As per case facts, a group of Housing Societies (Petitioners) challenged orders directing them to admit private individuals as members for units claimed to be flats but identified by the ...
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.973 OF 2023
1 Dheeraj Dreams Building No.1 CHS Ltd., ]
through its Hon. Secretary ]
L.B.S. Marg, Bhandup (W), ]
Mumbai 400 078. ]
2 Dheeraj Dreams Building No.3 CHS Ltd., ]
through its Hon. Secretary ]
L.B.S. Marg, Bhandup (W), ]
Mumbai 400 078. ]
3 Dheeraj Dreams Building No.4A CHS Ltd., ]
through its Hon. Secretary ]
L.B.S. Marg, Bhandup (W), ]
Mumbai 400 078. ]
4 Dheeraj Dreams Building No.4B CHS Ltd., ]
through its Hon. Secretary ]
L.B.S. Marg, Bhandup (W), ]
Mumbai 400 078. ].. Petitioners.
v/s.
1 Divisional Joint Registrar, ]
Co-operative Societies, Mumbai Division, ]
Mumbai, Malhotra House, 6
th
Floor, ]
Opp. G. P. O. Fort, Mumbai 400 001. ]
2 Assistant Registrar, ]
Co-operative Societies, S-Ward, Room ]
No.202, 2
nd
Floor, Konkan Bhavan, ]
Navi Mumbai 400 614. ]
3 Hukamsingh B. Sewadsha ]
4 Chetansingh B. Sewadsha, ]
both having their address at ]
C-301, Indrayani CHS Ltd. Gaurishankar ]
Wadi No.2, Pant Nagar, Ghatkopar (E), ]
Mumbai 400 075. ]
5 The State of Maharashtra ]
Department of Co-operation, Marketing ]
and Textiles, Mantralaya, Mumbai. ]
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SMITA
RAJNIKANT
JOSHI
Digitally signed
by SMITA
RAJNIKANT
JOSHI
Date:
2026.03.25
17:34:57
+0530
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6 Office of Dy. Ch. Engineer (B.P.) ]
E.S. Municipal Corporation of ]
Greater Mumbai, Paper Mill ]
Compound, L. B.S. Marg, ]
Vikhroli (W), Mumbai 400 083. ]
7 Housing Development & ]
Improvement India Ltd. ]
Dheeraj Apartments, P. P. Dias ]
Compound, Natwar Nagar Road ]
No.1,Jogeshwari (E),Mumbai 400060].. Respondents.
Adv. S. B Shetty with Adv. A. K. Menon i/b. Kumar and Company, for the
Petitioners.
Mr. Manish Upadhye, AGP, for Respondent Nos.1,2,5-State.
Mr. Atul Damle, Senior Advocate with Adv. Chinmay Sharma i/b. Mr. S.
Pathak, for Respondent Nos. 3 and 4.
Ms. Vaishli Ugale i/b. Ms. Komal Punjabi, for Respondent No.5-BMC.
CORAM: FIRDOSH P. POONIWALLA,J.
RESERVED ON : 3
rd
NOVEMBER, 2025.
PRONOUNCED ON : 25
th
MARCH, 2026.
JUDGEMENT:-
1 RULE. Rule made returnable forthwith and heard finally with
the consent of the parties.
2 The present Writ Petition is filed seeking the following final
reliefs:-
“(a) That this Hon'ble Court be pleased to call for the
records of the proceedings conducted before Respondent
no.1 in Revision Application Nos.44/2021,
45/2021,46/2021, 47/2021 and 48/2021, and after
examining the legality and propriety of the same, be
pleased to set aside and quash the order dated
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22.07.2022, being Exhibit K hereto directing the
Petitioners to admit Respondent no.3 & 4 as members of
the Petitioner Societies on the basis of the purported 5
registered agreements for sale dated 30.04.2019
purportedly executed by Respondent no.7 in respect of
nonexistent flats in favor of Respondent no.3 & 4 by
issuing a by a Writ of Certiorari, or a Writ in the nature
of Certiorari or any other appropriate writ, order or
direction under Article 226 of the Constitution of India,
and to restore the Order dated 19.10.2020 passed by
Respondent no.2.
(b) That this Hon'ble Court be pleased to further call for
the records of the proceedings before Respondent no.2 in
Execution Application No. 1854 of 2022 and after
examining the legality and propriety of the same be
pleased to set aside and quash the order dated
19.10.2022 being Exhibit L1 hereto purporting to
appoint an Authorized Officer for executing the order
dated 22.07.2022 of the Respondent no.1 by issuing a
Writ of Certiorari or a Writ in the nature of Certiorari or
any other appropriate writ, order or direction under
Article 226 of the Constitution of India.”
FACTS
3 The case of the Petitioners in the Writ Petition is as follows:-
(a) The Petitioners are Registered Co-operative Housing Societies.
Respondent Nos.1 and 2 are the statutory authorities under the
Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as
“the MCS Act”). Respondent Nos. 3 and 4 are private persons who claim
to have purchased on 30
th
April, 2019 five flats by means of purported
registered Agreements for Sale entered into with Respondent No.7.
Respondent No.5 is the State of Maharashtra. Respondent No.6 is the
MCGM. Respondent No.7 is the Developer who has entered into the
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abovementioned illegal Agreements for Sale in respect of the vacant
spaces in the refuge areas of the building, falsely representing the same
as constructed residential flats, to Respondent Nos.3 and 4, without the
knowledge of the Petitioner Societies.
(b) Petitioner No.1 is managing and administering Wings A to D.
Petitioner No.2 is managing and administering Wings I to L. Petitioner
No.3 is managing and administering Wing P and Petitioner No.4 is
managing and administering Wing O of one residential building complex
known as Dreams.
(c) Respondent No.6, being the Planning and Sanctioning Authority,
had issued Full Occupancy Certificate on 5
th
September, 2009 in respect
of the building Dreams consisting of 16 wings, out of which 10 wings are
under the management and control of the present Petitioners. The Plan
annexed with the said Occupancy Certificate shows as many as five flats
in vacant spaces where there is no construction whatsoever. Thus, the
plan shows part of vacant space as Flat No. 1506 on the 15
th
floor of
wing D, part of vacant space as Flat No.1506 on the 15
th
floor of wing P,
part of vacant space as Flat No. 1503 on the 15
th
floor of wing O and part
of vacant space as Flat Nos. 801 and 1501 on the 8
th
and 15
th
floors of
wing I.
(d) This is despite the fact that there are no constructed flats or even
raw flats, which can have flat numbers, as mentioned hereinabove.
(e) It is the case of the Petitioners that the vacant spaces mentioned in
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the previous paragraphs have been in the possession of the Petitioners
since the date of issuance of Full Occupancy Certificate and since the date
of their incorporation in the year 2008-09, until today.
(f) Further, it is the case of the Petitioners that Respondent No.7 –
Developer was not a member of any of the Petitioner Societies at the time
of registration of the Petitioners as there did not exist any unsold flats.
(g) Further, it the case of the Petitioners that the floor plan annexed to
the Registered Agreements of constructed and sold flats on 8
th
Wing – I
disclose the unconstructed and open spaces on the 8
th
floor as a refuge
area. Similarly, the floor plan annexed to the Registered Agreements of
constructed and sold flats of the 15
th
floor of wing D, wing I, wing P and
wing O disclose the unconstructed and open spaces on the 15
th
floor as
refuge areas.
(h) On 22
nd
March, 2017, the Petitioners, through their Association,
applied for grant of Deemed Conveyance as Respondent No.7 (the
Developer) failed and neglected to convey the property in favour of the
Petitioner Societies. The Certificate of Entitlement for Deemed
Conveyance was issued by the District Deputy Registrar on 31
st
May, 2017.
It is the case of the Petitioners that, upon issuance of the above mentioned
Certificate of Entitlement of the Deemed Conveyance, Respondent No.7 –
Developer stood divested of its rights under the Flat Purchase Agreements
executed by Respondent No.7 with the members of the Petitioners, and
any subsequent Agreements for Sale purportedly entered into by the
Developer are without contractual authority, not binding, illegal, non est,
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void ab-initio and incapable of being enforced against the Petitioners.
(i) Further, taking advantage of the errors in the plan annexed to the
Occupancy Certificate, Respondent No.1 sold on 30
th
April, 2019, the
vacant and open spaces on the 8
th
and 15
th
floors to Respondent Nos. 3
and 4 as residential flats, despite there being no constructed flats fit for
occupancy. The open spaces on the 8
th
and 15
th
floors have always been in
possession of the Petitioners and even now are in the possession of the
Petitioners.
(j) Further, the Municipal Authorities have been assessing the said
open spaces as refuge areas and have not been levying property tax in
respect thereof to the Petitioners.
(k) Respondent Nos. 3 and 4 applied to the Petitioners for admission to
the membership of the Petitioners based on the said five Registered
Agreements for Sale. The Petitioners did not admit them as members as
there were no constructed flats fit for occupation in existence at the said
location in the refuge area as mentioned in the said five purported
Agreements for Sale.
(l) Respondent Nos.3 and 4, therefore, approached Respondent No.2
under Section 22 (2) of the MCS Act, by filing an Application dated 30
th
January, 2019, praying to be admitted as members of the Petitioner
Societies. Respondent No.2 rejected the said Application of Respondent
Nos. 3 and 4 by an Order dated 19
th
October, 2020.
(m) Respondent Nos. 3 and 4 filed a Revision Application before
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Respondent No.1. The Petitioners filed their say before Respondent No.1
(n) Respondent No.1 allowed the Revision Application of Respondent
Nos. 3 and 4 and erroneously directed the Petitioners to admit
Respondent Nos. 3 and 4 as members of the Petitioners based on the said
purported Registered Agreements dated 30
th
April, 2019 executed by
them.
(o) Thereafter, an Order dated 19
th
October, 2022 was passed by
Respondent No.2 to appoint an authorized officer for executing the Order
dated 22
nd
July, 2022 of Respondent No.1 in Execution Application No.
1854 of 2022.
(p) The Petitioners addressed various letters to Respondent No.2
pointing out that no notice or opportunity was given to the Petitioners
before passing of the said Order dated 19
th
October, 2022 and that the
said Order was illegal and incapable of being implemented by the
authorized officer.
(q) It is the case of the Petitioners that the authorized officer appointed
by Respondent No.2 continues to pressurize the Petitioners to make
available I and J registers to him for entering names of Respondent Nos. 3
and 4 as members of the Petitioner Societies.
(r) Further, the Petitioners have issued a statutory notice dated 10
th
October, 2022 to Respondent No. 6, calling upon it to rectify the plan
annexed to the Occupation Certificate which shows a part of the vacant
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spaces as residential flats on the 8
th
and 15
th
floors of the Petitioners’
building even though no constructed flat fit for occupation exists there.
(s) It is the case of the Petitioners that they have not received any reply
from Respondent No.2 to the letters addressed to him against his Order
dated 19
th
October, 2022.
(t) Further, it also the case of the Petitioners that they have not
received any reply to the notice dated 10
th
October, 2022 issued to
Respondent No.6.
(u) In these circumstances, the Petitioners have filed the present Writ
Petition seeking the reliefs which are referred to herein above.
ARGUMENTS OF THE PARTIES
4 Mr. Shetty, the learned Advocate appearing on behalf of the
Petitioners, referred to the said impugned Order dated 22
nd
July, 2022,
and submitted that the same ignores the fact that none of the five flats
purportedly sold to Respondent Nos. 3 and 4 exist and that they are only
refuge areas.
5 Mr. Shetty further submitted that these flats were sold by
Respondent No.7 much after the Certificate of Entitlement for Deemed
Conveyance was issued by the Deputy Registrar on 31
st
May, 1997.
6 Mr. Shetty further submitted that the fact, that there were no
unsold flats, is demonstrated by the action of Respondent No.7 of not
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becoming a member of the Petitioner-Societies. Mr. Shetty submitted that
if there were unsold flats, then Respondent No.7, who is a Developer,
would have joined as a member of the Petitioner Societies.
7 Further, Mr. Shetty submitted that the Divisional Joint
Registrar gave legal sanctity to unconstructed flats by asking the Petitioner
Societies to make Respondent Nos. 3 and 4 members.
8 Mr. Shetty further submitted that the Order dated 22
nd
July,
2022 of Respondent No.1 directs the Petitioner Societies to violate Section
154B-5 of the MCS Act which provides that a housing society shall not
admit to its membership persons exceeding the number of flats, or plots,
as the case may be, available for allotment in a Co-operative Housing
Society.
9 Mr. Shetty also submitted that a civil suit was filed for
declaration of these Agreements as null and void and that the same was
pending.
10 Mr. Shetty submitted that the impugned Order dated 22
nd
July, 2022, relied upon a Private Architect’s Certificate, which was not
relied upon before Respondent No.2.
11 Mr. Shetty submitted that, for all these reasons, the impugned
Order dated 22
nd
July, 2022, and the Order dated 19
th
October, 2022
issued in execution thereof, ought to be quashed and set aside.
12 On the other hand, Mr. Atul Damle, the learned Senior
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Advocate appearing on behalf of Respondent Nos. 3 and 4, supported the
impugned Order dated 22
nd
July, 2022.
13 Mr. Damle referred to the Order dated 19
th
October, 2020
passed by Respondent No.2 and submitted that the said Order refused
membership to Respondent Nos. 3 and 4 on the ground that the
Developer, i.e. Respondent No.7, had no right to sell the flats and that the
flats did not exist. Mr. Damle submitted that these two reasons are
completely beyond the scope of an enquiry under Sections 22 and 23 of
the MCS Act.
14 Further, Mr. Damle referred to the impugned Order and
submitted that the impugned Order had arrived at a finding of fact that
the flats were separate from the refuge area, which cannot be challenged
in the present Writ Petition.
15 Finally, Mr. Damle relied upon the Judgement of a Learned
Single Judge of this Court in Videocon Appliances Ltd. v/s. Maker Chambers
V Premises Co-operative Society Ltd. & Others (Writ Petition No.7471 of
2004) and submitted that the said Judgement makes it clear that it was
not open for the Petitioner Societies to refuse membership on the grounds
alleged by them.
16 Mr. Damle submitted that, in these circumstances, the Writ
Petition ought to be rejected and the Order dated 22
nd
July, 2022 passed
by Respondent No.1 ought to be upheld.
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17 In Rejoinder, Mr. Shetty referred to the floor plans attached to
the Agreements of the other flats which showed that the flats which had
been sold to Respondent Nos. 3 and 4 were actually refuge areas.
18 Further, Mr. Shetty also referred to the property tax
assessment bills which clearly showed that these flats were assessed as
refuge area and, therefore, no property tax was charged in respect thereof.
ANALYSIS AND FINDINGS
19 The question that arises before this Court is whether by the
impugned Order dated 22
nd
July, 2022, Respondent No.1 was correct in
admitting Respondent Nos. 3 and 4 as members of the Petitioner Societies
in respect of the following flats:-
“1 Flat No.A-1506 on the 15
th
floor of A-wing of Dheeraj
Dreams Building No.1 CHS Ltd.
2 Flat No.D-1501 on the 15
th
floor of D-wing of Dheeraj
Dreams Building No.3 CHS Ltd.
3 Flat No.A-1506 on the 15
th
floor of A-wing of Dheeraj
Dreams Building No.4 CHS Ltd.
4 Flat No.B-1503 on the 15
th
floor of B-wing of Dheeraj
Dreams Building No.4 CHS Ltd.
5 Flat No.D-801 on the 8
th
floor of D-wing of Dheeraj
Dreams Building No.3 CHS Ltd.”
20 The Floor Plan annexed to the Registered Agreements of flats
constructed and sold to the members of the Petitioner Societies discloses
the area of the flats claimed by Respondent Nos. 3 and 4 as a refuge area.
The Floor Plan annexed to the Registered Agreements of constructed and
sold flats on 8
th
floor, Wing I discloses the unconstructed and open space
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on the 8
th
floor as refuge area. Similarly, the Floor Plans annexed to the
Registered Agreements of constructed and sold flats of 15
th
floor of wing
D, wing I, wing P and wing O disclose the unconstructed and open spaces
on the 15
th
floor as refuge areas. This clearly shows that the flats claimed
by Respondent Nos. 3 and 4 are actually refuge areas and not flats.
21 When the Petitioner Societies were formed, there were no
unsold flats. This is evidenced by the fact that Respondent No.7, as a
Developer, did not join the Petitioner Societies for applying for
membership. If there were unsold flats, then Respondent No.7, by virtue
of the provisions of Section 10 of the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale, Management and
Transfer) Act, 1963 (hereinafter referred to as “MOFA”), would have
joined in the application for membership of the Petitioner Societies, which
Respondent No.7 did not do. Section 10 (1) of MOFA, which provides that
Respondent No.7 should join in respect of flats which have not been
taken, reads as under:-
“10. (1) As soon as a minimum number of persons required to
form a Cooperative society or a company have taken flats, the
promoter shall within the prescribed period submit an
application to the Registrar for registration of the
organisation of persons who take the flats as a co-operative
society or, as the case may be, as a company; and the
promoter shall join, in respect of the flats which have not been
taken, in such application for membership of a co-operative
society or as the case may be, of a company. Nothing in this
section shall affect the right of the promoter to dispose of the
remaining flats in accordance with the provisions of this Act.”
(Emphasis Supplied)
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22 The fact, that Respondent No.7, as a Developer, did not join
the Application, clearly shows that there were no unsold flats at that time.
This clearly shows that the flats claimed by Respondent Nos. 3 and 4 are
refuge areas and not flats.
23 Further, on 22
nd
March, 2017, the Petitioner Societies,
through their Association, applied for grant of Deemed Conveyance as
Respondent No.7 -Developer had failed and neglected to convey the
property in favour of the Petitioner Societies. The Certificate of
Entitlement for Deemed Conveyance was issued by the District Deputy
Registrar on 31
st
May, 2017. Upon issuance of the Certificate of
Entitlement of Deemed Conveyance, Respondent No.7- Developer stood
divested of its rights in the property, and, therefore, the subsequent
Agreements for Sale entered into by Respondent No.7 with Respondent
Nos. 3 and 4 are illegal.
24 Further, Respondent No.6 has been assessing the impugned
open space as refuge area and has not levied property tax on the
Petitioners in respect of the same. This is one more fact that shows that
there are no flats as claimed by Respondent Nos.3 and 4 and there are
only refuge areas in existence.
25 There is an error in the plan annexed to the Occupancy
Certificate which shows a part of the vacant space as residential flats on
8
th
and 15
th
floor of the Petitioner Societies even though no constructed
flat, fit for occupation, exists there. Taking advantage of this error in the
plan annexed to the Occupancy Certificate, Respondent No.7 sold on 30
th
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April, 2019, the vacant and open spaces on the 8
th
and 15
th
floors to
Respondent Nos. 3 and 4 as residential flats despite there being no
constructed flats fit for occupation in existence. As stated hereinabove, the
open spaces on the 8
th
and 15
th
floors have always been in possession of
the Petitioner Societies and even now is in their possession as a refuge
area. The Petitioners have issued a statutory notice dated 10
th
October,
2022 to Respondent No.6, calling upon it to rectify the plan annexed to
the Occupancy Certificate which shows a part of the vacant spaces as
residential flats on the 8
th
and 15
th
floors of the Petitioners’ building, even
though no constructed flat fit for occupation exists.
26 Further, if the Petitioners admit Respondent Nos. 3 and 4 as
their members, they would be directly violating Section 154B-5 of the
MCS Act which reads as under:-
“154B-5. Limit on Membership: A housing society shall
not admit to its Membership persons exceeding the
number of flats or plots, as the case may be, available
for allotment in that co-operative housing society:
Provided that, a plot owners co-operative housing
society may admit to its Membership an organization
(co-operative housing society, company, association,
etc.) of flat purchasers, in case the plot owner had
constructed and sold flats as per prevailing rules, in
place of original plot owner Member.”
27 Section 154B-5 of the MCS Act provides that a housing
society shall not admit to its membership persons exceeding the number
of flats available for allotment in that Co-operative Housing Society. Since,
as stated herein above, the flats sold by Respondent No.7 to Respondent
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Nos. 3 and 4 do not exist, if Respondent Nos. 3 and 4 are admitted as
members of the Petitioner Societies, then that would be a direct violation
of Section 154B-5 of the MCS Act as the members would exceed the
number of flats available for allotment.
28 In my view, in the aforesaid circumstances, the Petitioners
rightly refused membership to Respondent Nos. 3 and 4, and Respondent
No.2 rightly rejected the application for membership of Respondent Nos.
3 and 4 by his order dated 19
th
October 2020.
29 Mr. Damle, the learned Senior Advocate appearing on behalf
of Respondent Nos. 3 and 4, relied upon the Judgement in the case of
Videocon Appliances Ltd. (supra). Paragraph 12 of the said Judgement
reads as under:-
“12. Now turning to the merits of the case, I find that
the order passed by the Deputy Registrar was legal and
valid and justified. It is not open for any society to refuse
membership on the ground that the construction which
has been carried out by the builder is unauthorised and
in contravention of the provisions of section 7 of the
Maharashtra Ownership Flats Act, 1963. Whether the
construction is authorised or unauthorised is a matter
which is matter of Civil dispute and has to be determined
by the Civil Court and neither the co-operative society
nor the Deputy Registrar nor Divisional Joint Registrar is
empowered to go into the aforesaid issue at all for
determining whether a person is entitled to be a member
or not. In my opinion, a membership of the society has
to be considered only on the rules, regulations and bye-
laws and not on the basis of external factors such as
whether the construction of the premises which is sought
to be purchased by him is legal, illegal or authorised or
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unauthorised. In my opinion, the issue as to the validity
of the construction is expressly required to be determined
by the Civil Court and till such determination is made,
the society as well as the authorities are not entitled
and/or justified in refusing to grant membership to a
person. In the present case even the construction is
according to the sanctioned plans and the plans are
sanctioned by the B.M.C. in respect of the premises
namely office No. 1601 which the petitioner has sought
to purchase from the Income-tax Authorities in auction
sale. However, the contention is that the sanction by the
Corporation is illegal because it is being done without
the consent of the premises purchasers under section 7 of
the Maharashtra Ownership of Flats Act, 1963. In my
opinion, such a dispute is not within the jurisdiction of
the Deputy Registrar and Divisional Joint Registrar to
determine and the society is also not empowered to
refuse the membership on such a contention. If the office
is constructed by breach of any provisions of law by the
builder then the remedy is by way of a suit which in the
present case is already preferred and pending in this
Court. It is not open for the society to reject the
membership on the aforesaid ground. In the present case
the Divisional Joint Registrar while exercising the power
of revision under section 154 of the Maharashtra Co-
operative Societies Act has in fact upheld the refusal of
the membership on such a ground which in my opinion
is totally illegal and without authority of law. That
decision is outside the purview of the Divisional Joint
Registrar while determining under the provisions of
sections 22(2) and 23 of the Act that whether a person
in entitled to be a member or not of any society. In my
opinion, therefore, the present petition must succeed. The
petition is, therefore, allowed. The order passed by the
Divisional Joint Registrar dated 6-9-2001 is set aside
and the order passed by the Deputy Registrar dated 18-
5-1998 is confirmed. Petition is made absolute
accordingly. However, there shall be no order as to costs.”
30 In the case of Videocon Appliances Ltd. (supra), this Court has
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held that it is not open for any Society to refuse membership on the
ground that construction which has been carried out by the builder is
unauthorized and in contravention of the provisions of Section 7 of MOFA.
This Court further held that whether the construction is authorized or
unauthorized, is a matter of a civil dispute and has to be determined by
the Civil Court and neither the Co-operative Society nor the Deputy
Registrar nor the Divisional Joint Registrar is empowered to go into the
aforesaid issue at all for determining whether the person is entitled to be
a member or not. The Court further held that a membership of the
Society has to be considered only on the basis of Rules, Regulations and
Bye Laws and not on the basis of external factors such as whether the
construction of the premises which are sought to be purchased are legal or
illegal or unauthorized or authorized. The Court further held that the
issue as to the validity of the constructions is expressly required to be
determined by the Civil Court and till such determination is made, the
Society as well as the authorities are not entitled and/or justified in
refusing to grant a membership to a person.
31 In my view, although the decision in Videocon Appliances Ltd.
(supra) is correct, the same cannot be extended to a situation like the
present case where, by granting membership to Respondent Nos. 3 and 4,
the Petitioner Societies would be violating the provisions of Section 154B-
5 of the MCS Act. It is correct that it is not open for any Society to refuse
membership on the ground that the constructions which has been carried
out by the builder are illegal and the same is a matter to be determined by
the Civil Court. The situation would be very much different in a case like
the present one where the flats simply do not exist and what has been
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sold to Respondent Nos. 3 and 4 by Respondent No.7 is the refuge area.
As rightly submitted by the Petitioners, the refuge area cannot be
considered as a flat or even a raw flat. In these circumstances, if the
Petitioner Societies granted membership to Respondent Nos. 3 and 4, the
same would be in direct violation of Section 154B-5 of the MCS Act. This
Court would be loathe to put its imprimatur on an illegal act of this kind.
32 Therefore, the Petitioner Societies were right in refusing
membership to Respondent Nos. 3 and 4 and the Judgement of this Court
in Videocon Appliances Ltd. (supra) does not take the case of Respondent
Nos. 3 and 4 any further. Further, for the aforesaid reasons, the reliance
placed by Respondent No.1 on the said Judgement in Videocon Appliances
Ltd. (supra) for the purpose of admitting Respondent Nos. 3 and 4 as
members of the Petitioner Societies is totally erroneous.
33 Further, Respondent No. 1 has relied upon a Certificate given
by a Private Architect which states that the flats do not come within the
refuge area. This Certificate is contrary to the record and the actions of
the parties as referred to hereinabove. As stated earlier, the Occupancy
Certificate granted by Respondent No.6 has wrongly shown certain flats in
the refuge area. This Certificate is based on the said erroneous Occupancy
Certificate. As stated above, the Petitioner Societies have issued a
statutory notice dated 10
th
October, 2022 to Respondent No.6, calling
upon it to rectify the plan annexed to the Occupancy Certificate which
shows part of the vacant space as residential flats on the 8
th
and 15
th
floor
of the Petitioner Societies even though no constructed flat fit for
occupation exists.
S.R.JOSHI 18 of 19
28-wp-973-2023-judgement.doc
34 For all aforesaid reasons, the Order dated 22
nd
July, 2022
passed by Respondent No.1 is required to be quashed and set aside.
35 Further, the Order dated 19
th
October, 2022 has been passed
in execution of the Order dated 22
nd
July, 2022 and, therefore, for all the
reasons set out hereinabove, the same is also required to be quashed and
set aside.
O R D E R
36 In the light of the aforesaid discussion and for the aforesaid
reasons, the following Orders are passed:-
(i) Order dated 22
nd
July, 2022 passed by Respondent No.1, is quashed
and set aside;
(ii) Order dated 19
th
October, 2022 passed in execution thereof, is also
quashed and set aside;
(iii) Order dated 19
th
October 2020 is restored;
(iv) Rule is made absolute in the aforesaid terms;
(v) There will be no order as to costs.
(FIRDOSH P. POONIWALLA,J.)
S.R.JOSHI 19 of 19
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