Telangana High Court
M/S. Saket Engineering Pvt. Ltd. vs The State Of Telangana, on 9 June, 2025
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION Nos.14493 and 14519 of 2023
COMMON ORDER:
W.P.No.14493 of 2023 has been filed by the writ
petitioner/promoter of the project seeking a Writ of Mandamus declaring
the action of the District Cooperative Officer, Medchal Malkajgiri
District, in registering the Mutually Aided Cooperative Society under the
name of "Saket Bhu Sattva Phase-I Villa Owners Mutually Aided
Cooperative Maintenance Society Ltd." bearing Registration
No.TS/MLKG/ MACCS/2023-30/FOW&M, without an application
being filed by the petitioner (which is the builder and promoter of the
project) and at the instance of residents of a phase of the real estate
project named "Saket Bhu Sattva" to the exclusion of the residents of the
other phases as being without jurisdiction, and as illegal, arbitrary and
contrary to the provisions of the Telangana Mutually-Aided Cooperative
Societies Act, 1995 (for short, "TMACS Act") and the Real Estate
(Regulation and Development) Act, 2016 (for short, "RERA Act") and
the Apartments (Promotion of Construction and Ownership) Act and
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Rules 1987 and consequently to set aside the registration and to pass such
other order or orders.
2. W.P.No.14519 of 2023 has been filed by writ petitioners, who are
the residents of Phases-I and IV of Saketh Bhu Sattva Project, seeking a
Writ of Mandamus declaring the action of respondent No.3 in conducting
the elections of respondent No.4 society by fixing the date of elections on
11.06.2023 without consent of the petitioners, who are the rightful
owners of the said villas in Phases-I and IV and also without considering
their representation dated 02.06.2023 as illegal, arbitrary and against the
principles of natural justice and consequently to set aside the Election
notice dated 26.05.2023 issued by respondent No.3 and to direct the
respondents No.2 and 3 not to conduct any elections until completion of
the construction of the entire town namely Saketh Bhu Sattva in the
interest of justice and to pass such other order or orders.
3. The writ petitioner in W.P.No.14493 of 2023 is the respondent
No.5 in W.P.No.14519 of 2023.
4. Brief facts leading to the filing of the present writ petitions are
noted in the interim order granted by this Court in W.P.No.14493 of 2023
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dated 12.06.2023. It is observed that the petitioner in W.P.No.14493 of
2023 has developed a project by the name "Saket Bhu Sattva"
comprising three phases and later, the petitioner expanded the project
including 4th phase and entered into Agreement of Sale with several
Villas/Plot owners. It was specifically mentioned in the agreement that
the project will be in three (3) phases. It is also observed that some
members of I Phase Villa/Plot owners have applied for registration of
society under the provisions of the TMACS Act and that the society was
registered without any information to the petitioner (promoter/builder).
5. It is the contention of the petitioner/promoter that he has an
obligation to register the society after all the phases are completed and all
the common amenities, including services like water supply, drainage,
street lighting, parks, clubhouses, etc., are to be handed over to the
Villa/Plot owners thereafter. According to the petitioner, handing over of
common amenities before the completion of the project will lead to a lot
of confusion and it will be difficult for the petitioner to complete the
project. It is stated that after respondent No.3 has registered the society
with only the members of Phase-I villa owners, the Phase-I Villa owners
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are trying to occupy the clubhouse and common amenities, which would
affect the entire project comprising of four phases. The petitioner has
referred to Section 11 (4)(e) of the RERA Act, to submit that it is the
responsibility of the petitioner/developer to form the society and that it
does not have any objection to transfer corpus funds as and when such a
society is formed after completion of all the four (IV) phases of the
project.
6. This Court, after observing that the question as to whether one
group of Phase-I villa owners can form a society and get it registered
without involvement of the developer, has granted an interim order of
status quo to be maintained until further orders. The said interim order is
in force as on the date of hearing of the case.
7. Thereafter, W.P.No.14519 of 2023 has been filed challenging the
action of respondent No.3 in conducting the elections to respondent No.4
society.
8. The issue, therefore, is as to whether the promoter/developer only
can initiate the process of registration of the society and that too for the
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entire project or whether Phase-I plot/villa owners can seek registration
of the society under the Telangana Mutually Aided Cooperative Society.
9. Learned counsel of the petitioner/promoter in W.P.No.14493 of
2023 has advanced the following arguments:
"a. The HMDA accorded permission for development of layout vide
letter dated 08.09.2011 bearing No.248/GHSLO/Plg/HMDA/2011
and thereafter the same was revised vide letter dated 18.06.2016
with project in land admeasuring Ac 22-15 Gts with 220 villas.
b. For every sale, the Petitioner initially entered into an Agreement of
Sale wherein the plan and intention of the project is clarified, more
specifically the project being integrated and will be expanded in the
future where amenities are common to all the residents of all phases.
c. Subsequently the layout permissions were obtained for other phases
II, III and IV and similar/uniform house units are constructed by the
Petitioner themselves to maintain same standard in the community.
Permits are filed as Annexure-4 to the writ petition.
d. Accordingly, approval for plans for common infrastructure and
amenities were obtained wherein the plan are prepared in order to
accommodate the residents of all four phases sufficiently.
Sl.No. Description Construction
Built-Up Areas
in Sq.Ft.
1. Phase-I incl. Extension 6,16,065
2. Phase-II 4,36,589
3. Phase-III 1,93,304
4. Phase-IV 1,38,230
Total Built Up Area 13,84,188
As per rules, extent of amenities shall be 3% of total built up area i.e.,
on 13,84,188 which is 41,525 Sq.ft.
In reality, the amenities provided extends to 42,367 Sq.ft.
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e. To usurp the and gain exclusive rights over the entire amenities,
certain residents of Phase-I behind the back of Developer/Petitioner,
formed the Respondent No.3 Society and the registration of the same
is challenged herein.
B. Members of Respondent No.3 being aware common usage of
infrastructure and Amenities:
a. Every purchaser, before execution of sale deed, has entered into an
agreement of sale with the Petitioner/Developer the terms clearly
specify the common infrastructure and amenities in the project is
common to all residents including the residents of phases being
developed in the expansion.
b. Copies of few Agreements of Sale from the year 2012 to 2022 are
filed with writ petition as Annexure-3.
C. Combined Amenities (extent of Amenities):
a. The built-up area of amenities provided is close to three times the
area which the developer is legally bound to provide. Such an
extensive built-up area is only provided to accommodate all the
residents of all four phases. The exact built-up area is mentioned
supra.
b. Members of Respondent No.3 are also aware that the Sewerage
Treatment Plant (STP) which treats sewerage waste generated from
their villas are being treated at STP located in Phase-IV of the
project in 2016.
c. Members of Respondent No.3 are also aware that the Water Sumps
incl Godavari water supply sump for Phase-I and Phase-IV is
located in Phase-I and distributed through common mains. This was
discussed, costed for 1200 connections including Phase-IV and paid
for proportionately by the purchasers of Phase-1.
This facility was developed in the interest of the larger community of
all Phases after obtaining partial OC of Phase-1 and was not part of
original specifications.
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d. It is practically not possible for Respondent No.3 alone to maintain
the entire project or Phase-I alone, as the amenities are built of all
four phases located in different locations and maintaining the same
by one phase members will lead to biasness and chaos by hampering
the welfare of residents in other phases.
e. Such phased associations fail to recognize the interdependence and
unity of the project as a whole, potentially leading to administrative,
legal and logistical complications in the future.
D. Reading of Legislations harmoniously:
a. Section 11(4)(e) of the Real Estate (Regulation and Development)
Act, 2016 enjoins the Promoter to form an association or society or
cooperative society under the applicable laws.
b. Rule 7 of the AP Apartments (Promotion of Construction and
Ownership) Rules, 1987 provides that, where a cooperative society
for the flats or apartments is to be constituted, the promoter shall
submit an application to the Registrar of Cooperative Societies
within the prescribed period.
c. The TS MACS Act 1995 is a general legislation which has to be read
along with the aforementioned legislations.
d. The responsibility of forming/enabling to form an association/society
under the legislation is with promoter for the sole reason that the
promoter is the only person who considers the welfare for the all the
residents of the project.
e. Considering the necessary requirements in TS MACS Act, even if
every 10 persons are permitted to form an association or society
then the whole purpose of common housing and uniform
maintenance is defeated.
f. As such, it is just and necessary that the legislations are to be read
together to provide harmonious interpretation.
g. More pertinently, special legislations and latest legislations have to
be given precedence over the general and older legislations in case
of ambiguity or overlapping of laws.
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h. The Respondent No.1 and 2 failed to issue notice to the promoter
prior to registration of the Respondent No.3 society.
i. The Respondent Nos. 1 and 2 can never interfere with the civil
disputes between the purchasers and promoter if any.
In light of the same, this Hon'ble Court may be pleased to allow the
present writ petition while declaring the registration of the Respondent
No.3 society is illegal, arbitrary and violative of laws in existence."
10. Respondent No.3 in W.P.No.14493 of 2023 also has filed written
arguments, which are as under:
"A. LOCUS STANDI:
1. The petitioner is a promoter and has no direct connection to the
society or its members. Therefore, the petitioner has no right to
challenge the impugned proceedings. The writ petition lacks any
evidence to establish the petitioner's standing.
2. The petitioner seeks a Writ Of Mandamus to declare the actions of
the Respondents in registering the society as invalid. However, the
petitioner, being a company, cannot be granted membership in the
society.
3. The Petitioner has not pleaded any violation of a legal right, much
less a fundamental right to file the present Writ Petition. In the
absence of the same, as can be seen from the pleadings filed in
support of the Writ Petition, the same deserves to be dismissed in
limini.
4. The Right to form a cooperative Society has now been recognised as
a fundamental right. Constitutional provision for Co-operative
Societies include the Multi-State Co-operative Societies Act, 2002,
which is administered by the Central Registrar of Cooperative
Societies (CRCS) and respective State Cooperative Societies Act,
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administered by the concerned State Registrar of Cooperative
Societies.
5. In fact the prayer of the Petitioner is to declare the "action" of the
Respondent No.2 in registering the Respondent No.3 society as
illegal.
The Proceedings of Registration are not impugned in the present
Writ Petition.
B. MAINTAINABILITY
1. The Right to form a cooperative Society has now been recognised as
a fundamental right.
2. The Cooperative Societies with objects not confined to one State are
governed by Entry 44 of the List I - Union List of the Seventh
Schedule to the Constitution and provisions of centrally
administered Multi-State Co-operative Societies Act, 2002. The
Cooperative Societies with objects confined to one State are
governed by Entry 32 of the List II - State List of the Seventh
Schedule to the Constitution and provisions of respective State
Cooperative Societies Act.
3. The Multi-State Co-operative Societies Act, 2002 is administered by
Central Registrar of Cooperative Societies (CRCS) who is appointed
as per clause (f) of article 243ZH of the constitution read with sub
section (1) of section 4 of the Act. The respective State Cooperative
Societies Act are administered by the concerned State Registrar of
Cooperative Societies.
4. The Constitution (Ninety-Seventh) (Amendment) Act, 2011.
5. The above Amendment Act granted constitutional status to the
Cooperative Societies and made the following provisions, namely:
a) Right to form cooperative societies was included as a Fundamental
Right by insertion of the words "cooperative societies" in Article
19(1)(c) in Part III of the Constitution.
b) Article 43B was inserted in Part IV of the Constitution as Directive
Principle of State Policy for promotion of cooperative societies.
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c) Part IX B 'The Cooperative Societies' was inserted with provisions
for incorporation, regulation and winding up of co-operative
societies.
6. The Constitution (Ninety-Seventh) (Amendment) Act, 2011 came into
force wef 15.02.2012. However, Gujarat High Court, vide Judgment,
dated 22.04.2013 declared that the Constitution (Ninety-Seventh
Amendment) Act, 2011 inserting Part IXB containing Articles 243ZH
to 243ZT is ultra vires the Constitution of India for not taking
recourse to Article 368(2) of the Constitution providing for
ratification by the majority of the State Legislatures. The Court held
the said order, however, will not affect other parts of the
Constitution (Ninety-Seventh) (Amendment) Act, 2011. However in,
UNION OF INDIA VS RAJENDRA N SHAH AND ANOTHER (2022)
19 SCC 520, the Hon'ble Supreme Court of India, vide its majority
judgment, dated 20.07.2021 held that Part IXB of the Constitution of
India is operative only insofar as it concerns Multi-State Co-
operative Societies.
7. Therefore the Right to form a Cooperative Society is a fundamental
right, it can be curtailed only law .----Article 19(1)(c)
8. Article 19(1)(4) pertains to reasonable restrictions on exercise of the
said Right.
9. The Law Governing the Cooperative Societies in the State of
Telangana is the Cooperative Societies Act 1961 and The Telangana
Mutually Aided Cooperative Societies Act 1995.
C. RELEVANT LAW
The Law relevant for the purpose of the present Writ Petition is The
Telangana Mutually Aided Cooperative Societies Act 1995 (the TMACS
Act)
1. It is not the case of the Petitioner that the promoters of the Society
are in any manner disqualified or that the Procedure required for
registration of the Society has not been followed.
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2. Under the guise of challenging the proceedings of the Statutory
Authority, the writ is camouflaged in a manner to seek the effective
dissolution of the society. Granting the requested relief would result
in the dissolution of the society, affecting its members' interests.
Elections have already taken place, and an elected body is in place.
3. The TMACS Act provides various remedies, and once the elected
body is in place, no relief can lie against the society. The petitioner
cannot disband the society under the guise of challenging a
statutory action. No other resident of the project is aggrieved.
4. The other writ petition i.e WP 14519/2023 is engineered by the
petitioner in WP 14493/2023 in as much as the Petitioner No.3 and
two other members in the Society formed by the Phase II, III and
Phase IV are landlords in the projects of the Petitioner in WP
14493/2023. WP 14519/2023 appears to have been filed with the
sole motive of stalling the elections to the Phase I Society, which
have already concluded, rendering the petition infructuous. The
formation of the other society for Phases II, III, and IV, leaves no
aggrieved party. The petitioner is unhappy with the formation of the
Phase I residents' society but is content with the formation of the
other society for Phase II, III and IV This Speaks volumes about the
intentions of the Petitioner in filing the Present Writ Petition.
5. It is apparent that the Petitioner is trying to scuttle and absolve
himself from the various statutory mandates of the RERA which
inter alia mandate the conveyance of the common areas to the
association of the allottees Common areas also include all
community and commercial facilities as provided in the real estate
project.
• Bye Laws of Phase 1-society- Page 158-195 of Writ Papers
• Bye Laws of Phase II, III & IV society Page 123-158 of papers
filed along with IA 2 of 2024 in W.P. No 14493 of 2023
D. APARTMENTS ACT AND RERA ACT
The petitioner primarily relies on the provisions of two statutes to
contend that the Writ Petition is not maintainable
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The Telangana Apartments (Promotion of Construction and
Ownership) Act 1987 (the Apartment Act)
The Real Estate (Regulation and Development) Act 2016 (the RERA
Act)
1. Neither the Apartment Act nor the RERA Act grants the petitioner
the right to raise the issues presented in the writ petition. Both
statutes were enacted to favor consumers, making promoters
accountable. Without a statutory right available to the petitioner,
jurisdiction under Article 226 cannot be invoked.
2. The Statement of Objects and Reasons clearly indicates this.
3. The petitioner claims the authority under the TMACS Act is obliged
to consider the provisions of the Apartment Act and the RERA Act
when reviewing an application for society registration. However,
this requirement is not supported by the TMACS Act.
4. The petitioner contends that the authority under the TMACS Act did
not consider the Apartment Act and the RERA Act.
5. While this is not a legal requirement, without prejudice, the
provisions of the Apartment Act and the RERA Act can be
examined."
11. Learned Government Pleader for Cooperation filed a counter
affidavit on behalf of respondent No.2, wherein it is stated that the
project is of four independent projects with separate HMDA layouts and
that there is no interconnectivity between these projects as per HMDA
sanctions. It is further stated that 11 members/promoters have
approached respondent No.2 for registration of the society under
TMACS Act and after receipt of the said application, respondent No.2
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has appointed a Field Officer for verification as to whether the promoters
of Phase-I conducted a General Body Meeting and passed a resolution to
the effect that they are intending for registration of the society and
whether the majority members of the society have given consent for the
registration and whether the society has cleared all the required
formalities for getting registration of the Villas on their names and
whether there is occupancy certificate to the villa owners. It is stated
that the Field Officer, after verifying all the required documents,
informed respondent No.2 that Saket Bhu Sattva Phase-I Villa owners
society can be registered under TMACS Act and accordingly, the society
was registered on 18.04.2023 in the name and style as "Saket Bhu Sattva
Phase-I Villa Owners Mutually Aided Cooperative Maintenance Society
Ltd." It is further stated that insofar as Phases II, III and IV are
concerned, the plot owners thereof approached respondent No.2 for
registration under TMACS Act with its area of operation being Phases II,
III and IV only and the society was registered on 30.08.2023 under the
name and style of "Saket Bhu Sattva Villa Owners Mutually Aided
Cooperative Maintenance Society Ltd." It is stated that all the phases
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have different layouts and therefore, their amenities are separate from
each other and that the amenities in Phase-I cannot be used by the owners
of other phases and that the areas of operation of phases II, III and IV are
different and therefore, they cannot use the facilities of Phase-I. It is
further stated that Phase-I is a group housing gated community with a
compound wall around its project site, whereas Phases II, III and IV are
open plot projects with independent layouts for all the projects and
therefore, the involvement of other phases in the affairs of Phase-I
project is highly illegal. It is further stated that elections were conducted
to the Phase-I society in the year 2023 and the consent for elections of
petitioners 1 and 2 in W.P.No.14519 of 2023 is not required for
conducting of elections, as the Managing Committee has resolved for
conducting of elections. It is further stated that petitioners No.3 and 4 in
W.P.No.14519 of 2023 do not belong to Phase-I and therefore, they have
no locus standi to file the writ petition.
12. Learned counsel appearing for the respective parties have
advanced their arguments extensively.
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13. Having regard to the rival contentions and the material on record,
this Court finds that Section 6 of the Telangana Cooperative Societies
Act, 1964 and Section 4 of the TMACS Act referred to the registration of
a society under the relevant acts. The procedure prescribed under the
TMACS Act is that the registration can be initiated by making an
application and that the application has to be accompanied by the
relevant/prescribed documents and the Registrar, on being satisfied that
the application is in conformity with the requirements of the Act and the
conditions mentioned thereunder, shall issue the certificate of registration
under Section 5 of the TMACS Act. Therefore, it is necessary that the
Registrar has to examine the application as to whether the application is
accompanied by all the documents and whether they fulfill the conditions
mentioned in Section 4 of TMACS Act. As seen from the certificate of
registration dated 18.04.2023, it does not reflect verification of any of the
documents and though it is stated in the counter affidavit that respondent
No.2 has directed the Field Officer to submit a report, no such report is
filed along with the counter affidavit. Even if an application can be filed
by the members of Phase-I of the project, it is the bounden duty of
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respondent No.3 to verify the documents, call for objections if any, and
thereafter, proceed with the registration. This procedure obviously has
not been followed by respondent No.3. Whether Phase-I is an
independent phase and whether a separate society can be formed for such
a phase and the common facilities, which are located in Phase-I are
exclusively for Phase-I alone or are they for the use of other phases also,
is a factual issue, which has to be examined by the authority before
issuing a registration certificate. There cannot be more than one society
for a project, as it would lead to disharmony and multiplicity of
proceedings. Therefore, it is necessary that the officer verifies that there
is no other society for the very same project and that the proper
application along with the relevant documents has been filed by the
appropriate authority. Both under the RERA Act as well as the
Apartments (Promotion of Construction and Ownership) Act, 1987, it is
the promoter who has to file the application. In this case, the promoter
has not filed the application. If the promoter does not come forward to
register the society, the owners of villas/plots may require the promoter
to do so and if the promoter fails to do so, then the owners of the
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villas/plots may hold a meeting and after forming a committee, may pass
a resolution and thereafter approach the Registrar for registration of the
society. In this case, no such procedure has been followed.
14. In view thereof, the registration of respondent No.3 society dated
18.04.2023 is set aside and respondent No.2 in W.P.No.14519 of 2023 is
directed to call for the objections, if any, to the application filed for
registration and shall consider the factual aspect as to whether the
facilities which are maintained in Phase-I are meant specifically for
Phase-I alone and thereafter proceed to issue the registration certificate in
accordance with law. This Court under Article 226 of the Constitution of
India cannot decide about the nature of facilities being provided by the
petitioner in W.P.No.14493 of 2023. Both the parties have advanced
extensive and detailed arguments in respect of the facilities being
provided and that it is meant for all the phases of the project. The
Registrar of Cooperative Societies is therefore directed to consider all the
relevant facts before coming to any conclusion and issuing the certificate
of registration.
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15. W.P.No.14493 of 2023 is accordingly allowed and consequently
W.P.No.14519 of 2023 is also allowed.
16. Pending miscellaneous petitions, if any, shall also stand
dismissed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 09.06.2025
PRN
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THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
P.D. ORDER
IN
WRIT PETITION Nos.14493 and 14519 of 2023
Date: 09.06.2025
PRN
