Case Note & Summary
The writ petition was filed under Article 226 of the Constitution of India before the Bombay High Court, challenging the order of the District Deputy Registrar, Co-operative Societies, Mumbai, dated 24 August 2016. The petitioners, Paul Parambi (chief promoter) and Springs CHS Ltd. (a proposed co-operative society), sought a writ of certiorari to quash the order which refused to consider the registration of the society. Respondent No.1, The Bombay Dyeing and Manufacturing Co. Ltd., was the promoter and owner of a larger property in Dadar, Mumbai, where it constructed a residential building ‘Springs I’ with two wings. The building comprised about 143 flats, and completion occurred around September 2011. Respondent No.1 sold flats to various purchasers from 2006 onwards and executed sale agreements. Despite selling a significant number of flats, it did not form a co-operative society within the statutory period under MOFA, 1963. Instead, on 28 September 2011, after obtaining part occupation certificate, Respondent No.1 unilaterally executed and registered a Deed of Declaration under the Maharashtra Apartment Ownership Act, 1970, and informed the Assistant Registrar of Co-operative Societies. The flat purchasers, aggrieved by the non-formation of a society, initiated registration proceedings. Petitioner No.1 first applied to the Assistant Registrar, F/North Ward on 6 January 2014, but withdrew due to defects. A fresh application was filed before the Assistant Registrar, F/South Ward on 5 November 2014. Respondent No.1 objected, citing the MAO Act declaration and contending that it was unlawful to form a society under Section 10(2) of MOFA. The Assistant Registrar, however, allowed registration on 31 December 2014. Respondent No.1 appealed to the Divisional Joint Registrar, who set aside the registration on 16 November 2015. The petitioners then filed a revision before the Minister for Co-operation, who on 4 April 2016 quashed the Divisional Joint Registrar’s order and remanded the matter to the District Deputy Registrar (the competent authority under Section 5A of MOFA). After hearing both sides, the District Deputy Registrar passed the impugned order on 24 August 2016, refusing to consider the registration on the ground that the property had been submitted to the provisions of the MAO Act and a cancellation suit was pending before the High Court. The main legal issue was whether the prior execution of a Deed of Declaration under MAO Act barred the registration of a co-operative society under the MCS Act, having regard to the requirements of MOFA. The petitioners argued that the declaration was invalid due to non-compliance with procedural requirements, including the intimation under Section 10(2) of MOFA not being given to the correct registrar, and that the flat purchasers’ right to form a society persisted. Respondent No.1 maintained that the declaration was lawful and precluded society formation. The High Court heard the matter and reserved judgment, but the extract does not contain the court’s final analysis or decision; thus, the outcome remains unknown.
Headnote
A) Co-operative Societies – Registration – Effect of Execution of Deed under Maharashtra Apartment Ownership Act, 1970 – Section 10(2), Maharashtra Ownership Flats Act, 1963, Section 9(1), Maharashtra Co-operative Societies Act, 1960 – The petitioners sought registration of a co-operative society, but respondent No.1 had executed a Deed of Declaration under the MAO Act, which under Section 10(2) of MOFA renders formation of a society unlawful after such declaration; the District Deputy Registrar refused to consider the registration on that ground – Held: Not mentioned (Paras 3, 4(h)-(k), 12).
Issue of Consideration
Whether the execution of a Deed of Declaration under the Maharashtra Apartment Ownership Act, 1970 by the promoter precludes the registration of a co-operative society of flat purchasers under the Maharashtra Co-operative Societies Act, 1960, and whether the District Deputy Registrar erred in refusing to consider the registration on that basis?
Law Points
- Under MOFA
- promoter must form a society or submit property under MAO Act
- intimation under Section 10(2) of MOFA must be given to the Registrar
- after a valid declaration under MAO Act
- formation of a co-operative society is unlawful
- flat purchasers may apply for registration
- Competent Authority under Section 5A of MOFA can decide on registration matters
- High Court exercises writ jurisdiction under Article 226 of the Constitution to review orders of quasi-judicial authorities
