Valid agreements under the Maharashtra Ownership Flats Act entitle purchasers to society membership, and a pending civil suit does not bar membership conferment absent a restraining order.

JUDGMENT :

AMIT BORKAR, J.

1. The petitioners have filed this writ petition under Article 226 of the Constitution of India. They challenge the judgment and order dated 25 November 2024 passed by respondent No.3 in Revision Application No.409 of 2024. By the said order, respondent No.3 set aside the order dated 18 August 2022 passed by respondent No.4 under Section 22 (2) of the Maharashtra Co-operative Societies Act, 1960, by which deemed membership was granted to petitioner No.1 in respect of Unit No.601. Respondent No.3 also set aside the consequential order dated 24 April 2024 passed under Section 79 (b) of the said Act appointing an authorized officer for respondent No.6 Society.

2. The relevant facts giving rise to the present petition are as follows. On 16 September 2013, petitioner No.1 obtained a registered agreement for sale executed by respondent Nos.1 and 2. On 5 March 2014, a Rectification Deed came to be executed, correcting the name of petitioner No.1 by substituting it with petitioner No.2 in his individual capacity.

3. In the year 2016, respondent Nos.1 and 2 instituted S.C. Suit No.2225 of 2016 before the City Civil Court at Dindoshi. They sought enforcement of the terms and conditions of the agreement for sale dated 16 September 2013 and also sought an injunction restraining the petitioners from creating third party rights.

4. On 29 November 2021, petitioner No.2 applied for membership of respondent No.6 Society. The Society did not communicate any reasons despite receipt of the application. Petitioner No.2 thereafter moved an application before respondent No.3 under Section 22 (2) of the Maharashtra Co-operative Societies Act. Respondent No.3, after verifying the relevant record, by order dated 18 August 2022, granted deemed membership to petitioner No.1 under (2). Respondent No.6 did not take steps to give effect to the said order. Consequently, respondent No.4 appointed an authorized officer under Section 79 (2)(b) to implement the order conferring deemed membership.

5. Respondent Nos.1 and 2 then filed Revision Application No.409 of 2024 before the Divisional Joint Registrar challenging the conferment of deemed membership. The Divisional Joint Registrar by order dated 25 November 2024 set aside the order dated 18 August 2022. The main reason recorded was that S.C. Suit No.2225 of 2016 filed by respondent Nos.1 and 2 for enforcement of the terms of the agreement for sale is still pending. Aggrieved thereby, the petitioners have approached this Court by way of the present writ petition.

6. Mr. Purohit, learned Senior Advocate for the petitioners, submitted that the execution of the registered agreement for sale dated 16 September 2013 between respondent Nos.1 and 2 as promoters and the petitioners is not in dispute. He pointed out that respondent Nos.1 and 2 themselves have filed a civil suit seeking enforcement of the said agreement. He submitted that the agreement satisfies the requirements of Section 4 of the MAHARASHTRA OWNERSHIP FLATS ACT , 1963 and is in Form No.5 prescribed under the said Act. He submitted that the petitioners are purchasers who have 'taken' a flat within the meaning of MOFA and are entitled to exercise rights available to flat purchasers under MOFA. He further submitted that the position of respondent Nos.1 and 2 can at best be treated as unpaid sellers and their rights are limited to those under Section 55 of the Transfer of Property Act, 188