Case Note & Summary
The petitioner, Maitri Park Co-operative Housing Society Ltd., filed a writ petition under Article 227 of the Constitution of India challenging orders dated 12th July 2005 and 21st October 2002 passed by the Secretary (Co-operation and Marketing), Government of Maharashtra, and the Deputy Registrar, Co-operative Societies, 'M' Ward, Mumbai, respectively. The society was incorporated under the Maharashtra Co-operative Societies Act, 1960. The first respondent, Virendra Khanna, was an associate member of the society, while Mr. Kamal Kumar Khanna was the primary member occupying a flat on the first floor of Block B/13. The buildings in the society were constructed between 1966 and 1972, with 32 ground-plus-one structures having four flats each. Since inception, ground floor occupants used the open space outside their flats as gardens, and first floor occupants exclusively used the terrace above their flats, except for a common water tank. The terraces were locked and maintained by the first floor occupants. The dispute arose when the society attempted to restrict the first respondent's use of the terrace. The Deputy Registrar and the Secretary passed orders allowing the first respondent to use the terrace, holding that the terrace was part of the flat. The society challenged these orders. The court examined the facts and the by-laws of the society, noting that the by-laws did not prohibit exclusive use of the terrace. The court held that the terrace had been used exclusively by the first floor occupants since the inception of the society, and this practice had been accepted by all members. The court further held that the associate member, being a nominee of the primary member, was entitled to the same rights. The court dismissed the petition, upholding the orders of the Deputy Registrar and the Secretary.
Headnote
A) Co-operative Housing Society - Rights of Members - Terrace as Part of Flat - The terrace above a flat, if used exclusively by the occupant since inception, is appurtenant to the flat and cannot be interfered with by the society. The court held that the Deputy Registrar and the Secretary correctly allowed the associate member to use the terrace, as it was part of the flat. (Paras 2-10) B) Co-operative Housing Society - By-laws - Interpretation - The society's by-laws did not prohibit exclusive use of the terrace. The court held that the society cannot unilaterally change the long-standing practice of exclusive use. (Paras 11-15) C) Co-operative Housing Society - Associate Member - Rights - An associate member, being a nominee of the primary member, is entitled to the same rights regarding the use of the flat and its appurtenances. (Paras 16-20)
Issue of Consideration
Whether the terrace above a flat in a co-operative housing society can be treated as part of the flat for the purpose of exclusive use by the occupant, and whether the society can restrict such use.
Final Decision
The court dismissed the writ petition and upheld the orders of the Deputy Registrar and the Secretary, allowing the first respondent to use the terrace.
Law Points
- Terrace appurtenant to flat
- associate member rights
- co-operative society by-laws
- exclusive use of terrace
- Maharashtra Co-operative Societies Act
- 1960
