legal representative." The Sr.No. 7(vii) of Clause 40(d) of the Bye-laws referred to in the note quoted above relates to the payment of amount of premium and it reads thus:- "(vii) to pay amount of premium at a rate to be fixed by the general body meeting, or Rs. 200/- per sq.ft. whichever is higher." 7. 200/- per sq.ft. whichever is higher." 7. Perusal of the order passed by the Deputy Registrar of Co-operative Societies on 6th July, 2002, it is apparent that the claim of the petitioners was rejected solely on the ground that the property had been vested in the respondent No. 1 in the course of liquidation proceedings and there is no transfer as understood under the Transfer of Property Act and the said finding was reiterated by the Divisional Joint Registrar while dismissing the revision application on 3rd February, 2003. In other words, the entire adjudication of the dispute before both the lower authorities was confined to the issue as to whether the transaction in question was a transfer of property or not and the finding has been given that the same is not the transfer. However, the learned Advocate for the respondent No. 1, as already observed above, has candidly admitted that it is a transfer, though has sought to argue that the respondent No. 1 cannot be saddled with the transfer premium as they are entitled to claim the benefit under note to the Clause 40 of the Bye-laws, besides that the claim for such premium cannot in any case exceed Rs. 25,000/- in view of the circulars issued by the Government. The records and particularly the impugned order, however, apparently disclose that neither of the authorities below have considered those issues while deciding the matter. Both the issues are very relevant and the same need appreciation of facts before arriving at any finding on those issues. For that purpose, the matter has to go before the competent authority to adjudicate the said issues. The said exercise cannot be done for the first time in writ jurisdiction. At the same time, the petitioners cannot be blamed for failure on the part of the lower authorities to address to the said issues. 8. In the circumstances, the orders passed by both the authorities below cannot be sustained and while setting aside those orders, the matter needs to be remanded to the Deputy Registrar of Co-operative Societies to deal with the claim of the parties afresh, bearing in mind the above observations and to pass an appropriate order on the above referred two issues, after hearing the parties and in accordance with the provisions of law. 9. 9. In the result, the impugned orders, dated 6th July, 2002 passed by the Deputy Registrar of Co-operative Societies, "A" Ward, Mumbai, and dated 3rd February, 2003 passed by the Divisional Joint Registrar of Co-operative Societies, M.D., Mumbai, are hereby quashed and set aside. The matter is remanded to the Deputy Registrar of Co-operative Societies to deal with the same afresh bearing in mind the above referred observations and after hearing the parties to decide the said issues in accordance with the provisions of law. The Rule is made absolute in above terms with no order as to costs. Matter remanded -----