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Mumbai: The Supreme Court had last month dismissed a Special Leave Petition (SLP) of a builder Avarsekar And Sons Pvt Ltd will appeal against the Bombay High Court’s December 2022 judgment, which had allowed a petition by residents of a prime Prabhadevi Building to form a Co-operative Housing Society (CHS), not a condominium.
In 2018, Rushab Shah, the main promoter of the New Pushpanjali Co-operative Housing Society (proposed) in Prabhadevi, had filed a petition against developer Avarsekar & Sons. Shah challenged the rejection of the petition of the proposed society to be registered as CHS.
The authorities had registered New Pushpanjali CHS in January as per the High Court order, which was opposed by the builder.
In its January 20 order, the apex court bench of Justice Bhushan Gavai and Justice Vikram Nath, after hearing Shekhar Nafde, senior advocate for the builder and Shyam Divan, senior advocate for Shah, had said, “We are inclined to interfere in the impugned judgment.” and the order passed by the High Court.”
“It is very surprising that this Court has interpreted the law and also about the responsibility of the Competent Authority in various judgments. Despite this, it is sad to note that the Competent Authority is not following the law laid down by this Court And mechanically, Justice SM Modak, in his judgment dated December 23, 2022, said, “Refusing to register the society. Therefore the (rejection) order cannot be sustained in the eyes of law.”
The high court criticized the state authorities after hearing Shah’s senior counsel Sharan Jagtiani and builder’s counsel Sanjeev Punalekar.
The builder in its SLP contended that the High Court had erred in its findings.
Jagtiani later said, “The HC judgment and subsequent dismissal of the SLP by the Supreme Court, thus upholding the HC judgment, protected the rights of flat buyers to register societies. Benefits of a society is that voting rights run by membership, whereas in a condominium, voting is according to the area occupied. This is why a developer who has fewer units under his control, but more area (because they are bigger flats) would prefer a condominium. We do.
It was the duty of the authorities to ascertain whether the declaration to register the building as a condominium under Maharashtra Apartment Ownership Act has been done by the promoter or developer, and if it was on the basis of the relationship reflected in the flat purchase agreement – between the flat owners and the developer – if not – then the officer – is performing his duty.
The HC held that registration of a ‘declaration letter’ is “not sufficient” to register a building as a condominium. It is the duty of the concerned authorities to verify whether it is “as per the provisions of the Maharashtra Apartment Ownership Act”. The HC ruled, “The competent authority should be mindful of the fact that when there is an objection on the ground of registration of ‘Deed of Declaration’, it prevents it from registering the society.”
The HC noted that in the case of Pushpanjali Bhavan, the “declaration paper’ is not registered by Avarsekar, but by one MV Prajith”. Prajith claims to be the purchaser from the original owners, the HC also noted that “undoubtedly, he is not a person who has agreed to sell the flat to the members of the proposed co-operative housing society. Therefore, there is no relation between him and the petitioner”. There was no relation. As flat purchaser and promoter.”
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