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2018 Supreme(Bom) 869

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Kamgar Swa Sadan Co-operative Housing Society Ltd. - Petitioner
Versus
Divisional Joint Registrar, Co-operative Societies, Mumbai Division and Ors. - Respondents
Writ Petition No. 6701 OF 2013
Decided On : 28-06-2018

Advocates Appeared:
For the Petitioner: Mr. Prasad Dhakephalkar, Mr. Vishwajeet Sawant, Mr. Nilesh Modi, Mr. B.N. Jadhav, Rustomji & Ginwala
For the Respondent: Mr. S.H. Kankal, Mr. Sandeep V. Bane, Ms. Akshata Satam, Mr. S.G. Surana, M.S. Surana

Headnote:

Constitution of India, 1950 - Article 227 - Maharashtra Co-operative Societies Act, 1960 - Section 79A - Society is owner of plot of land bearing Cadastral Survey - Redevelopment of building of co-operative society - Petitioner society is owner plot of land bearing Cadastral Survey Division totally admeasuring about -four buildings comprises of shops residential tenements society rooms go down societies office - It is case petitioner that petitioner has members out of which members are active members and four tenants - Construction of building was carried out years ago and condition building is dilapidated and has precarious condition according to petitioner – Held, Perusal of record indicates that Divisional Joint Registrar in impugned order placed reliance on report allegedly provided by enquiry officer Deputy Registrar which was submitted by Deputy Registrar to Deputy District Registrar who had requested learned Divisional Joint Registrar to take action on said report - Divisional Joint Registrar did not furnish any copy said so called report submitted by District Registrar enquiry officer Deputy Registrar before passing impugned order - Impugned order thus passed by Divisional Joint Registrar is also in gross violation of principles of natural justice - No reliance on such report could be placed by Divisional Joint Registrar without furnishing copy thereof to petitioners society and without giving an opportunity to deal with such report - Impugned order passed by Divisional Joint Registrar thus deserves to be set aside on this ground also - In my view impugned order passed by Deputy Registrar is without jurisdiction and even otherwise contrary to provisions Maharashtra Cooperative Societies Act and contrary to principles law laid down by this court in case - Housing Society supra in case - Maya Developers supra and thus warrant interference Article Constitution of India - Petition disposed

JUDGMENT :

By this petition the petitioner has impugned the order dated 14th May, 2013 passed by the learned Divisional Joint Registrar in Revision Application No. 245 of 2013 allowing the revision application filed by the respondent nos. 4 to 13 and set aside the three letters dated 11th April 2011, 21st December 2012 and 17th January 2013 issued by the Assistant Registrar, Co-operative Societies, F/S Ward, Mumbai.

2. By an order dated 22nd October, 2013 passed by this court, this court directed that the writ petition be heard finally at the stage of admission. All the respondents are served. The writ petition is accordingly heard finally at the admission stage. Some of the relevant facts for the purpose of deciding this petition are as under :-

3. The petitioner society is the owner of the plot of the land bearing Cadastral Survey No.2/71 of Parel and Sewree Division, totally admeasuring about 3593.1 sq.mtrs., four buildings comprises of 19 shops, 222 residential tenaments, 3 society rooms, 1 godown and 1 society's office. It is the case of the petitioner that the petitioner has 236 members out of which 219 members are active members and four tenants. The construction of the building was carried out 90 years ago and the condition of the building is dilapidated and has precarious condition according to the petitioner.

4. On 3rd January, 2009, the State Government issued a Government resolution/circular under section 79A of the Maharashtra Co-operative Societies Act, 1960 (for short the said 'MCS Act') and framed various guidelines for the redevelopment of the building of the co-operative society.

5. On 18th October, 2010, the petitioner appointed Project Management Consultant and floated a tender for the proposed demolition of the existing building and for redevelopment of the property of the petitioner. On 12th February, 2011, a Special Extra Ordinary General Body Meeting of the petitioner society was held. It is the case of the petitioner that 169 members out of 219 members were present in the said meeting. The members of the society unanimously agreed and accepted the offer of M/s. Ratnaraj Realty and appointed them as the developers. The respondent nos.4 and 6 to 11 were also present in the said meeting. The respondent no.7 had given consent for the redevelopment. The said meeting was also attended by the Assistant Registrar, Co-operative Societies.

6. On 11th April, 2011, the Assistant Registrar, Co-operative Societies issued a letter to the petitioner instructing the petitioner to proceed with the redevelopment of the project to the petitioner by M/s. Ratnaraj Realty and instructed the petitioner to proceed with execution of the development agreement with the developer.

7. In the meanwhile, the Municipal Corporation of Greater Mumbai issued a notice on 1st August, 2011 under section 354 of the Mumbai Municipal Corporation Act calling upon the members of the petitioner to vacate the building on the ground that the buildings were in a dangerous condition.

8. By a notification dated 31st October, 2011 issued by the Government of Maharashtra under section 37(2) of the Maharashtra Regional and Town Planning Act, 1966, Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991 was modified to extend the provisions of the Regulation 33(7) to non-cessed buildings. As a result of the said notification, the benefits available under its Appendix – IIIA became available to the petitioner in case, the development was made under the provisions of Regulation 33(9) of D.C. Regulations, if applicable. The petitioner also could avail of the benefits of the Regulation 33(24) of the D.C. Regulations. The petitioner also became entitled to the benefit of fungible FSI under circular dated 6th January, 2012 in the redevelopment project proposed by the petitioner.

9. On 17th June, 2012, the petitioner held Extra Ordinary General Meeting which was also attended by the Project Management Consultant and also the legal adviser of the






































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