Saili Durgadas Acharya vs Nandan Co-Operative Housing Society Ltd. And Ors.
- Court
- Bombay High Court
CNR No : HCBM010475062017
Neeta Sawant WP-890 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 890 OF 2018
Saili Durgadas Acharya ...Petitioner
V/s.
...Respondents
Nandan Co-operative Housing Society
Limited and ors.
________________
Mr. Aseem Naphade with Ms. Vilasini Subramanian and Mr. Aarif
Dhariwala i.b. A.P. Singh & Co., for the Petitioner.
with Mr. Sameer Chitnis, Mrs. Manjiri Chitnis, Ms.
Mr. Rajiv Singh
Madhura Kulkarni and Mr. Omkar A. Dandekar i.b. M/s. Chitnis & Co., for
Respondent No.1.
Mr. Shishir Joshi i/b. Mr. Prasshant Berri, for Respondent No.2A.
Mr. N.C. Walimbe, Additional Government Pleader with Mr. P.V. Nelson-
Rajan, AGP for Respondent-State.
________________
CORAM: SANDEEP V. MARNE, J.
Reserved On: 08 July 2026
Pronounced On: 17 July 2026.
Judgment
1) Rule . Rule is made returnable forthwith. With the consent of
the learned counsel appearing for parties, the Petition is taken up for
final disposal.
PAGE NO. 1 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
2)
By this Petition, the Petitioner has challenged the order
dated 16 May 2016 passed by the Deputy Registrar, Co-operative
Societies, G/N. Ward, Mumbai issuing directives to the Society under the
provisions of Section 79(2) of the Maharashtra Co-operative Societies
Act, 1960 (MCS Act) . The directives included cancellation of
membership and share certificate issued to the Petitioner, restoration of
water supply to the flat and return of car parking space to Respondent
No.2.
3)
The dispute between the parties relate to Flat No. A/4,
admeasuring 650 sq. ft carpet area situated in the building of Nandan
Co-operative Housing Society Limited (Respondent No.1). The building
is located at Veer Savarkar Marg, Shivaji Park, Mumbai. Mr. Balmukund
Acharya ( Balmukund ) claimed ownership in respect of Flat No. A/4 and
the society had issued the share certificate in the sole name of
Balmukund Acharya. It appears that Balmukund had permitted his
brother Dattakumar Parshuram Acharya ( Dattakumar ) to reside in the
flat. On the strength of occupation of flat by him, Dattakumar applied to
the society to add his name as joint/nominal member in the share
certificate. Accordingly, the society added the name of Dattakumar in the
Share Certificate along with Balmukund on 18 October 1981. Balmukund
protested addition of name of Dattakumar in the membership register
and in the share certificate vide letter dated 3 July 1996.
4) In April 1997, Balmukund filed L.E. Suit No. 55/63 of 1997
before the Small Causes Court at Mumbai against Dattakumar seeking
his eviction branding him as a gratuitous licensee. One of the prayers in
PAGE NO. 2 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
the Suit was for deletion of name of Dattakumar from the records as co-
members/nominal member in respect of the flat. The plaint in the suit
was returned by the Small Causes Court for want of jurisdiction vide
order dated 15 October 1997. Balmukund filed Appeal No. 14 of 1998
before the Appellate Bench of the Small Causes Court which was allowed
by order dated 22 July 1998 and the Suit was restored. Dattakumar filed
Writ Petition No. 5764 of 1998 challenging the order of the Appellate
Court. During pendency of Writ Petition, Balmukund agreed to give up
prayer clause (d) in the suit relating to deletion of name of Dattakumar
from membership register and the Writ Petition was accordingly
disposed of maintaining the order of the Appellate Court. By order dated
27 January 2005, the Small Causes Court once again returned the Plaint
on the ground of lack of jurisdiction. Durgadas Balmukund Acharya ( son
of Balmukund) filed Writ Petition No. 1040 of 2009 challenging the order
of the Small Causes Court dated 27 January 2005 which was dismissed by
this Court vide order dated 4 March 2009.
5) On 28 June 2011, Balmukund passed away. On 3 August
2012, his son Durgadas also passed away. Petitioner is the daughter of
Durgadas and granddaughter of Balmukund. She filed application dated
23 August 2012 to the Society for addition of her name in the society
records for issuance of share certificate. On 21 October 2012, the Society
transferred membership in favour of Petitioner and issued a duplicate
Share Certificate in her name. Dattakumar wrote to the society on 25
February 2013 referring to joint membership as per family arrangement.
On 6 February 2013, Petitioner called upon the Society to cancel car
PAGE NO. 3 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
parking allotted to Dattakumar. By letter dated 9 February 2013, the
Society cancelled the car parking of Dattakumar.
6) In the above background, Dattakumar filed application
before the Dy. Registrar seeking cancellation of duplicate Share
Certificate issued in the name of the Petitioner and sought restoration of
water connection/supply and restoration of car parking. By order dated
16 May 2016, the Deputy Registrar has issued directives to the Society
under sub-section (2) of Section 79 of the MCS Act directing it to cancel
membership and Share Certificate issued to the Petitioner, to restore
water supply to Flat No. A/4 and also to return car parking to
Dattakumar.
7)
Respondent No.1-Society challenged Order dated 16 May
2016 of the Deputy Registrar by filing Appeal No. 340 of 2016 before the
Divisional Joint Registrar. Petitioner filed intervention application in
Society's Appeal No. 340 of 2016, which was allowed and the Petitioner
was impleaded as party to the Appeal. Petitioner also filed
Dispute-III/119 of 2016 before the Co-operative Court inter alia seeking
injunction against Dattakumar.
8)
In the above background, Petitioner has filed the present
Petition challenging the order dated 16 May 2016 passed by the Deputy
Registrar. During pendency of the petition, Dispute-III/119 of 2016 was
withdrawn by the Petitioner on 12 March 2020. Dattakumar passed away
on 24 February 2021 and accordingly his daughter, Nandita Acharya is
brought on record. Society's Appeal No. 340 of 2016 filed before the
PAGE NO. 4 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
Divisional Joint Registrar was also dismissed for default on 1 August
2022. In the present petition, this Court has passed interim order dated
27 April 2026 staying the order dated 16 May 2016. Respondent No.1-
Society has filed its affidavit-in-reply. Similarly, separate affidavit in
reply is filed by Respondent No.2/Nandita. Additionally, the learned
counsel for the Petitioner and Respondent No.2 have tendered their
respective compilation of documents.
9)
Mr. Naphade, the learned counsel appearing for the
Petitioner submits that the impugned order dated 16 May 2016 passed by
the Deputy Registrar is wholly without jurisdiction. Referring to the
provisions of Section 79 of the MCS Act, he submits that the Registrar
can issue directions to the Society only towards compliance with the
orders already passed by the Registrar. That in the present case, no
authority has passed an order for cancellation of membership or Share
Certificate of the Petitioner. That under the guise of issuance of
directives under Section 79(2), the Deputy Registrar has virtually
exercised adjudicatory powers and has decided title dispute between the
Petitioner and Respondent No.2 qua the flat. That therefore the order of
the Deputy Registrar is wholly without jurisdiction and the same is liable
to be set aside. In support, he relies on judgment of this Court in
1
Sadashiv Nagappa Kadam Versus. State of Maharashtra and others.
He submits that since the order is without jurisdiction, the Petitioner is
justified in directly approaching this Court instead of filing an appeal
before the Divisional Joint Registrar.
1
Writ Petition No. 2595 of 2026 decided on 4 May 2026.
PAGE NO. 5 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
10)
Mr. Naphade further submits that the flat is purchased by
Balmukund through his own funds and his brother Dattakumar was
merely permitted to occupy the flat as a gratuitous licensee. That
Dattakumar had no semblance of title in the flat and had unauthorizedly
got his name added in the records of the Society as a joint/nominal
member. That deletion of prayer from the suit filed before the Small
Causes Court does not mean that Balmukund had given up his claim of
being a sole member in respect of the flat. That in any case, mere
deletion of that prayer does not mean that the Deputy Registrar could
have exercised powers under Section 79(2) of the MCS Act for directing
deletion of name of the Petitioner from the Society's membership. That
mere intervention in Society's Appeal does not mean that Petitioner does
not have right to challenge illegal order of Deputy Registrar
independently. That the dispute was filed only for seeking injunction and
withdrawal of the same does not mean that the Petitioner cannot
maintain challenge to the order dated 16 May 2016. That Petitioner has
disclosed all the relevant information and has not suppressed the same.
He accordingly prays for setting aside the impugned order dated 16 May
2016.
11) Mr. Joshi, the learned counsel appearing for Respondent
No.2 opposes the petition submitting that Petitioner has grossly
suppressed the events relating to filing of Intervention Application in
Society's Appeal, as well as, filing of Dispute before the Co-operative
Court. That Petitioner cannot exercise parallel remedies in respect of the
same cause of action. That since Petitioner has already exercised the
remedies of becoming party to the Society's Appeal and of filing her
PAGE NO. 6 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
independent Dispute before the Co-operative Court, the present petition
filed by her for seeking same reliefs is not maintainable. Without
prejudice, he raises the objection of non-entertainability of the petition
on account of existence of alternate remedy of filing Appeal under
Section 152 of the MCS Act.
12) Mr. Joshi further submits that Dattakumar has already been
in possession of the flat right since beginning. That there was a family
arrangement between the two brothers under which the share certificate
was jointly secured in the names of Balmukund and Dattakumar. That
the joint share certificate continued right since 18 October 1981. That
the Petitioner has unauthorizedly got her name included in the share
certificate by deleting the name of Dattakumar. That Balmukund had
given up the claim for exclusive membership of the Society by giving up
the prayer for deletion of name of Dattakumar from society's
membership. That the Deputy Registrar has rightly taken note of this
aspect and has correctly issued directives to the Society for cancellation
of name of the Petitioner from the society records and the share
certificate. That such cancellation would restore the original share
certificate standing in the joint names of Balmukund and Dattakumar.
He submits that the Deputy Registrar has rightly exercised jurisdiction
under Section 79(2) in the present case. That the Society had
unauthorisedly stopped water supply and had cancelled car parking of
Dattakumar. That while issuing directives for restoration of water supply
and return of car parking, the Deputy Registrar had also taken note of
the claim being given up for Balmukund for the purpose of ordering
cancellation of name of the Petitioner from the share certificate. That
PAGE NO. 7 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
Petitioner has already exhausted all the remedies for claiming title and
possession in the flat and that therefore the impugned order restoring
the original position does not warrant any interference in exercise of
extraordinary jurisdiction by this Court. He prays for dismissal of the
petition.
13) Mr. Singh, the learned counsel appearing for Respondent
No.1-Society supports the petition and submits that the impugned order
is wholly unsustainable. He submits that on 31 August 2008 itself, a
Resolution was passed for cancellation of associate membership of
Dattakumar. That Dattakumar never challenged the said Resolution
which has attained finality. That therefore even if the impugned order
dated 16 May 2016 is implemented, the same would not enure to the
benefit of Respondent No.2 whose name from the share certificate has
long since been removed. He therefore prays for setting aside the
impugned order.
14) I have considered the submissions canvassed by the learned
counsels appearing for the parties. I gave gone through the findings
recorded by the Dy. Registrar in the impugned order. I have perused the
documents filed alongwith the petition and the compilation of
documents.
15)
The first issue that needs to be considered is whether the
Deputy Registrar had jurisdiction to issue directives vide order dated 16
May 2016 under Section 79(2) of the MCS Act. By order dated 16 May
2016, the Deputy Registrar has issued following directives to the Society:
PAGE NO. 8 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
नि र्दे श :-
मी , योगेश रं . र्देसाई , उपनि बंधक , सहकारी संस्था , जी - ए नि भाग , मुंबई ,
महाराष्ट्र सहकारी
संस्था अधिधनि यम १९६० चे कलम ७९ ( २ ) ुसार मला प्राप्त झालेल्या अधिधकारांचा ापर
करू , ंर्दे को - ऑप . हौसिंसग सो . लिल ., २२४ , ीर सा रकर माग5 , र्देार्देर , मुंबई - ४०० ०१६ ,
या संस्थेस खालील प्रमाणे नि र्देश र्देण्यात येत आहे .
१ श्रीमती . सायली आचाय5 यां ा संस्थेे निर्देलेले सभासर्देत् भागर्देाखला रद्द करण्यात
या ा .
२ श्री . डी .. पी . आचाय5 यांचा सर्देनि का क्र . ओ / ४ चा पाणीपुर ठा पु 5 त करा ा .
३ . श्री . डी . पी . आचाय5 यांचे रद्द केलेले पाकCग पु 5 त परत र्देण्यात या े .
सर्देरच्या नि र्देशाचे पाल या आर्देशाच्या निर्देांकापासु १५ निर्दे साच्या आत करण्यात ये ु
त्याचा अुपाल अह ाल त्यापुढे ७ निर्दे साच्या आत या काया5लयास सार्देर करा ा .
सर्देर नि र्देश आज निर्दे . १६ / ०५ / २०१६ रोजी माझ्या सही शिशक्क्यानिशी र्देण्यात येत आहे .
16)
The Order dated 16 May 2016 is passed in purported exercise
of powers under Section 79(2) of the MCS Act. The Deputy Registrar has
recorded following broad reasons for issuing directives by the order
dated 16 May 2016:
(i) Office bearers of the Society had unnecessarily troubled
Dattakumar by discontinuing the water supply and by
cancelling the car parking.
(ii) The report of Shri. Dinesh V. Lambole, Co-operative Officer
after conduct of site visit indicated that there was smooth
water supply to the other parts of the building except the first
floor where Dattakumar was residing.
PAGE NO. 9 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
(iii) Balmukund deleted prayer clause (d) for removal of name of
Dattakumar from Society's record from L.E. Suit No. 55/63 of
1997 as per the order passed by this Court on 27 January 1999
in Writ Petition No. 5764 of 1998. That therefore joint
membership/nominal membership of Dattakumar has
crystallised.
(iv) Society's Chairman avoided to remain present before the
Deputy Registrar and committed contempt of directives issued
by his office.
(v) If there is any title dispute, the same needs to be resolved by
the competent Court and till that time, Dattakumar would
continue to remain as a joint member of the society.
17)
On above broad submissions, the Deputy Registrar
proceeded to issue directions under Section 79(2) of the MCS Act by
order dated 16 May 2016. It would therefore be necessary to consider the
provisions of Section 79 of the MCS which deals with Society's obligation
to file returns and statements and Registrar's power to enforce
performance of such obligations. Section 79 of the MCS Act provides
thus:
79. Society’s obligation to file returns and statements and
Registrar’s power to enforce performance of such obligations.
(1) The Registrar may direct any society or class of societies, to keep
proper books of accounts in such form, including electronic or any
other form, as may be prescribed with respect to all sums of money
received and expended by the society, and the matters in respect of
which the receipt and expenditure take place, all sales and purchases of
PAGE NO. 10 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
goods by the society, and the assets and liabilities of the society, and to
furnish such statements and returns and to produce such records as he
may require from time to time ; and the officer or officers of the society
shall be bound to comply with his order within the period specified
therein.
xxxx
(2) Where any society is required to take any action including filing of
returns under this Act, the rules or the bye-laws, or to comply with an
order made under the foregoing sub-sections and such action is not
taken—
(a) within the time provided in this Act, the rules or the bye-laws, or
the order, as the case may, or
(b) where no time is so provided, within such time, having regard to the
nature and extent of the action to be taken, as the Registrar may specify
by notice in writing, the Registrar may himself, or through a person
authorised by him, take such action, at the expense of the society ; and
such expense shall be recoverable from the society as if it were an
arrear of land revenue.
(3) Where the Registrar takes action under sub-section (2), the Registrar
may call upon the officer or officers of the society whom he considers to
be responsible for not complying with the provisions of this Act, the
rules or the bye-laws, or the order made under sub-section (1), and,
after giving such officer or officers an opportunity of being heard, may
require him or them to pay to the society the expenses paid or payable
by it to the State Government as a result of their failure to take action,
and to pay to the assets of the society such sum not exceeding 3 [one
hundred rupees] as the Registrar may think fit for each day until the
Registrar’s directions are carried out.
(4) The Registrar or the authorised person on his behalf shall scrutinise
the returns and information so received and take further necessary
action, if required.
18)
Thus, under sub-section (2) of Section 79 of the MCS Act,
where any society is required to take any action under the Act, Rules or
Bye-laws or to comply with the order made under Section (1), (1A) and 1-
(1A), the Registrar can himself take such action at the expense of the
Society. Section 79(2) is thus in two parts viz. (i) failure to take action
PAGE NO. 11 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
required under the Act, Rules or Byelaws and (ii) failure to comply with
the Order made under forgoing sub-sections. It cannot be contended that
cancellation of name of Petitioner from society’s membership register is
an act which is required to be performed by the society under the Act,
Rules or Bye-laws. The MCS Act does not envisage the society to resolve
the title disputes. To exercise jurisdiction based on the second part of
Section 79(2), existence of some order passed by the Registrar under the
Act and non-compliance with the same becomes a jurisdictional fact.
19)
So far as the direction for removal of Petitioner's name from
Society's register is concerned, admittedly there is no order passed by the
Registrar directing such removal. The same is otherwise not a duty of the
society under the Act, Rules or the Byelaws. Taking action for restoration
of water supply or return of parking may be covered by provisions of
Section 79(2). Thus, what can be done by the Registrar under Section 79
of the MCS Act is giving direction to do an act which the society is bound
to perform as per the Act, Rules and Bye-laws or as per the order passed
by the Registrar. Where performance of any act requires passing of an
order by the Registrar, the Deputy Registrar cannot exercise power under
Section 79 and he cannot directly issue directives to the Society for
performance of such act.
20)
Power conferred under Section 79(2) of the MCS Act merely
supervisory in nature where the Registrar can ensure that the society
acts in accordance with the provisions of the Act, Rules and the Byelaws.
It cannot be confused with the adjudicatory power under which the
PAGE NO. 12 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
Registrar can decide the disputes relating to the title or possession of a
flat/unit in society’s building.
21) In the present case, there is a serious dispute of title
between the Petitioner and Respondent No.2. From the narration of
facts, it is clear that the dispute is going on since 1981 when Dattakumar
got his name included in the share certificate. The share certificate was
initially issued in the sole name of Balmukund on 1 March 1978. By entry
effected on 18 October 1981, name of Dattakumar was inserted as a
joint/nominal member. Balmukund objected to insertion of name of
Dattakumar. He has filed suit in the Small Causes Court both for eviction
of Dattakumar as well as for removal of his name from the share
certificate. He later gave up that prayer since Small Causes Court
obviously does not have jurisdiction to direct deletion of name from
share certificate and Co-operative Court alone can issue such direction.
Therefore, Balmukund withdrew his prayer for deletion of name of
Dattakumar from share certificate with a view to ensure that his suit for
eviction of Dattakumar as gratuitous licensee is decided by the Small
Causes Court. However on account of confusion prevailing at that time
about jurisdiction of Small Causes Court to decide suit for eviction of a
gratuitous licensee, it appears that Balmukund's suit came to be
dismissed for want of jurisdiction. Be that as it may, it is not necessary to
delve deeper into the issue of title. Suffice it to observe that there are
serious title disputes between the parties in relation to the flat.
22)
In the light of existence of serious title disputes between the
parties, the Deputy Registrar could not have ventured into such title
PAGE NO. 13 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
dispute for the purpose of issuance of directions for removal of the name
of the Petitioner from the share certificate. While the Deputy Registrar
has acknowledged existence of title dispute, he has still exceeded his
jurisdiction in issuing directions for removal of the name of the
Petitioner from the share certificate. In my view, therefore the impugned
order dated 16 May 2016 is wholly without jurisdiction and the same is
liable to be set aside.
23)
The scope of powers of the Registrar under Section 79 of the
MCS Act is dealt with by the Single Judge of this Court in Sadashiv
Nagappa Kadam in which it is held in para-6 as under:
6. Having given hearing to the learned counsel appearing for both sides,
and after careful looking into the record placed before this Court, it
appears that the controversy goes to the root of rights in immovable
property. The dispute concerns entitlement, ownership, and
consequential rights flowing from such ownership in respect of the flat.
The Registrar, while acting under Section 79 or Section 154B-27 of the
Maharashtra Cooperative Societies Act, 1960, is conferred only with
limited and supervisory powers, and not with powers of a court to
decide questions relating to title or ownership. These provisions, do not
empower the Registrar to undertake adjudication of substantive civil
rights in immovable property. Therefore, when the Revisional Authority
proceeds to grant liberty which indirectly touches upon entitlement
and membership arising out of alleged ownership, it in effect enters
into an area which is beyond its competence.
24) In the present case, there is no specific direction by the
Registrar for removal of name of the Petitioner from society's
membership. Therefore, under the guise of exercise of powers under
Section 79 of the Act, the Deputy Registrar could not have usurped such
powers by entering into the realm of title dispute between the parties.
His conclusion that till resolution of title dispute, joint name of
PAGE NO. 14 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
Dattakumar must continue on share certificate is again totally erroneous.
The name of the Petitioner was already entered as a sole member in
respect of the flat on 21 October 2012. If Dattakumar claimed ownership
in respect of the flat or if he was aggrieved by the action of the Society in
removal of his name from the society's membership, he ought to have
adopted appropriate proceedings in that regard. In fact, if the stand of
the Society is to be believed, it appears that it had resolved to remove the
name of Dattakumar from membership by passing Resolution on 31
August 2008. It is Society's contention that name of Dattakumar was
already removed by the Society from the share certificate. Therefore, it is
otherwise questionable as to whether Dattakumar or his granddaughter
can be the beneficiary of direction for removal of the name of the
Petitioner from Society's membership. The belief of the Deputy Registrar
and of Dattakumar that deletion of name of the Petitioner from Society's
membership would automatically revive joint membership of
Dattakumar appears to be fallacious. Be that as it may. It is not necessary
to go deeper into that aspect. Suffice it to observe that the order passed
by the Deputy Registrar is wholly without jurisdiction and the same is
liable to be set aside.
25) In the light of the impugned order dated 16 May 2016
suffering from serious jurisdictional issue, this Court would not decline
to exercise jurisdiction under Article 227 of Constitution Of India on
account of availability of alternate remedy of filing appeal under Section
152 of the MCS Act. It is well settled that when an authority passes an
order without jurisdiction, the availability of an alternative statutory
remedy does not bar a Writ Petition [SEE: Whirlpool Corporation v.
PAGE NO. 15 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
2
Registrar of Trade Marks
. ] It is otherwise seen that the Petition is
pending before this Court for the last 8 long years. The impugned order
has been stayed. Once this Court is convinced that the Deputy Registrar
did not have jurisdiction to issue direction No. 1, there is no point in
relegating the Petitioner to alternate remedy of revision. I am therefore
not inclined to dismiss the petition only on account of availability of
alternate remedy.
26)
I am not impressed by the contention raised on behalf of
Respondent No.2 that the Petitioner had suppressed material facts in the
petition. Suppression is sought to be linked to Petitioner's act of filing
Intervention Application in Society's Appeal, and as well as her act of
filing her independent dispute before the Co-operative Court. Both the
aspects are clearly disclosed in paras-21 and 22 of the Petition. The
contention of suppression sought to be urged by Mr. Joshi is thus not
only factually incorrect but also irresponsible.
27) Mr. Joshi has also contended that Petitioner has exercised
parallel remedies and that therefore the petition deserves to be
dismissed. It appears that the Society had filed Appeal before the
Divisional Joint Registrar challenging the impugned order dated 16 May
2016. In that Appeal, Petitioner filed Intervention Application
complaining that any order passed in the appeal would affect her. The
Intervention Application was allowed. However, during pendency of the
2
AIR 1999 SC 22
PAGE NO. 16 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
Appeal, the Petitioner has filed the present petition directly challenging
the order dated 16 May 2016 before this Court. In my view, mere filing of
Intervention Application in Society's Appeal could not prevent the
Petitioner from filing her independent Appeal before the Divisional Joint
Registrar. If she could file her own independent Appeal, she can also
prosecute the present Petition before this Court for challenging the order
dated 16 May 2016. In my view therefore mere intervention in the
Appeal filed by the Society cannot be a reason for dismissal of the
present Petition. As observed above, Society's Appeal has been dismissed
for non-prosecution possibly on account of limited interest of Society in
dispute between the two brothers. Petitioner cannot be rendered
remediless merely because she sought intervention in Society's Appeal.
She could not have prosecuted Society’s Appeal and if the petition is not
entertained, the Petitioner would be rendered remediless in respect of
the order dated 16 May 2016.
28) So far as filing of Dispute Application No.III/119 of 2016 by
the Petitioner before the Co-operative Court is concerned, it is seen that
the substantive prayers made therein were as under:
33. The Disputant therefore prays that:
a. That this Hon'ble Court be pleased to declare that Share Certificate of
5 shares dated 21/10/2012 in transfer No. 35 and registration No. 35
with regard to Flat No. A/4, Nandan Cooperative housing society Ltd,
Veer Savarkar Marg, Mahim Mumbai 400016 (Exhibit "C") standing in
the name of the Disputant is legally binding on the Opponents.
b. That this Hon'ble Court be pleased to pass permanent injunction
against the Opponent No.1 and No.2 their agents, servants and/or any
one claiming through them not to cancel and/or strikeout/delete the
PAGE NO. 17 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
name of the Disputant from the Share Certificate and membership of
Suit flat i.e. Flat No. A/4, Nandan Cooperative housing society Ltd, Veer
Savarkar Marg, Mahim Mumbai 400016 and altering and/or amending
the same in any manner with regard to the Share Certificate of 5 shares
dated 21/10/2012 in transfer No. 35 and registration No. 35
(Exhibit-"C").
c. That this Hon'ble Court be pleased to pass permanent injunction
against the Opponent No.2 directing the Opponent No.2 to quit, vacate
and hand over the peaceful possession of suit Flat i.e. Flat No. A/4,
Nandan Cooperative housing society Ltd, Veer Savarkar Marg, Mahim
Mumbai 400016 to the Disputant.
d. That the Opponent No.2 be permanently restrained from
impersonating as the sole owner and/or co-owner and/or
Member/Associate Member in respect of Suit Flat situated at Flat No.
A/4, Nandan cooperative housing society Ltd, Veer Savarkar Marg,
Mahim Mumbai 400016.
e. That this Hon'ble Court be pleased to direct the Opponent No.1 to
strikeout the name of the Opponent No.2 if found in any documents
and/or the records of the Opponent No.1 Society with regard to Suit
Flat situated at Fiat No. A/4, Nandan cooperative housing society Ltd,
Veer Savarkar Marg, Mahim Mumbai 400016.
f. That the Opponent No.1 and No.2, their agent, servants and/or any
person claiming through them be permanently restrained from creating
any third party right in respect of the suit flat situated at Flat No. A/4,
Nandan cooperative housing society Ltd, Veer Savarkar Marg, Mahim
Mumbai 400016.
29)
Thus, prayers in the Dispute were for seeking a declaration
that the share certificate dated 21 October 2012 was binding on the
opponents. Petitioner also sought injunction against the opponents
from cancelling her name from the share certificate. The Dispute also
sought prayer for possession of flat No. A/4. Thus, no challenge was
raised to the Deputy Registrar’s Order dated 16 May 2016 in the Dispute.
The Dispute was filed on an assumption as if Petitioner's share certificate
would continue to remain valid. However, by order dated 16 May 2016,
PAGE NO. 18 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
the Deputy Registrar directed the Society to remove Petitioner's name.
Therefore, it is necessary for the Petitioner to challenge order dated 16
May 2016 and in absence of such challenge, it was highly questionable as
to whether the other prayers in the Dispute could have been granted or
not. Petitioner thus challenged order dated 16 May 2016 by filing the
present Petition and has thereafter withdrawn the Dispute on 12 March
2020. In my view, therefore filing of and withdrawal of the Dispute before
the Co-operative Court would not come in the way of this Court
entertaining the present Petition.
30)
Considering the overall conspectus of the case, I am of the
view that the impugned directives issued by the Deputy Registrar for
cancellation of name of the Petitioner from membership/share certificate
is wholly without jurisdiction. The other directives for restoration of
water supply to the flat and for return of car parking need not be set
aside as they fall within the purview of jurisdiction of the Deputy
Registrar under Section 79 of the MCS Act. Since Respondent No.2
occupies the flat, it is otherwise necessary that the water supply is not
discontinued and the parking space qua the flat is also enjoyed by
Respondent No.2. However the direction for removal of name of
Petitioner from membership register and from the share certificate is
wholly without jurisdiction and the same is liable to be set aside. At the
same time, it needs to be clarified that the Order dated 16 May 2016 is
being partly set aside essentially on account of absence of jurisdiction.
Setting aside of that order would not come in the way of Respondent No.
2A in pursuing available remedies for securing cancellation of name of
Petitioner from the society’s membership register and the share
PAGE NO. 19 of 20
17 JULY 2026
Neeta Sawant WP-890 OF 2018
certificate. Similarly, nothing observed in the judgment would come in
the way of parties seeking declaration as to title and possession from the
Court of competent jurisdiction.
31)
The Petition accordingly succeeds in part, and I proceed to
pass the following order:
(i) The order dated 16 May 2016 passed by the Deputy Registrar
qua direction no.1 therein for cancellation of membership of
the Petitioner and her share certificate is set aside.
qua
(ii) However, the order dated 16 May 2016 is maintained
direction no.2 ( restoration of water supply) and direction no.3
(return of car parking).
(iii) Respondent No. 2A shall be at liberty to exercise remedies
available in law for securing a direction for removal of name of
Petitioner from the membership register and from the share
certificate from the Component Authority/Court.
32)
With the above directions, the Writ Petition is partly
allowed and disposed of. Rule is partly made absolute. There shall be no
order as to costs.
[SANDEEP V. MARNE , J.]
Digitally
signed by
NEETA
SHAILESH
SAWANT
Date:
2026.07.17
18:20:05
+0530
NEETA
SHAILESH
SAWANT
PAGE NO. 20 of 20
17 JULY 2026
Powered by TCPDF (www.tcpdf.org)