Allowed

Mr. Nasir Hussain v. the Divisional Joint Registrar, Co-Op. Soieties and Ors.

Bombay HC18 Sept 2014WP/2391/2014

Case brief

AI extract

What is this about?

The High Court of Bombay held that impugned orders declining registration of a proposed cooperative housing society were erroneous in relying on later circulars mandating 60% participation and for failing to consider the number of unique families applying. The court quashed the orders and remanded the matter for a fresh decision.

What did the court decide?

Impugned orders quashed and set aside; matter remanded to Registrar for fresh decision within six months.

Mr. Nasir Hussain Vs the Divisional Joint Registrar… — Cooperative Societies | Bombay HC (2014)

¶1

dss

¶2

wp-2391-14

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶4

WRIT PETITION NO.2391 OF 2014

¶5

Mr. Nasir Hussain Chief Promoter,Unique Heights CHS Ltd. (Proposed) ..Petitioner versus The Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai & ors. ..Respondents

¶6

Mr. P.B. Shah i/b K.P. Shah for the Petitioner. Ms P.S. Cardozo, AGP for Respondent Nos.1 and 2 Mr. Y.E. Mooman for Respondent No.3.

¶7

CORAM : M. S. SONAK, J. Reserved on : 12 September 2014 Pronounced on : 18 September 2014.

¶8

P. C.

¶9

1] Rule. With the consent of learned counsel for the parties, rule is made returnable forthwith.

¶10

2] By this petition, the petitioner questions the order dated 2 February 2010 made by the Deputy Registrar, Cooperative Societies and the order dated 30 August 2013 made by the Divisional Joint Registrar, Cooperative Societies, Mumbai, declining the registration to a proposed cooperative housing society, i.e., ' Unique Heights Cooperative Housing Society Limited (proposed) '.

¶11

3] Considering the order finally proposed to be made in this petition, there is no necessity to advert to the facts and contentions in great details. Suffice to state that the petitioner, together with 17 persons,

1/9

dss

wp-2391-14

representing in all 21 , out of 34 units in the building Unique Heights applied on 4 December 2009 to the Registrar of Cooperative Societies for the registration of the proposed society as aforesaid. By order dated 2 February 2010, the Deputy Registrar rejected the application on the following grounds:

¶16

(a) That out of 34 unit holders, only 18 unit holders have applied for registration of the society. This is less than 60% of the total unit holders. Therefore, in accordance with law, circulars issued by the State Government, no society can be registered, based upon such application;

¶17

(b) No completion certificate in respect of the building Unique Heights has been produced alongwith the application seeking registration.

¶18

3] The petitioner appealed against the order dated 2 February 2010 to the Divisional Joint Registrar, which came to be dismissed by the order dated 30 August 2013, primarily on the grounds that 60% of the unit holders have not applied for registration of the society.

¶19

4] Mr. P.B. Shah, learned counsel for the petitioner made the following submissions in support of the petition:

¶20

(a) That Section 6 of the Maharashtra Cooperative Societies Act, 1960 (“Act”) provides that no society shall be registered under the Act, unless it consists of at least 10% who are qualified to be members under the Act and who reside in the area of operation of the society. The circular, which introduces the requirement of at least 60% of unit holders applying for

2/9

dss

wp-2391-14

registration, have been struck down by this Court in Writ Petition No.660 of 2010 decided on 6 October 2010. As such, the authorities erred in relying upon such circulars, to deny registration;

¶25

(b) Assuming the circulars apply, out of 34 unit holder, 21 had applied for registration. The circumstance that some of the applicants owned more than one unit and therefore, signed the application in more than one capacity, was irrelevant. Thus construed, more than 60% of the unit holders had applied for registration of the society. The registration has been denied without consideration of this aspect;

¶26

(c) The appellate authority, i.e., Divisional Joint Registrar has rejected the appeal, without adverting to the various contentions and grounds raised by the petitioner in the memo of appeal. The order made by the appellate authority is vitiated by non application of mind;

¶27

(d) In terms of Section 10 of the Maharashtra ownership of Flats Act, 1963 (“MOFA”), respondent No.3-developer was obliged to form and register society. Having failed, the petitioner and other unit holders rightly applied for registration of the society. In such circumstances, the authorities under the Act have erred in declining registration, based upon the considerations, which find no place in the Act or as Rules made thereunder.

3/9

dss

wp-2391-14

5] Mr. Y.E. Mooman, learned counsel for respondent No.3developer attempted to make several submissions with regard to the dispute between respondent No.3 and unit holders, in the matter of registration of society and fulfillment of contractual terms inter se. Mr.Mooman further submitted that in terms of Section 10 of the MOFA, the petitioners were required to approach the competent authority for determination as to whether there was any failure on the part of the development in matter of registration of the society. Upon such determination, it was for the competent authority to direct the authorities under the said Act to register the Society. The petitioner or the other unit holders had no right to directly approach to the authorities under the said Act for registration of the society. Mr. Mooman then placed reliance upon the circulars issued by the Registrar of Cooperative Society on 29 November 2010, and which in terms, provide that the application by at least 60% of the occupants is a condition precedent for registration of the society. Mr. Mooman submitted that such prescription by the Registrar of Cooperative Society is in pursuance of powers vested in him by Section 6(1) of the Act and the circular dated 29 November 2010 has never been struck down by this Court. For all these reasons, Mr.Mooman submitted that the impugned orders warrant no interference by this Court.

¶32

6] Ms P.S. Cardozo, learned AGP for respondent Nos.1 and 2 rightly submitted that the impugned orders have been made by the authorities under the Act, in their capacity as quasi judicial authorities. Therefore, the two impugned orders speak for themselves and warrant no interference by this Court.

4/9

dss

wp-2391-14

7] Section 6 of the Act deals with conditions of registration of society. Sub-section (1), which is relevant for the purpose of issues raised in this petition reads thus:

¶37

(1) “No society other than a federal society, shall be registered under this Act, unless it consists of at least ten persons [or such higher number of persons as the Registrar may, having regard to the objects and economic viability of a society and development of the cooperative movement, determine from time to time for a class of societies], (each of such persons being a member of a different family), who are qualified to be members under this Act, and who reside in the area of operation of the society.

¶38

[Provided that, a lift irrigation society consisting of less than ten but of five or more such persons may be registered under this Act]

¶39

[Provided further that, the condition regarding residence of the members in the area of operation of the society shall not apply for registration of the society, being the co-operative credit structure entity] ”

¶40

8] From the aforesaid, it is clear that no society other than a federal society shall be registered under the Act, unless it consists of at least ten persons or such higher number of persons as the Registrar may, having regard to the objects and economic viability of a society and development of the cooperative movement, determine from time to time for a class of societies, each of such persons being a member of a different family, who are qualified to be members under the Act and who reside in the area of operation of the society.

¶41

9] By the judgment and order dated 6 October 2010 in Writ Petition No.660 of 2010, this Court has held that the Circulars of 1980 and 1992 are not relatable to the exercise of powers by the Registrar in terms of Section 6 (1) of the said Act. Accordingly, based upon such Circulars,

5/9

dss

wp-2391-14

registration could not be denied, where at least 10 persons qualified to be members under the said Act and who reside in the area of operation of society, apply for registration of the Society

¶46

10] Based upon the aforesaid decision in Writ Petition No.660 of 2010, there can be no difficulty in setting aside the impugned orders dated 2 February 2010 and 30 August 2013. However, for reasons adverted to hereinafter, it may not be possible, at this stage, to direct the Registrar of Cooperative Societies to register cooperative society in pursuance of application made by the petitioner on 4 December 2009. Instead, it could be appropriate, if the Registrar of Cooperative Society considers the petitioner's application dated 4 December 2009, afresh and in accordance with law

¶47

11] Mr. Mooman, learned counsel for respondent No.3 has placed on record Circular dated 29 November 2010 issued by the Registrar in exercise of powers conferred upon him by Section 6(1) of the said Act. This Circular suggests the requirement of at least 60% of the flat holders applying for registration of a cooperative society. Although such Circular dated 29 November 2010 was in existence when the Divisional Joint Registrar, dismissed the petitioner's appeal against the order dated 2 February 2010 made by the Deputy Registrar, admittedly such Circular dated 29 November 2010 was not in existence at the stage when the petitioner lodged application dated 4 December 2009 seeking registration or for that matter when the Deputy Registrar, by order dated 2 February 2010, declined registration. Therefore, issue arises as to whether the Circular dated 29 November 2010, can at all be applicable in deciding the

6/9

dss

wp-2391-14

petitioner's application dated 4 December 2009 for registration of the society.

¶52

12] Mr. P.B. Shah, learned counsel for the petitioner, relying upon the decision of this Court in Nitin P. Bankar vs. The Saptasringi Mahila Vividh Karyakar Seva Sahakari Sanstha Maryadit, Pimpalgaon (B) & ors decided on 4 April 2014 in Writ Petition No.1747 of 2013, submits that Circular dated 29 November 2010 can only have prospective application and therefore , cannot apply to applications made prior to 29 November 2010. On the other hand, Mr.Mooman, learned counsel for respondent No.3 submitted that the Circular is only clarificatory in nature and therefore, can certainly apply to pending proceedings. Mr. Mooman submitted that appeal before the Divisional Joint Registrar instituted by the petitioner, was merely a continuation of earlier proceedings seeking registration. In the meanwhile, if there is some change in the legal position, the appeal Court could never have ignored it. On this basis, Mr. Mooman submits that the appeal Court order dated 30 August 2013, ought not to be interfered with.

¶53

13] Admittedly, the circular dated 29 November 2010 was not in existence when the Deputy Registrar made the order dated 2 February 2010 declining registration. So also, the Circular dated 29 November 2010, though in existence was not considered by the Divisional Joint Registrar whilst making the order dated 30 August 2013. Several issues as aforesaid, arise in the context of Circular dated 29 November 2010. There is again some controversy in the matter of interpretation of the circular, particularly as the petitioner's contend that 21 out of 34 unit holders, having signed the application seeking registration, the requirement of 60% stands fulfilled.

7/9

dss

wp-2391-14

However, on behalf of respondent No.3, it was contended that only 18 out of 34 unit holders have actually signed on the application seeking registration. Even Section 6(1) makes reference to at least 10 persons, each of whom being a member of a different family applying for registration. Therefore, it is contended on behalf of respondent No.3 that the application as made on 4 December 2009 did not fulfill the requirement of 60%. Again, as noted earlier, neither the Deputy Registrar nor Divisional Joint Registrar have addressed themselves to all these issues. Rather than such issues being adjudicated for the first time by this Court, particularly in absence of entire data, it is appropriate that the matter is remanded to the Registrar of the cooperative societies for fresh decision, in accordance with law.

¶58

14] At least prima-facie however, there is no merit in the contention urged on behalf of respondent No.3 that in the light of provisions contained in Section 10 of the MOFA, the authorities under the said Act are precluded from entertaining any application for registration of a cooperative society, in absence of a direction from the competent authority under the MOFA. Section 10 of the MOFA merely provides that as soon as a minimum number of persons required to form a cooperative society or a company have taken flats, the promoter shall within prescribed period submit an application to the Registrar for registration of the organisation of persons who take the flats as a cooperative 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 cooperative society or as the case may be, of a company. The proviso to Section 10 of MOFA provides that if the promoter fails within the prescribed period to submit necessary an application to the Registrar for

8/9

dss

wp-2391-14

registration of the society in the manner provided in the Act, the competent authority may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society. The second proviso provides that no such direction to register any society shall be given by the competent authority without first verifying authenticity of the applicant's request and giving the concerned promoter a reasonable opportunity of being heard.

¶63

15] Obviously, the aforesaid provisions of MOFA afford some additional remedy to the persons who have a complaint against their promoters in the matter of registration of a cooperative society. However, such provision by itself, cannot bar the authorities under the said Act from exercising their statutory powers, provided ofcourse the necessary statutory pre-condtions are complied with by the applicants.

¶64

16] Accordingly, the impugned orders dated 2 February 2010 and 30 August 2013 are hereby quashed and set aside. The matter is remanded to the Registrar of the Cooperative Societies (which will included the concerned Deputy Registrar, Cooperative Societies) with a direction to consider afresh, the petitioner's application dated 4 December 2009 for registration of cooperative society, in accordance with law, within a period of six months from today.

¶65

17] Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs.

¶66

dinesh

¶67

9/9

Mr. Nasir Hussain v. the Divisional Joint Registrar, Co-Op. Soieties and Ors.

Case brief

What is this about?

What did the court decide?

Mr. Nasir Hussain v. the Divisional Joint Registrar, Co-Op. Soieties and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prashant Motiram Worlikar and Anr. Vs Chief Secretary, Government of Maharashtra and 4 Others.

Jetwan Chandivali S.R.A. Co-Operative Housing Society Ltd. Vs State of Maharashtra and 3 Ors.

Asif Ali Siddiquie Vs the State of Maharashtra and 3 Others

Smt. Fergi Farookh Nargoliwalla and Anr. Vs the State of Maharashtra, through Dept of Revenue and Ors.

Shri. Jaynath Narayan Kate Vs Shri. Ramesh Nanasaheb Waghere and Ors.

Darius Kaikhushroo Soonawalla Vs Ferangis Farokh Nargolwalla and Anr.