MUMBAI: The Bombay High Court has ruled that a deputy registrar of cooperative societies cannot issue a no-objection certificate (NOC) allowing a residential flat to be used for commercial purposes, or direct a housing society to grant such permission.
The court said the official had no legal authority to take either step.
The NOC had stated that his office had no objection to the owners of a ground-floor flat in Surya Lok Co-operative Housing Society in Khar West using their premises for commercial purposes. A single-judge bench of Justice Sandeep Marne, on Friday, struck down an NOC issued by the deputy registrar of cooperative societies, M-West Ward, on December 8, 2016.
The society challenged the deputy registrar’s decision in the high court after the divisional joint registrar upheld it on January 15, 2018. It argued that the deputy registrar had not cited any provision of law that empowered him to issue such an NOC and, in any case, had no authority to do so. The judge also drew a distinction between directing a housing society to issue an NOC and issuing one on its behalf, pointing out that the deputy registrar had no authority to do the latter. The court also noted that Surya Lok Co-operative Housing Society is a tenant co-partnership society. Under this arrangement, the society owns the land and building, while individual members have the right to occupy the flats allotted to them. In this case, the building comprised exclusively residential premises, and the society had refused permission for commercial use.
“The provisions of the MCS Act do not contemplate issuance of an NOC by the deputy registrar for a change in the use of the premises,” the court said. “The latter action is wholly beyond his jurisdiction and is legally unsustainable,” the court said. It further criticised the official’s decision, observing that he had acted in a “most arbitrary manner” by declaring that his office had no objection to the proposed commercial use. The court said the flat owners could not change the purpose for which the premises were being used without the society’s NOC. “The deputy registrar does not have jurisdiction to either himself issue NOC or even to direct the society to issue NOC for change of user,” the court said.
