Case Note & Summary
The petitioner, M/s. Rahul Enterprises, a proprietary concern engaged in development and construction, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging two orders: (1) the order dated 19 July 2012 passed by the Competent Authority and District Deputy Registrar, Cooperative Societies, Pune, allowing 'deemed conveyance' to respondent No.1 society under Section 11(3) of the Maharashtra Ownership of Flats Act, 1963 (MOFA); and (2) the registration of respondent No.1 as a Tenants Coownership Cooperative Housing Society on 19 July 2009 by the Deputy Registrar, Cooperative Societies under Section 12(1) of the Maharashtra Co-operative Societies Act, 1960 (MCS Act). The land in question, bearing plot Nos.202 and 203 out of Survey Nos.96/2 and 97 of village Kothrud, Pune, admeasuring 1,046.12 sq. meters, was originally owned by respondent Nos.3 and 4. A development agreement was entered into on 29 December 1999 between the owners and the petitioner, registered at Sr.No.8391 of 1999. On 31 August 2000, the petitioner obtained NA permission, approved building plans from Pune Municipal Corporation, and a commencement certificate. The petitioner constructed apartments and sold them to various flat takers. On 12 June 2009, the petitioner executed a declaration under the Maharashtra Apartment Ownership Act, 1970 (Apartment Act) subjecting the apartments to that Act. However, on 10 July 2009, the flat takers formed respondent No.1 society, which was registered on 19 July 2009 under Section 12(1) of the MCS Act. The petitioner contended that the registration of the society was illegal because the apartments had already been subjected to the Apartment Act, and under Section 10 of MOFA, no cooperative society could be formed after such declaration. The petitioner also argued that the deemed conveyance order was invalid because the society was not lawfully registered. The respondents argued that the registration was valid and that the petitioner had failed to execute a conveyance deed within the prescribed period, entitling the society to deemed conveyance. The Court analyzed the provisions of MOFA, the MCS Act, and the Apartment Act. It held that Section 10 of MOFA does not prohibit the registration of a cooperative society after a declaration under the Apartment Act; it only provides that the provisions of MOFA shall not apply to apartments subject to the Apartment Act. The registration under Section 12(1) of the MCS Act is a separate statutory process and is not barred. The Court further held that the deemed conveyance under Section 11(3) of MOFA was valid because the petitioner, as promoter, had not executed a conveyance deed within the prescribed period, and the society was entitled to such conveyance. The Court dismissed the petition, upholding both the registration of the society and the deemed conveyance order.
Headnote
A) Cooperative Societies Act - Registration of Society - Section 12(1) Maharashtra Co-operative Societies Act, 1960 - Validity of registration despite prior declaration under Apartment Act - The petitioner developer argued that registration of respondent No.1 as a cooperative housing society was illegal because the apartments had been subjected to the Maharashtra Apartment Ownership Act, 1970 prior to registration. The Court held that Section 10 of the Maharashtra Ownership of Flats Act, 1963 does not prohibit registration of a cooperative society after a declaration under the Apartment Act, and the registration under Section 12(1) of the MCS Act is valid. (Paras 2-3, 10-12) B) Ownership of Flats - Deemed Conveyance - Section 11(3) Maharashtra Ownership of Flats Act, 1963 - Validity of deemed conveyance order - The Competent Authority allowed deemed conveyance to respondent No.1 society under Section 11(3) of MOFA. The Court upheld the order, noting that the promoter failed to execute conveyance within the prescribed period, and the society was entitled to deemed conveyance. (Paras 1, 13-15) C) Cooperative Societies Act - Registration of Tenants Coownership Society - Section 12(1) Maharashtra Co-operative Societies Act, 1960 - Validity of registration - The petitioner challenged the registration of respondent No.1 as a Tenants Coownership Cooperative Housing Society. The Court held that the registration was validly granted under Section 12(1) of the MCS Act, and the society could be formed by flat takers even if the apartments were subject to the Apartment Act. (Paras 2, 10-12)
Issue of Consideration
Whether registration of a cooperative housing society under Section 12(1) of the Maharashtra Co-operative Societies Act, 1960 is illegal if the apartments have already been subjected to the Maharashtra Apartment Ownership Act, 1970, and whether deemed conveyance under Section 11(3) of the Maharashtra Ownership of Flats Act, 1963 is valid despite such registration.
Final Decision
The petition is dismissed. The order dated 19 July 2012 allowing deemed conveyance under Section 11(3) of MOFA and the registration of respondent No.1 society under Section 12(1) of MCS Act are upheld.
Law Points
- Section 10 of Maharashtra Ownership of Flats Act
- 1963 does not bar registration of cooperative society after declaration under Apartment Act
- Section 11(3) of MOFA allows deemed conveyance if promoter fails to execute conveyance within prescribed period
- Registration under Section 12(1) of MCS Act is valid even if apartments are subject to Apartment Act
