Bombay High Court
Krupa Zubin And Anr vs District Dy Registrar Co Op. Soc. And Ors on 1 April, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:15175
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.772 OF 2025
VAIBHAV
RAMESH
JADHAV
Digitally signed by
VAIBHAV RAMESH
JADHAV
Date: 2025.04.02
Krupa Zubin & Anr. ... Petitioners
18:59:15 +0530
V/s.
District Dy. Registrar, Cooperative
Societies & Ors. ... Respondents
Mr. Sean Wassoodew with Mr. Rupesh Mandhare and
Ms. Ashna Shah for the petitioners.
Ms. M. S. Bane, AGP for the State-respondent No.1.
Mr. Paritosh Jaiswal with Mr. Rubil Vakil, Mr. Sahil
Gandhi, Ms. Dimple Vora and Ms. Riddhi Shah i/by
Markand Gandhi & Co., for respondent No.3.
CORAM : AMIT BORKAR, J.
DATED : APRIL 1, 2025
ORAL JUDGMENT:
1. By the present Writ Petition, invoked under Article 226 and
Article 227 of the Constitution of India, the Petitioners, who are
purchasers of premises in a building constructed and developed
under the provisions of the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale, Management
and Transfer) Act, 1963 (for short, "MOFA Act"), have assailed the
legality and validity of the order passed by the Competent
Authority under Section 11 of the said Act, whereby a competent
authority has directed confirmation of deemed conveyance on
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respondent No.3-Society.
2. The facts giving rise to the present writ petition, as set out by
the petitioners, are briefly enumerated herein below for the sake of
clarity and completeness:
3. It is the case of the petitioners that respondent No.3-
Company became the owner of the immovable property bearing
C.T.S. Nos. 15, 16 and 16(1), admeasuring in aggregate 780.60
square metres, situated at Sion-Trombay Road, within the revenue
limits of Village Deonar, Taluka Kurla, Mumbai, together with the
building and superstructures standing thereon. It is submitted that
under the Articles of Agreement dated 1st June 1982, respondent
No.3-Company conferred development rights in respect of the said
property upon M/s. Creative Builders, a proprietary concern
engaged in the business of construction and development
(hereinafter referred to as "the Developer").
4. Pursuant to the said development agreement, the Developer
was authorised and entitled to construct a residential building on
the said land and to enter into agreements for sale of individual
flats with prospective purchasers. It is further the case of the
petitioners that under the terms and conditions of such agreements
executed between the Developer and the flat purchasers, a specific
stipulation was incorporated requiring the purchasers to become
members of respondent No.3-Company. Clause 37 of the said
agreement, in particular, obligated each purchaser to execute and
sign such applications, forms, declarations, papers, and documents
and to do all acts, deeds, and things as may be necessary or
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required for the purpose of acquiring membership of respondent
No.3-Company.
5. It is submitted that on the strength of the said development
agreement, the Developer undertook construction of a building
known as "Meghdoot" on the suit property, and upon allotment
and occupation of the respective flats, the purchasers were
inducted as members of respondent No.3-Company. The
petitioners, in particular, purchased shares along with rights in the
flat from the predecessor-in-title on 29th December 2006 and,
accordingly, claim to be members of respondent No.3-Company by
virtue of such purchase.
6. On or about 5th March 2024, certain flat purchasers
preferred an application bearing No.6 of 2024 before the office of
the District Deputy Registrar, Co-operative Societies, seeking
registration of a co-operative housing society under the relevant
provisions of the Maharashtra Co-operative Societies Act, 1960. By
an order dated 28th March 2024, the said authority, upon
consideration of the application and the documents placed on
record, was pleased to allow the said application and granted
registration to the newly formed society, now arrayed as
respondent No.4 herein.
7. Aggrieved by the said decision of the District Deputy
Registrar, the petitioners preferred a statutory appeal before
respondent No.1, challenging the order of registration of
respondent No.4-Society. However, vide order dated 11th March
2025, the said appeal came to be dismissed, thereby affirming the
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registration of the said society. Being dissatisfied with the
impugned appellate order and the consequential registration of
respondent No.4-Society, the petitioners have invoked the writ
jurisdiction of this Court under Article 226 of the Constitution of
India, seeking appropriate reliefs. This Court by order dated 1
April 2025 dismissed the petitioners' writ petition by holding that
the society's registration under Section 10 of the MOFA is valid.
8. The petitioners, by the present writ petition filed under
Article 226 of the Constitution of India, seek to challenge the
legality and propriety of the impugned order dated 9th December
2024 passed by the competent authority under the MOFA Act
whereby unilateral deemed conveyance of land admeasuring
729.30 square metres has been directed in favour of respondent
No.3-Society. The impugned order is passed under the provisions
of Section 11(3) of MOFA read with Rule 11(5) of the Maharashtra
Ownership Flats Rules, 1964.
9. The principal contention advanced on behalf of the
petitioners pertains to the alleged invalidity of registration of
respondent No.3 as a cooperative housing society. It is contended
that respondent No.3 could not have been registered as a society in
view of certain stipulations in the agreement executed between the
petitioners and the original developer, particularly the clause
requiring the purchasers to become members of the company
which was originally incorporated by the developer. However, it is
pertinent to note that the said issue stood directly raised and
adjudicated in Writ Petition No.4272 of 2025, wherein this Court,
after considering all relevant aspects, including the scope and
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effect of Section 10 of MOFA, held the registration of respondent
No.3 as a cooperative housing society to be valid and lawful. In the
absence of any stay or reversal of the said order in appeal, the said
finding operates as res judicata and binds the parties in the present
proceedings.
10. It is further the case of the petitioners that they are
purchasers of individual units along with other members who
constitute respondent No.3-Society. It was their contention in the
earlier round of litigation, i.e., Writ Petition No.4272 of 2025, that
in view of the agreement executed with the developer, the
purchasers were to become members of the company and
therefore could not have proceeded to form a cooperative housing
society, particularly in view of the bar under Section 10 of MOFA.
This argument, however, stands squarely repelled by the judgment
in the said writ petition, wherein this Court has held that once the
purchasers of flats constitute themselves into a society in
accordance with law, and make an application for registration as a
cooperative housing society under the Maharashtra Cooperative
Societies Act, 1960, the same cannot be thwarted on the ground of
a clause in a private agreement, particularly when such clause
militates against the statutory scheme of MOFA which seeks to
promote registration of societies and ensure proper conveyance of
title to the flat purchasers.
11. Once the registration of respondent No.3 as a cooperative
society has attained finality and the same has not been set aside by
any superior forum, the foundation of the challenge to the
impugned order of deemed conveyance stands eroded. The
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petitioners have not raised any other substantive ground
challenging the process adopted by respondent No.4-Competent
Authority under the MOFA for confirming the deemed conveyance.
It is well settled that the object of MOFA, particularly Section 11, is
to ensure that title in the land and building is conveyed to the
body representing the flat purchasers without unreasonable delay,
and that once a competent authority, after due process, confirms
the entitlement of the society to such conveyance, there is little
scope for interference in writ jurisdiction unless manifest illegality,
procedural impropriety, or perversity is demonstrated.
12. In view of the above, this Court finds that the present writ
petition is devoid of merit. No case is made out for exercise of
extraordinary jurisdiction under Article 226 of the Constitution of
India. The petition is accordingly dismissed.
13. There shall be no order as to costs.
(AMIT BORKAR, J.)
