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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AMIT BORKAR
Rachana Developers – Appellant
Versus
State of Maharashtra – Respondent
What is the effect of open-ended promoter discretion in MOFA Act Section 4(1A)(v) on the requirement to disclose the exact nature of the organization?
What is the proper statutory standard for forming a cooperative society versus condominium under MOFA and MAO when a declaration under MAO is involved?
What are the consequences of a declaration under MAO not being signed by all flat purchasers for the validity of registration under MOFA?
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JUDGMENT:
AMIT BORKAR, J.
1. By this writ petition under Article 227 of the Constitution of India, the petitioners call in question the order passed by Respondent No.1. By the said order, the revision application filed by the petitioners came to be dismissed. The revisional authority thereby confirmed the order registering Respondent No.4 as a cooperative housing society under Section 9 of the Maharashtra Cooperative Societies Act, 1960.
2. The facts leading to the present petition are not in dispute. By a development agreement dated 2 December 2000, the owners of the property granted development rights to the petitioners. The property bears CTS No. 322 and 322 by 1 to 10. It is situated at Shantilal Mody Road, off Village Malad, Kandivali West, Mumbai. On or about 24 March 2003, the petitioners executed several agreements for sale in favour of Respondent Nos.5 to 46. Under these agreements, the petitioners reserved to themselves the discretion to form either a condominium or a cooperative housing society in respect of the said property.
3. According to the petitioners, on 18 December 2004, the petitioners along with all the owners executed a declaration as contemplated under Section
Promoters must disclose the precise nature of the organization (cooperative society or otherwise) in agreements, and unilateral declarations that lack collective consent do not comply with statutory ....
The court affirmed that a promoter must be included as a member for cooperative society registration under the MOFA Act, ensuring compliance with statutory requirements.
The court affirmed that flat purchasers have the statutory right to form a co-operative society independent of any existing company, as mandated by the MOFA Act.
The statutory rights of flat purchasers to form a co-operative society under the MOFA Act cannot be overridden by contractual obligations to join a defunct entity.
The court emphasized that registration of a Cooperative Housing Society without following proper jurisdictional authority and principles of natural justice is void ab initio.
The absence of an occupation certificate does not prevent a Co-operative Housing Society from obtaining deemed conveyance, as the promoter's failure cannot disadvantage flat purchasers.
The court affirmed that deemed conveyance under MOFA can apply to composite societies, despite differing member agreements, emphasizing equitable treatment and the necessity of proper procedural comp....
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