MUMBAI: The Bombay High Court has permitted the registration of the Vienna Apartments Co-operative Housing Society in Juhu, overturning a state government decision from June 2021 that had prevented it. Justice Amit Borkar determined that the previous refusal was legally flawed and not aligned with the aims of homebuyer protection laws, including the Maharashtra Ownership Flats Act (MOFA) and the Maharashtra Co-operative Societies Act (MCS Act).
The Court re-established an earlier decision from December 18, 2020, which had granted the registration, and instructed the relevant authorities to issue the registration certificate within four weeks.
The case revolves around the Vienna Apartments, a residential complex on Plot no. 12 in the JVPD Scheme at Juhu, developed by Laksons India Pvt Ltd on land leased from the Greater Bombay Co-operative Housing Society Ltd. Seven flat purchasers, spearheaded by Chief Promoter Dilip Bobde Patil, sought to form their own housing society.
However, the government’s Competent Authority denied their application, arguing that the buyers didn’t possess a No Objection Certificate (NOC) from the parent society, claiming that creating a separate entity would lead to an unlawful “sub-society.”
Court rejects government’s argument
Justice Borkar disagreed with the earlier stance, noting that both the MCS Act and its regulations do not necessitate an NOC from a parent society for registration, clarifying that the concept of “sub-society” lacks any legal basis.
The Court established that Vienna Apartments represents a fully functional unit, allowing its flat owners to create their own co-operative society if they adhere to statutory conditions.
The judgement also indicated that the developer failed to meet the requirements outlined in Sections 10 and 11 of MOFA, which mandate the establishment of a co-operative society for flat owners and the subsequent transfer of property to that society upon sale of the flats. Advocates Amrut Joshi and Yazad Udwadia represented the petitioners.
Moreover, the Court criticized the longstanding practice of regarding flat purchasers as mere nominal members of parent societies. Justice Borkar asserted that residents who have paid in full for their homes and reside as owners should not be treated indefinitely as nominal members, a practice that undermines the intent of recent amendments to the MCS Act, specifically Chapter XIII-B.
The developer’s assertion that the case was barred by res judicata—based on a 2017 dismissal—was rejected by the Court, which noted that legal standards have evolved since then, primarily by lowering the minimum membership required to form a society to enhance homebuyer rights.
Distinction from previous rulings
The respondents referenced the 1989 Karvenagar judgment (Karvenagar Sahakari Griha Rachana Sanstha Maryadit, Pune v. State of Maharashtra), but the Court deemed it irrelevant. In that case, the government sought to impose new members on an existing society, while the residents of Vienna Apartments were opting to voluntarily create their own society—an action protected under Article 19(1)(c) of the Constitution, which guarantees the freedom to form associations.
Ultimately, the High Court revoked the 2021 denial, reaffirmed the 2020 approval, and mandated the authorities to complete the society’s registration within four weeks, rejecting any attempts to delay or postpone the ruling.
“Denying registration would only preserve developer dominance, contrary to the essence of laws established to protect the rights of legitimate flat owners,” Justice Borkar remarked.
