RAHUL ENTERPRISES Vs. ABHINEHA PARK SAHAKARI GRUHA RACHANA

JUDGEMENT

(1.) By this petition, filed under Articles 226 and 227 of the Constitution of India, the petitioner a proprietary concern engaged in business of development and construction has questioned the order dated 19 th July 2012 passed by the Competent Authority and District Deputy Registrar, Cooperative Societies, Pune allowing "deemed conveyance" to respondent No.1 society under the provisions of section 11(3) of the Maharashtra Ownership of Flats Act, 1963. The said Act hereinafter is referred to as "1963 Act". The petitioner has also challenged registration granted to respondent No.1 as Tenants Coownership C0operative Housing Society on 19 th July 2009 by Deputy Registrar, Cooperative Societies, Pune City (4), Pune under section 12(1) of the Maharashtra Co operative Societies Act, 1960 (hereinafter referred to as "1960 Act" for short). The third Act with which this Court is concerned in the present matter is Maharashtra Apartment Ownership Act, 1970 which is referred to as "Apartment Act or 1970 Act" hereinafter.

(2.) The contention of the petitioner is that as in the agreement for development entered into between the parties the petitioner has reserved a right to either subject the apartments built to Apartment Act or then to form a cooperative housing society, the registration of respondent No.1 as cooperative housing society at the instance of flat takers is unsustainable. It is further contended that said registration is done on 10 th July 2009 while the apartments have been subjected to Apartment Act on 12 th June 2009 and, therefore, in view of section 10 of the 1963 Act, the registration of cooperative society is illegal.

(3.) The facts are not much in dispute. The land bearing plot Nos.202 and 203 out of Survey Nos.96/2 and 97 of village Kothrud, Pune admeasuring 1,046.12 sq.meters originally owned by respondent Nos.3 and 4 has been subjected to development agreement on 29 th December 1999 which has been registered at Sr.No.8391 of 1999 with competent authority. On 31 st August 2000, in furtherance of the said agreement, the petitioner obtained NA permission, got layout building plan duly approved from Pune Municipal Corporation and also obtained commencement certificate as per revised plan of 8 th May 2006. On 7 th June 2006 he claimed to have completed construction of multistoried building known as Abhineha Park consisting of residential units, parking, ground + three floors. He obtained completion certificate on the said date. There are 18 units in it. In 2009, he entered into an agreement with prospective purchasers of respective residential units and, accordingly, he was given right either to form a cooperative housing society or condominium of apartments. Though all flat takers had consented to it, on 19 th February 2009 they submitted a proposal to register Abhineha Park Cooperative Housing Society Limited and, accordingly, made a demand by issuing notice to the petitioner. On 26 th February 2009 petitioner replied to it and expressed his readiness and willingness to execute a deed of apartment in favour of each unit holder. On 31 st March 2009, one Shekhar Dattatraya Kulkarni, a unit holder in his capacity as Chairman of the proposed housing society submitted an application to the District Registrar, Co operative Societies, Pune City (4) for reservation of name of the society and for permission to open bank account. The said authority without extending any opportunity to the petitioner and in violation of section 10 of 1963 Act issued a registration certificate to respondent No.1 on 10 th July 2009. Thereafter respondent No.1 applied under section 11 of 1963 Act for deemed conveyance and that application came to be registered as Application No.10/2012. The petitioner appeared in those proceedings and filed reply on 24 th April 2012. On 19 th July 2012 respondent No.2 authority then issued a certificate holding respondent No.1 society entitled to deemed conveyance to the extent of land admeasuring 815.787 sq.meters out of total plot area of 951.32 sq.meters.