Bombay High Court
Shreerang Complex Co-Op. Hsg. ... vs The State Of Maharashtra And Ors on 15 November, 2016
Bench: R.M. Savant
(36)-WP-967-16.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.967 OF 2016
Shreerang Complex Co-op. Hsg. Society's ]
Co-Op. Association Ltd., ]
Thane, Through it's President, Steering Committee ]
Shreerang Shopping Center, Above UCO Bank, ]
Shreerang Compound Thane (E) 400 601 ]..Petitioner
Versus
1) The State of Maharashtra, ]
Government of Maharashtra,
Through the Minister for Revenue, ]
]
First Floor, Mantralaya, Mumbai-400 032. ]
2) Divisional Commissioner, (Revenue) ]
Konkan Bhavan, Mumbai. ]
3) Deputy Collector, (Appeal) ]
Thane District, Thane. ]
4) The Sub-Divisional Officer, ]
Thane Division, 2nd Floor, ]
Collector Office, Thane (W)-400 601. ]
5) Shreerang Unit No.1,4,5,6,9,11 to 16, ]
24 & 25, Cooperative Housing Society Ltd., ]
Thane ]
Through: Shashikant Atmaram Parab, ]
Member, Shreerang Unit No.12, ]
Cooperative Housing Society Ltd., Thane ]
R/at: CD 101-D8, Shreerang Complex, Thane. ]
6) Vishnu Dadarao Khodvekar ]
Shreerang Unit No.15 CHS Ltd., ]
CD-114/C-207, Shreerang Society, ]
Thane (W)-400 601. ]
7) Shamkant Shridhar Desai, ]
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Shreerang Unit No.2 CHS Ltd., ]
Shop No.14, Shreerang Shopping Centre, ]
Shreerang Society, Thane (W)-400 601. ]
8) Arti Ajit Shingare, ]
Shreerang Unit No.3 CHS Ltd., ]
C/o. Vikas Complex, B-3/801, ]
Thane (W)-400 601. ]
9) Shreyas Nilkanth Khanvilkar, ]
Shreerang Unit No.8 CHS Ltd., ]
C-1-56/5, Shreerang Society, ]
Thane (W)-400 601. ]
10) Dhananjay Madhav Kulkarni
Shreerang Unit No.10 CHS Ltd.,
]
]
C-1-61/04, Shreerang Society, ]
Thane (W)-400 601. ]
11) Raghunath Atmaram Parab ]
Shreerang Unit No.18 CHS Ltd., ]
E-82/13, Shreerang Society, ]
Thane (W)-400 601. ]
12) Satishchandra Yeshwant Sawant ]
Shreerang Unit No.23 CHS Ltd., ]
E-123/6, Shreerang Society, ]
Thane (W)-400 601. ]..Respondents
Mr. Pralhad Paranjpe i/by Mr. N. N. Pawar for the Petitioner.
Mr. S. D. Rayrikar, AGP for the Respondent Nos.1 to 4.
Mrs. Neeta Karnik for the Respondent Nos.5 to 12.
CORAM : R. M. SAVANT, J.
DATE : 15th NOVEMBER, 2016
ORAL JUDGMENT
1 Rule. Having regard to the nature of the challenge raised
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made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 29.12.2015
passed by the Hon'ble Minister for Revenue, Government of Maharashtra,
by which order, the Revision Application filed by the Respondent No.5
herein came to be allowed and resultantly, the order dated 19.12.2014
passed by the Additional Commissioner, Konkan Division in Revision
No.578 of 2012 as also the order dated 28.09.2010 passed by the
Additional Collector (Appeals) Thane came to be set aside and
consequently the rights of the Respondent No.5 herein came to be
confirmed.
3 It is not necessary to burden this order with unnecessary
details having regard to the nature of the final directions to be issued.
The genesis of the instant proceedings lie in the bifurcation
of the original housing society known as the Shreerang Co-operative
Housing Society Ltd. The said society has been bifurcated into 25 unit
societies. Each unit society is comprised of the residents of 3 to 4
buildings approximately. It seems that the order bifurcating the societies
passed by the concerned Registrar of Co-operative Societies is a subject
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matter of challenge by way of a Writ Petition before a Division Bench of
this Court which Writ Petition is of the year 1998. However in the context
of the present Petition, it is required to be noted that the said bifurcation
order has not been stayed, but it seems that the Division Bench has
passed an order whereby a machinery has been provided for carrying out
redevelopment of the society in so far as Phase-II of the redevelopment is
concerned. However this Court is not concerned with the said aspect in
the present Petition. It seems that after the bifurcation order came to be
passed, the Deputy Registrar, Co-operative Societies, Thane City,
addressed a communication dated 07.06.2006 to the Tahsildar, Thane
informing the Tahsildar of the bifurcation of the original Shreerang Co-
operative Housing Society Ltd. It seems that thereafter further
communication dated 31.01.2009 was addressed by the Sub-Divisional
Officer, Thane to the Tahsildar, Thane drawing his attention to the
bifurcation of the erstwhile Shreerang Co-operative Housing Society Ltd.
and that steps were required to be taken to enter the land standing in the
name of the Shreerang Co-operative Housing Society, in the names of the
said unit societies. The land on which the buildings of the original society
are situated are in three villages namely, Thane, Majiwada and
Pachpakhadi. It appears that pursuant to the said communication, the
land on which the buildings of the original Shreerang Co-operative
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Housing Society Ltd. were situated were entered in the name of the
respective unit societies. This resulted in the Petitioner herein filing an
Appeal before the Additional Collector against the entries made in the
name of the said unit societies i.e. Respondent Nos.5 to 12 herein. The
said Appeal filed by the Petitioner came to be allowed and resultantly the
entries made in favour of the Respondent Nos.5 to 12 i.e. unit societies
came to be set aside. The said order passed by the Additional Collector
was carried by way of a Revision before the Additional Commissioner,
Konkan Division by the Petitioner herein. The said Revision came to be
dismissed by the Additional Commissioner, Konkan Division by order
dated 19.12.2014. This resulted in the Respondent Nos.5 herein filing a
second Revision before the State Government impugning the said order
dated 19.12.2014 passed by the Additional Commissioner, which is the
instant Revision Application.
4 In so far as the instant Revision Application is concerned, the
Petitioner herein was joined as a Respondent No.2 in its capacity of being
a proposed society. This description of the Petitioner was flowing out of
the proceedings which were filed before the lower authorities i.e. the
Additional Collector and the Additional Commissioner, Konkan Division.
In so far as the present Revision is concerned, it appears that the same
was moved on 13.08.2015 of which no notice apparently seems to have
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been given to the Petitioner herein. Pursuant to the hearing which took
place on 13.08.2015, a notice dated 24.08.2015 came to be issued to the
Petitioner informing the Petitioner that hearing had taken place on
13.08.2015 and as per the directions of the Revisionary Authority i.e. the
Hon'ble Minister for Revenue, the Petitioner was directed to file its reply
within 15 days. However, significantly no next date of hearing was
mentioned in the said notice dated 24.08.2015. In response to the said
notice dated 24.08.2015 the Petitioner vide his reply dated 25.08.2015
informed the Revisionary Authority that a copy of the Revision
Application has not been furnished to the Petitioner as also that the
Petitioner would require eight weeks time to file a reply to the said
Revision. A reading of the impugned order discloses that the Revision was
taken up for hearing on 29.12.2015 and the Revisionary Authority has
allowed the Revision and resultantly, set aside the order dated
13.08.2015 as also the order dated 28.09.2010 passed by the Additional
Collector and restored the position in so far as the mutation entries are
concerned in the name of the Respondent Nos.5 to 12. As indicated
above, it is the said order dated 29.12.2015 passed by the Revisionary
Authority which is taken exception to by way of the above Petition.
5 Heard the Learned Counsel for the parties.
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6 The principal contention urged by the Learned Counsel Mr.
Pralhad Paranjpe is that the said order dated 29.12.2015 has been passed
by the Revisionary Authority without affording a proper opportunity to
the Petitioner. In support of the said contention the Learned Counsel
seeks to draw this Court's attention to the notice dated 24.08.2015
wherein the next date has not been mentioned as also the fact that vide
its reply dated 25.08.2015 the Petitioner had communicated to the office
of the Revisionary Authority that the Revision Application has not been
furnished to the Petitioner and that the Petitioner requires eight weeks
time to file a reply. The Learned Counsel would also submit that the
Revisionary Authority has erred in proceeding with the Revision after
taking cognizance of the said letter dated 25.08.2015 in as much as the
contents of the said letter have been referred to in the impugned order.
7 Per contra, the Learned Counsel Mrs. Neeta Karnik appearing
for the Respondent Nos.5 to 12 supports the impugned order dated
29.12.2015. It was the submission of the Learned Counsel that the
Petitioner has himself to blame as the Petitioner had made himself scarce
by locking the office premises of the erstwhile society and therefore no
notice could be served upon the Petitioner. The Learned Counsel also
sought to question the locus of the Petitioner to file the above Writ
Petition as it is a "proposed" co-operative society. It was also the
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submission of the Learned Counsel Mrs. Neeta Karnik that the entries in
the revenue record have been made in March 2016 i.e. much prior to any
order passed in the above Writ Petition. It was also the submission of Mrs.
Neeta Karnik that in so far as the order of bifurcation is concerned, the
said order stands and has not been interfered with by this Court since the
year 1998.
8 Having heard the Learned Counsel for the parties, I have
considered the rival contentions. At the outset, it would be necessary to
deal with the contention of the Learned Counsel for the Respondent
Nos.5 to 12 as regards the locus-standi of the Petitioner. As indicated
hereinabove the Petitioner was served before the Revisionary Authority as
a proposed society. The present status of the Petitioner is on account of
the order of bifurcation in my view therefore the Petitioner as a proposed
society is entitled to maintain the above Writ Petition. As indicated above,
the principal contention of the Learned Counsel for the Petitioner is that
the impugned order has been passed without affording a proper
opportunity to the Petitioner. In the said context the fact that the notice
dated 24.08.2015 does not mention the next date of hearing has to be
borne in mind. The fact that by letter dated 25.08.2015 the Petitioner
had communicated to the office of the Revisionary Authority that the
Revision Application was not served upon the Petitioner and that the
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Petitioner requires eight weeks time also cannot be lost sight of. However
the basic lacuna in the notice if one can say so is that the next date of
hearing was not mentioned in the said notice. Hence in so far as the non-
appearance of the Petitioner on 29.12.2015 or on the date when the
hearing had actually taken place before the Revisionary Authority is
concerned, the Petitioner cannot be blamed for the same. It is well settled
that an order passed in breach of the principles of natural justice stands
vitiated on the said ground. The impugned order is therefore not
sustainable and is required to be set aside and the matter is required to
be remanded back to the Revisionary Authority.
However the question in the instant case is whether the
status-quo ante is required to be restored. In the said context, it is
required to be noted that the order bifurcating the original Shreerang Co-
operative Housing Society Ltd. into 25 unit societies has not been stayed.
Hence the said bifurcation order is in operation. The said bifurcation
order has been passed as long back in the year 1998 and that by the
communications addressed in the year 2006 and 2009 to the Revenue
Authorities were directed to take steps so as to give effect to the
bifurcation order in the revenue record. This has been done in March
2016 i.e. before any orders could be passed in the above Petition. Effect
of the bifurcation order is that there are now 25 separate unit societies
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who would be entitled to the Conveyance of the land beneath the
societies and the land appurtenant thereto in terms of the development
control regulations applicable. Hence the bifurcation of the said original
Shreerang Co-operative Housing Society Ltd. assumes importance in the
context of the arrangement which is required to be made pending the
hearing of the Revision Application on remand.
9 In view of the fact that the entries have been effected in
March 2016 and thereby effect has been given to the bifurcation order,
the status-quo ante cannot be restored. Hence even though this Court
finds that the order dated 29.12.2015 has been passed without a proper
opportunity being afforded to the Petitioner, this Court does not deem it
appropriate to set aside the mutation entries which are effected in favour
of the Respondent Nos.5 to 12 i.e. the 25 unit societies. Hence though the
impugned order dated 29.12.2015 is set aside and the matter is
remanded back to the Revisionary Authority for a de-novo consideration
of the Revision Application the entries in favour of the Respondent Nos.5
to 12 are maintained. Needless to state that they would be subject to the
outcome of the Revision Application on remand. Though various
contentions were sought to be urged on behalf of the parties by the
respective Counsel, it is not necessary for this Court to delve into the said
aspects as it is before the Revisionary Authority that the parties would be
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entitled to urge their contentions and it is for the Revisionary Authority to
consider the said contentions. The impugned order dated 29.12.2015 is
accordingly quashed and set aside and the matter is remanded back to
the Revisionary Authority for a de-novo consideration of the Revision
Application.
10 The Learned Counsel Mrs. Neeta Karnik appearing for the
Respondent Nos.5 to 12 states that a copy of the Revision Application
would be handed over to the Advocate on record for the Petitioner within
one week from date. Statement accepted. On remand, the matter would
come up before the Revisionary Authority i.e. the Respondent No.1 on
29.11.2016. The Petitioner to file its reply on or before 19.12.2016 before
the Revisionary Authority. The Learned Counsel for the Respondent Nos.5
to 12 states that the cause title of the Revision Application would be
amended so as to join the Respondent Nos.6 to12 and societies similarly
situated as Respondent Nos.6 to 12. The same to be done on or before
19.12.2016. The Learned Counsel for the Petitioner on instructions states
that he has no objection to the same.
11 Needless to state that the contentions of the parties are kept
open for being urged before the Revisionary Authority. The Revisionary
Authority on remand to hear and decide the Revision Application on its
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own merits and latest by 31.03.2017. The fact that the mutation entries
are maintained would not be construed as any expression of opinion of
this Court on merits. The Writ Petition is allowed to the aforesaid extent.
Rule is accordingly made absolute, with parties to bear their respective
costs.
[R.M.SAVANT, J]
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