HC upholds registration of housing society with illegal building

Mumbai: The Bombay high court (HC) has held that a co-operative housing society cannot be de-registered only on the ground that its building is unauthorised

Mumbai: The Bombay high court (HC) has held that a co-operative housing society cannot be de-registered only on the ground that its building is unauthorised. The HC also struck down the August 2019 order passed by the minister of co-operation, ordering the de-registration of a co-operative housing society from Airoli in Navi Mumbai on the ground that its building was unauthorised.

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The single judge bench of justice GS Kulkarni said the authorities could not point out any provision in the MCS (Maharashtra Co-operative Society) Act which would confer jurisdiction on the registrar or the higher authorities to de-register a co-operative society because of some illegality or irregularity in construction of the building of the society.

“If the reasons set out in the impugned order are accepted, it would not only run contrary to the provisions of Section 8 to 10 (of the MCS Act) providing for the registration of the co-operative societies, but also create a chaotic situation,” said the bench and struck down August 13, 2019 order passed by the minister of co-operation to de-register Airoli Neha Apartment Co-op. Housing Society.

The building was constructed on land allotted by CIDCO to one Babibai Joshi, who had granted development rights to one Yogesh Enterprises, who in turn appointed a contractor to build the building. Though the building was constructed and flats were sold, because of the disputes between Yogesh Enterprises and the contractor, a co-operative housing society of the flat purchasers was not formed.

The flat purchasers applied to the Deputy Registrar of Co-operative Societies for registration of the housing society and accordingly the registration was granted to the society on February 14, 2012.

Yogesh Enterprises carried the matter forward first in appeal and then in revision before the minister, who ordered de-registration of the housing society, primarily in view of the fact that its building was constructed without obtaining planning permissions.

The housing society then moved the high court, contending that the order was beyond its jurisdiction, as the minister could not have taken the legality of the construction into consideration while passing the order.

The court accepted the contention that the consideration was extraneous and said the provisions for de-registration of a co-operative society, contained in section 21A of the MCS Act provide for de-registration on a limited number of grounds like - misrepresentation made by applicants, where the work of the society is completed or exhausted or the purposes for which the society has been registered are not served etc. And the reason cited by the minister – unauthorised construction of the building – was “completely alien to the MCS Act and not relevant for registration or de-registration of a society.”

“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 MCS Act,” said the court and struck down the minister’s order, upholding de-registration of the co-operative housing society.

The single judge bench also clarified that this order would not come in the way of any action the planning authority takes or has taken as regards the unauthorised construction.