Shiv/Sangar

1/24 W.P.6258-2019.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.6258 OF 2019

Rusabh Shah

an adult Indian Inhabitant, in his capacity

as the Chief Promotor of New Pushpanjali

Co-operative Housing Society (Proposed),

Having his address at :- Flat No. 701,

Pushpanjali Apartments, Old Prabhadevi Road,

Prabhadevi, Mumbai – 400 025.

... Petitioner

V/s.

1.

Avarsekar & Sons Private Limited

a Company incorporated under the

provisions of the Companies Act, 1956,

Having its registered office at 1252,

Pushpanjali Apartments, 1^st Floor,

Old Prabhadevi Road, Prabhadevi,

Mumbai – 400 025.

2.

District Deputy Registrar

Co-operative Societies, Mumbai (1)

City,

G/S-ward, Malhotra House, 6^th Floor,

Fort, Mumbai – 400 001.

… Respondents

Mr. Sharan Jagtiani with Mr. Nishant Sasidharan i/b. Ms. Trupti

Shetty, Advocate for the Petitioner.

Mr. Sanjiv Punalekar i/b. Mr. Sachin Kanse, Advocates for the

Respondent No.1.

Mr. S. D. Rayrikar - AGP for the Respondent No.2 - State.

CORAM : S. M. MODAK, J.

RESERVED ON : 18TH NOVEMBER 2022

PRONOUNCED ON : 23RD DECEMBER 2022

SATISH

RAMCHANDRA

SANGAR

Digitally signed

by SATISH

RAMCHANDRA

SANGAR

Date:

2022.12.23

17:40:16

+0530

Shiv/Sangar

2/24 W.P.6258-2019.odt

JUDGMENT :

1.

There was a dispute in between proposed society headed by the

Petitioner as Chief Promoter on one hand and the Developer /

Promoter – Respondent No.1 on the point of formation of new entity.

According to Petitioner, it should be co-operative housing society,

whereas, according to Respondent No.1, already the declaration is

submitted as per the provisions of the Maharashtra Apartment

Ownership Act, 1970 (Maharashtra Act No.XV of 1971) [“MAO Act

1970”]. There is one more facet to this dispute. The ‘Declaration’ as

contemplated under the provisions of Section 2 of MAO Act 1970 was

registered but not by Respondent No.1 but by one Mr.M.V.Prajith.

2.

This dispute first arose before the ‘Competent Authority’

constituted under Section 5A of the Maharashtra Ownership Flats

(Regulation of the Promotion of Construction, Sale, Management and

Transfer) Act, 1963 (Act No. XLV of 1963) [“MOFA, 1963”]. This was

when the proposal moved by the Petitioner for registration of co-

operative housing society was under consideration and the

Respondent No.1 took objection under the provision of Section 10(2)

of the MOFA Act, 1963. Ultimately, the Competent Authority rejected

the proposal vide order dated 30

^th June, 2018. It is challenged by way

of this Writ Petition.

3.

Heard learned Advocate Mr.Sharan Jagtiani, for the Petitioner,

learned Advocate Mr.Sanjiv Punalekar for Respondent No.1 and

learned AGP Mr. S.D.Rayrikar for the Respondent No.2 - State.

Shiv/Sangar

3/24 W.P.6258-2019.odt

4.

Rule. Rule made returnable forthwith. Learned counsel for the

Respondent waives service. By consent of the parties matter is heard

finally.

5.

Petitioners relied upon contingency of formation of society on

non-cooperation basis as per the provisions of first proviso to Section

10(1) of MOFA, 1963. Whereas, the Respondent No.1 relies upon the

provisions of Section 10(2) of the said Act. So, the issue is :

“Whether the Competent Authority was justified in

rejecting the proposal vide impugned order ?”

6.

Both the learned Advocates elaborated various facets of the

provisions of the MOFA, 1963, MAO Act 1970 and the Maharashtra

Co-operative Societies Act, 1960 (Maharashtra Act No.XXIV of 1961)

[MCS Act, 1960] and Rules made thereunder.

7.

There is conflict in between rights of prospective purchaser to

form co-operative housing society on one hand and right of

Respondent No.1 to submit the property to the provisions of MAO Act

1970. So, we have to decide :

(a)

Which right prevails,

(b)

What is the scope of inquiry by Competent Authority ;

(c)

Whether he can ascertain