Bombay High Court
Deshmukh Enterprises Thr. Promoter D S ... vs Paramount Park D Tenant Co-Op Housing ... on 9 October, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:43485
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12575 OF 2022
WITH
INTERIM APPLICATION NO. 12273 OF 2024
IN
WRIT PETITION NO.12575 OF 2022
Deshmukh Enterprises Through Promoter Dilip
Sudhakar Deshmukh .. Petitioner
Versus
Paramount Park D Tenant Co-Op Housing
Society Ltd. Partnership Co-operative Housing
Society Ltd. & Ors. .. Respondents
....................
Dr. Uday Warunjikar a/w Ms. Preeti Walimbe, Advocates for
Petitioner
Mr. Mayur Khandeparkar a/w Mr. Vikramjeet Garewal, Ms. Savani
Vaze & Ms. Shreya Mathane, Advocates for Respondent Nos. 1 to 3
& 5 to 10
Mr. Prasad Keluskar a/w Mr. Drupad Patil, Advocates for
Respondent No. 10
Mr. J.P. Patil, AGP for Respondent No. 12-State
Mr. Saurabh Butala i/by Mr. Harshad Sathe, Advocates for
Intervenor
....................
CORAM : MILIND N. JADHAV, J.
Reserved on : AUGUST 05, 2025
Pronounced on : OCTOBER 09, 2025.
Judgment:
1. Heard Dr. Warunjikar, learned Advocate for Petitioner, Mr.
Khandeparkar, learned Advocate for Respondent Nos. 1 to 3 & 5 to 10,
Mr. Keluskar, learned Advocate for Respondent No. 10, Mr. Butala,
learned Advocate for Respondent No. 10 and Mr. Patil, learned AGP
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for Respondent No.12- State.
2. This is a Writ Petition filed by Promoter / Developer of a
Housing Society. His name is Deshmukh Enterprises (for short
"Promoter"). It emanates from an application made by Paramount Park
D Wing Tenant Cooperative Housing Society Ltd (for short "Society")
seeking registration. The timeline and dates are crucial as also certain
incidents. Promoter sold flats to members of the Society as far back in
2011. In this regard, the registered Agreement executed with Members
of Society, Promoter agreed to register the Society under Maharashtra
Ownership of Flats Act, (for short "MOFA") or (Maharashtra
Apartments Ownership Act (for short "MAO") as the case may be
depending upon phase wise development undertaken by him. Without
adverting to Promoter , Society applied for registration under MOFA
on 27.07.2020 and was registered within two days by Deputy
Registrar, Dombivli - Respondent No.12. Promoter filed Complaint
with Divisional Joint Registrar alleging fraud by members of Society
and informing that one year prior thereto i.e on 15.06.2019, Promoter
executed Deed of Declaration for registration of Society under MAO as
a Condominium. On Promoter's complaint, Divisional Joint Registrar,
Thane invoked suo moto inquiry into registration of Society and on the
ground of execution of Deed of Declaration by Promoter in 2019,
interalia, directed cancellation of registration of Society. Allegation of
Society is that when this cancellation order was passed by Divisional
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Joint Registrar Thane, Society was not heard. Allegation of Promoter is
that when registration was allowed by Deputy Registrar, Dombivli
within two days of application made by Society, the Promoter was not
heard. Promoter alleged that his signature and presence while
registration of Society was impersonated and forged by some member
of the Society. In this background Society being aggrieved filed Appeal
No. Appeal No. 21 of 2022 before Hon'ble Minister of Cooperation
challenging the twin orders both dated 18.11.2021. First order dated
18.11.2021 was regarding cancellation of registration of Society.
Second order dated 18.11.2021 was regarding allowing application of
promoter under Section 21A seeking Society's de-registration. By virtue
of impugned order dated 21.06.2022, Hon'ble Minister of Co-operation
allowed appeal of Society and set aside both orders dated 18.11.2021,
restoring registration of Society. Promoter being aggrieved has filed the
present Petition.
3. Dr. Warunjikar, learned Advocate for Petitioner, has made
the following submissions:-
3.1. Respondent No. 1 - Society on its own accord filed
application for registration without giving notice to Promoter nor
addressed any correspondence seeking its registration on 27.07.2020
and on 29.07.2020 was issued registration certificate by Deputy
Registrar, Dombivli. He would submit that application for registration
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was filed before Deputy Registrar, Dombivli, who had no jurisdiction to
decide such application, instead the appropriate Competent Authority
having such jurisdiction to grant registration was the Deputy Registrar,
Thane since project was situated within the territorial limits of Thane
district. Hence, according to Dr. Warunjikar this fundamental
jurisdictional defect rendered the entire registration proceeding void
ab initio.
3.2. He would submit Section 10(2) of MOFA creates a statutory
bar against formation of Co-operative Housing Society when Promoter
has submitted the property to the provisions of MAO Act by executing
and registering a Deed of Declaration. He would submit that
Promoter's registered Deed of Declaration dated 15.6.2019, executed
one year prior to Society's application for registration under MCS Act
was not taken into cognizance neither Promoter was heard or given
notice before granting such registration. Hence he would submit that
registration of Co-operative Housing Society was in direct violation of
this statutory prohibition and hence void ab initio.
3.3. He would submit that on the basis of Promoter's complaint,
Respondent 12 himself issued communication dated 26.08.2020 to the
Divisional Joint Registrar stating that formation of Society was
obtained by members through fraud and he requested the Divisional
Joint Registrar to de-register Society. He would submit that Divisional
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Joint Registrar initiated sou moto enquiry and heard both Promoter
and the Society regarding de-registration of Society and on 18.11.2021
passed order to de-register the Society. He would submit that Society
filed Revision Petition before Hon'ble Minister for Cooperation which
was allowed by impugned order dated 21.06.2022. He would submit
that Promoter was not present at the hearing before the Minister and
was not afforded an opportunity to be heard. He would submit that it
is wrongly observed in the impugned order that submissions of
Petitioner were heard while passing the impugned order, rather it is an
exparte order in gross violation of the principles of natural justice.
3.4. He would submit that State in Revision proceedings did not
consider registered Deed of Declaration executed by Promoter
pursuant to clause no. 13.5 in the flat purchase agreement of the
members and allowed the Revision.
3.5. He would submit that Respondent No. 2 fraudulently signed
requisite statutory forms and documents seeking registration of Society
by misrepresenting himself as Promoter of the project, when he was
merely a flat purchaser thereby vitiating Society's registration. He
would submit that no flat purchaser can assume role of Promoter and
execute documents on his behalf without his lawful authority.
3.6. He would submit that Deputy Registrar, Dombivli violated
provisions of law and principles of natural justice and within two days
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of the application being filed, in the aftermath of COVID-19 pandemic
granted registration to the Society. He would submit that no notice
was issued to Promoter, no opportunity of hearing was given and no
site inspection was conducted and the Society came to be registered
under the name "Paramount Park 'D' Wing Tenant Co-partnership
Society" for 'D' Wing constructed by Promoter in the layout.
3.7. He would submit that Society deliberately suppressed several
material facts before Registrar, which, if disclosed, would have
prevented its registration under the MCS Act. According to him these
suppressed facts include:-
(i) Existence of registered Deed of Declaration dated
15.6.2019 executed by Promoter one year prior to
registration of Society;
(ii) outstanding maintenance dues exceeding Rs. 70
lakhs due and payable to Promoter by Society and its
members;
(iii) that Society shared common facilities with other
wings constructed in the project;
(iv) existence of private nature of certain amenities
like gymnasium and office space on the mezzanine
floor, and
(v) pendency of multiple civil and criminal
proceedings against members of the Society for
recovery of outstanding dues.
3.8. He would submit that Inspection Report dated 28.07.2020
was prepared by Deputy Registrar, Dombivli. In this report, units
belonging to Promoter were incorrectly shown as "Guest Rooms"
belonging to Society. Further, although Society did not have official
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office, Promoter's shops/commercial units were incorrectly shown as
"Society Office" in the Inspection Report. The letter also mentions that
the said individuals misled and suppressed material facts at the time of
formation of Paramount Park D-wing Co-operative Housing Society
during the lockdown and containment zone period. The letter states
that:
(i) amount of ₹70 lakhs was spent by the builder
towards building maintenance, which was to be
proportionately reimbursed by the members, and
despite repeated reminders from the Promoter, the
amount remained unsettled;
(ii) documents submitted to the Deputy Registrar were
allegedly fraudulent, including:
(a) use of a promoter's NOC signed by Mr.
Thingranjan instead of the Promoter on Form 'Z';
(b) Misrepresentation of builder's mezzanine
private office as a common amenity and showing
gymnasium (a pad amenity) built on mezzanine
floor as common facility;
(c) Incorrectly showing four flats on the 7th floor
as common amenities;
(d) Using names of several members without their
signatures or consent on Society registration form
and challan, and paying share certificate amounts
without their authorization or consent.
3.9. He would submit that false affidavits were filed by members
of Society claiming that Promoter opened bank accounts in the name
of Respondent No. 1 - Society, collected amounts towards share
capital, entrance fees, and preliminary expenses for Society
registration, however no such amounts were ever collected by
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Petitioner. He would submit that Members of Society filed false
declarations pertaining to status of flats, unsold units, office spaces,
and amenities such as gymnasium and common areas with an
intention to usurp the same under the guise of Society registration.
3.10. He would submit that on 30.07.2004, State Government
issued Circular prescribing criteria to be fulfilled for wing - wise
registration of co-operative housing societies which were not followed
by Respondent No. 12 before granting registration to Society to the
detriment of Promoter namely that:-
a) each society should have separate entrance for entering
the building;
b) each society should have separate electricity meter;
c) each society should have separate water tank and water
meter;
d) each society should prepare separate tax assessment from
Municipal Corporation; and
e) before commencement of building, the builder/promoter
has to get the layout approved from concerned Municipal
Corporation by dividing electricity and water facilities.
3.11. He would submit that Society failed to satisfy any of the
aforesaid mandatory criteria as its "D" Wing building which has been
granted registration shares common entrance, common electricity
connection, common water supply system and common facilities with
all other wings constructed and functional in the project developed by
Promoter; that entrance to all buildings in the layout, open space,
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pump room, filtration plant, water tanks, fire tank, water meter,
electric meters, and transformer are all common for all wings in the
developed project.
3.12. He would submit that in haste and in total disregard for
procedure established by law, Respondent No. 12 completely failed to
verify compliances with mandatory requirements before granting
registration within 2 days of Application being made and on diligent
verification it would show that Respondent No. 1 - Society did not
qualify for registration as independent Co-operative Housing Society
even under the MCS Act otherwise without hearing the Promoter and
overcoming the aforesaid requirements.
3.13. He would submit Respondent No. 12 failed to exercise due
care and caution and blindly granted registration within two days
without scrutinizing any documents, conducting mandatory site
inspection, or verifying statutory compliances or hearing Promoter in
complete disregard of mandatory provisions. He would submit that
Respondent No. 12 himself realised his mistake and vide letter dated
26.08.2020 acknowledged the fraud played by Society and
recommended its de-registration to the Divisional Joint Registrar. He
would submit that conduct of Respondent No. 12 of registering
Society amounts to gross negligence, abdication of duty, and
complicity in facilitating fraud committed by Society and its Members.
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4. In support of his above submissions, Dr. Warunjikar would
rely on the following decisions of the Supreme Court to contend that
the impugned order is illegal, suffers from infirmities and deserves to
be set aside being (1) Kiran Singh V/s Chaman Paswan1 and (2) S.P
Chengalvaraya Naidu V/s Jagannath2
5. PER CONTRA, Mr. Khandeparkar, learned Advocate for
Respondent Nos. 1 - 3 and 10 would submit that the statutory
obligation laid down in Section 3(2)(h) and Section 4(1A)(a)(v) of
MOFA mandates promoter to state in writing, the precise nature of the
organization of flat owners to be constituted and to which title is to be
passed however Clauses 2(O) and 13 of the MOFA Agreement
executed by Petitioner are not in compliance with the aforesaid
provisions as they do not disclose the precise nature of organization to
be formed. He would submit that Petitioner cannot take benefit of his
own non compliance to challenge registration of Respondent No.1 -
Society.
5.1. He would submit that Section 10(2) of MOFA bars
registration of Society if a declaration has been executed and
registered and intimation of such registration has been communicated
to the Registrar. He would submit that in light of this provision, no
intimation was given to Registrar by Developer and intimation was
1 (1954) SCR 448
2 (1994) 1 SCC 1
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given to Registrar only post registration of Respondent No. 1 - Society,
though the Deed of Declaration was executed much prior thereto. He
would submit that Petitioner as Promoter cannot unilaterally execute
Deed of Declaration since all flat purchasers are required to execute it
alongwith Petitioner.
5.2. He would submit that Section 10 of MOFA creates a
statutory obligation upon Promoter / Developer to form association of
Flat takers within the prescribed period from when the minimum
number of persons required to form a CHS or company have taken
their flats and Rule 8 of MOFA Rules prescribes a period of 4 months
for submitting application for registration of Cooperative Housing
Society or Company from the date on which the minimum number of
members to form such Society / Company have taken possession of
their flats. He would submit that in the present case, the four-month
period commenced in 2011 i.e. when the minimum number of
members required to form the Society / Company got possession of
their flats. He would submit that Deed of Declaration was executed by
Petitioner - Promoter / Developer on 15.06.2019 i.e. 8 years after the
aforesaid period of four months expired, hence Petitioner failed in his
statutory obligation miserably and therefore he cannot now object to
registration of Respondent No. 1 as Co-operative Housing Society.
5.3. He would submit that Petitioner's submission that Deputy
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Registrar, Dombivili had no jurisdiction to register Respondent No. 1 -
Society is incorrect. He would submit that Section 10 of MOFA grants
Competent Authority power to direct Deputy District Registrar, Deputy
Registrar or Assistant Registrar, to register a society, thus, power to
register the Society vests in toto with either Deputy District Registrar,
the Deputy Registrar or Assistant Registrar.
5.4. He would submit that Court is not bound to interfere when
question of jurisdiction is raised in the lower forum by a higher forum
which had jurisdiction to hear the same. He would submit that
procedural aspects ought not to be an impediment to any decision
passed by any higher and competent forum and that this Court is not
obligated to set aside the order of registration if substantial justice is
done. He would submit that when question of jurisdiction is raised,
Court need not interfere when there is no failure of justice. He would
submit that the learned Minister for Cooperation passed order dated
21.06.2022 directing registration of Respondent No. 1 - Society, hence
remanding the same once again to the lower authority for de-
registration would not serve ends of justice.
5.5. He would submit that if any forum fails to hear a party or
decide a matter without jurisdiction, the same cannot be a ground to
invoke this Court's supervisory jurisdiction under Article 227 of the
Constitution of India.
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5.6. He would submit that the Deed of Declaration in the present
case is executed behind the back of flat purchasers / members of
Society and such unilateral execution of Deed of Declaration without
impleading flat purchasers as parties thereto is illegal and has no
standing in law. He would submit that Petitioner's failure to comply
with provisions of Section 10 of MOFA forced the flat purchasers of the
Society to file application for registration of Society all by themselves.
He would submit that flat purchasers are seeking enforcement of their
statutory rights under MOFA, hence order passed by the learned
Minister for Co-operation is just and deserves to be sustained. He
would submit that the learned Minister for Co-operation being the
higher forum directed registration of Respondent No. 1 - Society,
hence this Court need not exercise its discretion regarding the decision
of the original forum.
5.7. In support of his submissions, Mr. Khandeparkar has referred
to and relied upon the following decisions of the Supreme Court and
this Court to contend that the impugned jdugement deserves to be
upheld:-
(1) Paul Parambi, Chief Promoters, Springs CHS Ltd and
Another V/s Bombay Dyeing and Manufacturing Co.
Ltd. and Another3 ;
(2) Cipla Limited V/s Competent Authority and the District
Deputy Registrar, Co-operative Society and Others4 ;
3 2016 SCC Online Bom 16054
4 2021 SCC OnLine Bom 622
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(3) Sarita Nagari Phase - 2 Cooperative Housing Society
Ltd and Another V/s State of Maharashtra, through the
Minister for Cooperation and Others5;
(4) Kekoo J. Manekji V/s Union of India6;
(5) Central Council for Research in Ayurvedic Sciences an
Another V/s. Bikartan Das and Others7;
(6) Ritesh Trikamdas Patel and Others V/s Apex Greviance
Redressal Committee and Others8;
(7) M/s. Sushanku Builders Ltd. V/s Apex Greviance
Redressal Committee and Others9;
(8) State of Uttar Pradesh V/s Sudhir Kumar Singh and
Others10;
(9) Dharampal Satyapal Limited V/s Deputy Comissioner of
Central Excise, Gauhati and Others11;
(10) Om Prakash alias Israel alias Raju alias Raju Das V/s
Union of India and Another12;
(11) Shri Balwantrai Chimanlal Trivedi V/s M.N. Nagrashna
and Others13.
6. Mr. Keluskar, learned Advocate for Respondent No. 10
would draw my attention to Affidavit in Reply filed by Respondent No.
10. He would submit that he is a flat purchaser in respect of Flat No.
202 in the Society and regularly is paying maintenance to the
Petitioner - Promoter / Developer as also all other members for the
past several years. He would submit that a dispute arose between
Petitioner - Promoter / Developer and Respondent No. 1 - Society
5 2018 SCC OnLine Bom 591
6 1979 SCC OnLine Bom 257
7 (2023) 16 SCC 462
8 Writ Petition 7630 of 2025 decided on 27.06.2025
9 Writ Petition No. 8931 of 2024 decided on 27.03.2025
10 (2021) 19 SCC 706
11 (2015) 8 SCC 519
12 2025 SCC OnLine SC 47
13 1960 SCC OnLine SC 305
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Members due to demand of outstanding maintenance dues after which
some members of Respondent No. 1 instigated other purchasers
against the Promoter by posting messages on the Society WhatsApp
group thereby convincing other flat purchasers to stop paying
maintenance and other dues to him. He would submit that Promoter
urged the flat purchasers to pay maintenance or else basic amenities
such as water supply etc. would be stopped.
6.1. He would submit that on 04.06.2020, Petitioner held an
online meeting to discuss the arrears of outstanding maintenance dues
and invited members to fill the post of office bearers however some
members of Respondent No. 1 demanded formation of a Cooperative
Housing Society only. He would submit that the Promoter provided
audited statements of accounts to the flat purchasers to show the
details of expenditure incurred by him, however flat purchasers of
Respondent No. 1 - Society did not respond neither resumed paying
maintenance. He would submit that Respondent No. 10 stopped
prosecuting claims against Petitioner and did not give his consent to
add his name to the array of parties in the Revision Application neither
did he authorize any advocate to espouse his cause before the Hon'ble
Minister. He would persuade the Court to consider his submissions
approximately.
7. I have heard Dr, Warunjikar, learned Advocate for Petitioner,
Mr. Khandeparkar, learned Advocate for Respondent Nos. 1 to 3 and
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10; and Mr. Keluskar Advocate for Respondent No. 10 and with their
able assistance perused the record of the case. Submissions made by
the learned Advocates at the bar have received due consideration of
the Court.
8. In the present case, controversy is very narrow. Challenge is
to the registration of Respondent No.1 - Society as "Co-operative
Housing Society". There is no dispute about the basic facts. Petitioner
is the Promoter / Developer. He developed the buildings in the entire
layout where Respondent No. 1 Paramount Park 'D' Wing Society is
situated. I am informed that this development is still on - going and
incomplete in the layout. It is seen that most of the flat purchasers of
Respondent No.1 Society purchased their flats from Petitioner -
Promoter / Developer in the year 2011. It is seen that from 2011 to
2019 Petitioner - Promoter / Developer took care of the maintenance
of all buildings constructed by him. What is significant is that in the
registered sale agreement executed with all flat purchasers the
Petitioner - Promoter / Developer in clause 13.5 promised as under:-
"13.5 The Owner / Builder / Promoter hereby agrees
that they shall, before handing over Possession of the
Residential Flat / Shop to the Purchaser and in any
event before execution of a deed of conveyance in
favour of the Ultimate Organization, as Contemplated
herein, make full final and true disclosure of the
nature of the title to the said Property as well as
encumbrances and / or claims, if any in / over the said
Property. The Owner / Builder / Promoter shall, as far
as practicable, ensure, that upon such Conveyance in
favour of the Ultimate Organization the Building and
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Portion of the Property beneath it, as far as practicable
is free from Encumberances."
9. Thus from the above as Promoter and Developer of the
project, Petitioner made his intention clear that before execution of
Deed of Conveyance in favour of the ultimate organization make a full
disclosure. In 2019, Petitioner - Promoter / Developer executed the
Deed of Declaration for registration of the Society in respect of the
developed buildings as a Condominium. In 2020 however the
impugned action of registration of Respondent No. 1 - Society took
place. There are several objections raised by Petitioner - Promoter /
Developer namely that consent of the Promoter / Developer is not
obtained before registration, that he is kept in the dark, that
registration authority namely Deputy Registrar Dombivli did not have
the power and jurisdiction to register the Society, that registration of
Society was effected within two days without notice to Petitioner -
Promoter / Developer , that registration of Society is done exparte in a
surreptitious manner, that when Revision Application of Respondent
No. 1 - Society was heard by Hon'ble Minister no notice was issued to
Petitioner - Promoter / Developer, that the order of the Hon'ble
Minister records an incorrect and false finding that Petitioner -
Promoter / Developer was heard and there was complete non
adherence to principles of natural justice, that one Mr. Thingranjan
Ayyar fraudulently misrepresented himself as the promoter by
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executing his signature on the 'Z' Form despite being only a flat
purchaser in D Wing, that members and flat purchasers of the 'D' Wing
building did not support the malicious agenda of a few flat purchasers
who orchestrated the registration of Society on the basis of fraudulent
documents and suppression of material facts. These objections are
raised by Petitioner - Promoter / Developer including the jurisdictional
error of registering the Society by the Deputy Registrar, Dombivli.
10. The Respondent No. 1 Society in its reply to the Court has
fairly and clearly admitted the fact that the Deputy Registrar, Dombivli
did not have the power and jurisdiction to register the Society and the
power to register Society lay with the Deputy Joint Registrar, Thane.
Hoowever Mr. Khandeparkar has argued since the issue was thereafter
seized before the Revisional Authority i.e. the State and since the said
Revisional Authority has upheld the registration of Respondent No.1 -
Society, the aforesaid jurisdictional error be dispensed with in the
interest of justice. Another argument advanced by Respondent No.1 -
Society in defense of its registration is that for 9 long years Petitioner -
Promoter / Developer did not comply with the statutory requirement of
registration of society as Co-operative Housing Society or
Condominium, therefore members and flat purchasers of Respondent
No. 1 - Society were forced and compelled to seek registration which it
did and that cannot be held against the Society. These are the two
principal defenses vehemently argued on behalf of the Society in
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support of its registration and Court is urged to uphold this
registration.
11. In the facts and circumstances of the present case, I am
afraid that the defenses raised by the Society in support of its
registration are not tenable in law. When the Society itself accepts the
fact that the Deputy Registrar, Dombivli in the first instance did not
have jurisdiction to register the Society then such jurisdiction cannot
be conferred on the said authority and accepted. What is seen is that
during the first wave of the COVID period or possibly immediately
after the peak period, the act of registration of Society took place. It is
seen that application for registration was filed on behalf of Respondent
No.1 - Society to the Deputy Registrar Dombivli and within two days
registration was granted. It is seen that application is filed on
27.07.2020 and registration is granted on 29.07.2020. However,
thereafter it is seen that the same registering authority who granted
registration namely Deputy Registrar, Dombivli himself addressed a
detailed complaint / letter dated 26.08.2020 to Divisional Joint
Registrar, Thane stating that registration of the Society was obtained
by some members of the Society fraudulently and therefore the said
registration of the Society deserved to be cancelled.
12. It is seen that on the basis of this complaint and Application
by Petitioner seeking de-registration, suo moto enquiry was conducted
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by the Divisional Joint Registrar. The Divisional Joint Registrar heard
both the Respondent No.1 - Society and Petitioner - Promoter /
Developer and only thereafter passed a detailed speaking order dated
18.11.2021 which is appended at Exhibit 'K' page 225 of the Petition.
In fact, this was the only instance when the Statutory Authority had
heard both sides. Resultantly, the registration was cancelled. Society
being aggrieved filed Revision before Hon'ble Minister / State.
13. It is seen that the Hon'ble Minster only heard the
Respondent No. 1 - Society and did not hear the Petitioner -
Promoter / Developer but incorporated an incorrect fact in the
impugned order that Petitioner - Promoter / Developer was heard
while passing the impugned order. The impugned order is passed ex
parte and has been obtained behind the back of the Petitioner -
Promoter / Developer. It is seen that apart from the issue of
jurisdiction of the registering authority who registered the Society in
the first instance the misrepresentation and fraud committed by the
Respondent no. 1 - Society is writ large on the face of record. Court
cannot turn a blind eye to such misrepresentation and fraud when it is
prima facie evident from the record of the case itself. In Form 'Z' copy
of which is appended to page No.255 of the Petition, it is seen that
one Thingranjan Ayyar has claimed to be the chief promoter of the
Respondent No.1 - Society. This is shocking and absurd when the said
person is one of the flat purchaser. Most of the averments which are
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required to be made in the said Form Z are kept blank. The said Mr.
Thingranjan Ayyar is a resident of Flat No. 304 in the said building.
How he becomes the chief promoter of the said building is
unexplained. The Rs.100 stamp paper on which Form 'Z' is typed is
bought on 06.03.2020. What is equally shocking is that registration is
sought for by only a few residents of the Respondent No. 1 Society.
This is evident from the fact that on 21.06.2020, 11 members of
Respondent No. 1 Society made an application to the Deputy Registrar,
Dombivli along with copy of MOFA Agreement and other necessary
documents. On 15.07.2020 the Deputy Registrar, Dombivli permitted
Respondent No. 1 Society, on the basis of the above, to open a bank
account of the Society. There is further substantial material placed on
record which prima facie show that there there were several disputes
between the said Mr. Thingranjan Ayyar and the Petitioner -
Promoter / Developer which pertained to arrears of outstanding
maintenance dues of flat purchasers of the said building. Apart from all
this, intention of the Petitioner - Promoter / Developer to comply with
his MOFA obligation is prima facie clear. He has executed the Deed of
Declaration in 2019 itself. This aspect has not been considered either
by the Deputy Registrar, Dombivli before registering the Society or by
the Hon'ble Minister before upholding the registration. In the present
case, it is seen that when the registering authority itself endorses the
fact that the act of registration is a fraudulent act due to suppression
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and misrepresentation by Society, the Revisional Authority cannot
uphold the same. The Appellate Authority in the present case while
setting aside the registration has heard both the parties at length and
only thereafter delivered its reasoned verdict. Such an exercise has not
been conducted either by the registering authority nor by Revisional
Authority. Both orders passed by these two authorities are behind the
back of the Petitioner - Promoter / Developer. First order of
registration is passed within 2 days of the application being made
without even issuing notice to Petitioner - Promoter / Developer on
the false premise that one of the applicant Mr. Thingranjan Ayyar is
the shown as Chief Promoter and second order is passed by the
Revision Authority which wrongly and mischievously states that
submissions of the Petitioner - Promoter / Developer were heard while
passing the said order when that is not the case. Thus fraud committed
by the so called members and office bearers of the Respondent No.1
Society is writ large on the face of record. The so-called flat purchasers
/ members of Respondent No. 1 Society who applied for registration
cannot take law into their own hands and in the manner in which it
has been done by them. The entire exercise carried out by the
Appellate Authority after conducting the suo moto enquiry therefore
deserves to be upheld. It is seen that the Deed of Declaration dated
15.06.2019 is a registered document bearing registration number 6378
of 2019. The said Deed of Declaration is appended at page No. 102 of
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the Petition. If such Deed of Declaration was indeed registered then
another fraud has been played by the flat purchasers / members of the
Respondent No. 1 Society. If page No. 260 to the Petition is seen, a
search report issued by an Advocate called S.V Tharte is appended to
Society's application Form Z seeking registration. At page 259 is the
title certificate issued by the same Advocate. This certificate is dated
2011 (precise month and date is not legible). Such certificate of 2011
is used to seek registration of the Society in 2020 by the Respondent
No. 1 Society. This is the level of fraud played by Respondent No. 1
Society and its members who applied for registration and the Deputy
Registrar has accepted the said documents but has realized later that
he has also been misled. This is so because if a title certificate of 2020
was indeed procured by the Respondent No. 1 Society for seeking its
registration, they would have known in the search report about the
registered Deed of Declaration dated 15.06.2019 which is alluded to
hereinabove which was already executed and registered by the
Petitioner - Promoter / Developer to register the Condominium. Thus
members of the Respondent No. 1 Society have not acted cleanly.
Though it is true that there is delay on the Petitioner / Promoter -
Developer's part to form the Society either under the MCS Act or the
MAO Act, but that does not give any right to the members of
Respondent No. 1 building to form a Co-operative Society and register
it in the manner in which it has been done. If the Developer does not
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act undoubtedly the members / flat purchasers can come together and
approach the concerned Competent Authority and seek registration /
redressal. Such is not the case here. Members of the Society has not
approached the Petitioner - Promoter / Developer. Neither they take
any steps for 9 years after been put into possesson by the Petitioner
Promoter / Developer. The effect of registration of Deed of Declaration
under MAO Act and further steps to be taken can be subsequent to its
adjudication and compliances but that does not entitle members of
Respondent No. 1 Society to circumvent the law. In the present case if
allegation of Society about delay and laches on the part of Petitioner -
Promoter Developer is to be accepted then equally the members of 'D'
Wing building also kept quiet for more than 9 years without coming
together to form the Society. Hence the argument on forming the
Soceity / Company within the prescribed time limit cannot be argued
from the Respondent No.1 - Society. From a reading of the record it is
seen that the Petitioner Promoter / Developer is also a resident of the
same Society. It is seen that Promoter has been managing the affairs of
the Society Building since 2011. It is seen that the Petitioner -
Promoter / Developer has made a substantial outstanding arrears claim
to the tune of Rs 70 lakhs from the members of 'D' Wing building. This
dispute essentially seems to be the major bone of contention between
the parties which promoted some members of the respondent No. 1 -
Society to have taken the step for regoistering themselves under the
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MOFA as a Co-operative Housing Society. Therefore in the present case
there appears to be a dispute which is more than what meets the eyes
which has led to the present situation. It is seen that some members of
the 'D' Wing building are staunchly opposing registration of the Society
as a Condominium under the MAO Act. It is also seen that prior to the
registration of 'D' Wing Society as a Co-operative Housing Society there
is substantial correspondence between the members of 'D' Wing
building through their Advocate one H.H. Nagi and Associates
opposing the steps taken by the Petitioner - Promoter / Developer. It is
also seen that Respondent No. 1 Society is formed for 'D' Wing only
which is part of building complex / layout comprising of 6 buildings
being Building Nos. 'A' to 'F' in the entire layout on Survey No. 223,
having common amenities including overhead water tank,
underground water tank, entrance for entering into the Wing,
electricity meter, tax assessment, common layout, common open
spaces, common swimming pool, etc. All these things are completely
ignored by the Registering Authority when it grants the Certificate of
Registration within 48 hours without applying its mind to the
annexures appended to the registration form, the scheme submitted
and without scrutinizing the documents. When such a thing has
happened the Registering Authority has owned its mistake. The most
shocking thing is that the share capital which has been paid by
Respondent No. 1 Society is shown to be Rs. 19,000 divided into 384
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shares which in itself shows the sinister motive of the Chief Promoter
of Respondent No. 1 Society when he shows the description of the
property as Survey No. 233 which is the entire layout area developed
by the Petitioner for the six buildings.
14. In view of the above the observations and findings, the
impugned order dated 21.06.2022 passed by the Hon'ble Minister is
not tenable and deserves to be quashed and set aside. Order dated
21.06.2022 is quashed and set aside. The twin orders dated
18.11.2022 orders of the appellate authority after hearing both the
parties are declared to have been correctly passed and both the orders
passed by the appellate authority dated 18.11.2022 are upheld and
confirmed.
15. Resultantly, Writ Petition succeeds. Writ Petition is allowed
and disposed of. In view of disposal of Writ Petition, pending Interim
Application is also disposed of. No costs.
[ MILIND N. JADHAV, J.]
HARSHADA by HARSHADA
HANUMANT
HANUMANT SAWANT
SAWANT Date: 2025.10.09
12:03:44 +0530
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