2012 Supreme(Bom) 2360

High Court of Judicature at Bombay
B.P. DHARMADHIKARI, J.
Rahul Enterprises, a Proprietary Concern through its Sole Proprietor Ravindra Sitaram Pendse & Another
Versus
Abhineha Park Sahakari Gruha Rachana Samstha Maryadit, Through its Chairman Shekhar Dattatraya Kulkarni & Others
Writ Petition No. 9120 of 2012
Decided on : 19-12-2012

Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 12(1) - Maharashtra Ownership Flats Act, 1963, Section 11(3) - Registration of Co-operative Housing Society.

       Where Society was registered in 2009 therefore challenge to registration, after 3 years in 2012 only after grant of deemed conveyance in favour of Society, not maintainable. - In petition, there are no reasons given as to why said order could not be questioned within reasonable time. Even after respondent No. 1 raised objection to belated challenge, no explanation for laches has been offered. It is, therefore, obvious that only because of latter order dated 19th July, 2012 granting deemed conveyance to respondent No. 1-co-operative housing society and after realizing that challenge to order dated 19th July, 2012 could not have been otherwise even attempted, petitioner has presented this belated petition to assail the order dated 10th July, 2009. Looking to the scheme of 1963 Act and present facts, it is apparent that such belated challenge at the instance of the petitioner cannot be entertained. The claim of members to form a Co-operative Society & its registration in July, 2009 are all overt acts in derogation and denial of alleged right reserved to itself by petitioner & still petitioner did not assert that right for over three years. Petitioner thus acquiesced in formation of Co-operative Society and cannot be permitted to assail it at this juncture.

       The petitioner has challenged the order dated 19th July, 2012 by which deemed conveyance has been issued to respondent No. 1- society and the said order is consequential in view of registration of co-operative housing society in July 2009. The impugned order has come almost three years after grant of registration to respondent 1 Co-operative Society. The stance of the petitioner itself reveals that petitioner is/was not ready and willing to execute necessary documents of conveyance in favour of flat takers or their society, and has been avoiding to discharge his obligations for all these years. The respondent No. 2 authority has, therefore, correctly appreciated this position.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Section 10 - Maharashtra O.F. Rules, 1964, Rule 8 - Registration of Co-operative Society by Flat purchaser.

       Where possession of flats handed over to flats purchasers in 2004 but developer not taken any step within statutory period of 4 months to register building under Apartment Act therefore registration of society by flat purchasers not illegal. - It is necessary that all apartment owners executed such declarations and deeds of apartment, it is necessary that all apartment owners should execute these declarations. Here, possession of 18 flats is handed over in 2004 itself and hence, the period mandated to take necessary steps started running thereafter as all flats are then "taken". Here the flat takers did not decide & have not decided to form any apartment and their action of approaching Registrar reveals that they wanted the co-operative housing society to be registered. The same has been registered on 10th July, 2009 and the petitioner never objected to it. He never challenged that registration before the competent Court or authority in accordance with the provisions of the 1960 Act and has chosen to approach the Court in the matter for the first time in that respect, that too, after more than three years.

       Court has held that if the promoter has to submit the property to he provisions of the Apartment Act, the agreement entered into under Section 4 of 1963 Act must specifically spell it out so as to place every individual flat purchaser on notice about the nature of organization by which his relationship would be governed. The discussion above shows that as per Rule 8 of the Rules framed under 1963 Act read with Section 10 thereof, the formation of apartment can also not be indefinitely delayed. Here, the possession has been handed over to flat takers, admittedly, in 2004 and completion certificate/occupancy certificate has been issued on 7th June, 2006. Thus, for three years thereafter the petitioner did not take any effective steps to have an apartment formed in accordance with scheme of the Apartment Act. Petitioner’s first steps in that direction are only after majority of flat takers moved respondent No. 2 for registration of society. Developments show that petitioner could procure the minimum number of five flat takers to constitute apartment only in April, 2012 and hence, on the date of registration of co-operative society, no apartment could have been formed. Out of these 5 flat takers, two flat takers have become members of respondent No. 1-co-operative housing society, thus, they have given up their membership or claim to have apartment and have refused to subject themselves to the Apartment Act.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 - Rule 8 - Registration of Co-operative Housing Society.

       Statutory period of limitation of 4 months for registration of Society, shall be computed from date on which possession of flats is handed over to flats purchasers.