Writ Petition No. 183 of 2007. Case: Mayfair Co-operative Housing Society Ltd. Vs Francisco Carmo Fernandes and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 183 of 2007 |
| Counsel | For Appellant: Joseph Vaz, Advocate and For Respondents: R.G. Ramani, Advocate |
| Judges | S. B. Shukre, J. |
| Issue | Constitution of India - Article 227; Industrial Disputes Act, 1947 - Section 2; Maharashtra Co-operative Societies Act, 1960 - Sections 101, 137, 152, 152A, 154, 156, 43, 44, 45, 73G, 91, 91(2), 93, 93(2) |
| Judgement Date | January 22, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
S. B. Shukre, J.
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This Writ Petition challenges the legality and correctness of the judgment and order dated 03/07/2006, passed by the President, Co-operative Tribunal, Goa at Panaji in Cooperative Appeal No. 14/2003, thereby dismissing the appeal and upholding the judgment and order dated 07/03/2003, delivered by the Assistant Registrar of Co-operative Society, Central Zone, Panaji. The effect of the dismissal of the Co-operative Appeal, has been that the application, filed by the petitioner before the Assistant Registrar of Co-operative Societies under Section 91 of the Maharashtra Co-operative Societies Act, 1960 as applicable to the State of Goa at the relevant time (hereinafter referred to as the MCS Act, for short), does not raise any dispute under Section 91 and is, therefore, not tenable before the Assistant Registrar of Co-operative Societies.
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The case of the petitioner- society before the Assistant Registrar was that a group of persons organized themselves for the purpose of forming a Co-operative Housing Society, with an object of buying a portion of land, admeasuring about 800 square metres, situated at Dada Vaidya Road, Panaji belonging to the respondent, his brother and mother and constructing a building on the said land. The building envisaged construction of flats and shops. A meeting of the promoters of the Co-operative Housing Society, to be named as "Mayfair Co-operative Housing Society Ltd." and proposed to be formed on the lines of Adarsh Co-operative Housing Society, was held on 05/10/1967 and various resolutions were passed. The resolutions passed were regarding purchase of land admeasuring about 800 square metres for a lumpsum consideration of Rs. 1,20,000/-, appointment of Mr. Domingos Felix Pereira as the Chief Promoter, looking after the preparation of the plans of the building, seeking approval of the plans from the competent authority, supervising the work of construction, bearing of the preliminary expenses in respect of formation and the registration of the society as well as municipality dues by the members of the society, appointing M/s. JKF Enterprises, Panaji as Contractor for constructing the building, opening of the account of the society in any scheduled bank, having a share capital of the proposed society of Rs. 6 Lakhs, and doing other incidental things.
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In terms of these resolutions, construction of the building of the society was completed in the year 1970 by the Contractor M/s. JKF Enterprises, a Partnership Firm, of which the respondent was one of the partners. Thereafter, the Co-operative Housing Society was registered on 21/05/1971. A meeting of the General Body was held on 10/07/1971, wherein all the actions taken by the Chief Promoter were ratified. These actions included the appointment of architect and engineer, seeking of municipal approval to the building plans, process of registration of the society, etc. The meeting also approved the total cost of the building project, which comprised cost of the land of Rs. 1,20,000/-, cost of the construction of building, consisting of 14 flats and 5 shops of Rs. 4,24,700/-, engineers fee of Rs. 6,000/- and architect's fee of Rs. 12,741/-. The meeting approved allocation of 14 flats, but remained silent regarding allocating any of the shops.
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It was the case of the petitioner that the respondent No. 1 retained physical possession of 5 flats and even leased out the shops to different persons from time to time and earned income by way of rent, without informing the society or engaging the society in any manner about the deals made by him with those lessees. The petitioner submitted that it became aware only in the year 1998 about physical possession of the shops being with the respondent No. 1, when some documents in that behalf were made available to the society. Petitioner demanded back the possession of the shops, but the respondent No. 1 refused to do so, claiming that five shops belonged to him. Petitioner apprehended that the respondent No. 1 may enter into a long term deal with some third party, regarding lease or conveyance of these five shops. Therefore, the petitioner preferred a dispute application, under Section 91, MCS Act, before the Assistant Registrar of Co-operative Societies.
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Notice was served upon the respondent No. 1 by the respondent No. 2, in accordance with Section 91 (2) of MCS Act, to which a detailed reply was filed by the respondent No. 1. In his reply, he denied the contentions of the petitioner-society regarding formation of the society and subsequent events. According to him, the Mayfair building was constructed by the owners of the land i.e. he himself, his mother, brother and sister, by appointing M/s. JKF enterprises as Contractor for construction of the building. The respondent admitted that he was one of the partners of M/s. JKF Enterprises. He submitted that the building was constructed by the land owners from out of their own funds and the building was having six shops and two flats on the ground floor and 12 flats on the upper floor. He also submitted that all the flats, except three flats, were sold by the land owners/builders to various purchasers under agreements of sale and that the flats that were retained by the land owners, were for the own use of the respondent No. 1, his brother and his sister. He also submitted that the shops on the ground floor were not sold by the land owners/builders to anyone and were retained by them for their own use. He also submitted that the society was formed by the flat holders only after purchase of the flats by them, which flats were sold by him and not by the society. He submitted that after registration of the society on 21/05/1971, the land, on which Mayfair building stood, was sold by the land owners to the society by three separate sale deeds, all dated 30/10/1971. He further submitted that the building portion consisting of flats only and not shops was conveyed to the society. He further submitted that the society was never formed following the example of Adarsh Cooperative Housing Society of Caranzalem. The respondent No. 1 further submitted that since five shops in the building belonged to him and were never owned by the Society, the dispute raised by the Society in respect of these five shops would not be touching the business of the society, as envisaged under Section 91 of the MCS Act and, therefore, the dispute raised by the Society, was not maintainable before a Co-operative Forum.
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The preliminary objection so taken by the respondent No. 1, was heard at length by the learned Assistant Registrar and being convinced of its substance, the learned Assistant Registrar, dismissed the dispute application by his judgment and order dated 07/03/2003, holding that the case filed by the disputant (petitioner- society), was not a dispute within the meaning and purview of Section 91 of the MCS Act, as in force in the State of Goa. The judgment and order were carried in appeal before the Co-operative Tribunal, Goa, by the petitioner. However, the appeal was also dismissed by the judgment and order passed on 03/07/2006 by the learned President of Co-operative Tribunal. Not being satisfied with the same, petitioner is before this Court in the present writ petition, filed under Article 227 of the Constitution of India.
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I have heard Shri Joseph Vaz, learned Counsel for the petitioner and Shri R.G. Ramani, learned Counsel for the respondent No. 1. With their assistance, I have carefully gone through the paper book of the petition, including the impugned judgments and orders.
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Mr. Joseph Vaz, the learned Counsel for the petitioner submits that the impugned order passed by the learned President of the Co-operative Tribunal, Goa, confirming the order of the Assistant Registrar, holding that the dispute raised by the petitioner, does not fall within the scope and ambit of Section 91 of the MCS Act, is perverse, arbitrary and not at all based upon the facts and documents placed on record. He submits that the Assistant Registrar as well as the Appellate Tribunal, have not at all considered the documents placed on record by the petitioner in their proper perspective and the result is passing of perverse orders by both these authorities. He further submits that the documents placed on record by the petitioner clearly show that the building in question consists of not only 14 flats, but also 5 shops and the entire building has been constructed from out of the funds of the society, sourced from contributions made by the members of the society. He further submits that by three separate sale deeds, the entire land, on which the building in question stands, has been transferred absolutely by the respondent No. 1 to the petitioner and there is no document nor any evidence to show that the building, standing on the land, is constructed and owned by the respondent No. 1. He, therefore...
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