Case Note & Summary
The dispute originated from a claim by a tenant co-partnership housing society registered under the Maharashtra Co-operative Societies Act, 1960, against two of its members. The society alleged that the members had illegally encroached upon two terraces located on the 6th and 7th floors of the building known as Hansoti Apartments, as well as open space on the ground floor. The members, who were among the original owners of the land, contended that a development agreement executed in 1974 with M/s Dadia Brothers granted them exclusive rights over these terraces. The society filed a dispute before the Co-operative Court at Mumbai seeking recovery of possession, asserting that under the Maharashtra Ownership Flats Act, 1963 (MOFA), only constructed portions capable of independent use could be sold, and terraces accessible from common areas were meant for common use and not saleable. The Co-operative Court dismissed the dispute on 2.7.2002. On appeal, the Maharashtra State Co-operative Appellate Court partly allowed the appeal on 3.7.2004, finding that the terraces on the 6th and 7th floors were not saleable under MOFA and were intended for common use. It issued an injunction restraining the members from obstructing the common use of these terraces and directed them to remove flower pots and other obstructions. The claim regarding the open space was dismissed. The members then filed the present writ petition under Article 227 of the Constitution of India challenging the appellate order. During the hearing before the High Court, the petitioners argued that the development agreement granted them exclusive rights and that the dispute was barred by limitation, lack of proper authorization, and non-joinder of necessary parties. The society maintained that the terraces were common areas and the members were trespassers. The available transcript of the oral judgment does not contain the final order of the High Court; only the background and submissions were recorded.
Headnote
A) Co-operative Society Law - Common Areas and Terraces - Not Saleable Under MOFA - Maharashtra Ownership Flats Act, 1963 - The society claimed that terraces on 6th and 7th floors were common areas accessed from common corridor and thus not saleable. The Appellate Court held that such terraces are for common use of all members and granted injunction against obstruction and removal of flower pots. (Paras 2, 4, 10) B) Procedural Issues - Maintainability and Limitation - Not mentioned - The opponents raised objections regarding maintainability, limitation, jurisdiction, and non-joinder. The Co-operative Court dismissed the dispute, but the Appellate Court partly allowed the appeal, implying rejection of these objections at least in part. (Paras 8, 10)
Issue of Consideration
Whether the terraces on 6th and 7th floors of the building are common areas not saleable under MOFA, entitling the society to possession; whether the dispute was maintainable, within limitation, and within the jurisdiction of the Co-operative Court; whether the opponents obtained rights under the development agreement dated 1.3.1974
Final Decision
The High Court was in the process of hearing the writ petition; the available transcript does not include the final order. The lower appellate court had partly allowed the appeal, granting injunction against obstruction of common use of terraces on 6th and 7th floors and directing removal of obstructions like flower pots, but dismissed the society's claim regarding open space.
Law Points
- Legal points not extracted
- Terraces not forming part of individual flats and accessible from common areas are not saleable under MOFA
- members of co-operative society have equal right to use them
