SARITA NAGARI, PHASE Vs. THE STATE OF MAHARASHTRA
LAWS(BOM)-2018-3-321
HIGH COURT OF BOMBAY
Decided on March 01,2018

Sarita Nagari, Phase Appellant
VERSUS
THE STATE OF MAHARASHTRA Respondents

JUDGEMENT

Manish Pitale, J. - (1.) The question that arises for consideration in these two writ petitions is, as to whether members (flat owners) of the two Petitioners - Societies had a right to form Cooperative Housing Societies under the provisions of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the "MCS Act") or that formation of such societies stood prohibited by law when the Respondent - Developer, along with the owner of the land, executed and registered a declaration under Section 10(2) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as the "MOFA Act") submitting the property to the provisions of the Maharashtra Apartment Ownership Act, 1970 (hereinafter referred to as the "Apartment Act").
(2.) The original authority i.e. the Dy. Registrar of Cooperative Societies, Pune, allowed the applications of the Petitioners and granted registration as Cooperative Societies, notwithstanding the said declaration by the Developer and Owner of land. But, on an appeal filed by the Respondent - Developer, the appellate authority, Divisional Jt. Registrar of Cooperative Societies, Pune Division, reversed the order of the original authority and cancelled the registration of Petitioner Societies, holding that once a declaration was executed and registered under Section 10(2) of the MOFA Act, the members (flat owners) of the Petitioner Societies were prohibited by law from forming cooperative societies. The Petitioners filed revision applications before the Revisional Authority, Minister for Cooperation, which were dismissed, essentially on the same reasoning as given by the appellate authority. These orders are subject matter of challenge in the two writ petitions before us. The facts necessary for appreciating the controversy and the contentions of the parties are as follows.
(3.) The land in question in the present case is Final Plot No. 544 in village Parvati, Pune. This plot includes Survey Nos. 119/1 to 119/4 and in the present case, the piece of land with which we are concerned, is old Survey No. 119/1. The owner of the land submitted an application for exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, before the competent authority in respect of surplus land in the said plot. The owner proposed scheme of development on the said land that would be governed by the MOFA Act and MCS Act. On 23.10.1989, the competent authority passed an exemption order in favour of the owner of the said land, recording that the scheme would be governed by provisions of the MOFA Act and Government Resolution dated 22.8.1986.;


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