M S MUTHANNA Vs. PARVATI M HEBLE

JUDGEMENT

(1.) This is a dispute between the petitioner and the society named, "The Embassy Apartments Co-operative Housing Society Ltd." of which he is the member.

(2.) The dispute raised by the Society was referred to an Officer on Special Duty which was concluded in favour of the society. The petitioner filed an appeal before the Maharashtra State Co-operative Tribunal, Bombay which was also dismissed. Being aggrieved, the petitioner has filed the petition.

(3.) The Western Building Corporation, who were the builders, constructed a building on the Nepean Sea Road consisting of the ground floor and 2 upper floors. The builders sold individual flats to various purchasers on the basis of an agreement which stipulated that ultimately either a company or a co-operative society will be formed. This was ultimately done when the respondent No. 5 society was registered in February of 1966. Various purchasers have become members of the society and a conveyance was executed in favour of the society but is awaiting registration. The actual behaviour of the parties, however, is to treat the society as the legal entity and the legal owner of the entire building and the members thereof as allotees of the flats being tenant-owners or tenant-occupiers. There is no dispute that the petitioner is a purchaser of flat No. 12-A on the first floor of this building. The plot on which the building is constructed lies to the west of the Nepean Sea Road. The entrance is on the main Nepean Sea Road. The southern as well as the western part of the plot opens up directly to sea. Due to the peculiar situation and the width of the plot, the Corporation permitted garages to be constructed on the ground floor but on the top of the garages a set back is given. Accordingly, the main building commences where the set back of the first floor ends, which set back has been described in these proceedings as the "Terrace Garden". Admittedly, this terrace has mozaic flooring with a parapet wall at the end. The parapet wall is to prevent entry from the southern side of the plot which opens to east.