Bombay High Court
Shakuntala Bharat Kachare vs Subhash Prataprao Chavan on 7 June, 2010
Author: R.M. Savant
Bench: P.B. Majmudar, R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 571 OF 1995
1. Shakuntala Bharat Kachare )
adult, occupation household )
2. Hemant Bharat Kachare, )
Adult, occupation business. )
3. Shyam alias Ghanashyam Bharat Kachare, )
Adult, Occupation business. )
4.
Ajay Bharat Kachare,
occupation student
)
)
All residing at "Shakuntal", S. No. 19/1 (A), Erandwane, )
Pune-411 004 )..Petitioners
versus
1. Subhash Prataprao Chavan, age 32 years, )
occupation business r/o Flat No. 1 )
2. Deelip Shyamrao Kumbhojkar, age 40 years, )
occupation business r/o Flat No. 3 )
3. Rajendra H. Kulkarni, age 42 years, )
occupation service r/o Flat No. 7 )
4. Moreshwar Govind Matapurkar, age 61 years, )
occupation retired r/o Flat No. 8 )
5. Dhananjay Prabhakar Limaye, age 37 years, )
occupation service r/o Flat No. 8 )
6. Smt. Manisha Krishna Marathe, age 44 years )
occupation service r/o Flat No. 10 )
7. Narayan R. Kamat, age 57 years )
occupation service r/o Flat No. 12 )
8. Smt. Urmila M. Kamat, age 41 years, )
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Occupation housewife, r/o flat No. 13 )
9. Smt. Usha Deshpande, age 60 years, )
occupation housewife, R/o Flat No. 21 )
10. Smt. Priya Deshpande, age 35 years, )
occupation service, r/o flat No. 22 )
11. Kamlakar Prabhakar Purandare, age 61 years, )
occupation retired, r/o flat No. 15 )
12. Makarand Yerwadekar, age 31 years, )
occupation service, r/o Flat No. 17 )
13. Smt. Jayashree Yerwadekar, age 54, )
14. Nagraj, age 52 years,
occupation service, r/o flat no. 18 )
)
occupation service, r/o Flat No. 20 )
All residing at Bharat Vihar )
S. No. 19/1 (A), Erandwane, Pune-411 004 ).Respondents
Mr. N.B. Shah for the petitioners.
Mr. S.S. Kulkarni for respondent No. 14
WITH
WRIT PETITION NO. 2638 OF 1995
1. Subhash Prataprao Chavan, age 32 years, )
occupation business r/o Flat No. 1 )
2. Deelip Shyamrao Kumbhojkar, age 40 years, )
occupation business r/o Flat No. 3 )
3. Prakash Vishwanath Phadnis, age 41 )
occupation service, r/o Flat no. 4 )
4. Rajendra H. Kulkarni, age 42 years, )
occupation service r/o Flat No. 7 )
5. Moreshwar Govind Matapurkar, age 61 years, )
occupation retired r/o Flat No. 8 )
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6. Dhananjay Prabhakar Limaye, age 37 years, )
occupation service r/o Flat No. 8 )
7. Smt. Manisha Krishna Marathe, age 44 years )
occupation service r/o Flat No. 10 )
8. Narendra Govinddas Shah, age 45, )
occupation service, r/o Flat No.11 )
9. Narayan R. Kamat, age 57 years )
occupation service r/o Flat No. 12 )
10. Smt. Urmila M. Kamat, age 41 years, )
Occupation housewife, r/o flat No. 13 )
11.
Smt. Usha Deshpande, age 60 years,
occupation housewife, R/o Flat No. 21
)
)
12. Smt. Priya Deshpande, age 35 years, )
occupation service, r/o flat No. 22 )
13. Kamlakar Prabhakar Purandare, age 61 years, )
occupation retired, r/o flat No. 15 )
14. Kamlakar Prabhakar Purandare, age 61 years, )
occupation retired, r/o flat No. 16 )
15. Makarand Yerwadekar, age 31 years, )
occupation service, r/o Flat No. 17 )
16. Smt. Jayashree Yerwadekar, age 54, )
occupation service, r/o flat no. 18 )
17. Nagraj, age 52 years, )
occupation service, r/o Flat No. 20 )
All residing at Bharat Vihar )
S. No. 19/1 (A), Erandwane, Pune-411 004 ).Petitioners
versus
1. Sub-Registrar Haveli No. 4 )
2. The Dy. Registrar, Co-operative Societies, Pune. )
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3. The State of Maharashtra )
4. Bharat alias Arjun Mahadev Kachare since deceased )
through his legal heirs )
4(a) Shakuntala Bharat Kachare )
age 56 years, occupation housewife )
4(b) Hemant Bharat Kachare, )
Age 36 years, occupation business. )
4(c) Shyam alias Ghanashyam Bharat Kachare, Age 26, )
Occupation business. )
4(d)
Ajay Bharat Kachare, Age 18 years
Mr. S.S. Kulkarni for the petitioners.
).Respondents
Mr. A.I. Patel, AGP, for the State.
CORAM: P.B. MAJMUDAR &
R.M. SAVANT, JJ.
DATE: JUNE 07, 2010.
ORAL JUDGMENT: (Per R.M. SAVANT, J.)
In Writ Petition No. 2638 of 1995, the challenge is to the declaration dated 19th September, 1992 by the respondent Nos. 4 (a) to 4 (d) who are owners/developers whereby the said respondents have submitted the Bharat Vihar building standing on survey No. 19/1-A, Erandwane, Pune to the provisions of the Maharashtra Apartment Ownership Act, 1970 (hereinafter referred to as "the Act of 1970). The said writ petition has been filed by the purchasers of the flats in the said building. In so far as writ petition No. 571 of ::: Downloaded on - 09/06/2013 15:58:55 ::: -5- 1995 is concerned, the writ petition has been filed by the owners/developers challenging the order dated 26th September, 1994 passed by the Joint Registrar, Co-operative Societies (Appeals), Pune Division, by which order the revision application filed by the petitioners in the companion Writ Petition No. 2638 of 1995 came to be allowed and the issue as regards the registration of the society formed by the flat purchasers came to be remanded to the Deputy Registrar for a de novo consideration.
2. The facts in brief which are necessary to be cited for adjudication of the above petitions can be stated thus:-
3. The petitioners in Writ Petition No. 571 of 1995 claim to be the owners of the land bearing S. No. 19/1 (A) situate at Erandwane, Dist. Pune.
The said property was kept joint amongst the co-parceners and was retained as the ownership property of Bharat @ Arjun Mahadeo Kachare. The petitioners in the said writ petition decided to develop the property through M/s. Ajay Construction Company which was a sole proprietorship concern of the said Arjun Mahadeo Kachare. In consonance with the said decision, plans were submitted to the planning authority i.e. Pune Municipal Corporation. It appears that thereafter a suit came to be filed amongst the members of the joint family and against Arjun Mahadeo Kachare for partition of the said property. The said suit came to be numbered as Special Civil Suit No. 1087 of 1991. On 4th ::: Downloaded on - 09/06/2013 15:58:55 ::: -6- October, 1991, a compromise decree came to be passed in the said suit by which distribution of the said property including the flats and shops constructed therein came about. It appears that the said Construction Company entered into an agreement for sale of 23 flats and 12 shops with various persons including the petitioners. The construction of the building was completed in or about September, 1992 after which the property was subjected to the provisions of the Act of 1970 and a declaration by the respondent Nos. 4(a) to 4 (d) came to be registered with the competent authority as required by the said Act. It appears that contemporaneously the flat purchasers who are the petitioners in the companion writ petition, with a view to register a society formed by the said flat purchasers, addressed a letter dated 23rd October, 1992 to the Deputy Registrar, Co-operative Societies, for purposes of reserving the name of the proposed society as Bharat Vihar Co-operative Housing Limited. The Deputy Registrar by his order dated 8th February, 1993 rejected the said application of the flat purchasers on the ground that since the property has already been subjected to the Act of 1970, no co-operative society can be formed and registered under the provisions of the Maharashtra Co-operative Societies Act, 1960. Against the said decision of the Deputy Registrar, the flat purchasers approached the Joint Registrar, Co-operative Societies (Appeals), Pune Division, Pune, by filing a revision application. The petitioners in Writ Petition No. 571 of 1995 i.e. the owners/developers filed their reply to the said revision application.
The Joint Registrar, Co-operative Societies, vide his order dated 26th September, ::: Downloaded on - 09/06/2013 15:58:55 ::: -7- 1994, allowed the said revision application and remanded the matter to the Deputy Registrar for a de novo consideration of the application for registration filed by the flat purchasers. It appears that on such remand the Deputy Registrar vide his order dated 20th December, 1994 has registered the society by the name of Bharat Vihar Co-operative Housing Society and has issued the registration certificate bearing the said date which registration certificate is annexed to the companion writ petition as Exhibit-D at page 44. Indubitably, the petitioners in Writ Petition No. 571 of 1995 have not challenged the said registration dated 20th December, 1994 and in the said circumstances since the subsequent event of the registration of the Society has not been challenged by moving any amendment in the said petition being Writ Petition No. 571 of 1995, the same has become infructuous and has to be disposed of as such.
Accordingly, Rule is discharged in the said Writ Petition No. 571 of 1995.
5. In so far as Writ Petition No. 2638 of 1995 is concerned, it is pertinent to note that the order dated 8th February, 1993 passed by the Deputy Registrar rejecting the application of the Petitioners for registration was carried in Revision by the flat purchasers/petitioners by filing a revision application before the Joint Registrar. The objection that since the property was already subjected to the Act of 1970 was specifically taken in the proceedings before the Joint Registrar. As indicated above, the Joint Registrar by order dated 26th September, 1994 has rejected the said objection and had allowed the revision ::: Downloaded on - 09/06/2013 15:58:55 ::: -8- application filed by the petitioners under Section 154 of the Maharashtra Co-
operative Societies Act, 1960 and remanded the matter for a de novo consideration. On such remand, the Deputy Registrar has allowed the application filed by the Petitioners for registration and has accordingly registered the Society and granted the registration certificate dated 20th December, 1994. Indeed, in the context of the aforesaid registration of the society under the Maharashtra Co-operative Societies Act, 1960, the declaration made under the Act of 1970 would not survive as otherwise it would lead to an anomalous situation whereby the property in question is subjected to two local laws. The registration of the society under the Maharashtra Co-operative Societies Act, 1960 would, therefore, have to be given effect to as the said registration of the society has been made as per the application filed by the flat purchasers. In fact, by not challenging the said registration, the owners/developers have acquiesced in the registration of the said society. In that view of the matter, the declaration under the Act of 1970 would have to be set aside and is accordingly set aside. Rule is accordingly made absolute to the aforesaid extent in Writ Petition No. 2638 of 1995, with the parties left to bear their respective costs.
P. B. MAJMUDAR, J.
R.M. SAVANT, J.
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