2016 Supreme(Bom) 1844

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, J.
M/s. Chetan Constructions, Aurangabad & another - Petitioners
Versus
The State of Maharashtra and others - Respondents
Writ Petition No. 1845 of 2014, Writ Petition No. 4264 of 2016.
Decided on : 06-10-2016

Headnote:Constitution of India, 1950-Article 226-Maharashtra Co-op. Societies Act, 1960, Section 151- Maharashtra Ownership Flats Act, 1961, Sections 10 and 11(4)-Writ petition.-Writ petition cannot be dismissed on ground of availability of alternate remedy.

       There is dispute raised by the owner under the provisions of Apartment Act, 1970 that due to declaration executed by him only the association of apartment owners can be formed and co- operative housing society cannot be formed. When such point is involved it can be said that the rights of the parties under contract also need to be ascertained.

       One authority created under the Maharashtra Cooperative Societies Act, 1960 is expected to work as competent authority under the Act of 1963 and the Registrar of Cooperative Societies is expected to act as competent authority under the Apartment Act, 1970. Before giving of the decision by the competent authority under the Act of 1963, even the registration of the association of apartment owners was done by the owner by using some unit owners. So in such circumstances writ petition can be entertained. So petition cannot be dismissed by holding that the decision of registration of cooperative housing society ought to have been challenged by filing appropriate proceeding like revision as provided under the Maharashtra Co-operative Societies Act, 1960. In respect of other order of deemed conveyance of the property it can be said that only after the registration of the association the conveyance is possible and so that present petitions are tenable.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 10(1), (2) and 11(4)-Maharashtra Apartment Ownerships Act, Section 2, 11(1) and 16(2)-Registration of Cooperative Housing Society.-Failure of owner of flats to comply with provisions of Section 11(1) of Act, renders registration of Coop. Housing Society valid.

       It is laid down that whether the petition needs to be entertained or not needs to be decided on the facts and circumstances of that case. There cannot be dispute over this proposition. In the present matter it can be said that there is a dispute raised by the owner under the provisions of Apartment Act, 1970 that due to declaration executed by him only the association of apartment owners can be formed and co-operative housing society cannot be formed. The provision of Section 10(1) of the Act of 1963 imposes liability on the promoter to go for registration of co-operative housing society or Company under the provisions of the Act of 1963 but when declaration is executed as required under the provisions of the Apartment Act, 1970, the competent authority cannot allow the registration of the association as co-operative housing society.

       When such point is involved it can be said that the rights of the parties under contract also need to be ascertained. One authority created under the Maharashtra Cooperative Societies Act, 1960 is expected to work as competent authority under the Act of 1963 and the Registrar of Cooperative Societies is expected to act as competent authority under the Apartment Act, 1970. Before giving of the decision by the competent authority under the Act of 1963, even the registration of the association of apartment owners was done by the owner by using some unit owners. In such circumstances, it can be said that the Apartment Act, 1970 is not a scheme complete in itself. So in such circumstances theCourt holds that writ petition can be entertained. So, the Court holds that petition cannot be dismissed by holding that the decision of registration of cooperative housing society ought to have been challenged by filing appropriate proceeding like revision as provided under the Maharashtra Co-operative Societies Act, 1960. In respect of other order of deemed conveyance of the property it can be said that only after the registration of the association the conveyance is possible and so theCourt holds that present petitions are tenable. In view of the aforesaid discussion, the Court holds that no interference is possible in the orders made by the competent authority. In the result, both the petitions stand dismissed.