1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk CIVIL APPLICATION NO. 1662 OF 2010 IN WRIT PETITION NO. 7537 OF 2009 Smt. Sharda Ganpat Patil .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents And Mr. Bharat Mehta & Ors. .. Applicants Mr. Amrendra Mishra for the Petitioner. Ms. Armin Wandrewala with Shri. Mustafa Kanchwala for the Applicants. Mr. S. D. Rayarikar AGP for Respondent Nos.1 to 3. AND CIVIL APPLICATION NO. 1663 OF 2010 IN WRIT PETITION NO. 7537 OF 2009 Smt. Sharda Ganpat Patil .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents And M/s. Earth Estate Developers .. Applicants. Mr. Amrendra Mishra for the Petitioner. Mr. S. U. Kamdar i/b Sutapa Saha for the Applicants. Mr. S. D. Rayarikar AGP for Respondent Nos.1 to 3. CORAM : MRS. ROSHAN DALVI, J. DATE : 8th July, 2010. 2 P.C. 1. The Applicant in Civil Application No. 1663 of 2010 is the developer of the plot of land which is being developed under a layout, the plan for which has been submitted to Mumbai Municipal Corporation (MMC). There are wings/buildings A to J being constructed under the said layout plan. Buildings H, I & J have been already constructed. The flat purchaser of buildings H, I & J applied to the Deputy Registrar of Co-operative Societies to form their society upon the developer not having made such an application. It was contended by the developer that their application was premature and the society could not be registered until all the wings of the all the buildings were completed. Such an order came to be passed which came to be impugned in this Writ Petition by the flat purchasers of H, I & J buildings who sought to form the society (the Petitioners). 2. The Petitioners were allowed to form the society. However that was to be upon various conditions. Other wings were being constructed. There were several flat purchasers who would purchase flats in these buildings. There had to be only one society since several amenities are common and all the buildings were being constructed under a single layout plan. Consequently the flat purchasers of the other buildings also had to be made members, who could not have formed a separate society. 3. Under these circumstances the Petitioners gave 3 the following 4 undertakings which came to be recited in my order dated 2nd February, 2010 disposing of the Writ Petition. (a) That there would be only one society. (b) That the name of the society would be amended such as to include all buildings. (c) That all the flat purchasers would be admitted as members, for the first time without charging transfer fees. (d) That all members would share the expenses of the common amenities. 4. Their statements and undertakings were accepted. 5. The Petitioner society has refused to admit the other flat purchasers of the buildings A, B, F & G which are new buildings and who have applied to be members. The Applicants in both these applications contend that the refusal to admit members is a breach of the undertaking. The undertaking runs thus : “Mr. Pradhan on behalf of the Petitioners upon taking the instructions as aforesaid undertakes to admit all the persons who shall purchase the flats from Respondent No.4 for the first time as members in all the wings of the society without claiming transfer fees.” 6. The undertaking is clear. It is in respect of admission of the persons who have purchased flats as members of the society. As and when the members 4 purchase flats, they have to be admitted as members of the society. In this case, the flat purchasers of the four buildings A, B, F & G the construction of which is now completed, have applied for such admission as members. 7. It is contended on behalf of the Petitioners that that was not the undertaking. The Petitioner’s Advocate contends that the undertaking was to admit as members all the flat purchasers at one time only after the construction of all the buildings was completed. 8. I do not read into my order dated 2nd February, 2010 the undertaking relating to the admission of the members to be made at any particular time. What has to be done when the construction of all the other buildings is completed is to amend the name of the society. This is because the name of the society registered with the Registrar is Earth Residency Co-operative Housing Society (H, I, J). If the flat purchasers in the other wings were to be the members of the society and since there could have been only one society of all the flat purchasers of all the buildings under the layout plan, the name could not have had alphabets H, I or J. The name could not be altered from time to time when some or all the flat purchasers of the other wings of the buildings joined in as members. Hence the name could be amended only after the construction of all the other buildings was completed. That does not militate against the other undertakings with regard to the admission of the other flat purchasers as members. These undertakings are separate and distinct. These are 4 5 undertakings. These were given only because the Petitioner society was allowed to be registered though the construction under layout plan was not completed until then. 9. Mr. Kamdar argued, and it stands to reason, that once the society is formed and registered, the developer would not be bound and liable to collect any amount from the flat purchasers to maintain the buildings and to pay the taxes. If the other flat purchasers were not admitted as members, the developer’s liability would otherwise continue. Since the Petitioner’s society is allowed to be registered as a society, the Petitioner’s society must take over those liabilities and obligations. Similarly the other flat purchasers would then have the obligations to make payment for the maintenance as well as taxes to the society and not to the developer. 10. The Petitioner cannot be allowed any advantage only exclusively. The Petitioner has been given the advantage of forming her society. The Petitioner must bear the statutory obligations that flow therefrom. It is in terms of those obligations that the Petitioner must admit other flat purchasers as members. Similarly those other flat purchasers would have obligations to the society for payment of maintenance charges as well as property taxes. They would be obliged to make these payments once they receive the right of being members. Both these are, therefore, two sides of the same coin. The Petitioner cannot be allowed wait until the construction of all the buildings is 6 completed to admit members who are otherwise qualified to be members upon purchase of flats in other buildings. Since the Petitioner has made a statement through her Advocate that there shall be only one society, it follows as a matter of course that there shall be membership to only one society as and when the right of membership accrues under law. Further there shall be only one name of the society which will represent all said members and there would be common obligations of these members to share all the expenses of the common amenities of the society. 11. Consequently the interpretation put upon the four separate and distinct undertakings given by the Petitioners as claimed by the Petitioners has to be rejected. The interpretation of the undertakings must be upon a plain reading of the undertaking. These are upon four separate and distinct undertakings. The Petitioners obligations under the undertakings would arise from time to time. The obligation under the third undertaking has now arisen. The flat purchasers of the other four buildings have applied to be members. The Petitioner has undertaken to admit them as members and if they are first time flat purchasers without charging transfer fees. The Petitioner shall have to admit all the flat purchasers of the wings A, B, F & G of the Earth Residency Co-operative Society buildings as members. The Petitioner shall also have to admit further flat purchasers as members from time to time as and when they make such application. 12. Of course the name of the society shall be 7 changed or amended only once and that would be after the construction of all the buildings is completed. Even without the change of the name the members of the other buildings shall have the same rights and obligations and shall be entitled to same privileges as the members who are the flat purchasers in wings H, I & J. 13. Order accordingly. Both the Civil Applications are disposed of accordingly. ( ROSHAN DALVI, J.)