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2025:BHC-AS:57071

28-wp9181-25final.doc

MPBalekar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 9181 OF 2025

Mita A. Ghelani and Ors. … Petitioners

V/s.

The State of Maharashtra, Thr.

Government Pleader and Ors. … Respondents

Mr. Kishor Tembe along with Mr. Dhananjay Mahamuni for the

petitioners.

Smt. S. R. Crasto, AGP for the State – Respondent

Nos.1 to 5.

Mr. N.N. Bhadrashete i/by Ms. Priyanka Bhadrashete

for Respondent Nos. 8 to 10.

Mr. Piyush M. Shah along with Mr. D. Shah for

Respondent Nos. 6 to 11 & 16.

CORAM : AMIT BORKAR, J.

DATED : DECEMBER 23, 2025

P.C.:

1. At the request of the learned Advocate for the petitioners,

and on instructions received, permission is granted to delete

Respondent Nos. 7 and 11 from the array of parties. The

amendment shall be carried out immediately.

2. The challenge in the present writ petition arises from

proceedings initiated under Section 18 of the Maharashtra Co-

operative Societies Act, 1960. Respondent Nos. 6 to 11 moved an

application under the said provision seeking bifurcation of the

society. On 26 June 2015, Respondent No. 4 issued a draft order of

bifurcation. The grievance of the petitioners is narrow but

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substantial. According to them, before issuing the draft scheme or

draft order, the mandatory consultation with the federal society

was not undertaken. Reliance is placed on the judgment of the

Supreme Court in Hemant Vimalnath Narichania v. Anand Darshan

Co-operative Housing Society Ltd., reported in 2016 (6) Mh.LJ 14.

Particular emphasis is laid on paragraphs 7 and 8 of the said

judgment, which clearly explain the sequence of steps under

Section 18 and underline that consultation with the federal society

must precede the publication of the draft scheme.

3. Respondent Nos. 6 to 11 and the developer have opposed the

writ petition. Their principal submission is based on delay and

practical hardship. It is contended that the buildings are in a

dilapidated condition. Some members have already vacated their

premises. According to them, remanding the matter at this stage

would cause serious prejudice to members who are awaiting

rehabilitation in newly constructed buildings. It is pointed out that

several consequential steps have already been taken, including

separation of property cards and issuance of necessary

permissions. On this basis, it is urged that the impugned order

should not be interfered with.

4. On examining the impugned judgment and order, it becomes

clear that the authorities under the Act did not consult the federal

society before publishing the draft scheme. This fact is not

disputed on record. The issue raised is a pure question of law

touching upon the manner in which statutory power under Section

18 is to be exercised. Such an objection goes to the root of the

jurisdiction and can be raised at any stage, including in a writ

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petition. Paragraphs 7 and 8 of the judgment of the Supreme

Court, relied upon by the petitioners, clearly set out the statutory

sequence. First, the Registrar must prepare a draft scheme. Second,

the Registrar must consult the federal society by forwarding the

draft scheme to it. Third, after considering the opinion of the

federal society, the Registrar must prepare a draft order and invite

objections or suggestions from the members of the concerned

society. Only thereafter can a final order be passed. The Supreme

Court has categorically held that consultation with the federal

society is required at the stage of the draft scheme and not after

the draft order is circulated.

5. A plain reading of paragraphs 7 and 8 of the Supreme Court

judgment leaves no room for doubt. The Registrar is under a

statutory obligation to consult the federal society after preparing

the draft scheme and before proceeding further. This consultation

is not an empty formality. The o