Bombay High Court
Cipla Ltd vs The Competent Authority And The ... on 22 April, 2021
Equivalent citations: AIRONLINE 2021 BOM 689
Author: R. D. Dhanuka
Bench: R.D. Dhanuka, V. G. Bisht
ppn 1 wpl-3706.19 wt ors.(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.3706 OF 2019
CIPLA Limited )
a Company incorporated under the )
provisions of the Companies Act, 1913 and )
having its registered office address at Cipla )
House, Peninsula Business Park, Ganpatrao)
Kadam Marg, Lower Parel, )
Mumbai - 400 013. ) .. Petitioner
Versus
1. The Competent Authority and )
The District Deputy Registrar, Co-operative )
Society, Mumbai (I) City, )
having its office at 6 Floor, Malhotra
th
)
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
2. The Deputy Registrar, )
Co-operative Societies, G/S ward, )
having his office at 6th Floor, Malhotra )
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
3. Mr.Kamal Kishore Sharma )
having his residence at Unit No.A-1802, )
Tower 'A,' Peninsula Business Park, )
C.S. No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
4. PBP Commercial Complex )
Co-operative Society Ltd. )
a co-operative society registered under the )
Maharashtra Co-operative Societies Act, )
1960, having its office at Peninsula Business)
Park, C.S.No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
5. Peninsula Land Ltd. )
Company registered under the provisions of )
Companies Act, 1956, having its registered )
office at 1, Peninsula Spenta, )
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 2 wpl-3706.19 wt ors.(J).doc
Mathuradas Mills Compound, Senapati )
Bapat Marg, Lower Parel, )
Mumbai - 400 013. )
6. Municipal Corporation of Greater )
Mumbai, having its address at 2 Floor,
nd
)
Annex Building, Mahapalika Marg, C.S.T., )
Mumbai - 400 001. ) .. Respondents
ALONG WITH
INTERIM APPLICATION (L) NO.7183 OF 2020
IN
WRIT PETITION (L) NO.3706 OF 2019
1. PBP Commercial Complex )
Co-operative Society Ltd. )
a co-operative society registered under the )
Maharashtra Co-operative Societies Act, )
1960, having its office at Peninsula Business)
Park, C.S.No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
2. Peninsula Land Ltd. )
Company registered under the provisions of )
Companies Act, 1956, having its registered )
office at 1, Peninsula Spenta, )
Mathuradas Mills Compound, Senapati )
Bapat Marg, Lower Parel, )
Mumbai - 400 013. ) ... Applicants
In the matter between :-
CIPLA Limited )
a Company incorporated under the )
provisions of the Companies Act, 1913 and )
having its registered office address at Cipla )
House, Peninsula Business Park, Ganpatrao)
Kadam Marg, Lower Parel, )
Mumbai - 400 013. ) .. Petitioner
Versus
1. The Competent Authority and )
The District Deputy Registrar, Co-operative )
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 3 wpl-3706.19 wt ors.(J).doc
Society, Mumbai (I) City, )
having its office at 6th Floor, Malhotra )
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
2. The Deputy Registrar, )
Co-operative Societies, G/S ward, )
having his office at 6th Floor, Malhotra )
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
3. Mr.Kamal Kishore Sharma )
having his residence at Unit No.A-1802, )
Tower 'A,' Peninsula Business Park, )
C.S. No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
4. PBP Commercial Complex )
Co-operative Society Ltd. )
a co-operative society registered under the )
Maharashtra Co-operative Societies Act, )
1960, having its office at Peninsula Business)
Park, C.S.No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
5. Peninsula Land Ltd. )
Company registered under the provisions of )
Companies Act, 1956, having its registered )
office at 1, Peninsula Spenta, )
Mathuradas Mills Compound, Senapati )
Bapat Marg, Lower Parel, )
Mumbai - 400 013. )
6. Municipal Corporation of Greater )
Mumbai, having its address at 2nd Floor, )
Annex Building, Mahapalika Marg, C.S.T., )
Mumbai - 400 001. ) .. Respondents
ALONG WITH
INTERIM APPLICATION (L) NO.1 OF 2020
IN
WRIT PETITION (L) NO.3706 OF 2019
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 4 wpl-3706.19 wt ors.(J).doc
1. HDFC Bank Limited )
a Company incorporated under the )
provisions of the Companies Act, 1956 and )
having its registered office address at )
Peninsula Spenta, Mathuradas Mills )
Compound, Senapati Bapat Mar, )
Lower Parel, Mumbai - 400 013. ) ... Applicant
In the matter between :-
CIPLA Limited )
a Company incorporated under the )
provisions of the Companies Act, 1913 and )
having its registered office address at Cipla )
House, Peninsula Business Park, Ganpatrao)
Kadam Marg, Lower Parel, )
Mumbai - 400 013. ) .. Petitioner
Versus
1. The Competent Authority and )
The District Deputy Registrar, Co-operative )
Society, Mumbai (I) City, )
having its office at 6 Floor, Malhotra
th
)
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
2. The Deputy Registrar, )
Co-operative Societies, G/S ward, )
having his office at 6th Floor, Malhotra )
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
3. Mr.Kamal Kishore Sharma )
having his residence at Unit No.A-1802, )
Tower 'A,' Peninsula Business Park, )
C.S. No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
4. PBP Commercial Complex )
Co-operative Society Ltd. )
a co-operative society registered under the )
Maharashtra Co-operative Societies Act, )
1960, having its office at Peninsula Business)
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 5 wpl-3706.19 wt ors.(J).doc
Park, C.S.No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
5. Peninsula Land Ltd. )
Company registered under the provisions of )
Companies Act, 1956, having its registered )
office at 1, Peninsula Spenta, )
Mathuradas Mills Compound, Senapati )
Bapat Marg, Lower Parel, )
Mumbai - 400 013. )
6. Municipal Corporation of Greater )
Mumbai, having its address at 2 Floor,
nd
)
Annex Building, Mahapalika Marg, C.S.T., )
Mumbai - 400 001. ) .. Respondents
WITH
WRIT PETITION (L) NO.7586 OF 2020
1. HDFC Bank Limited )
a Company incorporated under the )
provisions of the Companies Act, 1956 and )
having its registered office address at )
Peninsula Spenta, Mathuradas Mills )
Compound, Senapati Bapat Mar, )
Lower Parel, Mumbai - 400 013. )
2. HDFC Securities Limited )
a Company incorporated under the )
provisions of the Companies Act, 1956 and )
having its registered office address at )
Office Floor 8, I Think Techno Campus )
Building B- Alpha, Kanjurmar (East), )
Mumbai - 400 042. ) .. Petitioners
Versus
1. The Competent Authority and )
The District Deputy Registrar, Co-operative )
Society, Mumbai (I) City, )
having its office at 6 Floor, Malhotra
th
)
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
2. The Deputy Registrar, )
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 6 wpl-3706.19 wt ors.(J).doc
Co-operative Societies, G/S ward, )
having his office at 6th Floor, Malhotra )
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
3. Mr.Kamal Kishore Sharma )
having his residence at Unit No.A-1802, )
Tower 'A,' Peninsula Business Park, )
C.S. No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
4. PBP Commercial Complex )
Co-operative Society Ltd. )
a co-operative society registered under the )
Maharashtra Co-operative Societies Act, )
1960, having its office at Peninsula Business)
Park, C.S.No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
5. Peninsula Land Ltd. )
Company registered under the provisions of )
Companies Act, 1956, having its registered )
office at 1, Peninsula Spenta, )
Mathuradas Mills Compound, Senapati )
Bapat Marg, Lower Parel, )
Mumbai - 400 013. )
6. CBRE South Asia Pvt. Ltd. )
a Company incorporated under the )
Companies Act, 1956, having its registered )
office at 11th and 12th Floor, )
Raheja Tower, G Block, Bandra Kurla )
Complex, Bandra (East), )
Mumbai - 400 051. ) .. Respondents
WITH
WRIT PETITION (L) NO.1186 OF 2021
1. Tata Capital Limited )
a Company incorporated under the )
provisions of the Companies Act, 1956 and )
having its registered office address at )
11th Floor, Tower 'A' Peninsula Business Park)
Ganpatrao Kadam Marg, Lower Parel, )
Mumbai - 400 013. )
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 7 wpl-3706.19 wt ors.(J).doc
2. Tata AIG General Insurance )
Company Limited )
a Company incorporated under the )
provisions of the Companies Act, 1956 and )
having its registered office address at )
15th Floor, Tower 'A' Peninsula Business Park)
Ganpatrao Kadam Marg, Lower Parel, )
Mumbai - 400 013. )
3. Tata AIA Life Insurance )
Company Limited )
a Company incorporated under the )
provisions of the Companies Act, 1956 and )
having its registered office address at )
14 Floor, Tower 'A' Peninsula Business Park)
th
Ganpatrao Kadam Marg, Lower Parel, )
Mumbai - 400 013. ) .. Petitioners
Versus
1. The Competent Authority and )
The District Deputy Registrar, Co-operative )
Society, Mumbai (I) City, )
having its office at 6 Floor, Malhotra
th
)
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
2. The Deputy Registrar, )
Co-operative Societies, G/S ward, )
having his office at 6th Floor, Malhotra )
House, Opp. GPO, Fort, )
Mumbai - 400 001. )
3. Mr.Kamal Kishore Sharma )
having his residence at Unit No.A-1802, )
Tower 'A,' Peninsula Business Park, )
C.S. No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
4. PBP Commercial Complex )
Co-operative Society Ltd. )
a co-operative society registered under the )
Maharashtra Co-operative Societies Act, )
1960, having its office at Peninsula Business)
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 8 wpl-3706.19 wt ors.(J).doc
Park, C.S.No.243, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013. )
5. Peninsula Land Ltd. )
a Company registered under provisions of )
Companies Act, 1956, having its registered )
office at 1, Peninsula Spenta, )
Mathuradas Mills Compound, Senapati )
Bapat Marg, Lower Parel, )
Mumbai - 400 013. )
6. CBRE South Asia Pvt. Ltd. )
a Company incorporated under the )
Companies Act, 1956, having its registered )
office at 11th and 12th Floor, )
Raheja Tower, G Block, Bandra Kurla )
Complex, Bandra (East), )
Mumbai - 400 051. ) .. Respondents
---
Mr.Vineet Naik, Senior Advocate a/w Ms.Bindi Dave, Mr.Ieshan
Sinha, Mr.Aayesh Gandhi i/by M/s.Wadia Ghandy & Co, for the
petitioners in WPL/3706 of 2019 and WPL/1186/2021.
Mr.Vishal Kanade a/w Ms.Bindi Dave, Mr.Ieshan Sinha, Mr.Aayesh
Gandhi i/by M/s. Wadia Ghandy & Co. for the petitioners in
WPL/7586/2020.
Mr.Kedar Dighe, Asst. Government Pleader for the respondent-State.
Mr.Prateek Seksaria a/w Mr.Saket Mone, Mr.Subit Chakrabarti,
Ms.Radhika Kulkarni, Mr.Vishesh Kalra and Mr.Abhishek Salian i/by M/
s.Vidhii Partners for the respondent nos.3 and 4 in WPL/3706/2019,
WPL/7586/2020 and WPL/1186/2021 and for the applicant no.1 in
IA(L)/7183/2020.
Mr.Mayur Khandeparkar a/w Mr.Vikramjit Garewal and Ms.Kalyani
Shukla for the respondent no.5 in WPL/3706/2019, WPL/7586/2020 and
WPL/1186/2021 and for the applicant no.2 in IA(L)/7183/2020.
Mr.Vishal Kanade a/w Mr.Zaosh Irani i/by M/s.Yashmin Bhansali & Co.
for the applicant in IA/1/2020 in WPL/3706/2019.
Ms.Trupti Puranik for the respondents-M.C.G.M.
---
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 9 wpl-3706.19 wt ors.(J).doc
CORAM : R.D. DHANUKA &
V. G. BISHT, JJ.
RESERVED ON : 25th January 2021 PRONOUNCED ON : 22nd April 2021 Judgment (per R. D. Dhanuka, J.) :-
. Rule. Learned counsel appearing for the respondents waive service. By consent of parties, writ petitions are heard finally. By these three writ petitions filed under Article 226 of the Constitution of India, the petitioners have impugned the order dated 9 th October 2019 passed by the respondent no.1 and have impugned the Certificate of Registration dated 22nd October 2019 issued by the respondent no.2 in favour of the respondent no.4 society. Interim Application No.1 of 2020 is filed by the HDFC Bank Limited interalia praying for impleadment of the applicant as a petitioner or the respondent in the Writ Petition (L) No.3706 of 2019 filed by the CIPLA Limited. Interim Application (L) No.7183 of 2020 is filed by the applicants (original respondent nos.4 and 5) in Writ Petition (L) No.3706 of 2019 filed by CIPLA Limited inter-alia praying for modification of the order dated 19 th December 2019 and continuation of the status quo order vide orders dated 19 th December 2019, 17th March 2020, 22nd May 2020, 23rd June 2020 and 26th June 2020 in Writ Petition (L) No.3706 of 2019 and seeks liberty to permit the applicants to sign and effectually implement the consent terms in Writ Petition No.3295 of 2019 filed by the applicants.
2. By consent of parties, all the writ petitions and interim applications were heard together and are being disposed of by a common order. Parties to the proceedings have addressed this Court in Writ Petition (L) No.3706 of 2019 as a lead matter.
Facts in Writ Petition (L) No. 3706 of 2019 filed by the CIPLA ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 10 wpl-3706.19 wt ors.(J).doc Limited :-
3. By and under three separate agreements for sale dated 5th November, 2012, the respondent no.5 i.e. Peninsula Land Ltd. sold and the petitioner purchased unit nos.101 and 102, 401 and 402 and unit nos.1301 and 1302 of Tower A along with exclusive right to use 27, 31 and 28 car parking spaces in Peninsula Business Park constructed on the land admeasuring 27551.70 sq. mtrs. or thereabout bearing City Survey No.243 of Lower Parel Division situate lying and being at Ganpatrao Kadam Marg, Lower Parel, Mumbai - 400 013.
4. On 6th December 2012, the petitioner acquired from the respondent no.5 the enire Tower C of ground level and five upper floors comprising of unit nos.101, 102, 201, 301, 401 and 501 along with exclusive use of a pantry/cafeteria and 45 car parking spaces for a total consideration of Rs.95,12,88,450/-. On 20th February 2014, by an under two separate Agreements for Sale, the petitioner acquired from one Samartha Development Corporation unit nos.701 and 702 of Tower B in the said premises along with exclusive use of 28 car parking spaces for a total consideration of Rs.33,91,84,000/- and Rs.34,79,60,000/-.
5. It is the case of the petitioner that on 9 th August 2016, the respondent no.5 executed and registered a declaration under Section 2 of the Maharashtra Apartment Ownership Act, 1970 (for short "MAO Act") being the Deed of Declaration registered under Serial No.BBE/3- 5005/2016 with the Sub-Registrar of Assurance at Bombay and submitted the said property to the provisions of MAO Act and whereunder 'PBP Condominium' is formed.
6. It is the case of the petitioner that on 10th August 2016, the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 11 wpl-3706.19 wt ors.(J).doc respondent no.5 informed the Deputy Registrar of Co-operative Societies, G/S ward about execution and registration of Deed of Declaration. It is the case of the petitioner that on 21 st October 2016 and 23rd November 2016, the respondent no.5 and the unit holders, including the petitioner held meetings for formation of the working committee and for handing over of all the affairs of the PBP Condominium to an interim working committee. On 13th February 2017, the respondent no.5 vide its email forwarded the Minutes of Meetings held on 21st October 2016 and 23rd November 2016 and attached a Draft Deed of Apartment which was to be executed by all the unit holders.
7. It is the case of the petitioner that during the period between April 2017 and July 2018, the respondent no.5 vide multiple emails called upon all the unit holders to provide details of the individual unit holders for executing the Deed of Apartments.
8. It is the case of the petitioner that on 15 th February 2019, the account consultant of the respondent no.3 Mr.Kamal Kishore Sharma addressed a letter interalia submitting an application under Section 10(1) of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short "MOFA") in Form VI as per the Rule 12 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Rules 1964 (for short "MOF Rules").
9. It is the case of the petitioner that on 24 th April 2019, the petitioner and certain unit holders collectively occupying 50% of the total area and 65% of the carpet area of the said property addressed a letter to the Competent Authority and the District Deputy Registrar, Co- operative Soceities, Mumbai (I) City thereby withdrawing their consent ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 12 wpl-3706.19 wt ors.(J).doc to form a society and called upon the respondent no.1 to stop the process of registering the respondent no.4 society.
10. It is the case of the petitioner that on 19th August 2019, in accordance with the provisions of the MAO Act, the petitioner and the respondent no.5 entered into five separate Deeds of Apartments in respect of the premises and registered the same with the office of the Sub-Registrar, Mumbai City-IV. It is the case of the petitioner that on 9th October 2019, the respondent no.1 passed the impugned order without giving an opportunity of hearing to the petitioner and directed the respondent no.2 to take further steps in respect of registration of the respondent no.4 society pursuant to the application filed by the respondent no.3 through his account consultant. On 22 nd October 2019, the respondent no.2 issued a Registration Certificate in favour of the respondent no.4 society. The said order dated 9th October 2019 and the Registration Certificate dated 22nd October 2019 are impugned by the petitioners in all the three writ petitions.
11. It was the case of the petitioner that on 31st October 2019, the petitioner addressed a letter to the respondent no.4 society opposing the Annual General Body Meeting proposed to be scheduled by the respondent no.4 on 11th November 2019. On 11th November 2019, the respondent no.4 society however scheduled Annual General Body Meeting in which provisional committee members of the respondent no.4 were elected. On 11th November 2019, the respondent no.4 addressed a letter to the respondent no.5 calling upon to hand over the title documents to the respondent no.4. On 11th November 2019, the respondent no.4 addressed a letter to the respondent no.6 -Municipal Corporation of Greater Mumbai requesting to change the billing name for water connection for the said premises in the name of the respondent ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 13 wpl-3706.19 wt ors.(J).doc no.4.
The facts in Interim Application (L) No.7183 of 2020 in Writ Petition (L) No.3706 of 2019 :-
12. This interim application has been filed by the original respondent nos.4 and 5 under Writ Petition (L) No.3706 of 2019 inter alia praying for modification of the order dated 19 th December, 2019 passed by this Court and seeks continuation of the status quo order ordered therein vide orders dated 19th December 2019, 17th March 2020, 22nd May 2020, 23rd June 2020 and 26th June 2020 passed in the said writ petition. The applicant also seeks liberty and permission to sign and effectually implement the consent terms in Writ Petition No.3295 of 2019 filed by the applicant.
Interim Application (L) No.1 of 2020 in Writ Petition (L) No.3706 of 2019 :-
13. This Interim Application is filed by the HDFC Bank Limited for impleadment of the applicant in the said writ petition.
Facts in Writ Petition (L) No. 7586 of 2020 filed by HDFC Bank Limited and another against the Competent Authority and the District Deputy Registrar, Co-operative Society, Mumbai (1) City and others :-
14. On 25th September, 2012, by and under three separate Agreements for Sale, the respondent no.5 sold unit nos. 1601, 16th Floor, Tower A in Peninsula Business Park to the petitioner no.1. By another Agreement dated 25th September, 2012 for Sale, the respondent no.5 sold ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 14 wpl-3706.19 wt ors.(J).doc unit nos. 1602, 16th Floor of Tower A, to the petitioner no.2. On 24 th June 2013, 6th June 2013, 27th May 2013 by and under four separate Agreements for Sale, the respondent no.5 sold from one Alok Realtors unit nos. 401, 402, 501, 502, 601, 602, 1001 and 1002 of Tower B, Peninsula Business Park to the petitioner no.1. The rest of the facts in this petition are identical to the Writ Petition (L) No.3706 of 2019.
The facts in Writ Petition (L) No.1186 of 2021 filed by Tata Capital Limited and others against the Competent Authority and The District Deputy Registrar, Co-operative Society, Mumbai (I) City and others :-
15. On 4th June,2012 by and under an Agreement for Sale, the respondent no.5 sold unit nos. 1101 and 1102, 11 th Floor, Tower A, Peninsula Business Park to the petitioner no.1. On 4 th June, 2012, by and under an Agreement for Sale, the respondent no.5 sold unit nos. 1201 and 1202 of 12th Floor, Tower A, Peninsula Business Park to the petitioner no.1. On 12th November, 2012, the respondent no.5 by and under an Agreement for Sale sold unit nos. 1501 and 1502 of 15 th Floor of Tower A of the said Peninsula Business Park to the petitioner no.2.
16. On 20th June, 2012, the respondent no.5 by and under Agreement for Sale sold unit nos. 1401 and 1402, 14th Floor of Tower A of the said Peninsula Business Park to the petitioner no.3. It is the case of the petitioner that the petitioners and certain unit holders collectively are occupying more than 50% of the total area and 65% of the carpet area of the said property. Rest of the facts in this petition are identical to the facts in Writ Petition (L) No.3706 of 2019.
The arguments on behalf of the petitioners in Writ Petition (L) ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 15 wpl-3706.19 wt ors.(J).doc No.3706 of 2019 and Writ Petition (L) No. 7586 of 2020 :-
17. Mr. Vineet Naik, learned senior counsel for the petitioners invited our attention to Section 10(1) of MOFA and in particular first proviso and would submit that the said proviso was added by Mah.4 of 2008 w.e.f. 25th February, 2008 clearly stating that if the promoter fail within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co- operative Societies Act, 1960, the Competent Authority is empowered to direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society upon receiving the application from the persons who have taken flats from the said promoters. He relied upon the definition of 'Competent Authority' under the said MOFA defined under section 5A and would submit that various authorities are prescribed as Competent Authority as per various area or areas specified in the notification.
18. Learned senior counsel invited our attention to section 10(2) of MOFA and would submit that the respondent no.5 had rightly informed the Deputy Registrar about the execution and registration of the Deed of Declaration as provided under the MAO Act, 1970. The respondent no.5 had already submitted the entire property to the provisions of the said MAO Act. The Competent Authority was duly intimated about the execution and registration of the Deed of Declaration under the provisions of MAO Act under second proviso to section 10(1) of MOFA. The Competent Authority thus could not have directed the District Deputy Registrar to register the respondent no.4 society. He submits that whether the said Deed of Declaration was duly executed or not in accordance with law or whether the intimation about the said document and the registration was properly conveyed to the Registrar as defined in ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 16 wpl-3706.19 wt ors.(J).doc the MOFA or not could not have been adjudicated by the Competent Authority under first proviso to section 10(1) of MOFA.
19. Learned senior counsel invited our attention to the Deed of Declaration dated 9th August, 2016, an application for registration of the society made by the respondent no.3 on 15th February, 2019, the intimation given to the Deputy Registrar by the respondent no.5 on 10 th August, 2016, letter dated 24th April, 2019 withdrawing NOC granted by some of the petitioners, certificate of registration dated 22 nd October, 2019 and the Deed of Apartments executed by the unit holders of the petitioners with respondent no.5.
20. Learned senior counsel invited our attention to some of the paragraphs from the impugned order passed by the Competent Authority and would submit that the finding of the Competent Authority that though the Deed of Declaration was executed in 2016, no steps were taken by the respondent no.5 or by the petitioners for a period of three years and thus no harm would be caused to the petitioners if the respondent no.4 society is registered is totally perverse and based on wrong factual premises. Similarly the findings of the Competent Authority that there were sufficient numbers to form the respondent no.4 society as also based on the factual incorrect premises and is perverse. Learned senior counsel invited our attention to the Deed of Declaration executed by the respondent no.5 under section 12 of the said MAO Act. He submits that the intimation under section 10(2) of the MOFA was rightly sent by the respondent no.5 to the concerned Deputy Registrar of the areas in which the said buildings were situated. The respondent no.5 developer had already executed a Deed of Apartment with the unit purchasers.
21. It is submitted by the learned senior counsel that the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 17 wpl-3706.19 wt ors.(J).doc proceedings under section 10(1) of MOFA being in the nature of summary proceedings, neither any title issue nor the question of validity of the Deed of Declaration nor whether there was a proper intimation of the said order to the Registrar under section 10(2) of MOFA or not could have been gone into by the Competent Authority in the said summary enquiry under section 10(1) of MOFA. The Competent Authority has thus exceeded its jurisdiction by adjudicating upon various contentious issues including issue of title and by recording the findings that the intimation under section 10(2) of MOFA was not given by the respondent no.5 to the right Authority. He submits that 59% of the carpet area is held by the petitioners itself. Since this Court passed an order of status quo, the respondent no.5 could not execute Deed of Conveyance in favour of the condominium. The jurisdiction of the Competent Authority under section 10(1) of MOFA is very limited.
22. It is submitted by the learned senior counsel that the respondent no.5 had informed the Competent Authority about the execution of the Deed of Declaration duly registered and also about the intimation given to the Registrar under section 10(2) about such execution of the Deed of Declaration and about the respondent no.5 submitting the property to the provisions of MAO Act. In case of any dispute raised by the promoters of the respondent no.4 society about such documents or on the issue whether intimation under section 10(2) of MOFA was rightly given to the Competent Authority or not, the Competent Authority could not have issued any directions to the District Deputy Registrar or Deputy Registrar or Assistant Registrar as the case may be to register the society. He ought to have rejected the application made by the respondent no.3 for formation of the respondent no.4 society. The Competent Authority has no power to adjudicate upon the contentious issues.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 18 wpl-3706.19 wt ors.(J).doc
23. Learned senior counsel placed reliance on section 3(1) of the said MAO Act which defines 'Competent Authority'. Section 3(j) which defines 'Declaration', Section 11 provides as to what shall be the contents of a declaration. He submits that under section 11(2) of MAO Act, the developer was required to file a true copy of each of the declaration and bye-laws and all the amendments to the declaration and the bye-laws in the office of the Competent Authority. He submits that all these requirements were duly met with by the respondent no.5 within the time prescribed.
24. Learned senior counsel placed reliance on section 3 of the MCS Act and would submit that various officers holding different posts are empowered to assist the Registrar and are permitted to discharge the functions of the Registrar. He submits that in any event the intimation given by the respondent no.5 to the Deputy Registrar Co-operative Society about the execution of the Deed of Declaration and about the respondent no.5 submitting the property under the provisions of the said MAO Act was in substantial compliance of section 10(2) of the MOFA.
25. Learned senior counsel for the petitioners relied upon section 12 of the said MAO Act and would submit that the respondent no.5 had complied with the said provisions while executing the separate Deed of Apartment with the unit holders by describing the contents in the manner prescribed therein. A true copy of every such Deed of Apartment was also filed in the office of the Competent Authority. He relied upon section 14 of the MAO Act and would submit that all the apartment owners could remove the property from the provisions of the said MAO Act only by executing the instrument to that effect and not otherwise. No such instrument was executed by any of the apartment owners for ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 19 wpl-3706.19 wt ors.(J).doc removing the property from the provisions of the said MAO Act.
26. Learned senior counsel relied upon section 152 of the said MCS Act and would submit that the order passed by the Registrar of Co- operative Societies under the said provision is an appealable order whereas no appeal or revision is provided against an order of Competent Authority under Section 10(1) of the MOFA. He submits that under section 5 of the MAO Act, each apartment owner shall be entitled to the exclusive ownership and possession of his apartment in accordance with the Declaration executed and registered as required by section 2 of the MAO Act which was duly executed by the respondent no.5 in favour of the unit holders/apartment owners.
27. Learned senior counsel invited our attention to the particulars and the details of the unit holders at page 836 of the writ petition and would submit that the substantial portion of the property is purchased and possessed by the petitioners from the respondent no.5 out of the entire property developed and sold by the respondent no.5.
28. Learned senior counsel invited our attention to the judgment of this Court in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors., 2017(1) ABR 673 and in particular paragraphs 2, 6, 7, 11, 34 to 38, 44 and 46. He also invited our attention to the order passed by the Hon'ble Supreme Court on 18th April, 2018 in Special Leave Petition filed by the Bombay Dyeing and Manufacturing Co. Ltd. against Paul Parambi and Ors. converted into Civil Appeal No. 3973 of 2018 arising out of the said judgment of this Court reported in 2017(1) ABR 673. It is submitted that by the consent of parties, the Hon'ble Supreme Court had granted leave and had set aside the impugned judgment and order of this ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 20 wpl-3706.19 wt ors.(J).doc Court reported in 2017(1) ABR 673.
29. It is submitted that the Hon'ble Supreme Court while setting aside the judgment and order of this Court by consent, made it clear that the question of law decided therein is left open. It is submitted that since the question of law decided by this Court in the said judgment is kept open, the said judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) is not a binding precedent in this case. Only question of law decided by a Court would be a binding precedent and in view of the Hon'ble Supreme Court keeping the said question open, this Court cannot rely upon the said judgment in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) decided by this Court as a precedent and will have to decide the question of law raised by the petitioners in this petition independently.
30. Learned senior counsel submits that in the impugned order passed by the Competent Authority, reliance is thus wrongly placed on the judgment of the Division Bench of this court in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) which judgment is already set aside by the Hon'ble Supreme Court. The impugned order passed by the Competent Authority thus deserves to be set aside on this ground alone.
31. Learned senior counsel invited our attention to the judgment of this Court in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors., 2018 SCC OnLine Bom 591 and in particular paragraphs 5, 6, 7, 17, 22, 27, 33, 34 and 39 and would submit that this judgment was erroneously relied upon by the Competent Authority in the impugned order. The facts before this Court in the said judgment in case of Sarita Nagari Phase - 2 Co-
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 21 wpl-3706.19 wt ors.(J).doc operative Housing Society Ltd. & Anr. (supra) were totally different. The housing society in that case was already registered for last 17 years which crucial fact was noticed by this Court in the said judgment in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. (supra). In this case, this Court has already granted the order of status quo which is in force since quite sometime.
32. Learned senior counsel invited our attention to the paragraphs 42 and 43 of the said judgment in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. (supra) and submits that the judgment in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) has been wrongly relied upon by this Court in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. (supra). In the facts of that case, this Court had restored the registration of the society.
33. Learned senior counsel invited our attention to the order dated 1st May, 2018 passed by the Hon'ble Supreme Court in Petition(s) for Special Leave to Appeal (C) No.10215 of 2018 filed by M/s.A.V.Bhat Housing Co. now known as Belvalkar Housing Company vs. Sarita Nagari PH2 Cooperative Housing Society Ltd. & Ors. arising out of the order passed by the Division Bench of this Court reported in (2018) SCC OnLine Bom 591 and would submit that the Hon'ble Supreme Court has directed issuance of the notice in the said matter and in the meantime has granted stay of the operation of the impugned order passed by this Court. Hon'ble Supreme Court has directed the parties to maintain status quo as it existed on the date of the said order i.e. 1 st May, 2018. It is submitted that the Competent Authority could not have followed the said judgment delivered by the Division Bench of this Court in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. (supra).
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 22 wpl-3706.19 wt ors.(J).doc
34. It is submitted by the learned senior counsel that since no consequences are provided in section 10(2) of the MOFA in case of non- compliance with the said provisions strictly, the said provision under section 10(2) would be directory in nature and not mandatory. The Court has to make a logical interpretation after considering the object and legislative intent not to have society registered if the property is submitted to the jurisdiction of the said MAO Act. Learned senior counsel for the petitioners made an attempt to distinguish the judgment of Division Bench of this Court in case of Sarita Nagari Phase - 2 Co- operative Housing Society Ltd. & Anr. (supra) on the ground that the order of three authorities were challenged in the said writ petition. The members of the society had admittedly filed an application for registration of the society. There was enquiry initiated under section 9 of the MCS Act which was triggered only on failure of the promoters to register the society. In this case, the respondent no.5 promoter had already executed a Deed of Declaration, various Deeds of Apartments and had intimated the authority under section 10(2) of MOFA that the said property was subjected to the provisions of the said MAO Act.
35. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Kunhayammed and others vs. State of Kerala and Another, (2000) 6 SCC 359 and in particular paragraphs 14 and 41 and would submit that if the leave to appeal is granted by the Hon'ble Supreme Court, the appellate jurisdiction of the Court stands invoked. In that event, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court passes a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. He submits that in view of the Hon'ble ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 23 wpl-3706.19 wt ors.(J).doc Supreme Court granting leave in the special leave to appeal arising out of the judgment of the Division Bench of this Court in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra), the said judgment of the Division Bench of this Court not have been relied upon as a precedent by the Competent Authority.
36. Learned senior counsel for the petitioner placed reliance on paragraphs 18 to 20, 23 and 26.2 of the judgment of the Hon'ble Supreme Court in case of Khoday Distilleries Limited (now known as Khoday India Limited) and others vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited Kollegal (under Liquidation) represented by the Liquidator, (2019) 4 SCC 376 and would submit that the Hon'ble Supreme Court in the said judgment has relied upon the earlier judgment in case of Kunhayammed and others (supra). He submits that the Hon'ble Supreme Court had granted leave to appeal arising out of the judgment of the Division Bench of this court in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra).
37. Learned senior counsel placed reliance on the judgment of this Court in case of Heena Nikhil Dharia vs. Kokilaben Kirtikumar Nayak and others, (2017) 2 Bom.C.R. 65 and in particular paragraphs 12, 13 and 33 and would submit that the judgment having been set aside even by consent is not binding on the parties once having been set aside.
38. Insofar as the conduct of the respondent no.5 developer is concerned, it is submitted by the learned senior counsel that the respondent no.5 has executed Deed of Declaration and several Deeds of Apartments with various unit holders. The respondent no.5 has contested application for formation of the respondent no.4 society before the Competent Authority filed by the respondent no.3. The respondent no.5 ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 24 wpl-3706.19 wt ors.(J).doc had also filed a separate writ petition impugning the order passed by the Competent Authority which is impugned by the petitioners in these three writ petitions and had been supporting the case of the petitioners. The respondent no.5 however has now taken a contradictory and inconsistent stand and has filed Interim Application (L) No.7183 of 2020 in the month of December 2020 seeking modification of the status quo order dated 19 th December, 2019 passed by this Court in these writ petitions on the ground that the respondent no.5 seeks to file consent terms with one of the society. The respondent no.5 shall not be allowed to take such contradictory and inconsistent pleas now.
39. Learned senior counsel placed reliance on the judgment of this Court in case of Marathon Next Gen Realty Ltd., Mumbai and another vs. Competent Authority, District Deputy Registrar of Co- operative Societies, Mumbai and Others, 2015(5) Mh.L.J. 318 and in particular paragraphs 14 and would submit that the proceedings under section 10 of the MOFA also being a summary proceedings, the Competent Authority even under the said provision has only summary power and has no power to decide the issue of title. The principles laid down by this Court in the said judgment applies to the facts of this case. He submits that all the Deeds of Apartments could not be executed between all the unit holders and the respondent no.5 because of there being a large number of unit holders and various other unavoidable reasons. Such Deeds of Apartments could be executed only by the respondent no.5 developer who was the owner of the property. But the Deed of Apartments however were subsequently executed with the individual unit holders.
40. Learned senior counsel submits that the arguments advanced by him in Writ Petition (L) No.3706 of 2019 would apply also in the Writ ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 25 wpl-3706.19 wt ors.(J).doc Petition (L) No.1186 of 2021 filed by Tata Capital Limited.
The arguments on behalf of the petitioners in Writ Petition (L) No. 7586 of 2020 filed by HDFC Bank Limited and another against the Competent Authority and the District Deputy Registrar, Co- operative Society, Mumbai (1) City and others :-
41. Mr.Kanade, learned counsel for the petitioners adopts the arguments advanced by Mr.Vineet Naik, learned senior counsel for the petitioners in Writ Petition (L) No.3706 of 2019 and Writ Petition (L) No.1186 of 2021 and made additional submissions. He submits that there was no Deed of Apartment executed between the respondent no.5 and the petitioner nos. 1 and 2 in his case. The petitioner nos. 1 and 2 had called upon the respondent no.5 to execute the Deed of Apartment, however till date no such Deed of Apartment has been executed by the respondent no.5 in their favour. The Deed of Declaration however has been already executed by the respondent no.5. The rights of the petitioner nos. 1 and 2 are thus not affected merely because the Deeds of Apartment have not been executed by the respondent no.5 in favour of the petitioner nos. 1 and 2.
42. Learned counsel placed reliance on section 10(2) of the MOFA and would submit that the twin requirement under the said provision i.e. the promoter has to execute a Deed of Declaration and thereafter to inform the concerned authority about the execution of such documents and about submissions of the property of the respondent no.5 under the provisions of MAO Act have been complied with by the respondent no.5. There is no mode and manner prescribed under section 10(2) of the MOFA about the intimation to be furnished to the Registrar about the developer submitting the property under the provisions of the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 26 wpl-3706.19 wt ors.(J).doc said MAO Act. The proof of the registration could be even produced by the developer at the stage of the hearing. The fact of registration of the Deed of Declaration amounted to constructive notice to the world at large under the provisions of the Transfer of Property Act. Section 10(2) of the MOFA is an exception to section 10(1) of the MOFA. The intimation under section 10(2) of MOFA to the Registrar is directory and not mandatory. The respondent no.5 had thus complied with all the three conditions prescribed under section 10 of the MOFA i.e. the execution, registration and intimation.
Submission made by Mr. Prateek Seksaria, learned Counsel for the respondent nos.3 & 4 :-
43. It is submitted by the learned counsel for the respondent nos.3 & 4 that the respondent no.5 had executed unilaterally a Deed of Declaration on 9th August 2016 under Section 2 of the MAO Act. He invited our attention to the said Deed of Declaration dated 9th August 2016 executed by the respondent no.5 and would submit that the unit holders were not parties to the said Deed of Declaration. He invited our attention to the recital (E) of the Deed of Declaration which provides that the Grantor is the owner of and otherwise well and sufficiently entitled to the Land. He also relied upon recitals (I), (K), (L) and (M) of the said Deed of Declaration. He relied upon clause 'Tenth' of the said Deed of Declaration and submits that there is a clear distinction between the developer, owner and the unit holders having interest in the property proportionately.
44. Learned counsel invited our attention to Sections 2, 3(a), 3(b), 3(e) and 3(r) of the said MAO Act and would submit that the said MAO Act applies only to the sole owner or all the owners of the land ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 27 wpl-3706.19 wt ors.(J).doc which may submit such land to the provisions of the said MAO Act by duly executing and registering a declaration as provided therein. Sections 3(a), 3(b), 3(e) and 3(r) of the said MAO Act define "apartment,"
"apartment owner," "building" and "property" respectively. He submits that definition of property clearly provides that "property" means the land, the building. Section 2 of the said MAO Act also refers to the property which includes the land and building and also the apartments.
45. Learned counsel invited our attention to Rule 3 of the MAO Rules, 1972 which provides that the declaration under Section 2 of the said MAO Act has to be executed and registered under Section 2 of the said MAO Act by the sole owner or all the owners in Form 'A.' He relied upon the first proviso to Section 10 of the MOFA and would submit that the said proviso is inserted w.e.f. 25th February 2008. Both the provisions are to be harmonized. In the first and second proviso of Section 10(1) of the MOFA, District Deputy Registrar, Deputy Registrar and Assistant Registrar are referred whereas in Section 10(2) of the MOFA refers to the Registrar as defined in the Maharashtra Co- operative Societies Act, 1960. He relied upon Rule 8 of the MOF Rules which provides for the period for submission of application for registration of Co-operative Society or company of flat purchasers to be made within four months by the promoter from the date on which the minimum number of persons required to form such organisation have taken flats by submitting an application to the Registrar. Such Deed of Declaration was to be executed by the respondent no.5 only after all the apartments were sold. He relied upon Rule 8(4) of the MCS Rules, 1961 and would submit that the application under the said provision has to be registered by the promoter.
46. Learned counsel for the respondent nos.3 & 4 relied upon ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 28 wpl-3706.19 wt ors.(J).doc the definitions of "apartment" and "apartment owner" and would submit that the said definition were added by the Maharashtra 15 of 1971. Under Section 2 (a-1) of the MOFA, the flat includes an apartment which definition was added by Maharashtra 4 of 2008. He relied upon Rule 10 of MCS Rules which provides for Classification and sub-classification of societies. Sub-clause 5 of Rule 10 of MCS Rules provides for Classification of Housing Society and sub- classification of Tenant Ownership Housing Society. He submits that the respondent no.4, however, was registered not as a Housing Society but as a General Society under sub-clause 9 of Rule 10 of MCS Rules. He tendered a copy of the Registration Certificate of the respondent no.4 society registered as a General Society. He submits that Sub-clause 5 of Rule 10 of MCS Rules does not apply to the societies registered as General Societies.
47. Learned counsel placed reliance on Section 4 (1A)(v) of MOFA and would submit that the agreement required to be executed under Section 4 of the MOFA has to be in the manner prescribed therein under Section 4(1A). The precise nature of the organization to be constituted of the persons who have taken or are to take the flats has to be specified in the said agreement executed under Section 4 of the MOFA by the developer and the flat purchasers.
48. Learned counsel placed reliance on the judgments of this Court in the case of State of Maharashtra and Ors. Vs. Mahavir Lalchand Rathod & Anr., 1993 Mh.L.J. 1492 and in particular paragraph 19 thereof and in the case of Paranjape Schemes (Construction) Ltd. Vs. Avinash Madhukarrao Yekhande, 2016 SCC OnLine Bom 2527 and in particular paragraphs 63 and 64 thereof.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 29 wpl-3706.19 wt ors.(J).doc 49. Learned counsel invited our attention to the application
dated 25th October 2018 filed by the promoter for formation of the respondent no.4 society. It is submitted that the petitioners had also applied for becoming members of the said Co-operative Society and for registration thereof. Only on 24th April 2019, some of the petitioners withdrew their consent by addressing a letter to the District Deputy Registrar and thereafter executed Deed of Apartments with the respondent no.5 on 19th August 2019. Most of the petitioners had attended various meetings held by the proposed society from time to time. No objection of any nature was raised by the petitioners in any of those meetings. He submits that some of the unit holders who had withdrawn their consent for formation and registration of the respondent no.4 society had subsequently joined the respondent no.4 society. He submits that there is gross, laches, acquiescence or omission on the part of the petitioners and thus no discretionary relief under Article 226 of the Constitution of India can be granted by this Court in this writ petition.
50. In support of this submission, learned counsel placed reliance on the judgment of the Supreme Court in the case of Sarvepalli Ramaiah (dead) as per legal representatives & Ors. Vs. District Collector, Chittor District & Ors., (2019) 4 SCC 500. Since the petitioners were neither parties before the Competent Authority nor raised any objection against issuance of any directions to the Registrar for formation of the society, the petitioners have no locus to file this writ petition. The petitioners had though complete knowledge of the proceedings before the Competent Authority, no objection was raised by the petitioners at any point of time. No vested rights is created in the petitioners under the Deed of Apartments and thus the petitioners are not aggrieved by the order passed by the Competent Authority.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 30 wpl-3706.19 wt ors.(J).doc
51. Learned counsel placed reliance on Section 154 (2) of MCS Act and submits that since in this case, the impugned order was passed by the Deputy Registrar, revision could be filed by the petitioners before the State Government or the Registrar. Though such revision could be filed under Section 154(2) of the MCS Act, the petitioners have directly filed this writ petition.
52. Learned counsel for the respondent nos.3 & 4 placed reliance on the judgment of this Court in the case of Maharashtra Chamber of Housing Industry Vs. State of Maharashtra, 2012 SCC OnLine Bom 546 and in particular paragraphs 28 and 30 thereof and would submit that this Court has categorically held as to what rights are conferred on the flat owners in Housing Society. In case of General Society, all the members become owners of the entire property.
53. Learned counsel for the respondent no.4 invited our attention to page 813 of Volume IV of the writ petition and would submit that the respondent no.5 had also submitted bye-laws of "PBP Condominium"
along with Deed of Declaration dated 9th August 2016, however, no Annual General Meetings were held by the respondent no.5 for last several years. No elections were held for the Management of Association by the respondent no.5 and other unit holders. He relied upon Section 16 of the MAO Act which provides that the administration of every property shall be governed by bye-laws. The said provision also provides for the contents of bye-laws.
54. Learned counsel submits that requirement of submitting intimation/information to the Registrar by the promoter and more particularly to the effect that the promoter had submitted the property to the provisions of the MAO Act by executing and registering a ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 31 wpl-3706.19 wt ors.(J).doc declaration as provided under the said Act is not directory but is mandatory. He relied upon Section 10(2) of the MAO Act and would submit that Deed of Declaration under the said provision has to be filed with the office of the Competent Authority. He invited our attention to the letter dated 10th August 2016 addressed by the respondent no.5 page 902 of Volume IV of the writ petition and would submit that admittedly in this case, the respondent no.5 had addressed the said letter to the Deputy Registrar of the Co-operative Society and not intimated the Registrar as contemplated under Section 10(2) of the MOFA. Even if the said letter was sent in compliance with Section 11(2) of the MAO Act, the said letter cannot be construed as if in compliance with the mandatory requirement under Section 10(2) of the MOFA.
55. Learned Counsel relied upon Section 3(i) of the MAO Act which provides for definition of "Competent Authority." He submits that even if Section 11(2) of the MAO Act was applicable, such intimation was to be given to the Registrar and not to the Deputy Registrar. He submits that the Registrar is separately defined as "District Deputy Registrar." He placed reliance on the judgment of this Court in the case of Krishnarao Bakaramji Hadge Vs. The State of Maharashtra, 1966 SCC OnLine Bom 49 and more particularly paragraph 8 thereof. He also tendered a chart showing hierarchy of the Registrar, Deputy Registrar, Additional Registrar and Assistant Registrar etc. Section 10(2) of MOFA has to be read with Rule 8 of the MOF Rules.
56. In support of the submission that since the judgment delivered by this Court in the case of Sarita Nagari Phase - 2 Co- operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra) is not stayed by the Hon'ble Supreme Court, the binding effect of the said judgment which otherwise applies to the facts of this ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 32 wpl-3706.19 wt ors.(J).doc case is not destroyed, learned counsel for the respondent nos.3 & 4 relied upon the following judgments :-
(i) Judgment of the Calcutta High Court in the case of Pinjush Kanti Chowdhury Vs. State of West Bengal & Ors., 2007 SCC OnLine Cal 267 and in particular paragraphs 10 to 13 thereof,
(ii) Judgment of Delhi High Court in the case of Birstol-Myers Squibb Company & Ors. Vs. J.D. Joshi & Anr., 2015 SCC OnLine Del 10109 and in particular paragraphs 79 and 80 thereof and,
(iii) Judgment of Madras High Court in case of Viswapriya (India) Limited Vs. Government of Tamil Nadu & Ors., 2015 SCC Online Mad 10349 and in particular paragraph 8 thereof.
57. It is submitted by the learned counsel for the respondent nos.3 & 4 that the judgment of the Division Bench of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) is also binding on this Court as the same is applicable to the facts of this case. However, the Hon'ble Supreme Court, while setting aside the said judgment of this Court by consent of parties, had kept question of law open. He submits that the said question of law was kept open for the Hon'ble Supreme Court in future and not for this High Court for reconsideration in future. In support of this submission, learned counsel for the respondent nos. 3 & 4 relied upon the judgment of Gujarat High Court in the case of Hemal Ishwarbhai Patel Vs. Veer Narmad South Gujarat University & Ors., 2016 SCC OnLine Guj 10037 and in particular paragraphs 20 to 24 and 26 thereof.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 33 wpl-3706.19 wt ors.(J).doc 58. Learned counsel for the respondent nos.3 & 4 placed
reliance on paragraphs 12, 14, 22, 24, 27, 30, 33 to 36, 38, 42, 43 and 45 of the judgment of this Court in the case of Sarita Nagari Phase - 2 Co- operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra) and submits that the said judgment would squarely apply to the facts of this case. Though this Court had referred to the earlier judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) in the said judgment in judgment of Sarita Nagari Phase-2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra), this Court had independently taken a view. Both these judgments are applicable to the facts of this case and are binding on this Court.
59. It is submitted by the learned counsel that after 2016, neither the respondent no.5 nor the petitioners took any steps under the Deed of Declaration and also various Deed of Apartments and bye-laws till the respondent no.4-society was formed and registered in the month of October 2019. The respondent no.4 had issued a notice for holding Annual General Meeting on 11th November 2019. In the said Annual General Meeting on 11th November 2019, the respondent no.4 elected the committee members of the society. Bank account was subsequently opened. The said society was working on full-fledged basis.
60. It is submitted by the learned counsel that even if this Court comes to the conclusion that any irregularity is committed by the Competent Authority in the impugned order, the petitioners have to prove that the justice would be lie on the side of the petitioners for getting equitable relief by this Court by exercising powers under Article 226 of the Constitution of India. None of the petitioners have made out any case for invoking extraordinary powers under Article 226 of the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 34 wpl-3706.19 wt ors.(J).doc Constitution of India. Only six people out of 43 opposed the formation of the respondent no.4 society.
61. In support of the submission that even if the said judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) is set aside by the Hon'ble Supreme Court, the statement of law declared by this Court in interpreting the provisions of law cannot in any manner be diluted by consent order between the parties, learned counsel placed reliance on the judgment of this Court in the case of Indian Cork Mills Private Limited Vs. The State of Maharashtra & Ors., 2018 SCC OnLine Bom 1214 and in particular paragraph 87 thereof.
62. It is submitted that the exercise carried out by the respondent no.1 to ensure whether the criteria of the existence of a duly executed declaration in accordance with the MAO Act is met or not, does not amount to an adjudication on the validity of the declaration or assuming the role of a civil Court. He submits that this contention is also rejected by this Court in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. (supra). It is submitted by the learned counsel that the declaration duly executed and registered in accordance with the provisions of the said MAO Act, necessarily means one which is executed as contemplated under section 2 of the MAO Act read with the second part of Rule 8 of MOFA Rules, 1964. The declaration could be said to be duly executed, only if the same would have been executed by all flat purchasers/apartment takers in absence of such declaration in strict compliance with section 2 of the said MAO Act read with the second part of rule 8 of MOFA Rules, 1964 otherwise such declaration has to be considered as non-est and thus cannot by any stretch of imagination, be construed as having been executed in accordance with the MAO Act.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 35 wpl-3706.19 wt ors.(J).doc
63. It is submitted by the learned Counsel that the petitioner being one of the many unit purchasers, has no legal or vested right in insisting that the land and building should be submitted to the provisions of the MAO Act and the formation of a condominium. Though, it is a statutory obligation cast on the promoter under the provisions of MOFA and also under RERA to register a society and such obligation is capable of being enforced by an individual flat/unit purchaser, however, an individual unit purchaser cannot claim any right to insist upon the formation of a condominium/submission of the property to the provisions of the MAO Act. The submission of a property to the provisions of the MAO Act is voluntary and can only be done by the sole owner or all owners, as the case may be, and/or with the consent of all apartment owners in terms of Section 2 of the MAO Act read with Rule 8 of MOFA Rules 1964. None of the petitioners thus could claim to be aggrieved by the impugned order passed by the respondent no.1 directing the registration of respondent no.4 as a society and thus no writ petition could be filed by any of the petitioners to challenge the impugned order. No prejudice would be caused to the petitioners if the respondent no.4 society is allowed to function.
64. It is submitted that the respondent no.5 should have filed a Unilateral Declaration in its alleged capacity as a 'sole owner' and which assertion, though disputed by the respondent nos. 3 and 4, has pertinently, not been disputed by the petitioner and has now accepted the registration of the society and does not seek to pursue its challenge to the impugned order in a separate writ petition filed by the promoter. The petitioner had admittedly not filed any Deed of Declaration and thus has no locus to challenge the impugned order.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 36 wpl-3706.19 wt ors.(J).doc
65. It is submitted that the petitioner having failed to make out any obligation seeking a hearing or filing objection before the respondent no.2, is guilty of delay, laches, acquiescence and omission to assert its alleged right and thus cannot seek any reliefs from this Court in its extraordinary writ jurisdiction. In support of this submission learned Counsel placed reliance on the judgment of Supreme Court in case of Sarvepalli Ramaiah and Ors. v/s. District Collector, Chittoor and Ors., (2019) 4 SCC 500 and in particular paragraphs 40 to 46. It is submitted by the learned Counsel that the MOFA was enacted in 1963 and the MAO Act was enacted in 1970.
66. It is submitted that consequently, Section 10 of MOFA was amended in 1971 whereby original Section 10 was renumbered as Section 10(1) and Section 10(2) was inserted. Section 10(1) was further amended in 2008 by the insertion of two provisos thereto. He relied upon first proviso to Section 10(1) and would submit that under the said proviso the Registrar has power to direct the concerned authority named therein to register the society in the event of the promoter failing to submit an application for registration of the society to the Registrar within four months. He relied upon second proviso to Section 10(1) and would submit that the said proviso stipulates that no such direction should be given without giving the concerned promoter a reasonable opportunity of being heard.
67. Learned counsel placed reliance on Section 10(2) of the MOFA and would submit that if a provision of said MAO Act is followed by executing and registering a declaration as provided by that Act and informs the Registrar as defined in the said MCS Act, thereafter it shall be unlawful to form a society. The sine qua non under Section 10(2) to attract the bar against formation of the society is only if the declaration as ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 37 wpl-3706.19 wt ors.(J).doc provided in the MAO Act is executed and registered and the intimation of such a declaration to the Registrar as defined under the MCS Act is given by the promoter. He submits that since neither of the aforesaid two conditions were satisfied, there was no question of any bar to the formation of the society or the impugned order being rendered illegal arises as sought to be canvassed by the petitioner.
68. It is submitted by the learned Counsel that under the definition of building under Section 3(e) of the said MAO Act, the building means a building containing two or more apartments, with a total of five or more apartments for all such buildings, and comprising a part of the property. On the other hand, the definition of 'apartment' as defined under Section 3(a) means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors or enclosed type of independent use, etc. He submits that the term 'property' includes a 'building', which building comprises of apartments, and an 'apartment' is that 'part of the property' which is intended for independent use. Once, an apartment is sold to a purchaser, the purchaser becomes the owner in respect of their part of the property i.e. 'apartment owner'.
69. Learned counsel placed reliance on the MOFA Rules inserted in 1972 after the introduction of the MAO Act and would submit that the intention of the Legislature that purchasers of apartments under MOFA are part-owners of the property is clear from Rule 8 of the MOFA Rules. He submit that on a harmonious reading of Section 10 of MOFA, Rule 8 of the MOFA Rules and Section 2 of the MAO Act, it is evident that the expression 'all owners' appearing in Section 2 of the MAO Act in the context of a property is comprises of land and building and such building contains apartments, necessarily includes the apartment owners.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 38 wpl-3706.19 wt ors.(J).doc Ipso facto and ipso jure, any submission of a property (i.e. land with building containing apartments) in the absence of declaration being duly executed and registered by all apartment owners, renders such a declaration non-est and is not and cannot be considered as a declaration executed in accordance with the MAO Act.
70. It is submitted that admittedly in this case the flats/units/ apartments have been sold by the promoter on ownership basis way back in the year 2013 i.e. much prior to the execution and registration of the Declaration under Section 2 of MAO Act. The respondent no.5 not being the sole owner of the property i.e. land with building containing apartments for the purposes of Section 2 of the MAO Act would not have unilaterally executed a Declaration without all the apartment owners of the property joining respondent no.5 in such execution. He submits that the unilaterally declaration is thus not a declaration executed in accordance with the provisions of MAO Act which is a sine qua non for the trigger of the bar under Section 10(2) of MOFA. In support this submission, he placed reliance on judgment of this Court in case of Rahul Enterprises v/s. Abhineha Park Sahakari Gruha Rachna Sanstha Maryadit, 2013(2) Mh. LJ 463 and more particularly in paragraph 30.
71. It is submitted by the learned Counsel that the concept of tenant co-partnership has no application to commercial premises such as in the present case. The registration of respondent no.4 is not a classification of 'General Society' under Rule 10 of the MCS Rules, 1961 and hence the concept of tenant co-partnership is wholly irrelevant and inapplicable. It is settled law that the Agreements for Sale executed under MOFA are documents by which the right, title and interest in the property gets transferred to the purchasers and the flats/units are conveyed to ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 39 wpl-3706.19 wt ors.(J).doc them. He relied upon the judgment of this Court in case of State of Maharashtra v/s. Mahavir Lalchand Rathod, (1993) Mh. LJ 1492 and in particular paragraph 19 and submitted that the principles laid down by this Court in the said judgment are affirmed by the Hon'ble Supreme Court in case of Veena Hasmukh Jain v/s. State of Maharashtra, (1999) 5 SCC 725. The said judgment is subsequently followed by this Court in case of Maharashtra Chamber of Housing Industry v/s. State of Maharashtra, 2012 SCC Online Bom 546 and in particular paragraphs 28 and 29.
72. It is submitted by the learned Counsel that right, title and interest in the flat is transferred in favour of the purchasers upon execution of agreement under Section 4 of the MOFA. However, the Deed of Apartment under the MAO Act is only for the purpose of transferring share in the common amenities in favour of the flat purchaser and such Deed of Apartment does not affect the rights and obligation of the parties existing under the MOFA Agreement. In support of this submission, learned Counsel placed reliance on the judgment of this Court in case of Paranjape Schemes (Construction) Ltd. v/s. Avinash Madhukarrao Yekhande, 2016 SCC Online Bom 2527 and in particular paragraphs 63 to 66.
73. It is submitted by the learned counsel that the letter dated 10th August, 2016 addressed by the respondent no.5 to the Deputy Registrar, Co-operative Societies, G/South Ward, Mumbai was issued to comply with the requirements of section 11(2) of MAO Act and was not issued for the purposes of section 10(2) of the MOFA. The said letter was admittedly addressed to the Deputy Registrar, Co-operative Societies and not to the Registrar as defined under the provisions of the said MCA Act. The Registrar was the authority named as a persona designata under ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 40 wpl-3706.19 wt ors.(J).doc section 10(2) of MOFA. He submits that it is thus clear that no intimation as required under section 10(2) of MOFA was given to the Registrar by the respondent no.5. The finding of the respondent no.1 on this issue thus cannot be interfered with.
74. It is submitted by the learned counsel that the intimation given to the Deputy Registrar by the respondent no.5 cannot be considered to be sufficient compliance with the requirement of section 10(2) of MOFA as the said compliance of the said provision was mandatory and not directory. Under section 10 of MOFA, the legislature has made reference to different authorities and assigned such different authorities with different functions. There is no question of any interchangeably exercise of powers between different authorities. He submits that the Registrar for the purposes of section 10(2) of MOFA means the Registrar as defined in the MCS Act. It is thus a persona designata and must be assigned the meaning expressly stated in the said section.
75. It is submitted that every person/subordinate who is a delegate of the Registrar is not and cannot be construed as being the Registrar himself. For the bar against the formation of a society to trigger, the information must be submitted to the Registrar alone and none other. Under a statute providing for a thing to be done in a particular manner then the said thing must be done in that manner alone and in no other manner.
76. It is submitted that section 5A empowers the State to appoint a Competent Authority for different areas for exercising powers and performing duties inter alia under section 10 of MOFA. Section 10(1) of MOFA as amended by the insertion of the two provisos in 2008, clearly ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 41 wpl-3706.19 wt ors.(J).doc shows that the Competent Authority referred in section 5A is only for the purpose of discharging the duty under the first proviso to section 10(1) of MOFA and has no bearing with the authority to whom an intimation is required to be given under section 10(2), being the Registrar as defined under the MCS Act.
77. It is submitted that the fact that the Competent Authority is defined as a person who is appointed in exercise of powers under section 5A vis-a-vis that a Registrar is defined everywhere in the MOFA as 'Registrar' as defined in MCS Act i.e. person appointed under section 3 of the MCS Act, itself shows that these are two distinct authorities. A Competent Authority can be an officer not below the rank of a District Deputy Registrar of Co-operative Societies, he will necessarily be subordinate to the Registrar as appointed under section 3 of the MCS Act. Unless the same person is specifically appointed in a given case, he is not 'wearing two hats' as has been sought to be argued by the petitioner.
78. It is submitted by the learned counsel that the issue of jurisdiction of the authority to adjudicate upon the validity of declaration has never been raised by the petitioner nor the order impugned on that ground. The petitioner thus cannot be allowed to raise this issue in the absence of the specific pleadings at this stage. In any event the plea now raised by the petitioner across the bar is untenable in view of the plain reading of section 10(2) of MOFA. It is submitted that for the bar against the formation of a society under section 10(2) to be attracted, it is axiomatic that the Competent Authority is required to ascertain whether a declaration has been duly executed as provided by the MAO Act.
79. It is submitted that such a duty is not an empty formality, inasmuch as the same affects and has the effect of taking away a valuable ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 42 wpl-3706.19 wt ors.(J).doc and vested right in flat purchasers to form a society upon the failure by a promoter to comply with his statutory obligation to form a society within four months. The respondent no.1 cannot mechanically accept that the bar against formation of a society under section 10(2) of MOFA is triggered every time when a declaration under the MAO Act is produced, irrespective of whether that declaration is executed in accordance with the MAO Act or not. The provision of section 10(1) of MOFA cannot be rendered otiose.
Submission made by Mr.Khandeparkar, learned Counsel for the respondent no.5 in Writ Petition (L) Nos. 3706 of 2019, 7586 of 2020 and 1186 of 2021 and for the applicant in Interim Application (L) No.7183 of 2020.
80. In support of the submission that an appeal is maintainable against the impugned order passed by the Competent Authority under Section 152 of the MCS Act and not a writ petition under Article 226 of the Constitution of India, learned counsel placed reliance on the judgments of this Court in the case of Rajan Shantaram Vaze Vs. Divisional Joint Registrar, Co-operative Society & Ors., 2018 SCC OnLine Bom 9423 and in particular paragraphs 3, 7 and 8 thereof. He also placed reliance on the judgment of the Supreme Court in the case of State of U.P. Vs. Sudhir Kumar Singh & Ors., 2020 SCC OnLine SC 847 and in particular paragraph 39 thereof.
81. Learned counsel for the applicant and the original respondent no.5 tendered the brief synopsis in these three writ petitions and submits that all these petitioners had initially given their consent for formation of the respondent no.4 society however, had withdrawn such consent subsequently. Learned counsel also tried to show that the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 43 wpl-3706.19 wt ors.(J).doc petitioners in Writ Petition (L) No.3076 of 2019 had owned only 13 units out of total 91 units. The petitioners in Writ Petition (L) No.7586 of 2020 had owned 10 units out of total 91 units. The petitioners in Writ Petition (L) Nos.1186 of 2021 had only owned 8 units out of total 91 units.
82. When this Court enquired as to whether his clients had also challenged the same impugned order passed by the Competent Authority by filing a separate writ petition, learned counsel stated that his clients had though filed a separate writ petition bearing (L) No.3295 of 2019 which is pending before the learned Single Judge of this Court, he is entitled to oppose these writ petitions in his capacity as the respondent no.5. His clients may be advised to withdraw the said Writ Petition (L) No.3295 of 2019.
83. It is submitted by the learned Counsel that majority of the flat/unit purchasers are in favour of formation and registration of the society to manage the affairs of the property. The petitioner only wants the property to be submitted to the provisions of the MAO Act by formation of a condominium for the purpose of obtaining a larger voting share in the affairs of the property. The purported condominium had not taken any steps or fulfilled any responsibilities for managing the property. The society on the other hand immediately after its registration, called an Annual General Meeting, elected a Chairman, Secretary and a Managing Committee, opened a Bank account and carried out various acts as a society. The society has been diligently managing the day to day affairs of the society, within the auspices of the orders passed by this Court during the pendency of this petition.
84. On the other hand, the purported condominium has not taken ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 44 wpl-3706.19 wt ors.(J).doc any steps including the holding of First Annual Meeting for election of the members of the Board till date. Majority of the unit owners, in terms of number of units as also in terms of the area owned by them are in favour of the validly formed society. It is the will of the majority of the unit owners that the affairs of the society be managed by the respondent no.4-society. The petitioner in this case has failed to demonstrate that justice lies on its side and thus no relief can be granted in favour of the petitioner by this Court exercising writ jurisdiction. In support of this submission, learned Counsel placed reliance on the judgment of Yespal Keval Singh Chandi v/s. Union of India & Ors., 2016(2) Mh. LJ 827 and in particular paragraph 14. He also placed reliance on the judgment of this Court in case of The State of Bombay v/s. Morarji Cooverji, (1958) LXI B.L.R 332 in support of this submission.
85. Insofar as the submission of the petitioner that the impugned order is in violation of principles of natural justice is concerned, it is submitted by the learned Counsel that under second proviso of Section 10(1) of MOFA read with first proviso at most contemplates that under the statutory scheme an opportunity is being provided to the promoter of being heard. There is no provision contemplating an opportunity of hearing to be given to every individual unit purchaser. The respondent no.4-society has followed the procedure prescribed under the said provision. The application filed by the promoter before the respondent no.1 was decided after giving an opportunity of hearing to the promoter as contemplated by second proviso to Section 10(1) of MOFA.
86. It is submitted that the contention of the petitioner that it was never heard by the respondent no.1. before passing the order directing registration of the society, is wholly irrelevant since the requirement of giving an opportunity of hearing to the petitioner has admittedly been met ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 45 wpl-3706.19 wt ors.(J).doc in the instant case. He submits that in the event, the petitioner was admittedly aware of the proceedings before the respondent no.1 and chose not to seek any intervention/impleadment. The petitioner thus cannot be allowed to urge that there was any violation of principles of natural justice qua the petitioner. He submits that the bar under Section 10(2) of MOFA against registration of society is not attracted in the facts of this case. The registration of the respondent no.4-society is valid and binding on all parties concerned and thus no interference with the impugned order passed by the respondent no.1 is warranted in any of these petitions.
87. Mr. Dighe, learned AGP on behalf of the respondent nos. 1 and 2 filed written submission dated 2 nd February, 2021. The respondent nos. 1 and 2 have raised an issue of maintainability of the Writ Petition on the ground that under Section 152 of the MCS Act, an alternate remedy is available to the petitioner in the form of appeal and thus petitioner as such, ought to have filed an appeal against the impugned order as well as impugned registration certificate issued by the respondent nos. 1 and 2.
88. It is contended by the respondent nos. 1 and 2 that the purported declaration dated 9th August, 2016 was executed by the respondent no.5 and the said declaration was forwarded to the office of Deputy Registrar of Co-operative Societies G South Ward, Mumbai vide letter dated 10th August, 2016. On 10th August, 2016, the respondent no.5 had already sold 89 number of units in the said property to various persons out of 91 total saleable units. It is thus clear that about 95% of the units were already sold as on the date of execution of the said Deed of Declaration. The said Deed of Declaration was admittedly not executed by any of the unit holders/flat owners. No such document filed by the respondent no.5 along with the unit holders/flat purchasers was ever submitted to the office of Registrar as required under Law.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 46 wpl-3706.19 wt ors.(J).doc
89. It is contended by the respondent nos. 1 and 2 that in view of Section 2 of the MAO Act and Section 3 which defines the terms 'apartment', 'building', and 'property', the respondent no.5 promoter could not have unilaterally executed the said declaration under the provisions of the said MAO Act. It is contended that the said Section 2 of the MAO Act clearly stipulated that the said Act applies only when the sole owners or all the owners submit to the provisions of the MAO Act. On the date of executing the said Deed of Declaration, the respondent no.5 was not the sole owner. The execution of the declaration was ex- facie contrary to the provisions of the said MAO Act and could not be considered to be declaration for the purposes of Section 10(2) of the MOFA.
90. It is contended that the language used in Section 10(2) of the said MOFA makes it abundantly clear that if the declaration is not as per the provisions of the MAO Act, the bar under Section 10(2) would not be attracted. The respondent nos. 1 and 2 placed reliance on Section 3(2)(h) of MOFA in support of the submission that the promoter was required to state in clear terms the precise nature of the organization of persons to be constituted in the MOFA Agreement. The respondent no.5 in the Registered MOFA Agreement entered into between the respondent no.5 and the individual flat purchasers did not mention the precise nature of the organization. The respondent no.5 or any other persons thus cannot impose the requirement of creating a body/organization against the will of majority of the unit purchasers. It is contended that the said provision under Section 3(2)(h) of the MOFA is also repeated in Section 4(1A)(a) (V) of MOFA.
91. The respondent nos. 1 and 2 contended that even in the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 47 wpl-3706.19 wt ors.(J).doc affidavit-in-reply of the promoter, the promoter does not spell out or annex declaration filed by any of the unit holders. Though in paragraph 7 of the said affidavit filed by the respondent no.5, there is a mention of Deed of Apartment, however, no details or copies are provided. It is also the case of the respondent no.5 itself that the said Deed of Apartment was executed only by one of the unit holders.
92. It is contended by the respondent nos. 1 and 2 that the petitioner along with all other flat purchasers had filed an application with the respondent nos. 1 and 2 for registration of the respondent nos. 4- society on 15th February, 2019. When the impugned order was passed by the respondent no.1, out of 42 number of persons who have purchased one or more units in the said project, 32 number of persons have opted for permission of Co-operative Society and those 32 persons hold 46 number of units. It is contended that the personal hearing on the application for registration of society was granted on 29th March, 2019 to the promoters of the society which includes petitioner and the developer. The hearing before the respondent no.1 was concluded on 19th August, 2019. It is contended that the petitioner has not complied with the statutory requirements of Section 2 of the MAO Act and Section 10(2) of MOFA and thus no case is made out for interference with the impugned order passed by the respondent no.1 in this Writ Petition.
93. Mr. Vineet Naik, learned Senior Counsel for the Petitioner in Writ Petition (L) Nos. 3706 of 2019 and 1186 of 2021 in his rejoinder argument submits that the Deed of Declaration had been duly executed by Respondent No.5 in consonance with the provisions of MAO Act and in compliance of Section 11 of the said Act. Respondent No.5 had duly intimated the Deputy Registrar of Co-operative Society by its letter dated 10th August, 2016 about the execution and registration of the Deed of ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 48 wpl-3706.19 wt ors.(J).doc Declaration, submitted copies of the Declaration and Bye-laws therewith. Respondent No.1 however almost after three years from the date of execution of Deed of Declaration by Respondent No.5 passed the impugned order dated 9th October, 2019 under Section 10(1) of the MOFA thereby giving direction to Registrar to register the Respondent no.4-society. The impugned order is in contravention of Section 10(2) of the MOFA.
94. Respondent No.5 had already executed Deeds of Apartments in favour of certain property holders including the Petitioners in Writ Petition (L) Nos. 3706 of 2019 and 1186 of 2021 thereby conveying ownership rights of the apartments and creating undivided interest in favour of such unit holders in the said property. By the impugned order directing the formation of Respondent No.4-society the ownership rights of the Petitioners in the said property vested prior to the passing of the impugned order are interfered with and are nullified. The Cipla Ltd. owns one entire tower out of three towers of the said towers i.e. Tower 'C' and eights units in the other two towers cumulatively owning more than 11% of the total carpet area of the said property for which the Deeds of Apartments have already been executed and registered prior to the impugned order.
95. It is submitted by the learned Senior Counsel that Respondent No.1 would have taken cognizance of an application under first proviso to Section 10(1) of the MOFA only if there would have been a failure on the part of Respondent No.5 in submitting the property to the jurisdiction of the said MAO Act. The said power was very limited. It is submitted that the second proviso to Section 10(1) requires the Competent Authority to verify the contents of the application and casts an obligation to hear the promoter with a view to ascertain whether there ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 49 wpl-3706.19 wt ors.(J).doc was any failure on the part of the promoter under Section 10(2) or not. If the Competent Authority comes to conclusion that there was no failure, he would not entertain the application by exercising the powers under Section 10(1) of the MOFA. On the other hand, if the Competent Authority is satisfied that there is a failure on the part of the promoter, then he has to verify the authenticity of the application filed by the promoter of the society.
96. It is submitted that Section 10(2) of the MOFA on the other hand provides for a complete embargo on the Competent Authority. Once it is made aware that the promoter has executed a Declaration under the MAO Act and also intimated the Registrar, he then becomes non juris. The legislature would not have conferred wider jurisdiction to the authority exercising power under the provisions of the MOFA to examine and nullify the Deed executed under the MAO Act which Act by itself has separate procedure for removing the property from the provisions of the MAO Act. It is submitted that by passing the impugned order and issuing the registration certificate, the authorities while exercising powers under the MOFA and the said MCS Act have, in fact, purported to nullify/ effectively set aside the executed Deed of Declaration under the said MAO Act which was beyond the jurisdiction of Respondent No.1 and untenable in law.
97. It is submitted that Competent Authority cannot be permitted to invalidate duly registered Deed of Declaration/Deed of Apartments in a summary proceedings which is within the powers of Civil Court. If a party is aggrieved by the Deed of Apartment, the appropriate remedy is to file a suit before the competent Civil Court for setting aside/ cancellation of such Deed of Declaration/Deed of Apartment. It is submitted that the question as to whether a Declaration is valid or not is complicated ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 50 wpl-3706.19 wt ors.(J).doc question of law and thus could not have been decided by the Competent Authority in a summary proceedings.
98. It is submitted by the learned Senior Counsel that the impugned order passed by Respondent No.1 is in violation of principle of natural justice. The Petitioners and certain other unit holders collectively occupied 57.21% of carpet area of the said property and had withdrawn their consent to form a society and had called upon Respondent No.1 vide letters dated 26.04.2019 and 24.06.2019 but subject to procedure of registration of Deed of Declaration. Respondent No.1, however, did not deem it fit to provide an opportunity of hearing to the said unit holders and passed the impugned order in violation of principle of natural justice.
99. It is submitted by the learned Senior Counsel that Respondent No.1 has passed the impugned order by relying upon the Judgment of this Court in the case of Paul Parambi (supra) and in the case of Sarita Nagari (supra). It is submitted that the Hon'ble Supreme Court while setting aside the said Judgment in the case of Paul Parambi (supra) decided by this Court by consent of parties had kept the question of law decided by this Court therein open. It is submitted that the same Bench of Hon'ble Supreme Court which had set aside the Judgment of this Court in the case of Paul Parambi (supra) when hearing a challenge to the Judgment in the case of Sarita Nagari (supra) within two weeks of setting aside the former Judgment stayed the operation of the impugned Judgment in Sarita Nagari (supra) by its order dated 1st May, 2018 in SLP No. 10215 of 2018. He submits that the said Judgment in the case of Sarita Nagari (supra) is clearly distinguishable in the facts of this case. The facts before this Court in the said matter of Sarita Nagari (supra) were totally different.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 51 wpl-3706.19 wt ors.(J).doc
100. It is submitted that in this case the MOFA agreement provided an option to the promoters/developers either to form a co- operative society or condominium pursuant to which the developer submitted the said property to the provisions of the said MAO Act under the Declaration dated 9th August, 2016. Flat purchasers thereafter had held several meetings regarding formation of a working committee and handing over the affairs of the condominium to an interim working committee. The application for registration of the co-operative society however was filed by Respondent No.3 almost after three years of Respondent No.5 submitting the said property to the provisions of the said MAO Act.
101. It is submitted by the learned Senior Counsel that if the arguments of Respondent No.3 are accepted that the said Judgment of Division Bench in the case of Paul Parambi (supra) is binding Judgment and the question of law already decided by the said Court in the Judgment cannot be re-opened by this Court, it would render the words "question of law decided therein is left open" in the said order dated 18 th April, 2018 passed by the Hon'ble Supreme Court otiose. He submits that if the arguments of Respondent Nos.3 and 4 are accepted, the direction of the Hon'ble Supreme Court that Civil Suit No. 212 of 2016 be decided by this Court expeditiously wherein the cancellation of relevant Deed of Declaration in that matter has been sought would be rendered meaningless.
102. It is submitted by the learned Senior Counsel that the argument of Respondent No.4 that the flat purchasers were the owners of the property at the time of execution of Deed of Declaration solely by virtue of MOFA agreement which are essentially contracts for sale under Section 54 of the Transfer of Property Act, 1882 is misconceived and ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 52 wpl-3706.19 wt ors.(J).doc untenable in law. He relied upon Clause 2 of the one of the MOFA agreements and submit that the said clause clearly provided that "vendors agree to sell and the purchasers agree to purchase the said premises" and thus there was no conveyance at the time of execution of the MOFA Agreements. MOFA Agreements are, therefore, mere contracts for sale and to say that they would convey owneship rights militates against Section 54 of the Transfer of Property Act.
103. It is submitted by the learned Senior Counsel that the conveyance of the premises occurs when the Deed of Apartments or conveyance with the society is executed. Otherwise there would be no reason for executing the documents. He relied upon Clause 1 of the Deeds of Apartments and would submit that the said clause, in contradistinction to Clause 2 of the MOFA Agreements, when using the words "the vendor doth hereby grants, conveys, transfers and assures unto the purchasers all its right/title/interest in the premises and described more particularly in the Schedules hereunder written", clearly shows that the premises and undivided interest in the common areas, parking spaces, restricted areas etc. were conveyed only on execution of the Deeds of Apartments.
104. Insofar as the reliance placed by Mr. Prateek Seksaria, learned Counsel for Respondent Nos.3 and 4 on second part of Rule 8 of MAO Rules in support of the submission that Deed of Declaration cannot be made unilaterally by a promoter is concerned, it is submitted that the remit or purpose of Rule 8 is merely to prescribe a period or outer limit for submission of application for registration of cooperative society or condominium. There is no bar under Rule 8 against the promoter for submitting the property to MAO. The use of the words "where the apartment owners propose to submit the Apartments to the provisions of ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 53 wpl-3706.19 wt ors.(J).doc the Maharashtra Apartment Ownership Act..." does not bar, and in fact presupposes, a situation where the submission to MAO may be made by the promoter. The said rule only provides a remedy to the aggrieved apartment takers when Promoter fails to submit the apartment to the provisions of the MAO Act.
105. Learned Senior Counsel placed reliance on Section 10(2) of the MOFA and would submit that the said provision clearly states that "if any property consisting of building or buildings is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970 by executing and registering a Declaration.....". He submits that arguments of respondent nos. 3 and 4 that a promoter cannot unilaterally submit the property to the provisions of the MAO Act, is a completely erroneous argument and shall be rejected at the threshold. The said argument of Respondent No.1 would cause violence to Section 2 of the MAO Act where the promoter is the sole owner of the property. It is submitted that Rule 8 of the MOFA Rules would be relevant in the instance where the Declarations are sought to be made by the apartment purchasers. The requirement of five Deed of Apartments to be executed contemporaneous with the execution of the Deed of Declaration would be applicable where the apartment purchasers wish to submit the property to the provisions of the MAO Act.
106. It is submitted by the learned Senior Counsel for the petitioners that the judgment of this Court in case of State of Maharashtra v/s. Mahavir Lalchand (supra) relied upon by the respondent no.4 is not applicable to the facts of this case. The said judgment was specifically passed in the context of stamping of MOFA Agreements when the property was to be conveyed to a cooperative housing society. This Court had interpreted and relied on the Explanation ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 54 wpl-3706.19 wt ors.(J).doc I to Article 25, which was not the case here. It was only held in the said judgment that it was a conveyance for the purposes of Section 2(g) of the Stamp Act. In case of property being conveyed to a Cooperative Housing Society, the only stampable instrument as between the developer and the flat purchaser is being MOFA Agreement and therefore in such cases only the MOFA Agreement has to be considered and stamped on the basis that it is a conveyance only for the purposes of Article 25 of Schedule I of the Maharashtra Stamp Act.
107. Learned Senior Counsel relied upon paragraph 43 of the said judgment and would submit that it was expressly stated in the said judgment that the Court has only decided an issue related to the dutiability of the Agreement of Sale under the Stamp Act. He also distinguished the judgment of this Court in case of Maharashtra Chamber of Housing Industry v/s. State of Maharashtra (supra) on the ground that in the said judgment it is only stated that the judgment of this Court in case of State of Maharashtra v/s. Mahavir Lalchand (supra) has been affirmed by the Supreme Court. The said judgment also thus would not assist the case of the respondent no.4. He distinguished the judgment of this Court in case of Paranjpe Schemes Construction Ltd. (supra) on the ground that the said judgment was delivered in the petition filed under Section 9 of the Arbitration Act in the context of whether or not a MOFA Agreement is superseded/novated by a Deed of Apartment or not.
108. Learned Senior Counsel distinguished the judgment of this Court in case of Krishnarao Bakaramji Hadge (supra) relied upon by the learned counsel for the respondent no.4 on the ground that in the said judgment this Court was dealing with a challenge to the proceedings under Sections 91 and 93 of the MCS Act. Under Section 91(2) of the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 55 wpl-3706.19 wt ors.(J).doc MCS Act which requires the Registrar to make a definitive finding of existence of a dispute between the parties and thereafter under Section 93 the dispute is referred to the Registrar or one of his nominees to render a finding on merits. The question before this Court in the said judgment was whether a decision rendered by the Assistant Registrar under Section 91(2) and not the Registrar can be subject matter of revision before the State Government under Section 152 of the MCS Act or not.
109. This Court held that even though the Registrar would include Assistant Registrar and Deputy Registrar, it cannot be construed to mean that an order passed by the Assistant Registrar under Section 91(2) would tantamount to an order passed by the Registrar. It was held by this Court in the said judgment that a revision of an order passed by the Assistant Registrar, would lie before the Registrar and not the State Government. He submits that the said judgment is clearly distinguishable in the facts of this case and would not assist the case of the respondent no.4.
110. Learned Senior Counsel for the petitioner distinguished the judgment of Supreme Court in case of Sarvepalli Ramaiah (supra) on the ground that the Cipla Ltd. had been prompt in filing Writ Petition (L) No. 3706 of 2019 within around 2 months of the impugned orders passed by the respondent no.1 and therefore no delay, laches, acquiescence and/or omission on the part of the petitioner. Learned Senior Counsel for the petitioner distinguished the judgment of Calcutta High Court in case of Pijush Kanti Chowdhury (supra), judgment of Madhya Pradesh High Court in case of Viswapriya India Ltd. (supra) and the judgment of Delhi High Court in case of Bristol Myers Squibb Company (supra) relied upon by the respondent no.4 on the ground that the judgment of this Court in case of Paul Parambi (supra) was expressly set aside by the Hon'ble ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 56 wpl-3706.19 wt ors.(J).doc Supreme Court keeping the question of law open.
111. It is submitted that even otherwise if the principles laid down by the Courts in aforesaid 3 judgments are applied, it would clearly indicate that the judgment of this Court in case of Sarita Nagari (supra) bases its decision to a larger extent on the judgment of this Court in case of Paul Parambi (supra). In support of this submission, he relied upon paragraphs 32, 39 and 40 in the judgment of this Court in case of Sarita Nagari (supra) and would submit that the said judgment of Sarita Nagari (supra) has been stayed soon after the judgment of Paul Parambi (supra) is set aside by the Supreme Court and thus the judgment of Sarita Nagari (supra) is denuded of its strength and precedentiary value.
112. Insofar as the judgment of this Court in case of Indian Cork Mills Private Limited (supra) relied upon by the learned counsel for the respondent no.4 is concerned, it is submitted by the learned Senior Counsel that the said judgment also would not assist the case of the respondent no.4. He relied upon the paragraph 87 of the said judgment and would submit that the said paragraph deals with setting aside of an order/judgment by way of consent terms of the parties whereas in relation to challenge the judgment of this Court in case of Paul Parambi (supra), the Hon'ble Supreme Court has clearly granted leave to Appeal and then set aside the said judgment. Such a grant of leave by the Hon'ble Supreme Court clearly shows that the Hon'ble Supreme Court took cognizance of the issues, basis on which it has set aside the judgment admittedly keeping all the question of law open specifically. The petitioner as well as respondent nos.3 and 4 have filed their respective written arguments after conclusion of the oral arguments for consideration of this Court pursuant to the leave granted by this Court.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 57 wpl-3706.19 wt ors.(J).doc
REASONS AND CONCLUSION :-
113. We have heard the learned counsel for the parties at great length and have given our anxious consideration to the rival submissions made by the learned counsel. We shall first decide the issue as to whether the respondent no.5 developer could have entered into an Deed of Declaration dated 9th August, 2016 under Section 2 of the said MAO Act unilaterally or not. The purchaser of the unit under the said agreement has been described as 'the purchasers' whereas the respondent no.5 developer has been described as 'the vendors'. It is the case of the respondent no.4 society that the respondent no.5 developer had executed a declaration under Section 2 of the MAO Act on 9 th August, 2016 unilaterally. According to the petitioner, the developer had already informed the Deputy Registrar of Co-operative Societies on 10 th August, 2016, G/South Ward about the execution and registration of Deed of Declaration.
114. According to the petitioner on 21st October, 2016 and 23rd November, 2016, the respondent no.5 developer and various unit holders had held meetings for formation of the working committee and for handing over of all the affairs of the PBP Condominium to an interim working committee. On 13th February, 2017, the developer had forwarded the minutes of the meetings held on 21st October, 2016 and 23rd November, 2016 and attached a Draft Deed of Apartment which was to be executed by all the unit holders.
115. Even according to the petitioner, on 15th February, 2019, the account consultant of the respondent no.3 had submitted an application under Section 10(1) of the MOFA in Form VI as per Rule 12 of the MOF ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 58 wpl-3706.19 wt ors.(J).doc Rules with the concerned authority for formation of the respondent no.4 society. According to the petitioner, on 19 th August, 2019, the petitioner and the respondent no.5 entered into five separate Deed of Apartment in respect of the premises and registered the same with the office of the sub- Registrar, Mumbai City-IV. Even according to the petitioner, on 31st October, 2019, the petitioner had addressed a letter to the respondent no.4 society opposing the Annual General Body Meeting proposed to be held by the respondent no.4 on 11th November, 2019, in which provisional committee members of the respondent no.4 were elected. The said meeting was held by the respondent no.4 society and transacted various businesses.
116. It is the case of the respondent no.4 that the petitioner had also applied for becoming the member of the respondent no.4 society and for registration thereof. Only on 24th April, 2019, some of the petitioners had withdrawn their consent for formation of the society by addressing a letter to the District Deputy Registrar and had thereafter executed few Deeds of Apartment with the respondent no.5 on 19th August, 2019. Most of the petitioners had attended various meetings held by the respondent no.4 society from time to time without raising any objection in those meetings. It is also the case of the respondent no.4 that the respondent no.5 appeared before the District Deputy Registrar in the proceedings under Section 10(1) of the MOFA and raised various objections. The District Deputy Registrar has rejected those objections and directed the Registrar, Co-operative Societies to register the respondent no.4 society. It is the case of the petitioner that the petitioner and certain other unit holders collectively were occupying 50% of the total area and 65% of the carpet area of the said property developed by the respondent no.5 developer who had withdrawn their consent on 24th April, 2019 to form a society and had called upon the respondent no.1 to stop the process of ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 59 wpl-3706.19 wt ors.(J).doc registering the respondent no.4 society. On the other hand, it is the case of the respondent no.4 and also the respondent no.5 that insofar the Cipla Limited is concerned, out of 91 units the said petitioner only holds 13 units. Insofar HDFC Bank Limited and HDFC Securities Limited are concerned, these petitioners only hold 10 units out of 91 units. Insofar as Tata Capital Ltd., Tata AIG General Insurance Company Limited and Tata AIA Life Insurance Company Limited are concerned, they hold total 8 units out of 91 units and are thus in minority.
117. We shall refer to the relevant provisions of the said MAO Act which would be relevant for the purpose of deciding the issue whether the respondent no.5 could have submitted the said Deed of Declaration dated 9th August, 2016 unilaterally.
118. The relevant provisions of law referred above and relied upon by both the parties which are necessary for the purpose of deciding this petition are as under :-
Section 4 of MOFA :-
4 Promoter before accepting advance payment or deposit to enter into agreement and agreement to be registered [4] [(1A) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as specified in clause (a);
and to such agreement there shall be attached the copies of the documents specified in clause (b)-
(v) the precise nature of the organization to be constituted of the persons who have taken or are to take the flats;
Section 10 of MOFA :-
Promoter to take steps for formation of co-operative society or company [(1)] As soon as a minimum number of persons required to form ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 60 wpl-3706.19 wt ors.(J).doc a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.
[2] [Provided that, if the promoter fail within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co- operative Societies Act, 1960, the Competent Authority may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society:
Provided further that, no such direction to register any society under the preceding proviso shall be given to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar, by the Competent Authority without first verifying authenticity of the applicants' request and giving the concerned promoter a reasonable opportunity of being heard.] [(2) If any property consisting of building or buildings is constructed or to be constructed [and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that Act] then the promoter shall inform the Registrar as defined in the Maharashtra Co- operative Societies Act, 1960, accordingly; and in such cases, it shall not be lawful to form any co-operative society or company. Section 2 of MAO Act :-
This Act applies only to property, the sole owner or all of the owners of which submit the same to the provisions of this Act by duly executing and registering a Declaration as hereinafter provided:
Provided that, no property shall be submitted to the provisions of this Act, 3[unless it is used or proposed to be used for ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 61 wpl-3706.19 wt ors.(J).doc residence, office, practice of any profession or for carrying on any occupation, trade or business or for any other type of independent use :] [Provided further that the sole owner or all the owners of the land may submit such land to the provisions of this Act with a condition that.he or they shall grant a lease of such land to the apartment owners, terms and conditions of the lease being disclosed in the Declaration either by anJlexing a copy of the instrument of lease to be executed to the Declaration or otherwise.] Section 3 of MAO Act :-
In this Act, unless the context otherwise requires -
(a) 'apartment" means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors or part or parts thereof in a building, 2[intended to be used for residence, office, practice of any profession, or for carrying on any occupation, trade or business or for any other type of independent use] and with a direct exit to a public street, road or highway or to a common area leading to such street, road, or, highway;
(b) 'apartment owner" means the person or persons owning all apartment and' an undivided interest in the common areas and facilities in the percentage specified and estaIished in the Declaration;
(e) "building" means a building containing five or more apartments, or two or more buildings, each containing two or more apartments, with a total of five or more apartments for all such, buildings, and comprising a part of the property;
(r) "property" means the land, the building, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, and all article; of personal property intended for use in connection therewith, which have been, or are intended to be, submitted to the provisions of this Act.
Section 16 of MAO Act :-
16. (1) The administration of every property shall be governed by bye-laws a true copy of which shall be annexed to the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 62 wpl-3706.19 wt ors.(J).doc Declaration.. No modification of or amendment to the bye-laws shall be valid, unless set forth 111an amendment to the Declaration, and such amendment is duly recorded, and a copy thereof is duly filed with the. competent authority.
(2) The bye-laws shall provide for the following matters, namely:-
------------------------------
The Maharashtra Co-operative Societies Rules, 1961 :-
10. Classification and sub-classification of societies.
(1) After registration of a society, the Registrar shall classify the society into one or other of the following classes and sub- classes of societies prescribed below according to the principal object provided in the bye-laws -
Class Sub-class Examples of societies
falling in the class of
sub-class, as the case
may be.
1 2 3
5 Housing (a) Tenant Ownership Housing Societies where
society Housing Housing land is Held either on
Society. lease hold or free-Hold
basis by societies and
houses are owned or are
to be owned by
members.
(b) Tenant Co- Housing societies which
partnership hold Both land and
Housing Society. building either on Lease
hold or free-hold basis
And allot them to their
members.
(c) Other Housing Housing Mortgage
Society societies and House
Construction societies.
9 General (a) Social Better Living Societies
Society and Education societies.
(b) Commercial Insurance and Motor
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 63 wpl-3706.19 wt ors.(J).doc
Transport Societies.
(c) Other Not falling in either of
the above Sub-classes.
119. A perusal of Sections 2, 3(a), 3(b), 3(e) and 3(r) of the said MAO Act indicates that the said MAO Act applies not only to the property of the sole owner but all of the owners who submit to the provisions of the said Act by duly executing and registering a declaration as provided in the provisions of the said Act. Section 3(a) defines the 'apartment', Section 3(b) defines 'apartment owner', Section 3(e) defines 'building' and Section 3(r) defines 'property', which means the land, the building, all improvements and structures thereon and all the easements, rights and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith, which have been, or are intended to be, submitted to the provisions of the said MAO Act.
120. Rule 3 of the MAO Rules clearly provides that the declaration under Section 2 of the said MAO Act has to be executed and registered under Section 2 of the said Act by the sole owner or all the owners in Form 'A'. Rule 8 of the said MOF Rules provides for the period for submission of application for registration of co-operative societies or being flat purchasers to be made within four months by the promoter from the date on which the minimum number of persons required to form such organization had taken place by submitting an application to the Registrar.
121. The day on which the respondent no.5 submitted a Deed of Declaration, about 95% tenaments were already sold by the respondent no.5. A perusal of the amendment to the provisions of MAO Act indicates that the definition 'apartment' and 'apartment owner' were added only by the Maharashtra Act 15 of 1971 under Section 2(a-1) of the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 64 wpl-3706.19 wt ors.(J).doc MOFA. The flat includes an apartment which definition was added by Maharashtra Act 4 of 2008. Under Section 4(1A)(v), an agreement is required to be executed under Section 4 of the MOFA has to be in the manner prescribed under the said provisions. In 1974 sub-Section 2 of Section 10 of the MOFA was amended. It was provided that instead of the apartment takers proposing to submit the apartments to the provisions of the MAO Act., the promoter could submit such property to the provisions of the MAO Act by executing and registering a declaration contemplated under the said Act. The said Section 10 was once again amended in the year 2008. The two provisos to the said Section 10(1) were added after Section 10(1).
122. On perusal of the provision of MAO Act referred to aforesaid i.e. Section 2, 3(a), 3(b), 3(e) and 3(r), it is clear that if there is more than one owner of the property, all the owners of the property have to execute and register a Declaration prescribed under the said Act. The said Deed of Declaration thus cannot be executed unilaterally for submitting property to the provisions of the MAO Act. Mr.Seksaria, learned counsel for the respondent no.4 is right in his submission that the unit holders who had purchased the apartment defined under the provision of the MAO Act, each of the unit holders were the owners of the part of the property and were required to execute the Deed of Declaration for submitting a property to the provision of the MAO Act. The respondent no.5 alone could not execute such Deed of Declaration unilaterally. Admittedly, in this case the respondent no.5 developer executed the said Deed of Declaration unilaterally and not jointly with the unit holders.
123. If the Deed of Declaration was not executed jointly by all the owners as defined in Section 3(b) to be read with Section 3(a) and the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 65 wpl-3706.19 wt ors.(J).doc proviso to Section 2, such Deed of Declaration unilaterally submitted by the respondent no.5 would not be a declaration in the eyes of Law. Section 11 of the MAO Act provides as to what the contents of such declaration should be. A perusal of the Deed of Declaration submitted by the respondent no. 5 also clearly indicates that the same is not in compliance with Section 11 of the said MAO Act.
124. We shall now decide the issue as to whether the District Deputy Registrar was empowered to decide the issue as to 'whether the developer who had submitted the property to the provisions of the said MAO Act had complied with the mandatory requirement under Section 10(2) of the MOFA or not before directing the Registrar, Co-operative Societies to register the society proposed to be formed by the respondent no.3 or not by exercising powers under Section 10(1) of the MOFA or not' ?
125. Section 2(e) defines 'promoter'. Section 2(a) defines 'competent authority' appointed under Section 5A of the said MOFA. Section 2(a-1) defines the word 'flat' to mean a separate and self- contained set of premises used or intended to be used for residence, or office, show-room or shop or godown or for carrying on any industry or business and includes a garage, the premises forming part of a building and includes an apartment. The word 'Registrar' has been defined under Section 2(d) to mean the Registrar as defined in the MCS Act or as the case may be in the Companies Act, 1956. Section 2(b) of the MOFA defines the word 'prescribed' to mean prescribed by the rules under the MOFA 1963. Section 4 of the MOFA provides for the obligation of the promoter to enter into an agreement before accepting advance payment of deposit. Section 5A of the said Act defines 'Competent Authority'.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 66 wpl-3706.19 wt ors.(J).doc
126. On perusal of Section 3(e) of the MAO Act which defines "building" and definition of "apartment" as defined under Section 3(a) of the MAO, it is clear that the term 'property' includes a 'building' which building comprises of apartments, and an 'apartment' is that 'part of the property' which is intended for independent use. In our view, the intention of Legislature and more particularly Rule 8 of the MOFA Rules and Section 2 of the MAO Act is clear that the purchasers of the apartments under MOFA are part-owners of the property. In our view, any submission of a property in the absence of declaration being duly executed and registered by all apartment owners, such declaration is not and cannot be considered as a declaration executed in accordance with the MAO Act and has to be considered as non-est.
127. Judgment of this Court in the case of Rahul Enterprises Vs. Abhineha Park Sahakari Gruha Rachna Sanstha Maryadit (supra) would apply to the facts of this case and would assist the case of the respondents.
128. A perusal of the record indicates that the respondent no.1 society has been registered as a 'General Society' under sub-clause 9 of Rule 10 of MCS Rules, 1961 and not as a 'Housing Society.' A concept of tenant co-partnership has thus no application to the commercial premises and more particularly in this case. The Agreement for Sale executed under MOFA is the document by which the right, title and interest in the property is transferred. In our view, no prejudice would be thus caused to the petitioners in view of the respondent no.4 society having been registered as a 'General Society' and not as 'Housing Society' since the members of such General Society also become owners of the immovable property of the General Society.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 67 wpl-3706.19 wt ors.(J).doc 129. This Court in the case of Maharashtra Chamber of
Housing Industry and Ors. Vs. State of Maharashtra & Ors. (supra), after considering the earlier judgment in the case of State of Maharashtra Vs. Mahavir Lalchand Rathod (supra) held that since there was no clause in the agreement which required the developer to execute any other deed of conveyance at a later stage, it was difficult to accept that the agreement was a mere agreement to sell and that it did not create any right, title and interest in favour of the flat purchaser. Such document was liable to be stamped under Article 25 on the ground that it was a conveyance. This Court in the said judgment also adverted to the judgment of the Hon'ble Supreme Court in the case of Veena Hasmukh Jain Vs. State of Maharashtra (supra) by which the Hon'ble Supreme Court had affirmed the views of this Court in the case of State of Maharashtra Vs. Mahavir Lalchand Rathod (supra).
130. Under clause (q) of the said agreement entered into between the petitioners and other unit purchasers with the respondent no.5 developer, it was provided that the said agreement was provided under Section 4 of the MOFA. It was provided that the promoter may either form a society or condominium of a company. Under clause 13(z), parties agreed that the purchasers of such unit shall abide by all the rules and regulations.
131. Learned counsel for the respondent nos.3 and 4 placed reliance on Chart showing the hierarchy of the Registrars and other subordinate officers below him under the provisions of MCA Act. The office of Deputy District Registrar is not at par with the post of the Registrar as per the said hierarchy placed on record by the learned counsel for the respondent nos. 3 & 4.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 68 wpl-3706.19 wt ors.(J).doc
132. This Court in the case of Krishnarao Bakaramji Hadge Vs. the State of Maharashtra (supra) has dealt with the powers of Registrar including the powers of delegation of the Registrar to any subordinate officers by the State Government, either by general or special order. It is held that a person or persons so appointed to assist the Registrar and on whom any powers of the Registrar are conferred, shall work under the general guidance, superintendence and control of the Registrar. This Court considered Section 3 of the MCA Act and has held that the said section makes it clear that even if the Assistant Registrar is empowered to exercise the powers of the Registrar, even so the Assistant Registrar works under the guidance, superintendence and control of the Registrar himself, he is clearly subordinate to the Registrar.
133. It is held that it is not possible to contend that merely because the Assistant Registrar exercises the delegated powers of the Registrar, his order must be taken to be the order of the Registrar. Under the Act, all the duties are cast on the Registrar. There is no statutory duty cast on the Additional or Deputy Registrar or Assistant Registrar as such. It is held that in all these cases,where delegated powers are exercised, they are exercised by virtue of Section 3 and in many cases, the powers exercised are powers of the Registrar. Even so, all these officers are subordinate to the Registrar as shown by Section 152 which provides the forum of appeal against the orders made by the respective officers. Considering the principles laid down by the Division Bench of this Court in the case of Krishnarao Bakaramji Hadge Vs. the State of Maharashtra (supra) and various provisions referred to therein, we will now examine whether the respondent no.5 developer had complied with the mandatory requirements under Section 10(2) of the MOFA or not and if not complied with, whether the Deputy District Registrar who in such a situation, was justified in directing the registering authority to ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 69 wpl-3706.19 wt ors.(J).doc register the respondent no.4 society or not.
134. Under section 10(1), it is provided that as soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be, of a company. The said Section 10(1) is subject to two provisos. First proviso is added by Maharashtra 4 of 2008 w.e.f. 25 th February 2008. The said first proviso clearly indicates that if the promoter fail within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co- operative Societies Act, 1960, the Competent Authority may , upon receiving an application from the person who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society.
135. It is not in dispute that the respondent no.5 did not apply for formation and registration of the society within the time prescribed. The respondent no.5 had executed and registered a declaration under Section 2 of the MAO with the Sub-Registrar of Assurance at Bombay. It was the case of the petitioners that on 10 th August 2016, the respondent no.5 had informed the Deputy Registrar of Co-operative Societies, G/S ward about execution and registration of Deed of Declaration. It is also admitted position that the account consultant of the respondent no.3 Mr.Kamal Kishore Sharma addressed a letter on 15 th February 2019, inter alia submiting an application under Section 10(1) of the MOFA in ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 70 wpl-3706.19 wt ors.(J).doc Form VI as per the Rule 12 of the MOFA for registration of the Society.
136. Learned senior counsel for the petitioner could not dispute that most of the petitioners had given consent for formation of the respondent no.4 society prior to 15th February 2019. Some of the unit holders had withdrawn their consent subsequently after 15 th February 2019 for formation of the Society. Before such consent was withdrawn by such unit holder, the account consultant of the respondent no.3 had already applied for formation of the society on 15 th February 2019. The petitioners also could not dispute before this Court that some of the members who had requested for recall of their consent for formation of the respondent no.4 society had subsequently joined the respondent no.4 society. As on today, the unit purchasers who have raised objection to the formation of the Society are in minority.
137. A perusal of the letter dated 10 th August 2016 submitted by the respondent no.5 developer clearly indicates that the said letter was addressed to the Deputy Registrar of Co-operative Societies and not to the Registrar as contemplated under Section 10(2) of the MOFA. The said letter also refers to Section 11(2) of the MOFA and not Section 10(2). In our view, the said letter addressed to the Deputy Registrar was not addressed to the right authority i.e. the Registrar of the Co-operative Societies and not under Section 10(2) but was wrongly addressed to the Deputy Registrar of Co-operative Societies, G/S ward and that also under Section 11(2) of the said Act.
138. Under Section 11(2) of the MOFA, it is the duty of the promoter to file with the Competent Authority, within the prescribed period, a copy of the conveyance executed by him under sub-section 11 (1) of the MOFA. The duty of the promoter is to take all necessary ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 71 wpl-3706.19 wt ors.(J).doc steps to complete title of company and convey to the organization of persons, who take flats, which is registered either as a co-operative society or as a company or to an association of flat takers or apartment owners, his right, title and interest in the land and building and to execute all relevant documents therefor in accordance with the agreement executed under Section 4 of the MOFA. The said intimation given by the promoter under Section 11(2) of the MOFA cannot be considered as compliance of the duty of the promoter under Section 10(1). Both the provisions i.e. Sections 10(1) and 10(2) operate in different fields and for different purposes.
139. In our view, for the purpose of submitting the property to the provisions of MAO Act by the developer or the owner/owners under the provisions of the MAO Act, the developer/owner/owners were not only required to execute a Deed of Declaration duly registered but the developer was also required to inform the authority under Section 10(2) of the MOFA about such Deed of Declaration having been executed and registered. These twin requirements under the said provisions were mandatory and not directory. In our view, not only the developer who claims to be owner in this case, all the unit holders who had purchased various units from the developer were required to jointly execute such Deed of Declaration with the developer. The developer could not have executed the said declaration unilaterally. The said Deed of Declaration was thus not in accordance with law, in compliance with the mandatory requirement of execution of Deed of Declaration by all the owners of the properties and thus was not a valid Deed of Declaration in the eyes of law.
140. In our view, on the basis of such unilateral execution of Deed of Declaration by the developer, the said property could not be ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 72 wpl-3706.19 wt ors.(J).doc said to have submitted to the provisions of MAO Act. At the same time, the information of such execution and registration of the Deed of Declaration by all the owners was required to be given by the promoter to the office of the Registrar of the Co-operative Societies as defined under the MCS Act. In our view, none of these mandatory conditions were complied with by the developer along with all the unit holders in so far as the execution of Deed of Declaration is concerned and by the developer in so far as filing of such documents is concerned. We are not inclined to accept the submission made by Mr.Naik, learned counsel for the petitioner that there was substantial compliance on the part of the developer by informing about the said documents to the Deputy Registrar, Co-operative Societies, G/South Ward, Mumbai.
141. Section 3(1) of the MAO Act which provides for definition of "Competent Authority" is applicable. The Registrar is separately defined as "District Deputy Registrar." An individual unit purchaser cannot claim any right to insist upon the formation of a condominium/submission of the property to the provisions of the MAO Act. It has to be a combine action on the part of all the owners of the property for submission of the property to the provisions of the MAO Act. If the argument advanced by the learned senior counsel for the petitioner is accepted, some of the members will form a Co-operative Society in respect of the same property whereas the others will form a condominium under the provisions of the MAO Act which is not permissible. The said property cannot be partly submitted to the jurisdiction of the Maharashtra Co-operative Societies Act, 1960 by formation of society and at the same time, by submitting the property to the jurisdiction of the MAO Act.
142. We shall now decide the submission of the learned senior ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 73 wpl-3706.19 wt ors.(J).doc counsel for the petitioner that the Competent Authority under Section 10(1) of the MOFA had decided the title of the developer or unit holders in the impugned order or the validity of the Deed of Declaration and if so, whether such authority had powers to declare such title or to decide the validity of the Deed of Declaration or not.
143. Under Section 10(1) of the MOFA, the promoter is required to submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society or, as the case may be, as a company failing which, the minimum number of persons required to form a Co-operative society or a company who have taken flats, may apply for formation of a co-operative society or as the case may be, of a company. First proviso to Section 10(2) however, makes it clear that if the promoter fails within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960, the persons who have taken flats from the promoter may apply to the Competent Authority to direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society.
144. Second proviso to Section 10(1) makes it clear that the Competent Authority however, shall not issue direction to register any society under the provision of Section 10(1) to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar without first verifying authenticity of the request of the applicants and without giving the concerned promoter a reasonable opportunity of being heard. It is thus clear that the reasonable opportunity to the developer is contemplated as mandatory under second proviso to Section 10(1) before any directions issued by the Competent Authority to register a ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 74 wpl-3706.19 wt ors.(J).doc society upon receipt of the application from the persons who have taken flats from the promoter.
145. A perusal of Section 10(2) of the MOFA clearly indicates that if the promoter has already submitted such property to the provisions of MAO Act by executing and registering a Declaration as provided by that Act, the promoter is bound to inform the Registrar as defined in the MCS Act about such execution and registration of a Declaration. In such case, it shall not be lawful to form a co-operative society or a company. The legislative intent is clear that if the promoter has submitted such property to the provisions of the MAO Act by executing and registering a declaration as provided by MAO Act and informs the Registrar as defined under the MCS Act, there is clear bar prescribed in second proviso to Section 10(1) of MOFA that no such direction to register a society can be issued by the Competent Authority to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar.
146. The bar contemplated under second proviso to Section 10(1) would apply only if such mandatory conditions prescribed under Section 10(2) are complied with strictly by the promoter by executing and registering the declaration as provided by MAO Act and then the promoter informing the Registrar as defined in the MCS Act. The Competent Authority has to ascertain and find out whether the developer has complied with the provisions of Section 10(2) of the MOFA read with the other provisions of MAO Act requiring the promoter to execute Deed of Declaration in the mode and manner prescribed under the said provision at the time of hearing being rendered to the promoter. The said second proviso prescribing the mandatory condition of rendering an opportunity of being heard to the developer is not an empty formality.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 75 wpl-3706.19 wt ors.(J).doc Hearing is contemplated to ascertain whether the developer has
complied with the mandatory condition under Section 10(2) of the MOFA read with the provisions of MAO Act.
147. We are not inclined to accept the submission made by the learned senior counsel for the petitioner that the role of the Competent Authority prescribed under second proviso to Section 10(1) of MOFA was only an executive function and no sooner the Competent Authority was informed by the promoter that he had already complied with the conditions under Section 10(2) of the MOFA, the Competent Authority was not required to go into the issue whether in fact any such Deed of Declaration was executed by the promoter or by the persons required to execute such Deed of Declaration under the provisions of MAO Act and whether such intimation was given to the correct authority prescribed under Section 10(2) read with the provisions of MOFA and MCS Act.
148. It is not in dispute that the respondent no.5 developer had not applied for formation of the Society within the time prescribed under the provisions of MOFA. It is not in dispute that the account consultant of the respondent no.3 had applied for such direction from the Competent Authority under Section 10(1) with specific case that the developer had not formed a co-operative society. The Competent Authority was thus required to go into the issue as to whether the developer had complied with his mandatory obligation under Section 10(2) of the MOFA and to ascertain whether the bar from exercising such power under second proviso to Section 10(1) had attracted in the facts of this case or not.
149. No such bar can be attracted under second proviso to Section 10(1) unless the Competent Authority comes to a definite conclusion that the developer had complied with his mandatory obligation under Section ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 76 wpl-3706.19 wt ors.(J).doc 10(2) of MOFA. To ascertain whether the developer had complied with his mandatory obligation under Section 10(2), the Competent Authority is required to decide whether the developer had entered into Deed of Declaration in accordance with the provisions of MAO Act, whether the developer alone was competent to execute such Deed of Declaration and whether the developer had informed the Registrar as defined under the provisions of MCS Act about such Deed of Declaration and registration of such Deed of Declaration.
150. Since this Court is of the view that under Section 10 of MOFA, the legislature has made a reference to different authorities and assigned such different authorities with different functions, there is no question of any interchangeable exercise of powers between different authorities. The Registrar for the purposes of section 10(2) of MOFA means the Registrar as defined in the MCS Act who was a persona designata and must be assigned the meaning expressly stated in the said section. Every person/subordinate who is a delegate of the Registrar is not and cannot be construed as being the Registrar himself. The information was thus required to be submitted by the developer under Section 10(2) to the Registrar alone and not to the District Deputy Registrar, G/S ward, Mumbai. In our view, since the provisions of Section 10(2) specifically provided that such information of execution and registration of Deed of Declaration was to be made to the Registrar under the provisions of MCS Act, such act required to be done in a particular manner under the provisions of the Act, has to be done in that manner alone and no any other manner.
151. We are inclined to accept the submission of Mr.Seksaria, learned counsel for the respondent nos.3 and 4 that the Competent Authority can be an officer not below the rank of the District Deputy ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 77 wpl-3706.19 wt ors.(J).doc Registrar of the Co-operative Societies, he will necessarily be subordinate to the Registrar as appointed under Section 3 of the MCS Act. Unless the same person is specifically appointed in a given case, he is not 'wearing two hats.'
152. A perusal of the record clearly indicates that the respondent no.5 had not raised any issue of jurisdiction of the Competent Authority to adjudicate upon the validity of the declaration nor the validity of the information provided by the developer of execution and registration of Deed of Declaration to the District Deputy Registrar, G/S ward, Mumbai and not to the Registrar as defined under the provisions of MCS Act.
153. In our view, the duty and the powers of the Competent Authority under second proviso to Section 10(1) of the MOFA is not to mechanically find out whether any Deed of Declaration has been executed by the promoter or not and whether information as required under Section 10(2) of the MOFA to the authority prescribed under the said provision is complied with or not. There is no merit in the submission of the learned senior counsel for the petitioner that the duty of the competent authority was only to verify the execution of Deed of Declaration and information to the concerned authority and that the Competent Authority was required to stop there and to direct the party to apply to the Civil Court for adjudication in respect of the validity of the Deed of Declaration and intimation given to the authority prescribed under Section 10(2) of the Act. If the arguments of the learned senior counsel are accepted, the powers of the Competent Authority prescribed under first and second proviso to Section 10(2) to grant hearing to the developer and thereafter to direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar to register the society or not would be redundant and otios.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 78 wpl-3706.19 wt ors.(J).doc
154. Unless the Competent Authority would have ascertained that the declaration executed by the promoter is in accordance with the provisions of the MAO Act and more particularly under Section 2 of the said Act read with second part of Rule 8 of MOFA Rules, 1964 and unless the intimation in that regard is given to the Registrar of Co- operative Societies by the promoter in respect of such validly executed Deed of Declaration duly registered, the direction to register the society by the Competent Authority to the District Deputy Registrar, Deputy Registrar or, as the case may be, would have been beyond the pale of spirit of provision contemplated nor possible.
155. A perusal of the record indicates that the issue of jurisdiction was not even raised by the developer before the Competent Authority at the stage of hearing or even thereafter. There is no merit in the submission of the learned senior counsel for the petitioners that under the provisions of MOFA, the flat owners had not become the owners of the property at the time of execution of Deed of Declaration solely by virtue of MOFA agreement. There could not be any Deed of Conveyance in favour of individual unit holders individually. The Deed of Conveyance has to be executed in favour of the society if the society is formed or in favour of the condominium, if the property is submitted to the jurisdiction of the MAO Act. The period prescribed under Section 4 of the MOFA for registration of the Society has to be reconciled with the obligation on the part of the developer/owner/owners to register Deed of Declaration thereby submitting the property to the jurisdiction of the MAO Act. There is no merit in the submission of the learned senior counsel for the petitioner that Deed of Declaration could be unilaterally executed by the developer.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 79 wpl-3706.19 wt ors.(J).doc
156. Learned senior counsel for the petitioners could not distinguish the judgment of this Court in the case of State of Maharashtra and Ors. Vs. Mahavir Lalchand Rathod & Anr. (supra) which is applicable to the facts of this case or the judgment of this Court in the case of Maharashtra Chamber of Housing Industry Vs. State of Maharashtra (supra). In our view, there was gross delay on the part of the petitioners in filing writ petitions. On this ground also, the petitioners are not entitled to seek any equitable relief.
157. Learned senior counsel for the petitioners could not distinguish judgment of the Hon'ble Supreme Court in the case of Sarvepalli Ramaiah (dead) as per legal representatives & Ors. Vs. District Collector, Chittor District & Ors. (supra). In our view, learned counsel for the respondents are right in their submission that the petitioners were not entitled to be heard by the Competent Authority under second proviso to Section 10(1) of the MOFA. No such personal hearing is contemplated to be given to the unit holders before taking any decision by the Competent Authority to give any directions to the District Deputy Registrar, Deputy Registrar or Assistant Registrar as the case may be for registration of the society under the MCS Act. Be that as it may, the petitioners were fully aware of the application filed by the account consultant of the respondent no.3 for seeking direction before the Competent Authority to direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar to register the society.
158. The petitioners were also aware of the hearing rendered to the respondent no.5 developer. The petitioners never raised any objection in respect of the said application made by the respondent no.3 at any stage. Be that as it may, the petitioners have not demonstrated before this Court that any prejudice is caused to the petitioners for not ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 80 wpl-3706.19 wt ors.(J).doc granting personal hearing to the petitioners. The petitioners could not demonstrate even before this Court as to how the petitioners were affected by the said impugned order passed by the Competent Authority. We are thus inclined to accept the submission made by the respondents that the petitioners had no locus to raise any objection before the Competent Authority on the said application filed by the respondent no.3.
159. Since this Court has heard the parties at length finally on merit in these writ petitions, we are not inclined to direct the petitioners to exhaust the alternate remedy available, if any, under Section 152 of MCS Act at this stage. The petitioners has to show that the justice would lie on the side of the petitioners for getting equitable relief by this Court by exercising powers under Article 226 of the Constitution of India which the petitioner in these petitions have failed. This view is supported by a judgment of a Division Bench of this Court in the case of Yespal Keval Singh Chandi v/s. Union of India & Ors. (supra). The petitioners has failed to satisfy this Court that passing an order in its favour would do justice and that justice lies on its side. The principles of law laid down by this Court in the said judgment in the case of Yespal Keval Singh Chandi v/s. Union of India & Ors. (supra) applies to the facts of this case.
160. The Hon'ble Supreme Court in the case of State of U.P. Vs. Sudhir Kumar Singh & Ors. (supra) has held that in cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 81 wpl-3706.19 wt ors.(J).doc remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. The petitioners have failed to satisfy the test laid down by the Hon'ble Supreme Court in the judgment in the case of State of U.P. Vs. Sudhir Kumar Singh & Ors. (supra). We are thus not inclined to set aside the impugned order passed by the Competent Authority thereby directing the authority to register the society or to remand the matter back before the Competent Authority on the ground that the petitioners ought to have been heard before passing any such order and for granting personal hearing to the petitioners. The petitioners do not dispute that the authorities under the provisions of MCS Act have already issued a Certificate of Registration to the respondent no.4- society.
161. We are not inclined to accept the submission made by the learned senior counsel for the petitioners that by the impugned order directing formation of the respondent no.4 society, the ownership rights of the Petitioners in the said property allegedly vested prior to the passing of the impugned order are interfered with and are nullified. By virtue of the fact that the respondent no.4 society is registered as a 'General Society' under sub-clause 5 of Rule 10 of MCS Rules, 1961, the rights of the petitioners in the property are protected. The respondent no.4 had taken several steps before and after registration of the respondent no.4 society for last several years. The respondent no.5 developer, who was at one stage opposing registration of the respondent no.4 society by raising an objection before the Competent Authority at the time of hearing and was strongly relying upon Deed of Declaration and alleged intimation to the authority contemplated under Section 10(2) of the MOFA, has made a submission before this Court that though the respondent no.5 has filed a separate petition impugning the order passed by the Competent Authority, the respondent no.5 would not pursue the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 82 wpl-3706.19 wt ors.(J).doc said writ petition if the interim order of status-quo passed by the Competent Authority is vacated.
162. Several unit holders who at one stage were opposing the formation of condominium under the provisions of MAO Act have given their consent for formation of the respondent no.4 society. The few unit holders who had opposed the formation of condominium by the respondent no.5 have subsequently withdrawn their objection. The Court has to consider this ground reality and subsequent development in the matter and to ascertain the desire of the unit holders whether they would still be insisting for formation of condominium or considering the will and desire of the majority of the unit holders to form co- operative society, Court will not interfere with the order of the Competent Authority. In our view, the Competent Authority has not decided the title of any of the parties in the property.
163. The Hon'ble Supreme Court in the case of Sarvepalli Ramaiah and Ors. v/s. District Collector, Chittoor and Ors. (supra) has held that High Court in exercise of powers under Article 226 of the Constitution of India does not sit in appeal and cannot go into disputed questions of fact. The judicial review under Article 226 is directed, not against the decision, but the decision making process. Administrative decisions are subject to judicial review under Article 226 of the Constitution, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions are not interfered with, in exercise of the extra ordinary power of judicial review.
164. In our view in this case, there is no such patent illegality or apparent error in the impugned order passed by the Competent Authority.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 83 wpl-3706.19 wt ors.(J).doc The Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact. Be that as it may, on perusal of the order passed by the Competent Authority, we are satisfied that no case for interference in the impugned order is made out by this Court under Article 226 of the Constitution of India.
165. Learned counsel for the respondents have strongly placed reliance on the judgment delivered by the Division Bench of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) and judgment of this Court in case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors.(supra). Both these judgments are sought to be distinguished by Mr.Naik, learned senior counsel for the petitioners on various grounds in support of the submission that neither of these judgments would be binding precedent on this Court. In view of rival contentions advanced by both the parties, at length on this issue, we will now consider whether any of these two judgments applies to the facts of this case and are binding precedent or not.
166. Division Bench of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) had considered the writ petition inter alia praying for a writ of certiorari for quashing and setting aside the order dated 24th August 2016 passed by the Competent Authority refusing to consider the issue relating to registration of the petitioner no.2 which was allowed by the Assistant Registrar of Co- operative Societies vide order dated 31st December 2014 on the ground that the respondent no.1 therein had submitted the property to the provisions of MAO Act by executing and registering the Deed of ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 84 wpl-3706.19 wt ors.(J).doc Declaration as required by the said Act and the cancellation of the said declaration pending adjudication in the suit filed in this Court.
167. Mr.Naik, learned senior counsel for the petitioners strongly placed reliance on the order dated 18th April 2018 in Civil Appeal No.3973 of 2018 passed by the Hon'ble Supreme Court arising out of the said judgment delivered by the Division Bench of this Court in Writ Petition No.2034 of 2016 stating that "1. Leave granted. By consent, the impugned judgment and order of the Bombay High Court in Writ Petition No.2034 of 2016 is set aside. The question of law decided therein is left open. Civil Suit No.212 of 2016 pending before the Bombay High Court may be decided as expeditiously as possible."
168. Learned senior counsel for the petitioners strongly placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kunhayammed and others vs. State of Kerala and Another (supra) and in the case of Khoday Distilleries Limited (now known as Khoday India Limited) and others and decision of this Court in the case of Heena Nikhil Dharia vs. Kokilaben Kirtikumar Nayak and others (supra) and would submit that since leave is granted by the Hon'ble Supreme Court in the said special leave to appeal arising out of the judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra), the Hon'ble Supreme Court sat as a Appellate Court in the said judgment. The Hon'ble Supreme Court had set aside the said judgment and thus the judgment of this Court had merged into the judgment of the Supreme Court and had ceased to exist. He contended that the said judgment in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. vs The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) has thus no precedentiary value.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 85 wpl-3706.19 wt ors.(J).doc
169. It is also vehemently urged by the learned senior counsel that since the Hon'ble Supreme Court had kept the question of law decided in the judgment delivered by this Court open in the said order dated 18th April 2018, it would clearly indicate that the question of law decided by the Division Bench of this Court in the said judgment cannot be considered as binding. No reliance thus can be placed by the respondents on the said judgment. On the other hand, learned counsel for the respondents distinguished those judgments relied upon by the learned senior counsel for the petitioners and contended that the principles of law laid down by this Court in the said judgment in the cases of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) and Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors.(supra) continue to apply to the facts of this case as binding precedent.
170. It is contended that the judgment in the case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors.(supra), this Court had independently taken a view. Reliance is placed by the respondents on three judgments of different High Courts in support of the submission that question of law kept open by the Hon'ble Supreme Court in the order dated 18 th April 2018 was kept open to be decided by the Hon'ble Supreme Court in future and not for this Court. The said order passed by the Hon'ble Supreme Court was by consent of parties and not on merits upon adjudication of rival contentions, if any. No reasons were recorded by the Hon'ble Supreme Court while setting aside the judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra). In this back drop, we decide this issue as under :-
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 86 wpl-3706.19 wt ors.(J).doc
171. A perusal of the order dated 18th April 2018 passed by the Hon'ble Supreme Court in the Special Leave to Appeal arising out of the judgment delivered by this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) indicates that the Hon'ble Supreme Court had granted leave in the said Special Leave to Appeal. By consent of parties, the Hon'ble Supreme Court had set aside the said judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) and had kept the question of law decided therein open. There were no arguments advanced by any of the parties. No reasons were recorded by the Hon'ble Supreme Court in the said order. The said order was by consent of parties.
172. A Division Bench of this Court in the case of Indian Cork Mills Private Limited Vs. The State of Maharashtra & Ors. (supra) after adverting to the judgment of Supreme Court in the case of Municipal Corporation of Delhi Vs.Gurnam Kaur, (1989) 1 SCC 101 has held that it is a settled principle of law that when the Court passes an order, by consent of the parties, the Court does not adjudicate upon the rights of the parties nor does it lay down any principle. Thus it cannot be said that the statement of law as declared by the Division Bench of this Court in interpreting the provisions of Section 3B and Section 13 falling under Chapter I-A of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 in the case of Anil Gulabdas Shah, in any manner stands diluted by the consent order between the parties. In our view, the principles laid down by the Division Bench of this Court in the case of Indian Cork Mills Private Limited Vs. The State of Maharashtra & Ors. (supra) squarely applies to the facts of this Court.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 87 wpl-3706.19 wt ors.(J).doc
173. In our view, by consent of parties, principles of law laid down by this Court after adjudicating upon the rights of parties cannot be set aside before the Hon'ble Supreme Court. The said order passed by the Hon'ble Supreme Court on 18th April 2018 was not passed on adjudication of any issue or after considering the arguments advanced by the parties and was passed without recording any reason by consent of parties. In our view, the principles of law laid down by this Court in the judgment in case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. (supra) does not cease to have effect as binding precedent. The view taken by the Division Bench of this Court in the case of Indian Cork Mills Private Limited Vs. The State of Maharashtra & Ors. (supra) is adverting to the principle of law laid down by the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur (supra).
174. It has been held by the Hon'ble Supreme Court in the said judgment that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor does it lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. This Court rejected the contentions of the respondents in that matter that the judgment of Division Bench in the case of Anil Gulabdas Shah (supra) had merged in the consent orders passed by the Supreme Court considering the well settled position in the law as laid down in the decision in S. Shanmugavel Nadar Vs. State of T.N. (2002) 8 SCC 361.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 88 wpl-3706.19 wt ors.(J).doc
175. The Hon'ble Supreme Court in the case of Kaikhosrou (Chick) Kavasji Framji & Anr. Vs. Union of India & Anr., AIR 2019 SC 1692 has held that the Hon'ble Supreme Court while disposing of the appeal vide order dated 4th August 1998 did not go into the merits of various contentions which were decided by the High Court by its order dated 6th February 1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that the respondent no.1 would take recourse to the remedy of the civil court by filing a civil suit. It is held that in the light of such statement made by the respondents, who were appellants in the appeal, which resulted in disposal of their appeal, the respondents themselves did not call upon the Court to examine the merits of the issues raised by them in their appeals. In such situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. The principles of law laid down by the Hon'ble Supreme Court in the case of Kaikhosrou (Chick) Kavasji Framji & Anr. Vs. Union of India & Anr. (supra) applies to the facts of this case. We are respectfully bound by the said principles of law laid down by the Hon'ble Supreme Court.
176. It is not the case of the petitioners that the Hon'ble Supreme Court in the said order dated 18 th April 2018 in the Special Leave to Appeal had adjudicated upon the rival contentions of the parties after granting leave to appeal and had passed a reasoned judgment while setting aside the judgment of this Court. The petitioners could not dispute that the said order passed by the Hon'ble Supreme Court was passed by consent of the parties while setting aside the judgment of Division Bench of this Court.
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::ppn 89 wpl-3706.19 wt ors.(J).doc
177. In so far as the judgment of the Supreme Court in the case of Kunhayammed and Ors. Vs. State of Kerala & Anr. (supra) relied upon by Mr. Naik, learned senior counsel for the petitioners is concerned, the principles of law laid down by the Hon'ble Supreme Court in the said judgment are approved in the later judgment in the case of Khoday Distilleries Limited (now known as Khoday India Limited) and others (supra). The Hon'ble Supreme Court in the said judgment has held that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one.
178. It is held that Whenever the Supreme Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with that Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
179. By the said order dated 18th April 2018, the Hon'ble Supreme Court has not affirmed the order passed by the Division Bench of this Court in the said matter of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 90 wpl-3706.19 wt ors.(J).doc Manufacturing Co. Ltd. and Ors. (supra) and by consent, has set aside the order. We are thus not inclined to accept the submission by the learned senior counsel for the petitioner that the judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) has no precedentiary value.
180. In our view, since in that case, the Hon'ble Supreme Court, by consent of parties, has set aside the judgment delivered in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra), the said judgments in the cases of Kunhayammed and Ors. Vs. State of Kerala & Anr. (supra) and Khoday Distilleries Limited (now known as Khoday India Limited) and others (supra) would not advance the case of the petitioners. The judgment of this Court in the case of Indian Cork Mills Private Limited (supra) delivered after following the principles of law laid down in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur (supra) would apply to the facts of this case.
181. In so far as the submission of the learned senior counsel for the petitioner that the Hon'ble Supreme Court in the said order dated 18th April 2018 in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) had kept the questions of law to be decided by this Court open and thus the respondents cannot rely upon the principles of law laid down by this Court in the said judgment is concerned, there is no merit in the submission of the learned senior counsel for the petitioners.
182. Gujarat High Court in the case of Hemal Ishwarbhai Patel ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 91 wpl-3706.19 wt ors.(J).doc Vs. Veer Narmad South Gujarat University & Ors. (supra) after adverting to the judgments in the cases of Kunhayammed and Ors. Vs. State of Kerala & Anr. (supra) and Gangadhara Palo v. Revenue Divisional Officer, and another (2011) 4 Supreme Court Cases 602, has held that Special Leave Petition can be dismissed on variety of grounds. It is held that when the Supreme Court records that the question of law is kept open, undoubtedly it is meant to be reconsidered in future by the Supreme Court only. Question of law is not kept open for the High Court. In our view, Mr.Seksaria, learned counsel for the respondent nos.3 and 4 is right in his submission that the said question of law was kept open to be considered by the Hon'ble Supreme Court while setting aside the judgment delivered by consent of parties and not for the High Court. In our view, the petitioners cannot be allowed to urge on one hand that the entire judgment of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) was set aside by the Hon'ble Supreme Court in the said judgment after granting leave to appeal and at the same time the question of law was also kept open. In our view, this submission of the learned senior counsel is mutually inconsistent and self-destructive. We are in respectful agreement in the views expressed by the Gujarat High Court in the case of Hemal Ishwarbhai Patel Vs. Veer Narmad South Gujarat University & Ors. (supra).
183. In so far as the judgment of this Court in the case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra) is concerned, a perusal of the said judgment indicates that Division Bench of this Court though referred to the judgment in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) has independently laid down various proposition of ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 92 wpl-3706.19 wt ors.(J).doc law which clearly applies to the facts of this case.
184. In so far as the judgment of this Court in the case of Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra) is concerned, it is vehemently urged by the learned senior counsel for the petitioners that the Hon'ble Supreme Court has issued notice in Special Leave to Appeal filed by the aggrieved party in the said matter and has stayed the operation of the impugned judgment by its order dated 1 st May 2018 passed in Special Leave to Appeal No.10215 of 2018 in the case of M/s. A.V. Bhat Housing Co. now known as Belvalkar Housing Company Vs. Sarita Nagari Phase-2 Co-operative Housing Society Ltd. & Ors. A perusal of the said order dated 1 st May 2018 indicates that the Hon'ble Supreme Court has only granted stay of operation of the order passed by the High Court and directed the parties to maintain status-quo as it exists on the said order and not the judgment as sought to be canvassed by the learned senior counsel for the petitioner.
185. The judgment of Delhi High Court in the case of Bristol Myers Squibb Company Vs. JD Joshi (supra) has adverted to the judgment of the Hon'ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association, (1992) 3 SCC 1. The Hon'ble Supreme Court in the said judgment held that while considering the effect of an interim order staying the operation of the order under-challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 93 wpl-3706.19 wt ors.(J).doc passing of the stay order and it does not mean that the said order has been wiped out from existence. The principles of law laid down by the Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association (supra) apply to the facts of this case. We are in agreement with the views expressed by the Delhi High Court in the case of Bristol Myers Squibb Company (supra).
186. The judgment of Madras High Court in the case of Viswapriya (India) Limited Vs. Government of Tamil Nadu & Ors. has adverted to the judgment of the Hon'ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association , 2015-4-L.W.33 and has held that the order of stay operates as between the parties to the lis and it does not constitute a declaration of law under Article 141 of the Constitution of India. The principles of law laid down by the Madras High Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association (supra) applies to the facts of this case. We are in respectful agreement with the views expressed by the Madras High Court in the said judgment. In our view, the principles of law laid down by the Division Bench of this Court in the cases of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) and Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra) thus apply to the facts of this case and would be binding precedent on this Court for the reasons recorded aforesaid. We are respectfully bound by those judgments.
187. Division Bench of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) has accepted the ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 94 wpl-3706.19 wt ors.(J).doc submission made on behalf of the petitioners that there was no impediment in registering a Co-operative society under Section 10(2) of the MOFA because the promoter had not complied with the conditions contained therein, i.e. the promoter had not informed the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960 about submitting the property to the provisions of the MAO Act. Only once both these conditions are fulfilled namely, execution and registration and thereafter intimation, it would be unlawful to form any co-operative society or a company. In that matter also, the intimation contemplated under Section 10(2) of the MOFA was not given to the Registrar as defined under the provisions of MCS Act but was addressed to the office of the Assistant Registrar. This Court has held that when a statute provides that a particular act needs to be done in a particular manner, it has to be done in that manner and no other.
188. The developer has not complied with those conditions. There was thus no impediment/bar under Section 10(2) of the MOFA for considering the application by a flat purchaser for registering the petitioner no.4 society. This Court accordingly quashed and set aside the order passed by the Competent Authority and set aside the order passed by the Competent Authority refusing to register the society. This Court also interpreted the definition of "apartment" under Section 3(a) of the MAO Act and also the definition of "building" under Section 3(e) and definition of "property" under section 3 (r) in the said judgment and held that the developer admittedly sold about 80% of flats by individual sale agreement with the flat purchasers, the unilateral execution and registration of Deed of Declaration was ex facie contrary to the provisions of the MAO Act and could not be considered as Declaration at all for the purpose of Section 10(2) of MOFA, 1963. The Deed of Declaration has to be in conformity with Sections 11 and ::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 ::: ppn 95 wpl-3706.19 wt ors.(J).doc 13 of the MAO Act and registration being compulsory to have complete legal effect.
189. This Court in the case of Sarita Nagari Phase - 2 Co- operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra) has considered the similar facts and has held that twin requirements under Sections 10(1) and 10(2) of the MOFA are mandatory to make the Deed of Declaration effective in law and failure on the part of the developer for complying with those mandatory conditions, submission of property to the provisions of the MAO Act would not be effective or valid. This Court in the said judgment also held that the unilateral execution of Deed of Declaration by the developer was not valid.
190. Be that as it may, we have taken the view in the aforesaid paragraphs of this judgment independently of the view taken by the Division Bench of this Court in the case of Paul Parambi, Chief Promoter, Springs CHS Ltd. and Ors. versus The Bombay Dyeing and Manufacturing Co. Ltd. and Ors. (supra) and Sarita Nagari Phase - 2 Co-operative Housing Society Ltd. & Anr. vs. The State of Maharashtra & Ors. (supra).
191. In our view, None of the petitioners have made out a case for seeking any equitable relief in this batch of writ petitions under Article 226 of the Constitution of India. Writ petitions are devoid of merits.
192. We accordingly pass the following order :-
(i) Writ petitions are dismissed. Rule is discharged.
(ii) Interim Application (L) No.1 of 2020 filed by the HDFC Ltd.::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::
ppn 96 wpl-3706.19 wt ors.(J).doc for impleadment as the petitioner or the respondent in Writ Petition (L) No.3706 of 2019 filed by Cipla Ltd. is rejected in view of the independent petition bearing (L) No.7586 of 2020 having already been filed by the applicant.
(iii) Interim Application (L) No.7183 of 2020 inter-alia praying for modification of the order dated 19th December 2019 and continuation of the status quo order vide orders dated 19 th December 2019, 17th March 2020, 22nd May 2020, 23rd June 2020 and 26th June 2020 in Writ Petition (L) No.3706 of 2019 filed by the Respondent No.5 does not survive in view of the dismissal of the said writ petition itself.
(iv) Interim relief granted by this Court to stand vacated. There shall be no order as to costs.
(v) Parties to act on the authenticated copy of this order duly authenticated by the Associate of this Court.
(V.G. BISHT, J.) (R.D. DHANUKA, J.)
::: Uploaded on - 22/04/2021 ::: Downloaded on - 08/09/2021 03:33:07 :::