Ms. Sukanto Roy Developers v. Enclave Society

The State of Maharashtra ] through The Secretary, Ministry of ] Corporation, having office at ] Mantralaya, Mumbai. ] The Divisional Joint Registrar, ] Co-operative Societies, Pune, ] Division, Pune. ] District Deputy Registrar, ] Co-operative Societies, Pune. ] Sakhar Sankul, Shivajinagar, ] Pune – 5. ] The Deputy Registrar, ] Co-operative Societies, Pune City ] No.2, Sakhar Sankul, Shivajinagar ] Pune 5. ] Surobhi Regency Co-operative ] Housing Society Ltd., (proposed) ] through its promoter Mr. Umesh ] K. Verma, Age: Adult, Occu-Service ] R/o. Flat No.1/403, Surobhi ] ] Regency Co-operative Housing Society Ltd. (proposed)S.No.54/11, ] 54/11+14+20, 60 B/2/A, Godpadi ] ] Bazar, Pune. .. Respondents. - 2 - 24-wp-4980-2011 Mr. G. N. Salunkhe i/b. Mr. Ashok Misal, for the Petitioner. Mrs. M. S. Bane, AGP for Respondent Nos.1 to 4. Mr. Pavan Patil, for Respondent No.5. CORAM: G.S.GODBOLE,J. DATE : 19th JANUARY, 2012.

P.C:- 1 Heard Mr. Salunkhe, for the Petitioner, Mrs. Bane, AGP for Respondent Nos.1 to 4 and Mr. Pavan Patil, for Respondent No.5. 2 On 5th August, 2011, the following order was passed:- Heard the learned counsel for the petitioner and the

1 learned A.G.P. for respondent nos.1 to 4. The learned counsel for the petitioner pointed out that appeal under section 152 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the said Act) was maintainable as what was challenged was an order dated 9th July, 2009 directing registration of the 5th respondent-society under Section 9 of the said Act. Issue notice for final disposal returnable on 13th October, 2 2011. Learned A.G.P. waives service for respondent nos.1 to 4.

3 RULE. Rule made returnable forthwith and heard by consent of the parties. 4 By the impugned order dated 26th August, 2010, the learned DJR (C.S.), Pune Division, Pune has dismissed the Appeal No.

91 of 2009 by recording the following reasons:- - 3 - 24-wp-4980-2011

The Appellant has filed present Appeal being aggrieved and dissatisfied by the Order dated 09.07.2009 passed by the Respondent No.2. Matter came up for hearing on various dates and finally heard on 30.08.2010. On that date the Advocate for Applicant and opponent no.1 were present. It appears that the applicant has challenged the order dt. 09.07.2009 passed by the respondent no.2 u/s. 10(1) of Maharashtra Ownership Flat Act, 1963. Under the provisions of 152 of M.C.S. Act,1960 this authority has no powers to entertain present appeal. Therefore the matter is not maintainable before me. The matter is accordingly needs to be disposed of. Therefore I pass the following order. ORDER Appeal No.91/2009 is disposed of. No orders as to cost.

5 Mr. Salunkhe has pointed out that the original order dated 9th July, 2009 was passed under the Section 9 of the MCS Act, 1960 and, hence, an Appeal was maintainable under Section 152.

On the other hand, the learned AGP vehemently opposed the Writ Petition. Mr. Patil submits that the impugned order is referable only to Section 10 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1963 and, hence, the only remedy available to the Petitioner was to file Writ Petition in this Court. 6 I have carefully considered the rival submissions. Though the - 4 - 24-wp-4980-2011 impugned order passed by the DDR (C.S.), Pune, relied upon the provisions of Section 10 of the MOFA Act, 1963, it does not cease to be an order registering the Co-operative Society under Section 9 of the MCS Act,

1960. Hence, the order was clearly appealable under Section 152 of the MCS Act, 1960 and the Appellate Authority namely the DJR (C.S.) Pune Division, Pune was not justified in dismissing the Appeal as not maintainable. 7 Hence, I pass the following order:- (i) The impugned Judgment and Order dated 26th August, 2010 in Appeal No.91 of 2009 passed by the DJR (C.S), Pune Division, Pune is quashed and set aside and the said Appeal is restored to file for being heard and decided on its own merits and in accordance with law. (ii) All contentions of the parties on merits are kept open. (iii) Rule made partly absolute with the aforesaid terms with no order as to costs. (iv) Appeal shall be decided on or before 30th April,2012.

(G.S.GODBOLE,J.)