Housing societies cannot admit members for non-existent refuge area spaces sold as flats by divested developer, as it violates membership limits; distinguishes from unauthorized construction disputes.

JUDGMENT :

FIRDOSH P. POONIWALLA, J.

1. RULE. Rule made returnable forthwith and heard finally with the consent of the parties.

2. The present Writ Petition is filed seeking the following final reliefs:-

“(a) That this Hon'ble Court be pleased to call for the records of the proceedings conducted before Respondent no.1 in Revision Application Nos.44/2021, 45/2021,46/2021, 47/2021 and 48/2021, and after examining the legality and propriety of the same, be pleased to set aside and quash the order dated 22.07.2022, being Exhibit K hereto directing the Petitioners to admit Respondent no.3 & 4 as members of the Petitioner Societies on the basis of the purported 5 registered agreements for sale dated 30.04.2019 purportedly executed by Respondent no.7 in respect of nonexistent flats in favor of Respondent no.3 & 4 by issuing a by a Writ of Certiorari, or a Writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, and to restore the Order dated 19.10.2020 passed by Respondent no.2.

(b) That this Hon'ble Court be pleased to further call for the records of the proceedings before Respondent no.2 in Execution Application No. 1854 of 2022 and after examining the legality and propriety of the same be pleased to set aside and quash the order dated 19.10.2022 being Exhibit L1 hereto purporting to appoint an Authorized Officer for executing the order dated 22.07.2022 of the Respondent no.1 by issuing a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India.”

FACTS

3. The case of the Petitioners in the Writ Petition is as follows:-

(a) The Petitioners are Registered Co-operative Housing Societies. Respondent Nos.1 and 2 are the statutory authorities under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the MCS Act”). Respondent Nos. 3 and 4 are private persons who claim to have purchased on 30^th April, 2019 five flats by means of purported registered Agreements for Sale entered into with Respondent No.7. Respondent No.5 is the State of Maharashtra. Respondent No.6 is the MCGM. Respondent No.7 is the Developer who has entered into the abovementioned illegal Agreements for Sale in respect of the vacant spaces in the refuge areas of the building, falsely representing the same as constructed residential flats, to Respondent Nos.3 and 4, without the knowledge of the Petitioner Societies.

(b) Petitioner No.1 is managing and administering Wings A to D. Petitioner No.2 is managing and administering Wings I to L. Petitioner No.3 is managing and administering Wing P and Petitioner No.4 is managing and administering Wing O of one residential building complex known as Dreams.

(c) Respondent No.6, being the Planning and Sanctioning Authority, had issued Full Occupancy Certificate on 5^th September, 2009 in respect of the building Dreams consisting of 16 wings, out of which 10 wings are under the management and control of the present Petitioners. The Plan annexed with the said Occupancy Certificate shows as many as five flats in vacant spaces where there is no construction whatsoever. T