An appeal under Section 152 of the Maharashtra Cooperative Societies Act is maintainable against an order of registration made under Section 9, as the registration process is governed by the MCS Act.

JUDGMENT :

(Avinash G. Gharote, J.)

1. Heard learned Advocate Mr. Kanade for the Petitioner, learned AGP for the Respondent Nos. 1 to 3 and learned Counsel Mr. D.S. Mhaispurkar, for the Respondent Nos. 4 & 5.

2. The Petitions question the Order dated 10.03.2022 (page 36) passed by the Divisional Joint Registrar, Cooperative Societies, Konkan Division, holding that the order of the Respondent No. 3/District Deputy Registrar ("DDR") dated 16.9.2021 directing registration of the society, was not assailable in an Appeal under Section 152 of Maharashtra Cooperative Societies Act 1960 ("MCS Act") on the ground that the original direction to register the society was passed by the Competent Authority under the first proviso to Section 10(1) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ("MOFA").

3. The learned Advocate for the Petitioner contends that once a society was registered in exercise of power under Section 9 of the MCS Act by the DDR, the affairs of such society would be governed by the MCS and not by MOFA, in light of which an Appeal under Section 152 challenging the registration would be maintainable.

4. Learned Advocate Mr. Mhaispurkar for Respondent Nos. 4 and 5 as well as learned AGP for Respondent Nos. 1 to 3 in support of the impugned order contend that the same would amount to a challenge to the order of the Competent Authority under the first proviso to Section 10(1) of the MOFA on account of which only Writ Petitions would be maintainable.

5. Section 10(1) and first proviso to the same of MOFA, which are material are reproduced as under:

"10. Promoter to take steps for formation of co-operative society or company

(1) As soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co- operative society or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act."

Provided that, if the promoter fail within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960, the Competent Authority may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society:

Provided further that, no such direction to register any society under the preceding proviso shall be given to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar, by the Competent Authority without first verifying authenticity of the applicants' request and giving the concerned promoter a reasonable opportunity of being heard."

Section 10(1) of MOFA indicates that the obligation to form and register a Society/Company of the flat purchasers is that of the promoter, which is to be done as soon as the minimum numbers of persons required to form it have taken flats, which is to be done within the prescribed period of four months from the date on which the minimum number of persons required to form such organization have taken flats as per Rule 8 of the Maharashtra Ownership Flats (Regulation of The Promotion of Construction, Sale, Management And Transfer) Rules 1964.

A reading of the first proviso to Section 10(1), above would indicate that if the promoter fails within the prescribed period to submit an application to the Registrar as defined under Section 2(d) of MOFA for registration of the society, in t