45-wp-963-2020.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.963 OF 2020
Apoorvi Co-operative Housing Society
Ltd. Through Chairman Atul M.
NIKITA
Daundkar … Petitioner
KAILAS
DARADE
V/s.
Digitally signed by
NIKITA KAILAS
DARADE
Yashashri Construction Through
Date: 2024.01.31
19:12:27 +0530
Director Viraj V. Lomte and Ors. … Respondents
Mr. Rameshwar N. Gite, a/w Mr. Rohit D. Gorade for
the Petitioner.
Mr. Mahesh R. Joshi for Respondent No.1
Mr. Sanjay D. Rayrikar, AGP for the State-Respondent
Nos. 4 and 5.
CORAM :AMIT BORKAR, J.
DATED :JANUARY 31, 2024
P.C.:
1. The petitioner is challenging order passed by the Competent
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Authority dated 10 October 2019, rejecting petitioner’s
application for registration of Society in furtherance of agreement
under Section 4 executed by promoter in favour of purchasers.
2. The Competent Authority refused to pass direction for
deemed conveyance on the ground that eight purchasers out of 33
have registered deed of apartment in relation to land in question
and, therefore, registration of conveyance in favour of society is
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barred under Section 10(2) Maharashtra Ownership of Flats Act,
1963.
3. It is not in dispute that in an agreement entered into under
Section 4 of the said Act, purchasers are given option to register
either the society or submit such project to the provisions of the
Maharashtra Apartment Ownership Act, 1970. In such situation,
the decision as regards to the submission of such Society either
under the provisions of Cooperative Societies Act, 1960 or the
Maharashtra Apartment Ownership Act, 1970 needs to be taken by
the majority of purchasers. The material on record, indicates that
only 8 persons out of 33 claimed to have supported promoter’s
decision to submit project under the provisions of Maharashtra
Apartment Ownership Act, 1970.
4. The law in this regard is no longer res integra in view of the
judgment of this Court in the case of Rahul Enterprises Vs.
Abhineha Park Sahakari Gruha Rachana Samstha
Maryadit and Ors. reported in 2013 (2) Mh. L.J. 463. This
Court held that if flat purchasers have not decided to form an
apartment, in absence of such decision, promoter could not have
decided to submit the project under the provisions of the
Maharashtra Apartment Ownership Act, 1970.
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5. On perusal of the order dated 25 March 2014, it appears
that the purchasers have registered cooperative society under the
provisions of Maharashtra Cooperative Societies Act, 1960.
6. The scheme of the Act indicates that in furtherance of the
agreement entered into between the promoter and the purchasers,
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if the choice is with the purchasers, it is purchasers’ right to decide
either to register deed or declaration or apply for deemed
conveyance under the provisions of Maharashtra Ownership of
Flats (Regulation of the Promotion, Construction, Sale,
Management and Transfer) Act, 1963 (MOFA Act). Such right in
absence of support from majority of members could not have been
exercised by the promoter.
7. During the pendency of the present petition, the petitioner
society has submitted affidavits of 29 members out of 33 which
have stated that they are interested in registration of deemed
conveyance under the provisions of MOFA Act.
8. Affidavits are taken on record and marked as “X” for
identification collectively.
9. In view of the fact that the deed of declaration was
submitted by the promoter unilaterally without getting majority of
the purchasers include with the fact that 29 members out of 33
desired to have deemed conveyance under Section 11(3) of the
MOFA Act, the submission of project unilaterially under the
Maharashtra Apartment Ownership Act, 1970 deserves to be set
aside. It is pertinent to note that promoter has not placed on
record, an intimation as contemplated under Section 10(2) of the
MOFA Act to the Registrar defined under the Maharashtra
Cooperative Societies Act, 1960.
10. The Competent Authority, therefore, directed to pass a
formal order of deemed conveyance in view of the petitioner
society and to issue certificate as required under the provisions of
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Section 11 of the MOFA Act. The Sub-registrar shall thereafter
register the conveyance under Section 11(5) of the said Act.
11. The Competent Authority shall pass appropriate order within
four week from today.
12. The writ petition stands disposed of in above terms.
(AMIT BORKAR, J.)
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