Shri Vasant Buddhiram Gonte v. State of Maharashtra

(ii) Sarita Nagari Phase -2 Cooperative Housing

Society Ltd. vs. The State of Maharashtra.[2]

(iii) Cipla Limited vs. The Competent Authority and the District Deputy Registrar, Cooperative Societies, Mumbai (I), Mumbai.[3]

4. On the other hand, Mr. Vaibhav Ugle, learned Counsel appearing for the Respondent No.4 raised the following contentions:

(a) He submitted that the factual position on record clearly shows that before any order could be passed on the Application of registration of the Petitioner’s proposed society, the deed of declaration as contemplated under the provisions of the Apartment Act has been executed on 11th February 2005. (b) He therefore, submitted that as per the provisions of Section 10(2) of the MOFA, there is absolute bar for registration of the housing society and therefore, no interference under the writ jurisdiction of this Court is warranted.

(c) He pointed out clause No.11 of the MOFA Agreement and submitted that formation of society is not the only mode contemplated by the said clause No.11. He submitted that the said clause No.11 also contemplates formation of limited company and absolute right is given to the promoter for formation of any such organization.

(d) He also pointed out clause No.14 of the MOFA

Agreement regarding payment of deposit and submitted that payment for formation and registration of the Society has not been made by the flat purchasers and therefore, the Respondent No.4- Promoter is not under the obligation to form the Society. (e) He pointed out statement (Pages 174 to 179) showing dues of the flat purchasers and submitted that the flat purchasers have not paid the charges for formation of organization, association of flat owners and therefore, the Respondent No.4 is not duty bound to form the society. (f) He also pointed out clause No.36 of the Agreement executed with the flat purchasers, which provides that association of apartment owners shall be formed and registered under the provisions of the Apartment Act as per the discretion of the Promoter. (g) He submitted that the flat purchasers have been given possession in the year 1995-1996 and after lapse of 10 years, Application dated 24th January 2005 has been submitted by the Petitioner-the proposed society for reserving of name of proposed co-operative society without promoter’s cooperation. He submitted that admittedly deed of declaration is executed and registered on 11th February 2005 and no proceedings have been filed for cancellation of deed of declaration. He submitted that the authorities under the provisions of the MCS Act have no power to adjudicate whether the declaration executed and registered under the Apartment Act is a valid declaration or not. He therefore, submitted that the impugned orders have been passed in legal manner in view of the bar created under Section 10(2) of the MOFA. (h) He submitted that there are total 7 Buildings and except the Petitioner’s Building as far as other buildings are concerned, the deed of declaration is executed under the provisions of the Apartment Act and those Buildings have accepted the same. He submitted that if the society is directed to be registered, then there will be complications in the sense that user of common amenities area will be affected of these other 7 Buildings and they will be prejudicely affected.

(i) He pointed out affidavit-in-reply dated 20th February

2010 of Shirish K. Raut filed on behalf of the Respondent No.4 and particularly paragraph No.6 and 7 and 11 (vii) of the same and submitted that to avoid the liability of the flat purchasers of payment of Society formation charges and other charges, the Application for registration of the Society is filed. He submitted that the total dues on the part of the flat purchasers i.e. members of the Petitioner- Proposed Society payable to the above Respondents are Rs. 73,44,891/- and in order to avoid the said liability, the Application for registration of the Society is filed. (j) He submitted that deed of declaration is validly executed. (k) He submitted that in the facts and circumstances of the case no interference in the impugned Orders is warranted under Writ Jurisdiction of this Court.

5. Insofar as the submission that the members of the Petitioners-Proposed Society have not paid the requisite amount, learned Counsel appearing for the Petitioner-Proposed Society after taking instructions, denied the said contention and submitted that all the dues have been paid by the flat purchasers.

6. Before considering the rival submissions, it is necessary to set out the relevant factual position.

(i) A chart has been annexed by the Petitioner- Proposed

Society at pages 75 to 76 of the Writ Petition setting out the date of agreement of respective flat purchasers and date of the possession. Perusal of the said chart shows that the Agreements with individual flat purchasers i.e. MOFA Agreements were executed with about 55 flat purchasers in or about year 1994-1995 and the possession has been given to them of the respective flats /apartments in or about 1995-

1996.

(ii) Undisputedly, the said scheme has been implemented pursuant to exemption order dated 6th February 1990 granted under Section 20 of the ULC Act. The said exemption order specifies that on behalf of the Respondent No.4, it is represented that construction of the tenements would be governed by the MOFA and accordingly, the said exemption was granted on certain conditions. The relevant part of said exemption order reads as under: “….AND WHEREAS the said person has mentioned in his application that, his scheme of construction of tenements will be governed by the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale; management and Transfer) Act, 1963 (ACT XIV. of 1963) or by the Maharashtra State Co-operative Societies Act, 1960 (Act XXIV OF 1961);” (Page 17 of the Writ Petition) (Emphasis added) “20. The holders shall advertise the entire scheme within six months from the date of the sanction order from the State Government in at least two local news papers, giving full details of the scheme including area and final selling prices for tenements for (plinth and carpet area) specifications, location, terms and conditions of allotment of tenements, in accordance with Maharashtra Ownership Flats Act,

1963. He shall copies of the advertisement to the concerned Competent Authority within one week from the date of publication of the advertisement. If the scheme is proposed to be implemented in phases (within the total period prescribed herein) the first advertisement should be in respect of all dwelling units indicating the phases of construction. Attention is invited to condition No.6 other relevant conditions prescribed under the guidelines issued on 22nd August 1986. Any violation of the stipulation will be considered breach of the conditions.” (Page 21 of the Writ Petition) Thus, it is clear that the exemption Order under ULC Act on the basis of which the Respondent No.4 constructed the scheme specifically contemplates that the MOFA or MCS Act will apply to the scheme.

(iii) The Respondent No.4 has executed standard

Agreement with all the flat purchasers. The said flat purchasers Agreement contemplates formation of the Society and conveyance in favour of the Society. The relevant clauses of the same are clause Nos.11, 12, 14 and 36, which read as under:

36. It is hereby made clear that the Organisation of all the FLAT PURCHASER/UNIT HOLDER for the said scheme shall be a Association of Apartment Owners to be formed and registered under the Provision of MAHARASHTRA APARTMENT OWNERSHIP ACT, 1970 as per the discretion of the Promoter.” Although Clause 36 contemplates formation of Association of Apartments, Clauses 11, 12 and 14 of the Agreement executed with the flat purchasers read with the terms and conditions of the exemption order issued under Section 20 of the ULC Act contemplates formation of Society of flat purchasers. Thus said Clause 36 is required to be read along with other clauses of the Agreements and the exemption Order.

(iv) A letter of indemnity is issued by the Respondent

Nos.[4] to 9 to a flat purchaser who is an employee of Rashtriya Chemical & Fertilizers Limited and clause Nos.3(f) and (3j) of the said letter of indemnity are important and read as under: “3(f) that Messers Raut Construction Co. are the owners of the plot and have agreed and confirmed to transfer free of all encumbrances the said plot together with the building to be constructed thereon to a Co-operative Housing Society/Limited Company or other bodycorporate to be formed by the various purchasers of flats in the said building on the said plot and we shall procure the prior consent and/or permission of the Competent Authority under section 26 and/ or section 27 of the said At or effective transfer of the said property to such Co-operative Housing Society/Limited Company or other incorporated body. 3(j) We hereby declare that we shall take immediate steps to form and register the proposed Co-operative Housing Society of the various flat Purchasers of above building (wherein we have agreed to sell you Flat No.17), and transfer the land and building to such Co-operative Housing Society within six months of the receipt of completion certificates and/or registration of agreements for sale of 90% of the Flats in the said building under the Maharashtra Ownership Flats Act.”

(v) It is the submission of the Petitioner- Proposed Society that for about 10 years the Respondent No.4 failed to take steps for formation of the society and therefore, the Petitioner-Proposed Society filed Application dated 24th January 2005 for the registration of the Society.

(vi) On 27th January 2005, permission has been given to the Petitioner-Proposed Society to open bank account in the name of the proposed Society.

(vii) On 31st January 2005, notice has been issued by the

(viii) On 11th February 2005, the Respondent No.4 executed unilateral Deed of Declaration. The said Deed of Declaration is executed only by the Respondent No.4.

(ix) On 24th February 2005, the Respondent No.4 submitted say to the Application filed by the Petitioner- Proposed Society for registration of the Society inter alia stating that the Deed of Declaration is duly registered in the office of Sub Registrar, Haveli, Pune on 11th February 2005 at Serial Nos.1090 of 2005 and therefore under Section 10(2) of MOFA, it is not lawful for registration of the Society.

7. In the light of above factual position, it is necessary to see Section 10 of the MOFA, which reads as under:

8. In view of said prohibition to register the Society, it is necessary to examine the provisions of the Apartment Act as also the nature of the declaration executed by the Respondent No.4 to ascertain whether the same is executed and registered as provided by the Apartment Act.

(i) Section 2 of the Apartment Act is regarding

Application of the Act, which reads as under:

(ii) The relevant definitions are of ‘Apartment’, ‘Apartment’ ‘Owner’, ‘Declaration’ and ‘Property’, which are defined in Sections 3(a), 3(b), 3(e), 3(j) and 3(r) of the Apartment Act and the same are reproduced herein below: “3. Definitions In this Act, unless the context otherwise requires,- (a) “apartment” whether called block, chamber, dwelling unit, flat, office, showroom, shop, godown, premises, suit, tenement, unit or by any other name, means a separate and self-contained part of any immovable property, including one or more rooms or enclosed spaces, located on one or more floors or any part thereof, in a building or on a plot of land, used or intended to be used for any residential or commercial use such as residence, office, shop, showroom or godown or for carrying on any business, occupation, profession or trade, or for any type of use ancillary to the purpose specified; (b) “apartment owner” means the person or persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the Declaration”; (e) “building” means a building containing five or more apartments, or two or more buildings, each containing two or more apartments, with a total of five or more apartments for all such buildings, and comprising a part of the property”; (f) "common areas and facilities", unless otherwise provided in the Declaration or lawful amendments thereto, means- (1) the land on which the building is located; (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-escapes and entrances and exits of the buildings; (3) the basements, cellars, yards, gardens, parking areas and storage spaces; (4) the premises for the lodging of janitors or persons employed for the management of the property; (5) installations of central services, such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning and incinerating; (6) the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use; (7) such community and commercial facilities as may be provided in the Declaration; and (8) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use”; “(j) “Declaration” means the instrument by which the property is submitted to the provisions of this Act, [as provided by section 2[, and such Declaration as from time to time may be lawfully amended”. “(r) “property” means the land, the building, all improvements and structures thereon and all articles of personal property intended for use in connection therewith, which have been, or are intended to be, submitted to the provisions of this Act.”

9. Thus, what is contemplated by Section 2 read with Sections 3(a), 3(b), 3(e), 3(j) and 3(r) of the Apartment Act is that the said Act applies to property with respect to which sole owner or all of the owners submit the said property by registering declaration as contemplated under the provisions of the Apartment Act. Second proviso of Section 2 provides that the sole owner or all the owners of the land may submit such land to the provisions of this Act with a condition that he or they shall grant a lease of such land to the apartment owners, terms and conditions of the lease being disclosed in the declaration either by annexing a copy of the instrument of lease to be executed to the declaration or otherwise. For appreciating the scope of declaration to be executed under the Apartment Act, it is necessary to see the definition of the ‘property’ which means the land, the building, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith, which have been, or are intended to be, submitted to the provisions of the Apartment Act. Apartment has been defined, means a separate and self contained part of any immovable property, including one or more rooms or enclosed spaces, located on one or more floors or any part thereof, in a building or on a plot of land, used or intended to be used for any residential or commercial use such as residence, office, shop, showroom or godown etc. Apartment owner means the person or persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the declaration. “Common areas and facilities” include the land on which the building is located, the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair-ways, fire-escapes and entrances and exits of the buildings, the basements, cellars, yards, gardens, parking areas and storage spaces, the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use, such community and commercial facilities as may be provided in the Declaration and all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use. Thus, it is clear that the Apartment owner is not merely the owner of the particular flat/apartment, but the apartment owner has undivided interest in the entire Building, common areas and facilities etc.

10. In this behalf, it is important to note that the ‘property’ is a term of the widest import and is subject to any limitation or qualification which the context might require. It signifies every possible interest which a person can acquire, hold and enjoy as held by the Supreme Court in J. K. Trust Bombay vs. Commissioner of Income-Tax, Bombay[4].

11. The definition of ‘apartment’ as defined under Section 3(a), definition of ‘building’ as defined under Section 3(e) and definition of ‘property’ as defined under Section 3(r) clearly shows that the apartment owners i.e. flat purchasers are the owners of the ‘property’ as contemplated under Section 2 of the Apartment Act. As noted herein above, the ‘property’ is a term of the widest import and is subject to any limitation or qualification which the context might require. A cumulative effect of all these provisions clerly show that for the purpose of Section 2, all apartment owners are the owners/co-owners. Section 2 specifies that property can be subjected to the provisions of the Apartment Act by executing and registering declaration by sole owner, if sole owner is the owner of the property and if sole owner is not the owner of the property, then that declaration has to be executed by all the owners. Even assuming the contention raised by the learned Counsel appearing for the Respondent No.4 that the flat purchasers have failed to pay requisite charges for formation of co-operative housing society, still as undisputedly, the flat purchasers have paid the consideration of the respective flats and they have been given the possession of the respective flats in or about year 1995-1996, all the flat purchasers will come in the ambit of the term “all of the owners” of the property as envisaged under Section 2 of the Apartment Act. In this case, undisputedly, the flat purchasers have purchased their respective flats/apartments in or about year 1995-1996. ‘Property’ is defined under the Apartment Act in the widest sense. Even if definition of ‘property’ as defined under Section 3(r) is read with definition of ‘building’ as defined under Section 3(e), and definition of common areas and facilities as defined under Section 3(f) of Apartment Act, then also it is clear that apartment owners are the owners of some share in the land on which the Building is constructed. As Section 2 of the Apartment Act clearly specifies that the property can be subjected to the provisions of the Apartment Act by duly executing and registering the declaration by sole owner and if there is no sole owner then, by all the owners, clearly shows that unless such declaration is executed and registered by all the owners, which includes all the individual flat purchasers, such declaration is not a declaration as contemplated under the provisions of the Apartment Act and therefore, it will have no legal effect. Thus, it is clear that as the subject declaration dated 11th February 2005 on which the Respondent No.4 has heavily relied, has not been executed by all the owners of the subject property, and therefore the same is not the declaration as per the Apartment Act and therefore there cannot be any impediment in allowing the Application for registration of the Society..

12. Section 11 of the Apartment Act makes provision regarding the Contents of Declaration. Said Section 11 reads as under: “11. Contents of Declaration. (1) The Declaration shall contain the following particulars, namely:- (a) Description of the land on which the building and improvements are or are to be located; and whether the land is freehold or leasehold [and whether any lease of the land is to be granted in accordance with the second proviso to section 2 of this Act]; (b)Description of the building stating the number of storeys and basements, the number of apartments and the principal materials of which it is or is to be constructed;

(c) The apartment number of each apartment, and a statement of its location, approximate area, number of rooms, and immediate common area to which it has access, and any other data necessary for its proper identification;

(d) Description of the common areas and facilities;

(e) Description of the limited common areas and facilities, if any, stating to which apartments their use is reserved; (f) Value of the property and of each apartment, and the percentage of undivided interest in the common areas and facilities, appertaining to each apartment and its owner for all purposes, including voting; and a statement that the apartment and such percentage of undivided interest are not encumbered in any manner whatsoever on the date of the Declaration; (g) Statement of the purposes for which the building and each of the apartments are intended and restricted as to use; (h) The name of a person to receive service of process in the cases hereinafter provided, together with the residence or place of business of such person which shall be within the city, town or village in which the building is located;

(i) Provision as to the [percentage of majority of votes] by the apartment owners which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property; (j) Any other details in connection with the property which the person executing the Declaration may seem desirable to set forth consistent with this Act; (k)The method by which the Declaration may be amended, consistent with the provisions of this Act. (2) A true copy of each of the Declaration and byelaws and all amendments to the Declaration or the byelaws shall be filed in the office of the competent authority.”

13. The Contents of Declaration particularly Section 11(1) (c), (d),(e),(f),(g) and (i) makes it clear that what is contemplated under Apartment Act is that all the Apartment Owners shall execute such declaration, if the Apartments/Flats are sold to the Apartment Owners/ Flat Purchasers. Thus, as admittedly 55 apartments/flats are sold to 55 apartment owners/ flat purchasers, the declarations as contemplated under the Apartment Act can not be executed unilaterally by the Respondent No.4 and the subject declaration dated 11th February 2005 is ex facie contrary to the provisions of the Apartment Act having no effect in the eyes of law.

14. Ms. Medha Jondhale, learned Counsel appearing for the Petitioner- Proposed Society has relied on certain decisions of Division Bench of this Court. She relied on the decision of Division Bench of this Court in Paul Parambi (supra). The relevant discussion in Paul Parambi (supra) is in paragraph Nos.40, 41 and 42 which read as under:

41. The Maharashtra Apartment Ownership Act, 1970 is an Act to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property. The MAO Act applies only if the pre-conditions for its application set out in Section 2 thereof are fulfilled. The word “declaration”, which finds repeated reference in Section 2 is defined in Section 3(j) to mean the instrument by which the property is submitted to the provisions of MAO Act, as provided by section 2, which words and figures were substituted for the words “as hereinafter provided” by Maharashtra Act 53 of 1974. The definition does not end here and says further and such Declaration as from time to time may be lawfully amended. Once the Declaration is an instrument, then, for it to have complete legal effect, it has to be in conformity with Section 11 and by Section 13, its registration is compulsory. Therefore, when the legislature employs the words “as provided by that Act” in Sub-section (2) of Section 10 of the MOFA, it means that the provisions of the MAO Act are duly complied with. Therefore, as provided by that Act means in conformity and in accordance with the provisions of the MAO Act. Unless there is material before the promoter submitted the property to the provisions of MAO Act by executing and registering a declaration as provided by that Act, then alone it shall not be lawful to form any co-operative society of persons, who have taken the flats. The legislature has employed and used these words with a specific intent and purpose.

42. The MAO Act provides for ownership of an individual apartment in a building and to make such apartment heritable and transferable property and that Act has been enacted in 1970. On the date of that enactment, the MOFA, 1963 was already in existence and in force. MOFA, 1963 seeks to regulate, in the State of Maharashtra, promotion of the construction, sale, management and transfer of flats on ownership basis. When the competent legislature realised that consequent on the acute shortage of houses in several areas of the State of Maharashtra, there were abuses, malpractices and difficulties relating to above matters and those are increasing, that it decided to step in and make the law. Once this is the purpose which is sought to be achieved and the MAO Act contemplating, by Section 14, removal from provisions of that Act, then, all the more we cannot place an interpretation on Sub-section (2) of Section 10 of the MOFA, 1963, which would either clash with the MAO Act or render it nugatory. Equally, we cannot place such an interpretation on the provisions of the MAO Act (the later Act), which would nullify the effect of MOFA, 1963 namely, the earlier Act. That Act is specifically referred to in the Schedule to the MAO Act and Section 27 thereof.”

15. Another Division Bench of this Court in case of Sarita Nagari Phase -2 Cooperative Housing Society Ltd. (supra), on the basis of the decision in case of Paul Parambi (supra) has held that since flat purchasers have exercised their right to form a Co-operative Society, it has to be examined whether the declaration strictly complies with the requirements of Section 10(2) of the MOFA Act and the provisions of the Apartment Act. In that case also reliance is placed on paragraph Nos.40 to 42 of the Paul Parambi (supra).

16. In said case of Sarita Nagari (supra) also contention is raised that the Petitioner- Proposed Society would first have to specifically prove before the Civil Court that declaration executed by the developer was bad in law or or voidable and then they would be entitled to claim that such a declaration could not be the basis for preventing them from formation of Cooperative Society under Section 10(2) of the MOFA. In Sarita Nagari (supra) relying on the decision of Paul Parambi (supra), wherein the Division Bench has found that declaration is ex facie contrary to the provisions of the Apartment Act, and therefore such declaration cannot be an impediment for forming the Co-operative Society under Section 10(2) of the MOFA, in paragraph No.39 it has been held as under: “39. As regards the reliance placed by the learned Counsel for the respondent Developer on section 31 of the Specific Relief Act, 1963, to contend that the petitioners would first have to successfully prove before a Civil Court that the declaration executed by the respondent Developer was bad in law or voidable and then they would be entitled to claim that such a declaration could not be the basis for preventing them from formation of Cooperative Society under section 10(2) of the MOFA Act, we find that in the said case of Paul Parambi (supra), this Court has found the declaration to be ex facie contrary to the provisions of the Apartment Act, despite the fact that in the said case the flat purchasers had instituted a suit in respect of declaration, which was pending. Thus, even when a civil suit on the said question was pending, this Court has examined the issue as to whether the declaration executed was in terms of the provisions of the Apartment Act or not. Therefore, we find that while deciding these writ petitions, this Court can certainly look into the question as to whether the declaration relied upon by the respondent Developer, which has the drastic consequence of preventing the petitioners from forming the Cooperative Society under section 10(2) of the MOFA Act, is or is not in terms of the requirements of the Apartment Act. This is particularly so because section 10(2) of the MOFA Act clearly states that such declaration ought to be in terms of the provisions of the Apartment Act. The failure to adhere to the provisions of the Apartment Act can certainly be examined in the instant case. It is also necessary to examine whether the hurriedly executed declaration in the present case infringes any valuable rights that accrued to the flat purchasers/members of the petitioner Cooperative Societies under the provisions of the MOFA.”

17. A Division Bench of this Court in the decision of Cipla Limited (supra), held that if declaration is contrary to the provisions of the Apartment Act, then there cannot be any impediment/bar under Section 10 (2) of the MOFA for considering the Application by flat purchasers for registration of the society.

18. In this case, admittedly the development by the Respondent No.4 is pursuant to exemption order granted by ULC Authorities under Section 20 of the ULC Act. The Respondent No.4 while seeking exemption under Section 20 of the ULC Act has specifically stated that Co-operative Housing Society will be formed and condition to that effect has been imposed in the said exemption order. The MOFA Agreement executed with the flat purchasers also makes reference to the declaration given by the flat purchasers in consonance with Section 20 of the ULC Act. Clause No.11(vii) of the MOFA Agreement specifically contemplates that society of all the flat purchasers under the provisions of MOFA, will be formed. As admittedly construction which the Respondent No.4 has undertaken on the said land is pursuant to exemption order granted under ULC Act which specifically states that the Respondent No.4 shall form Society of flat purchasers, therefore, clause No.36 of Agreement which provides that association of apartment owners would be formed under the provisions of the MOFA is inconsequential.

19. In any case, as discussed in detail herein above, unilateral declaration executed by the Respondent No.4 is not a declaration as contemplated under the Apartment Act as all the Owners (which includes the flat purchasers/Apartment Owners) have not executed the same and therefore, it has no legal effect. Thus, it is clear that there is no impediment in granting Application for registration of the Society.

20. Although, it is the contention of learned Counsel appearing for the Respondent No.4 that flat purchasers have not paid charges for formation and registration of the Society the same has been denied by the learned Counsel appearing for the Petitioner- Proposed Society. This Court can not go into the said disputed question of facts. In any case, it is required to be noted that the flat purchasers Agreements are of the year 1994-1995, the possession has been handed over to the flat purchasers in or about 1995-

1996. The flat purchasers filed Application for registration of the society on 24th January 2005. It is an admitted position that from 1995 to 2005, the Respondent No.4 has never raised any demand for payment of said dues. Therefore, it is very clear that assuming that the Respondent No.4 is having said claim, still the Respondent No.4 will have to take recourse as per the provisions of law and that will not nullify the legal position that for the purpose of execution of the declaration under Apartment Act, the flat purchasers/apartment Owners are also the co-owners and therefore unless all the flat purchasers/apartment Owners executes the Declaration, the same can not be the declaration executed in accordance with the provisions of the Apartment Act. The subject declaration executed unilaterally by the Respondent No.4 can not be an impediment under Section 10(2) of MOFA for registration of the Society.

21. It is also required to be noted that while making submissions, reliance is also placed on the second proviso of Section 2 of the Apartment Act, wherein sole owner or all the owners of the land may submit such land to the provisions of this Act. However, it is required to be noted that Section 2 is regarding property, wherein second proviso is with respect to land. Thus, it is very clear that second proviso will be relevant only before the flats or apartments in the Building are sold to the flat purchasers, the same will have no application after flats or apartments are sold to the flat purchasers. However, it is required to be noted that the second proviso to Section 2 specifically provides that the sole owner or all the owners of the land may submit such land to the provisions of Act with a condition that he or they shall grant a lease of such land to the apartment owners, terms and conditions of the lease being disclosed in the Declaration either by annexing a copy of the instrument of lease to be executed to the Declaration or otherwise.

22. It is also required to be noted that as per Section 10 of the MOFA read with Rule 8, it is the statutory responsibility of the promoter i.e. the Respondent No.4 to form a society within a period of four months from the date on which minimum number of persons required to form such organisation have taken flats. Admittedly, in this particular case, about 51 flat purchasers have purchased the flats in or about 1994-1995 and for the first time flat purchasers filed Application for registration of the Society on 24th January 2005 as the Respondent No.4 as Promoter has failed to perform his statutory duty of formation and registration of the Society. It is clear that the Respondent No.4 has failed to perform his statutory obligation of forming Society for more than about 10 years.

23. Another point raised by the learned Counsel appearing for the Respondent No.4 is that rights of other buildings will be affected. However, the present Application is for registration of the society. The same is statutory right of the flat purchasers under the provisions of MOFA. The only bar or impediment as discussed hereinabove is valid declaration executed under the provisions of the Apartment Act. Above reasoning clearly shows that unilateral declaration which has been executed by the Respondent No.4 is not declaration in accordance with the provisions of the Apartment Act and therefore, said declaration is not declaration in the eyes of the law. Therefore, there cannot be any impediment in registering the Petitioner’s Proposed Society and there is no substance in the said contention.

24. Accordingly, the Writ Petition is allowed by passing following operative order:

(i) The following impugned orders are quashed and set aside.

(a) Order dated 11th March 2005 passed by the Deputy Registrar, Co-operative Societies, Pune City (4), Pune passed in Application No.21 of 2005 rejecting application for registration of the proposed “Prathamesh C-1 Co-operative Housing Society Ltd.” (“the proposed society”). (b) Order dated 2nd February 2006, passed by the Divisional Joint Registrar, Co-operative Societies, Pune Division, Pune dismissing the Appeal No.23 of 2005 filed by the Chief Promoter of the proposed Society.

(c) Order dated 26th May 2009 passed by the

(ii) Application dated 24th January 2005 for registration of the proposed society in the name of Prathamesh (Building C-

1) Co-operative Housing Society Limited filed by the Petitioner- Proposed Society is allowed.

(iii) The Writ Petition is disposed of in above terms with costs of Rs.10,000/-.

25. At this stage, Mr. Ugale, learned Counsel appearing for the Respondent No.4 seeks prayer to stay this order for a period of twelve weeks. However, it is required to be noted that registration of the society is statutory responsibility of the Respondent No.4promoter/developer. He has failed to perform the same for more than 10 years and when the flat purchasers have applied for registration of the society on 24th January 2005, the Respondent No.4, hurriedly and illegally executed and registered unilateral deed of declaration on 11th February 2005. Accordingly, no case is made out for granting stay and the said request is rejected. [MADHAV J. JAMDAR, J.]