Airoli Neha Apartment Co-op. Housing Society Ltd. v. The State of Maharashtra & Ors.

1. This petition under Articles 226 and 227 of the Constitution of India assails an order dated 13 August, 2019 passed by the Hon’ble Minister for Cooperation in Revision Application No. 450 of 2018 filed on behalf of respondent no. 2 whereby allowing the revision the petitioner-society has been ordered to be de-registered.

2. The land in question which houses the petitioner’s building was allotted by CIDCO to one Smt. Babibai Joshi, which was sought to be developed by respondent no. 2-M/s. Yogesh Enterprises, who has subsequently assigned the development rights in favour of respondent no. 3. It appears that there was SURESH AMIN some dispute between respondent nos. 2 and 3. The construction of the building in question, however, was completed. The petitioner had insisted that the Society be formed by respondent no. 2, however, respondent No.2 failed to form a cooperative Society. Although the law would mandate a developer to form a cooperative society under the provisions of the Maharashtra Apartment Ownership Act, 1970. Consequently, the petitioner approached the Registrar of Cooperative Societies with a proposal to form a co-operative Society, in pursuance of which the Deputy Registrar Cooperative Societies granted registration to the petitioner on 14 February, 2012.

3. Respondent no. 2 in view of the disputes with respondent no. 3, appears to have assailed the formation of the petitioner-Society as granted to the petitioner by the said order passed by the Deputy Registrar granting registration to the petitioner. At the behest of respondent no. 2, the proceedings reached the Hon’ble Minister in a revision filed under section 154 of the Maharashtra Cooperative Societies Act, which has been allowed by the impugned order.

4. Ms.Nichani, learned counsel for the petitioner in assailing the impugned order has submitted that the reasons on which the petitioner-society has been ordered to be de-registered are completely outside the jurisdiction of the Hon’ble Minister. She has submitted that the reasons are inter alia that a building permission was not granted to complete the construction and that there was no completion certificate and on such reasons the petitioner-society has been de-registered. She would submit that the Hon’ble Minister could not have delved on such disputed issues on the legality of the construction of the building. It is submitted that such jurisdiction would vest only with the Civil Court or only the Competent Planning Authority can comment on the legality of construction. She submits that thus the impugned order is per se without jurisdiction and deserves to be set aside.

5. The Court’s attention is drawn to the only reasons which is contained in the impugned order, which reads thus:

6. (Official translation of the original Marathi version) “During the course of the hearing, the Applicants have also brought to the notice the facts viz. while making registration of the Respondent No.2 Society viz. Airoli Neha Apartment Co-operative Housing Society Limited; Messrs S.B. Enterprises has not got sanctioned the plan for construction of the building of the said Society from Navi Mumbai Municipal Corporation and has carried out the construction unauthorisedly and without having got approval thereto. Moreover, it has not given to the Applicants the 49% built-up area as agreed to in the agreement and therefore, the Applicants have terminated the Development Agreement that had been entered into with it and had published a Public Notice in the newspaper stating therein that the Units in the building of the Respondent No.2 Society are unlawful and illegal and that therefore, the same should not be purchased. Moreover, because of this reason only, the Society has not even got the Deemed Conveyance. By bringing these facts to the notice, the Applicants have also brought to the notice that the registration of the Respondent No.2 Society is illegal and that its construction is unauthorised one. Moreover, the registration has been made without even giving an opportunity of hearing to the Applicants in the capacity as the owners of the plot.“

7. On the other hand, learned Counsel for respondent No.2 has supported the impugned order.

8. Having heard Mr. Nichani, Mr. Thorat, learned AGP for respondent NO. 1, Mr. Bhosale, learned counsel for respondent no. 2 and Mr. Sakhdeo, learned counsel for respondent no.5 and having perused the impugned order, in my opinion, there is much substance in the contentions as urged on behalf of the petitioner. It appears that the reasons which have been attributed by the Hon’ble Minister in passing the impugned order can only be given by a Planning Authority, who would be authorized to comment on the nature of the construction as to whether the same is legal or illegal. Further any such conclusion on the construction could also be in the nature of a declaration, which only the Civil Court can grant in resolving such disputed issues, after the parties are granted opportunity to lead evidence. However, the Hon’ble Minister in exercising the powers under the MCS Act and more particularly the provisions in relation to the registration of the Cooperative Society, certainly would not have jurisdiction to consider such plea on the legality of construction on there being no occupation certificate to be any reason to deregister the petitioner society.

9. It also appears from the materials as placed on record that the construction of the building was completed on 16 July, 2007 and that the building is fully occupied and it is at such stage the petitioner society has been de-registered.

10. Learned counsel for the respondents are not in a position to point out any provision under the MCS Act which would confer jurisdiction on the Society or the higher authorities exercising the appellate and revisionary powers, that merely because there is some illegality or any irregularity in the construction of the building of the Society, the Society could be de-registered. If the reasons as set out in the impugned order are accepted to be the correct position in law it would not only run contrary to the provisions of Section 8 to 10 providing for registration of the co-operative Society but also create a chaotic situation. Such position also becomes clear from the provisions of Section 21A of the Maharashtra Cooperative Societies Act, 1960, which provides for de-registration of Society. It would be appropriate to note the said provisions, which reads thus: “21A. De-registration of societies (1) If the Registrar is satisfied that any society is registered on misrepresentation made by applicants, or where the work of the society is completed or exhausted or the purposes for which the society has been registered are not served, or any primary agricultural co-operative credit society using the word ‘Bank’, ‘Banking’, ‘Banker’ or any other derivative of the word ‘Bank’ in its name,] he may, after giving an opportunity of being heard to the Chief Promoter, the committee and the members of the society, deregister the society: Provided that, where the number of members of the society is so large and it is not possible to ascertain the correct addresses of all such members from the records in the office of the Registrar and, in the opinion of the Registrar it is not practicable to serve a notice of hearing on each such individual member, a public notice of the proceedings of the de-registration shall be given in the prescribed manner and such notice shall be deemed to be notice to all the members of the society including the Chief Promoter and the members of the Committee of the Society, and no proceeding in respect of the de-registration of the society shall be called in question in any Court merely on the ground that individual notice is not served on any such member. (2) When a society is de-registered under the provisions of subsection (1), the Registrar may, notwithstanding anything contained in this Act or any other law for the time being in force, make such incidental and consequential orders including appointment of Official Assignee as the circumstances may require. (3) Subject to the rules made under this Act, the Official Assignee shall realise the assets and liquidate the liabilities within a period of one year from the date he takes over the charge of property, assets, books, records, and other documents, which period may, at the discretion of the Registrar, be extended from time to time, so however, that the total period does not exceed three years in the aggregate. (4) The Official Assignee shall be paid such remuneration and allowances as may be prescribed; and he shall not be entitled to any remuneration whatever beyond the prescribed remuneration or allowances. (5) The powers of the Registrar under sub-sections (1) and (2) shall not be exercised by any officer below the rank of a Joint

11. Thus, it is clear that an issue and/or a subject matter which is completely alien to the MCS Act and not relevant to the registration and de-registration of a Society cannot be a subject matter of consideration to de-register the petitioner Society. This is exactly what Section 21A would also depict. There is no manner of doubt that the impugned order passed by the Hon’ble Minister is based on reasons which are extraneous to the provisions of Maharashtra Cooperative Societies Act as discussed above.

12. In the light of the above discussion looked from any angle, the impugned order cannot be sustained. It would be required to be quashed and set aside. Rule is made absolute in terms of prayer clause (a). No costs.

13. Needless to observe that the present order would not affect any action, if being taken by the Planning Authority, that is either by the NMMC or CIDCO in the event construction is unauthorized. (G. S. KULKARNI, J)