Oral Order:
This writ petition along with some civil applications appeared on board under caption "for orders". When the civil applications were argued and since they were argued extensively, a suggestion was given to parties as to why the petition cannot be taken up and disposed of. All parties having consented to this course, the petition is heard and disposed of.
2. On 18th September 2003, this Court admitted the petition and made interim orders of status quo. That has led to filing of applications by several persons who are not even parties to the petition but who are anxious to have a decision on this petition.
3. In such circumstances, even those who have moved the applications, have been heard by me.
4. The petition is directed against an order dated 22nd October 2003 passed by the Divisional Joint Registrar, Cooperative Societies by which an appeal has been allowed, which appeal was preferred by the respondent No.3 to this petition. The appellate authority has allowed the appeal and set aside an order passed by the Deputy Registrar, Cooperative Societies, Maharashtra Housing and Area Development Authority, (for short MHADA) on 15th November 2002 bifurcating a cooperative housing society.
5. The facts which are very few and simple for appreciating this challenge are that the Maharashtra Housing and Area Development Authority (MHADA) constructed inter alia four buildings in the year 1982 named as Building Nos.107, 108, 110 and 111 comprising of about 112 tenaments. They were allotted to intending purchasers on hire purchase basis. The flat purchasers were in put in possession and ultimately they formed respondent No.3 society. That is a society in respect of four buildings. The MHADA, thereafter, transferred the lease hold interest in the plot along with ownership of the four buildings in favour of respondent No.3.
6. The petitioners state that the society is of four buildings. There were disputes and differences since beginning amongst the members for one or other reason. They started collecting maintenance charges separately for maintaining their own building separately. Equally, it is their case that the Mumbai Board or the Authority permitted the occupants of Building Nos.107 and 108 to pay property taxes in respect of their building directly to MHADA. On account of these disputes, inter se and complaints to the authorities that the managing committee meeting held on 10th December 2000, by majority decision resolved to bifurcate the respondent No.3 society in two separate societies, one in respect of building Nos.107 and 108 and other in respect of building Nos.110 and 111 as that would be feasible. There is special general body meeting held on 24th December 2000 and thereat a resolution came to be passed of bifurcation. The minutes of the said meeting were not circulated and it is not necessary to refer to the disputes in that behalf because ultimately, the complaints were made to the second respondent to take cognisance of these decisions and make necessary orders in terms of section 18 of the Maharashtra Cooperative Societies Act, 1960 (MCS Act for short).
7. It is upon such an application and complaint that the second respondent called for the comments or opinion of the Federal society which came to be forwarded on 31st May 2002. It is based on all this material and after hearing parties that the second respondent made an order of bifurcation.
8. Aggrieved and dis-satisfied with this order, the respondent No.3 society preferred an appeal which appeal has been allowed by the Divisional Joint Registrar. In allowing the appeal, the Divisional Joint Registrar has observed that the sole intention for seeking relief of bifurcation is to seek benefit of the Floor Space Index (for short FSI) of the plot. There is no warrant for making bifurcation when there are joint buildings. No separate society of such building can be registered. For the reasons assigned in para 6 of the order, the appeal has been allowed and the order passed on 5th November 2002 by the Deputy Registrar is set aside.
9. Mr.Dani, learned Counsel appearing for petitioner submits that the impugned order of the Divisional Joint Registrar allowing the appeal does not take note of either the opinion of the Federal Society or the complaint with regard to differences and disputes and continuous bickering between the residents and occupants of the building. If the affairs cannot be carried on smoothly and efficiently under one cooperative society, then, in public interest and for proper management, the bifurcation can be directed. It is precisely for that reason that the Deputy Registrar passed the order of bifurcation of the respondent No.3 society. The Divisional Joint Registrar has not adverted to any of these materials but has held that the Deputy Registrar should look into the complaints and try and redress the same. However, mere redressal of such complaints at the level of the Deputy Registrar will not solve the core issue. When there are separate buildings and there is a separation in every sense viz., with regard to payment of taxes and dues, then, the bifurcation should have been ordered as prayed. Since that has been interfered with the, impugned order deserves to be set aside.
10. On the other hand, the contesting respondent No.3 is represented by Mr.Datar. He submits that there is a single society of 102 members. The MHADA has not expressed any opinion with regard to bifurcation nor its views were sought. There are no documents evidencing separation nor is their any record of proper meetings being held whereat resolutions were passed. The Deputy Registrar had no material before him to record any satisfaction in terms of section 18(1). Once such are the state of affairs, then, the Divisional Joint Registrar committed no error in interfering with this decision of bifurcation. Mr.Datar submits that it is not the wishes of members alone which are determinative. In these circumstances, there is no merit in the petition and it deserves to be dismissed.
11. Mr.Sakhare, learned Senior Counsel and Mr.Dhakephalkar, learned Senior Counsel appearing for intervenors stated that they submit to the orders of the Court but all that they are interested is that the members or residents/ occupants must have fruits of re-development of the property and it is to smoothen and expedite the process that they have intervened. In these circumstances, beyond that they have no role to play in the constitution and management of the society.
12. With the assistance of the learned Counsel for parties, I have perused the petition and all annexures thereto. What the Deputy Registrar appears to have been influenced by and to a great extent is a letter addressed by the occupants and which occupants have stated that there should be separation of two buildings being 107 and 108 from building Nos.110 and 111 of the respondent No.3 society. They say that there are certain events by which they came to a conclusion that the complainants have lost faith and confidence in the occupants of other two buildings. It is not possible to have a joint management and in fact the majority feels that the affairs should be divided and bifurcated. They have stated that the two buildings are not wishing to entrust any funds and have secured a written order from the Estate Manager, MHADA to deposit the monthly dues of the building Nos.107 and 108. They have similarly arranged with the Municipal Corporation to raise bills for water consumption for these two buildings. They have also undertaken to see to it that the maintenance of these two buildings is proper and, therefore, they requested that appropriate decision be taken.
Thereafter, what has emerged from record is a scheme which was presented and which scheme was taken note of. The requirement is that this scheme has to be notified as proposed before it is finalised. In the proposed scheme for bifurcation/ separation what has been indicated is the number of buildings and the number of members. Thereafter, the Federal society was called upon to give its opinion. The Federal society has referred to the number of buildings, the details of registration, number of occupants and all that it has opined is that there are two buildings for which separate water and electricity connection so also sewerage facilities are provided. That the occupants of two buildings and that too 64 in number are desiring a separate society and that is how they have forwarded this proposal. The Federal society has expressed a opinion that managing a society with large number of members is difficult. There is a problem in providing basic amenities and services. Therefore, there ought to be smaller societies and that is even the scheme of the State Government. Therefore, if 53 members out of 112 expressed an opinion to separate, then, their opinion should be accepted, is how the matter has been summed up by the Mumbai District Cooperative Housing Federation Ltd. (Federal society).
13. All that the Deputy Registrar has done is to narrate these events in his order. Beyond this, he has not recorded any opinion that the wishes as expressed are founded on any decision or resolution of general body, then, the details thereof. Equally, he has not taken into consideration the fact that several complaints may have been addressed from time to time but surely there has to be material in the form of documents proving the contents of such complaint. If no records of meeting, no separate bills or copies thereof or correspondence with the authorities has been placed on record, enabling the Deputy Registrar to arrive at any proper satisfaction, then, the exercise carried out has rightly been interfered with. Section 18 of the MCS Act confers powers to direct amalgamation, division and reorganisation in public interest. The satisfaction of the Registrar should be that it is essential in the public interest or in the interest of the cooperative movement or for the purpose of securing proper management of the society that two or more societies should be amalgamated or any society should be divided to form two or more societies or should be reorganised then, notwithstanding anything contained in the section, the Registrar after consultation with the Federal society, may provide for amalgamation, division or reorganisation of those societies into a single society or into societies in terms of sub-section (1) of section 18. It is not as if one only has to recite the section or wording of the sub-section in the order.
The satisfaction in terms of these aspects has to be recorded by referring to the requisite and necessary materials. As to how it is essential in the public interest or in the interest of cooperative movement or for the purpose of securing proper management of the society that the bifurcation has to be ordered, is a serious matter. This satisfaction cannot be based only on a complaint alleging disputes and differences between members or groups thereof. it cannot be just on some dispute of differences that the Registrar can hold that he is satisfied with regard to either of these requirements. The satisfaction has to be based on something more than mere complaints or applications of some of the members. In the present case, Mr.Datar is right in contending that there is no reference to any resolution, leave alone of majority demanding any such bifurcation. There are four buildings and some of the occupants of two buildings have lodged a complaint. It is based on the same and the agreement expressed therewith by the Federal society that the impugned order has been passed by the Deputy Registrar. Therefore, once the element of public interest or the interest of cooperative movement or the purpose of securing proper management of the society has not been spelt out from any of the materials placed enabling the Registrar to record the requisite satisfaction, then, his order suffers from a patent error on the face of the record and requires to be interfered with.
Even if the matter has to be considered sympathetically by the Deputy Registrar, it was incumbent upon him to have satisfied himself that any action under section 18(1) is warranted. More so, when the land belongs to MHADA, its role is vital and crucial in the affairs. Ultimately, it gave the rights in the property to the respondent No.3 society. It is the land of MHADA in which interest was created in favour of respondent No.3. If MHADA thought it fit and deems it proper to have one society of four buildings and has conveyed its right and title on that basis, then, equally this is a relevant factor. What one finds is that the Deputy Registrar, unmindful of all this has merely endorsed the view of some of the occupants and on which alone he holds that bifurcation is necessary.
14. The Divisional Joint Registrar has concluded that the basic issue is that if the society is bifurcated the members in building Nos.107 and 108 will get more FSI and for such benefits that they are seeking the bifurcation. If that was the sole intention and the other requirements in terms of the statutory provisions or the relevant rule, have not been fulfilled, then, the bifurcation could not have been ordered. The Divisional Joint Registrar has adverted to the fact that there are joint buildings and even MHADA itself registered the society for joint buildings, the land is leased to a single society. The orders of the Deputy Registrar, therefore, are not in the interest of the society nor in the public interest.
15. The Divisional Joint Registrar, therefore, has rightly interfered with the order of the Deputy Registrar and by holding that by mere addressing complaints to Deputy Registrar would not be enough as there are remedies available to those who are aggrieved by the actions of society. Equally, there are remedies available to effectively and completely resolve the dispute. In such circumstances, only because the Federal Society has consented does not mean that the bifurcation must be ordered. To my mind, each of these reasons are germane and relevant. They are referable to the requirement stipulated in section 18(1) read with Rule 17 of the MCS Rules. Once the requisite satisfaction is to be based only on these aspects and none of them are fulfilled in this case, then, the bifurcation was really uncalled for. It is not to smoothen affairs and facilitate effective and proper management but to secure advantage for one group over the other that the bifurcation was proposed. The Deputy Registrar should not have become party to all this and that is what the Divisional Joint Registrar holds and then interferes with his order and for that reason.
16. Such a conclusion to my mind neither suffers from any error apparent on the face of record or perversity warranting interference in writ jurisdiction. If the authority who is in charge of the decision in appeal has taken note of all facts and circumstances and concluded that the bifurcation is not called for, then, such an order need not be interfered with in my equitable and discretionary jurisdiction under Article 226 and 227 of the Constitution of India. Rule is, therefore, discharged. The petition fails and is dismissed. No costs.
17. At this stage Mr.Dani appearing for petitioners prays for continuation of the ad-interim order dated 18th December 2003 for a period of eight weeks to enable the petitioners to challenge this order in higher court. The request is opposed. Having found that the interim arrangement is merely a status quo order, then, in the absence of anything which would indicate that the interest of members will be adversely affected or that the bifurcation has been fully acted upon, it would not be proper to continue the interim order. Beyond the registration of two societies and two registration certificates on record nothing has been indicated as to how the affairs and management has been separated. In these circumstances, also, the request is refused.
18. In view of the disposal of the petition, the civil applications do not survive and are dismissed as such. No costs.