Bombay High Court
M/S. Anish Enterprises vs Mrs. Beena Ashok Nair Chief Promoter Of ... on 12 August, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:34553
907-RPW-51-2024 final.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.51 OF 2024
IN
WRIT PETITION NO.14309 OF 2016
M/s. Anish Enterprises ... Petitioner
V/s.
Beena Ashok Nair,
Chief Promoter of Mangal Tower CHS
& Ors. ... Respondents
Mr. Mayur Khandeparkar a/w Vikramjit Garewal and
Joran Diwan i/by Diwan Law Associates for the
petitioner.
SHABNOOR Mr. Prakash Shah, Sr. Advocate a/w Mr. Kumar Tolani
AYUB
PATHAN
Digitally signed by
for respondent No.5.
SHABNOOR AYUB
PATHAN
Date: 2025.08.12
12:29:51 +0530 Mr. S. D. Rayrikar, AGP, for State.
CORAM : AMIT BORKAR, J.
DATED : AUGUST 12, 2025
P.C.:
1. The present Review Petition has been filed by the original
petitioner seeking recall of the judgment and order dated 20th
February 2024, passed by this Court in Writ Petition No. 14309 of
2016.
2. The said writ petition was filed by the petitioner, who claims
to be the promoter/developer, challenging the registration of a co-
operative housing society under Section 10 of the Maharashtra
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Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act, 1963 (for short, "MOFA").
The registration was carried out by the purchasers of flats, who
had taken possession of their respective units in the said project.
3. This Court, after hearing both sides, was pleased to dismiss
the writ petition by its detailed order dated 20th February 2024,
primarily on the ground that a writ petition at the instance of the
promoter challenging the registration of a co-operative society
under Section 10 of MOFA is not maintainable in law. The Court
took note of the settled legal position that once the majority of flat
purchasers have taken possession and formed a society, the
promoter's objections, particularly as to the manner of registration,
cannot be entertained under writ jurisdiction.
4. Aggrieved by the said dismissal, the petitioner has now
approached this Court by way of the present review petition,
urging that certain material facts and legal contentions were not
considered, and therefore, the order dated 20th February 2024
suffers from errors apparent on the face of the record.
5. Mr. Khandeparkar, learned Advocate appearing for the
petitioner, submitted that the judgment and order dated 20th
February 2024 came to be passed without considering a crucial
amendment made to Section 10 of the Maharashtra Ownership
Flats Act (MOFA). He submitted that after the said amendment, it
is now mandatory for the concerned authority to hear the
promoter before passing any order either rejecting or approving
the registration of a co-operative society. He submitted that the
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petitioner was a party to the appeal which was preferred by the
flat purchasers against the earlier rejection of registration, and that
the appeal was allowed without notice to the promoter, in
violation of the amended provisions of law. According to the
petitioner, such an appeal itself was not maintainable, and in any
case, it was later withdrawn unconditionally by the flat purchasers.
Therefore, according to learned counsel, the earlier order rejecting
registration had attained finality, and the subsequent act of
registration is without jurisdiction and contrary to the provisions of
law.
6. Learned counsel further submitted that only 19 out of the
total 40 flat purchasers had joined in the application for
registration submitted by respondent No.1. Thus, the basic
requirement of majority consent was not fulfilled. In these
circumstances, it was urged that the order passed by this Court
dismissing the writ petition without examining these aspects has
resulted in serious miscarriage of justice, and therefore, the same
deserves to be reviewed and recalled in the interest of fairness.
7. On the other hand, learned Senior Advocate Mr. Shah,
appearing for respondent No.1, i.e., the registered society, opposed
the review petition. He submitted that the amendment to Section
10 of MOFA on which reliance is placed by the petitioner, was
brought into effect after the registration application was filed, and
hence would have no retrospective application. According to him,
the law prevailing at the time of filing of the application did not
require issuance of notice to the promoter. He further submitted
that the society in question was registered as far back as in the
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year 2016, and has been functioning since then. Therefore, after a
long delay, the validity of the registration cannot be questioned at
the instance of the promoter, particularly when the promoter was
under a statutory duty to take steps for registration of the society.
8. Mr. Shah further contended that the failure of the promoter
to discharge his statutory obligation under MOFA cannot now be
used as a ground to defeat the rights of the flat purchasers, who
have taken steps in good faith to protect their interest. He
submitted that this Court has, in a recent judgment in Writ Petition
No. 4704 of 2025 (Rameshwar Co-operative Housing Society Ltd.
& Ors. vs. Divisional Joint Registrar & Ors.), decided on 9th May
2025, examined similar contentions and rejected the challenge
raised by the developer. He drew attention to paragraphs 24 to 26
of the said judgment, wherein the Court observed as under:
"24. In the present case, the record clearly shows that
instead of helping the flat purchasers as per law, the
developer has acted in a manner which is meant to defeat
their legal rights. The duty to help the purchasers in forming
a cooperative society is not optional, but compulsory, as per
Section 10 of the MOFA Act and Rule 9 of the MOFA Rules.
After societies are registered, they have a full and
independent right under Section 154B-8 of the MCS Act to
form an apex or federation society. This right does not
depend on the permission or consent of the developer.
25. However, in this case, instead of carrying out these
duties, the developer has used the law in a reverse manner.
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Instead of promoting formation of societies and transferring
property to them, he has tried to block and destroy what the
law provides. The developer filed an application to cancel
the registration of the apex society under Section 21A of the
MCS Act, two years after it was registered and that too
immediately after he received a legal notice for deemed
conveyance. This clearly shows that the intention was not
bona fide, but to stop the purchasers from getting the legal
rights which they were trying to enforce.
26. When such palpable injustice is brought before the Court,
where the person who was supposed to follow a welfare law
uses it against the very people it is meant to protect, the
Court cannot turn away and reject the petition merely
because another legal remedy may be available. The law is
clear that having another remedy is only one factor, and not
a complete bar to filing a writ petition under Article 226 of
the Constitution, especially when the action challenged
causes serious injustice, is contrary to law, or done with bad
faith. The powers of the High Court under Article 226 are
wide and flexible. If the palpable injustice is serious and the
other remedies are either ineffective or not suitable in the
situation, the High Court can exercise its powers."
9. Based on the above submissions and the law laid down, Mr.
Shah submitted that even if the writ petition was held to be
maintainable, this Court has, in its discretion under Article 226 of
the Constitution, rightly refused to interfere at the instance of the
promoter, who himself failed to comply with his statutory
907-RPW-51-2024 final.doc
obligations. Hence, no case for review or recall of the earlier order
is made out.
10. I have carefully considered the submissions advanced by the
learned counsel for the petitioner as well as the learned senior
counsel appearing for respondent No.1. I have also gone through
the material on record and the judgment dated 20th February
2024, which is sought to be reviewed.
11. At the outset, it must be noted that the scope of review
jurisdiction is limited. A review is maintainable only when there is
an error apparent on the face of the record, or where material facts
or legal provisions were not considered, despite being brought to
the Court's notice. It is not an appeal in disguise, nor can it be used
to reargue the matter on merits.
12. It is important to clarify that while dismissing the writ
petition by order dated 20th February 2024, this Court had
observed that the petition was not entertainable, and not that it
was not maintainable in law. This distinction is legally significant.
13. A petition being "not maintainable" would imply that there is
a complete legal bar or lack of jurisdiction for the Court to
entertain the matter. On the other hand, when a Court holds that a
petition is "not entertainable," it often reflects the Court's decision,
based on judicial discretion, equity, or the facts of the case, to not
invoke its extraordinary jurisdiction under Article 226 of the
Constitution, even though the petition may be technically
maintainable.
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14. In the present case, this Court, after considering the conduct
of the promoter and the overall factual background, exercised its
judicial discretion to not entertain the writ petition, primarily on
the ground that the promoter, who had failed to perform his
statutory duty under MOFA, could not be permitted to challenge
the very act which he was bound to facilitate.
15. Therefore, the observations of the Court in the order dated
20th February 2024 cannot be read as a finding on lack of
maintainability in law. It was a conscious decision not to exercise
writ jurisdiction in the peculiar facts and equities of the case,
which included long delay, functioning of the society for several
years, and the promoter's conduct. Thus, there is no error or
infirmity in the reasoning adopted by this Court which would
warrant review.
16. This Court had refused to entertain the writ petition on the
ground that the promoter had no locus standi to challenge the
registration of the co-operative society at the instance of the flat
purchasers. This finding assumes particular significance in the
present matter, because the very provision, Section 10 of the
Maharashtra Ownership Flats Act, which now grants the promoter
an opportunity of hearing before registration, was amended only
after the date on which the purchasers had filed their application
for registration of the society.
17. When the application was filed, the unamended Section 10
did not confer any statutory right upon the promoter to be heard
before registration. Consequently, the promoter, at that point in
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time, could not claim any enforceable legal right in relation to the
registration process. The principle of locus standi in writ
jurisdiction is closely linked to the existence of a legal right, if
there is no such right at the relevant time, the person cannot be
considered an "aggrieved party" for the purposes of invoking
Article 226 of the Constitution.
18. Therefore, even if the law was subsequently amended to
provide for a hearing to the promoter, such an amendment does
not retrospectively create a right in favour of the promoter in
respect of past proceedings. To hold otherwise would amount to
giving the amendment retrospective effect, which is impermissible
in the absence of express legislative intent.
19. This Court, while dismissing the writ petition, had also
observed that the promoter had no locus standi to challenge the
registration of the co-operative society. This conclusion is fortified
by the principles laid down by this Court in Om Sai Pratibha Co-
operative Housing Society Ltd. vs. State of Maharashtra , 2002 SCC
OnLine Bom 184. In that case, while dealing with the
maintainability of an appeal or revision filed by a builder against
the registration of a society, the Court categorically held that once
the flats are sold, the builder's role and function come to an end. It
is thereafter entirely within the domain of the flat purchasers to
come together, form a society, and approach the Registrar for
registration, subject to compliance with the provisions of law.
20. In Om Sai Pratibha (supra), it was observed that under
Sections 4, 5, 6, 8, and 9 of the Maharashtra Co-operative Societies
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Act, 1960, the registration process is between the proposers of the
society and the Registrar. If any person is aggrieved by the order or
decision under these provisions, an appeal lies under Section 152
of the Act, and the "aggrieved party" is the applicant society or its
members, not the builder. The Court clearly recorded:
"I fail to understand how the builders can be said to be an
aggrieved party of a decision of the registration of society. No
reliefs are sought against the builders. The role and function
of the builders come to an end when the builders sell flats to
the purchasers. It is the purchasers who form the society and
they approach the Registrar for registering such society
subject to their compliance with the prescribed conditions...
In my opinion the builders have no locus and they have no
right to file an appeal under section 152 or revision under
section 154 of the Act."
21. The Court further cautioned that in most such cases, builders
have abused the process of Sections 152 and 154, and that
appellate and revisional authorities ought not to entertain such
challenges from builders. The rationale is that the builder has
absolutely no role to play in the process of registration of the
society, and the only parties concerned are the Registrar and the
applicants.
22. Applying this ratio to the present matter, it is clear that at the
time when the application for registration was filed in 2015, the
unamended Section 10 of MOFA did not give the promoter any
statutory right to participate in or object to the registration
907-RPW-51-2024 final.doc
process. Therefore, the promoter could not claim to be an
"aggrieved party" under the Maharashtra Co-operative Societies
Act, 1960, so as to invoke writ jurisdiction against the registration.
The amendment to Section 10 of MOFA, introduced later, cannot
retrospectively create such a right in respect of a concluded
registration.
23. In light of the binding principle in Om Sai Pratibha (supra),
the refusal of this Court to entertain the writ petition on the
ground of lack of locus was not only legally correct, but also in
consonance with the settled view that the builder's role ends with
the sale of flats, and that the formation and registration of the
society is the exclusive domain of the flat purchasers and the
statutory authorities.
24. In this light, the refusal of this Court to entertain the petition
on the ground of lack of locus was entirely justified. The
petitioner's reliance on the amended provision is misplaced,
because that right did not exist when the registration process
commenced, and it cannot now be imported to reopen a matter
that was already concluded in accordance with the then prevailing
law.
25. In the present case, the main contention urged by the
petitioner in support of the review petition is that this Court failed
to consider the amendment to Section 10 of the Maharashtra
Ownership Flats Act (MOFA), which requires that the promoter
must be given an opportunity of being heard before any order is
passed either accepting or rejecting the registration of a co-
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operative housing society. It is submitted that this procedural
safeguard was not followed, and therefore, the registration stands
vitiated.
26. However, upon careful scrutiny of the record, it is not
disputed that the application for registration of the society by the
flat purchasers was made in the year 2015, whereas the
amendment to Section 10 of MOFA, which introduced the
requirement of issuing notice to the promoter, came into force
subsequently. It is a well-settled principle of law that unless
specifically stated, statutory amendments are prospective in
nature, and do not affect actions that have already taken place or
are pending under the unamended law.
27. In the absence of any express intention by the legislature to
apply the amended provision with retrospective effect, the rights
and obligations of the parties must be determined as per the law
prevailing on the date of the application. Accordingly, the
requirement of issuing notice to the promoter before registering
the society was not applicable in the present case. Therefore, the
registration of the society in the year 2016 cannot be said to be
contrary to the law as it stood at the relevant time.
28. Merely because a new procedural safeguard has been
introduced by way of a later amendment does not mean that all
past proceedings conducted in accordance with the then existing
law stand invalidated. The law does not operate in a vacuum, and
the rights accrued or steps taken under a valid legal regime cannot
be undone merely because the law has changed subsequently.
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29. Hence, this ground urged in the review petition is without
merit, and does not constitute an error apparent on the face of the
record warranting interference in review jurisdiction.
30. As regards the petitioner's grievance that the appeal, by
which registration was allowed, was subsequently withdrawn, and
therefore, the earlier rejection order ought to be treated as final,
the same does not impress this Court. It is important to note that
the co-operative housing society has been functioning since the
year 2016, i.e., for nearly eight years now. During all these years,
the society has carried out its functions as a registered body, and
the members, being the flat purchasers, have acted on the footing
that the society was validly constituted.
31. More importantly, in the present case, the petitioner is not a
disinterested party but the very promoter who was expected, as
per Section 10 of the Maharashtra Ownership Flats Act, to initiate
and assist in the registration of the society. Having failed to
discharge that statutory obligation, the petitioner now seeks to
take advantage of a technical plea to unsettle the rights of the flat
purchasers. Such conduct is not only legally untenable but also
equitably unjust.
32. In these circumstances, this Court finds no merit in the
petitioner's plea that the withdrawal of the appeal revives the
earlier rejection order. The petitioner's long delay, inaction, and
lack of bona fides disentitle him from any relief. The rights of the
flat purchasers, who have acted in accordance with law and
formed a society to protect their interest, deserve to be protected,
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and cannot be defeated by a belated and technical challenge raised
by the developer.
33. The reliance placed by learned Senior Counsel for
respondent No.1 on the judgment of this Court in Rameshwar
Cooperative Housing Society Ltd. is, in my considered view, well-
founded and appropriate. The factual background in the said case
and the case at hand are strikingly similar. In both cases, the
promoter/developer, who was statutorily obligated under Section
10 of the Maharashtra Ownership Flats Act (MOFA) to take steps
for formation and registration of the cooperative housing society of
flat purchasers, failed to discharge that obligation.
34. Instead of assisting the flat purchasers in forming a society
and facilitating transfer of rights as mandated by law, the
promoter, in both cases, chose to adopt a litigious approach,
attempting to stall or nullify the process of registration initiated by
the flat purchasers themselves. In Rameshwar, this Court observed
that the developer had not only neglected his statutory duties, but
had gone a step further by initiating legal proceedings to cancel
the registration of a society which was lawfully constituted. The
Court described such conduct as an attempt to defeat the very
objectives of MOFA, which is a welfare legislation enacted to
protect the rights of flat purchasers.
35. In the present matter as well, the petitioner-promoter, who
had not taken any steps to register the society despite possession
being handed over to the purchasers, has now turned around and
challenged the registration, claiming that certain procedural
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aspects were not complied with. This, in the opinion of the Court,
appears to be an afterthought and an abuse of process. As held in
Rameshwar, the statutory obligation of the promoter is not
optional, but mandatory, and non-performance of such duty
cannot be a ground to undo the consequences of the purchasers
exercising their legal rights under MOFA.
36. The observations made by this Court in paragraphs 24 to 26
of the Rameshwar judgment lay down important principles of law,
particularly that the High Court, under Article 226 of the
Constitution, is not powerless to interfere merely because an
alternate remedy may exist, especially when the action complained
of is arbitrary, unjust, or done in bad faith.
37. Thus, applying the same reasoning, I find that the challenge
raised by the petitioner in the writ petition was rightly rejected,
and the present review petition, seeking to reopen that issue, does
not merit any interference. The petitioner's conduct and the nature
of challenge raised by him are clearly not bona fide and appear to
be an effort to delay the legal rights of the flat purchasers. The
judgment in Rameshwar Cooperative Housing Society Ltd. is
therefore squarely applicable to the facts of the present case.
38. In this background, I find no error apparent on the face of
the record, nor any failure of justice, that would justify exercise of
the review jurisdiction. The writ petition was rightly dismissed,
and the review petition appears to be a belated attempt to reopen
concluded proceedings. It is a settled principle that review cannot
be sought merely because the decision is unpalatable to one party.
907-RPW-51-2024 final.doc
39. Accordingly, the Review Petition is dismissed, with no order
as to costs.
(AMIT BORKAR, J.)
