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0026 Supreme(Online)(Bom) 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep V. Marne, J
Saili Durgadas Acharya – Appellant
Versus
Nandan Co-operative Housing Society Limited – Respondent
WRIT PETITION NO. 890 OF 2018

Advocates:
For the Appellants/Petitioners: Aseem Naphade, Vilasini Subramanian, Aarif Dhariwala
For the Respondents: Rajiv Singh, Sameer Chitnis, Manjiri Chitnis, Madhura Kulkarni, Omkar A. Dandekar, Shishir Joshi, N.C. Walimbe, P.V. Nelson Rajan

The Registrar’s power under Section 79(2) of the Maharashtra Co-operative Societies Act, 1960 is limited to supervisory enforcement of statutory obligations and does not vest the Registrar with adjudicatory powers to determine substantive title disputes regarding flat ownership or society membership.

Headnote:(A) Maharashtra Co-operative Societies Act, 1960 - Section 79(2) - Scope of Registrar’s power - Supervisory vs. Adjudicatory - Whether the Deputy Registrar can direct cancellation of membership/share certificate in a title dispute - The Registrar’s power under Section 79(2) is limited to enforcing compliance with the Act, Rules, and Bye-laws or previous orders - It does not authorize the Registrar to adjudicate upon substantive civil rights or title disputes regarding membership or ownership of property - The Deputy Registrar exceeded his jurisdiction by directing the cancellation of the Petitioner's name from the society records based on a title dispute between the parties. (Paras 17, 18, 19, 20, 22, 23)

(B) Writ Petition - Maintainability - Existence of alternate remedy - Availability of an alternative statutory remedy (e.g., appeal under Section 152 of the Act) does not bar a Writ Petition when the impugned order has been passed without jurisdiction - The Court exercised discretion to entertain the petition due to the long pendency of the matter and the clear lack of jurisdiction in the challenged order. (Para 25)

Facts of the case:
The dispute concerns Flat No. A/4 in a co-operative housing society. Original membership was held by one party, who later added his brother as a joint member. Following their deaths, the Petitioner (granddaughter of the original owner) was granted exclusive membership and a share certificate. The Respondent (daughter of the brother) challenged this before the Deputy Registrar, who directed the society to cancel the Petitioner's membership, restore water supply, and return car parking space to the Respondent. The Petitioner challenged this directive before the High Court.

Findings of Court:
The Court held that the Deputy Registrar’s directive to cancel the Petitioner’s membership constituted an exercise of adjudicatory power, which is outside the scope of Section 79(2) of the Maharashtra Co-operative Societies Act, 1960. The directives for water supply and parking were, however, upheld as they fell within the Registrar's supervisory functions to ensure basic amenities.

Issues: Whether the Deputy Registrar has the authority under Section 79(2) of the Maharashtra Co-operative Societies Act, 1960, to adjudicate title disputes and direct the cancellation of a member's name from society records.

Ratio Decidendi: The Registrar’s authority under Section 79 is strictly supervisory and does not extend to the adjudication of substantive disputes regarding title or ownership of property; therefore, any order resolving such disputes is void for lack of jurisdiction. Result : Petition partly allowed; cancellation order set aside, but directions for amenities maintained.

Table of Content
1. procedural history and factual background regarding society membership disputes. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8)
2. arguments regarding the scope of the registrar's jurisdiction and procedural suppression. (Para 9 , 10 , 11 , 12 , 13)
3. interpretation of section 79(2) as a supervisory rather than adjudicatory power. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22)
4. judicial restraint on non-jurisdictional interference in title disputes and final order directions. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32)

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.

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 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, Pe

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0026 Supreme(Online)(Bom) 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAYSandeep V. Marne, JSaili Durgadas Acharya – AppellantVersusNandan Co-operative Housing Society Limited – RespondentWRIT PETITION NO. 890 OF 2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep V. Marne, J
Saili Durgadas Acharya – Appellant
Versus
Nandan Co-operative Housing Society Limited – Respondent
WRIT PETITION NO. 890 OF 2018