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High Court of Judicature at Bombay
ROSHAN DALVI
Santacruz Prakash Co-op. Hsg. Society Ltd.
Versus
Rehmani Begum & Others
SUIT NO. 260 OF 1979
Decided On : 09-04-2012
EVIDENCE ACT, 1872 - Section 74 - Public document. Receipts, issued by Gas Storage and Distributor Company of India Ltd., a public corporation, may be taken to be a public document.
MAHARASHTRA OWNERSHIP FLATS ACT, 1963 - Section 10 - Necessary party to suit for possession of flat. Where one of defendants lady admittedly purchased suit flat from builder and developer prior to plaintiff-society being registered and prior to society adopting bye-laws therefore she is not necessary party to suit.
MAHARASHTRA OWNERSHIP FLATS ACT, 1963 - Section 10 - Suit for possession of flat. Where flat purchased from builder was transferred to defendants prior to society being registered and society refused to recognize defendants as it members despite offered by defendants therefore society must accept all persons in possession of premises of society as its members.
MAHARASHTRA OWNERSHIP FLATS ACT, 1963 - Section 10 - Suit for possession of flat. Where there was no registered society at time when original defendant was put in possession of suit flat therefore no permission of society or even Registering Authority could be taken by original defendant for making any assignment or under letting.
Based on the provided legal document, here are the key points summarized:
The plaintiff is a registered cooperative society under the Maharashtra Co-operative Societies Act, established in 1969, with ownership rights over the land and building conveyed to it in 1972 (!) (!) .
The society was formed after the construction of the building, which was originally sold to flat purchasers by the builder, with some flats purchased prior to the society’s registration and adoption of bylaws (!) (!) .
The flat in question, Flat No. 9, was purchased by Smt. Sitabai Shewaram from the builder before the society’s registration, and she occupied it until her alleged transfer to the defendants (!) (!) .
The society claims that Sitabai transferred possession to the defendants in November 1969 without proper authorization, and the defendants have been in unauthorized occupation since then (!) .
The defendants contend they entered into possession prior to the society’s registration and that their possession was with consideration and without any written agreement. They rely on documentary evidence such as gas connection receipts and bills to prove their possession from May 1969 (!) (!) (!) .
The court finds that the defendants were in possession before the society was registered and that they were not accepted as members by the society after registration. Consequently, they cannot be considered trespassers, as their possession predates the society’s legal formation (!) (!) (!) .
The society’s bylaws and regulations, which restrict assignment or under-letting without prior permission, are applicable only after the society’s registration. Since the defendants’ possession occurred before registration, these bylaws do not apply to them (!) (!) .
The original defendant, Sitabai, was not a member of the society at the relevant time and was not subjected to expulsion proceedings under the bylaws. Her attempted expulsion is deemed legally irrelevant to the defendants’ rights (!) (!) .
The court concludes that the defendants are not trespassers and that the society cannot claim recovery of possession based on their occupation prior to registration. The relationship of landlord and tenant between the society and the defendants has not been established (!) (!) .
The society is entitled to recover non-occupancy charges, municipal taxes, and other outgoings from the defendants for their occupation since May 1969. The amount payable is quantified, and interest is to be calculated at a specified rate from today until payment (!) (!) .
The court dismisses the suit for recovery of possession but grants a monetary decree against the defendants for Rs. 4,75,566/- for arrears and charges, with interest at 16% per annum from the date of judgment until realization (!) (!) .
The defendants are not required to pay transfer fees or interest on the amount awarded, and the suit is disposed of accordingly.
1. The plaintiff is a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960 (MCSA) on 27.09.1969 as a tenants partnership society under Rule 10(1)(5)(b) of the Maharashtra Cooperative Societies Rules, 1961 (MCSR).
2. It is the plaintiff’s case that one M/s. Jhangiani Gurbuxani Construction Company constructed the plaintiff’s society building having 11 flats and 2 garages in 1966. The builders sold the flats on ownership basis to the flat purchasers who occupied them after the completion certificate was issued by the Mumbai Municipal Corporation (MMC) on 19.11.1966. The flat purchasers formed a co-operative society under Section 10 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). It is the plaintiff’s case that on the date of registration of the society 12 persons holding 11 flats and 1 garage became members of the plaintiff’s society. It is plaintiff’s case that all the purchasers entered into separate agreements with the builders which the plaintiff relied upon.
3. In respect of the suit flat being Flat No. 9 on 2nd floor of Prakash Building one Sitabai Shewaram was shown as the purchaser from the aforesaid builders. She purchased 2 flats of 2 rooms and one kitchen with an area of 500 sq. ft. It is the plaintiff’s case that Sitabai occupied the flats until November, 1969 having taken possession of it from the builders. She was the first person to occupy the suit flat.
4. It is also the case of the plaintiff’s society that the building was constructed on the land taken from the owners of the land by the builders on free hold basis. A conveyance was executed on 17th June, 1972 by the builders’ firm as owners in favour of the society. It conveyed to the society the land with the building consisting of 11 flats and 2 garages and open space described in the schedule thereof. There are 2 schedules to the conveyance. The first schedule describes the building structure on the plot of land conveyed to the society. The second schedule shows the names of the members. Sitabai is shown at serial No.9 having paid Rs.30,000/- as contribution towards flat and garages. That is however the flat purchased by her from the builders on ownership basis. Hence that amount is consideration paid by her to the builders pursuant to which she came into possession and occupation of the suit flat.
5. It is the case of the plaintiff that consequent upon the purchase by Sitabai she was alloted the user of the suit premises as member of the plaintiff’s society.
6. It is the further case of the plaintiff that Sitabai illegally parted with possession of the suit premises in favour of the defendants in November, 1969 without the permission of the society and the defendants have been inducted in the suit premises illegally and unauthorizedly since then without the permission of the plaintiff’s society. It is the plaintiff’s case that the Sitabai was not entitled to part with possession of the premises in favour of the defendants under byelaw 71D and Regulation 4 of Form-A of the model byelaws adopted by the plaintiff as the byelaws of the society without the permission of the plaintiff as also the Registrar of the society. The plaintiff called upon Sitabai to remedy to breach. She failed to comply. The plaintiff claimed that Sitabai was bound to pay charges to them at the rate of Rs.125/- per month by way of municipal taxes and outgoings which are paid until 31st January, 1971. Sitabai failed to pay thereafter. Hence the plaintiff terminated her co-partnership tenancy by the notice of termination dated 28th January, 1972 and expelled her from the membership of the society under byelaw 12(1)(g).
7. The plaintiff sued for recovery of possession of the suit flat from Sitabai and the defendants under the dispute being an Arbitration case filed by the plaintiff on 10th January, 1973 in the Co-operative Court under Sections 91-96 of the MCSA. The
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