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Registrar Cannot Adjudicate Flat Ownership Disputes Using Under MCS Act: Bombay High Court
In a significant ruling clarifying the limits of administrative authority over cooperative housing societies, the has held that the Deputy Registrar of Co-operative Societies cannot invoke under to cancel a member's and effectively decide an ownership dispute.
Justice Sandeep V. Marne , sitting in the Civil Appellate Jurisdiction, partially allowed a writ petition filed by Saili Durgadas Acharya , setting aside a directive that had ordered the cancellation of her society membership while upholding directions concerning water supply and car parking restoration.
A Family Feud Spanning Four Decades
The dispute traces its roots to Flat No. A/4 , a 650-square-foot unit in located at Veer Savarkar Marg, Shivaji Park, Mumbai. The property's original owner, Balmukund Acharya , held the sole when it was first issued in March 1978.
In 1981, Balmukund's brother Dattakumar Parshuram Acharya , who had been permitted to reside in the flat, successfully applied to the society to have his name added as a joint or nominal member. Balmukund protested this addition in 1996 and subsequently filed an eviction suit before the in 1997, branding his brother a . That litigation would meander through multiple appeals and jurisdictional challenges over the next decade.
Following the deaths of Balmukund in June 2011 and his son Durgadas in August 2012, Saili—Balmukund's granddaughter—applied for and obtained transfer of membership and a duplicate in her sole name in October 2012. She then successfully moved to have Dattakumar's car parking allotment cancelled.
Dattakumar approached the , seeking cancellation of Saili's membership, restoration of water supply to the flat, and return of his parking space. On , the Deputy Registrar issued directives under Section 79(2) ordering the society to cancel Saili's membership and , restore water supply, and return the parking space to Dattakumar.
The Jurisdictional Question
The central issue before the High Court was whether the Deputy Registrar possessed the jurisdiction to direct cancellation of a society member's under Section 79(2) of the MCS Act. Saili contended the order was , arguing that Section 79 only empowers the Registrar to enforce a society's compliance with statutory obligations or pre-existing orders—not to adjudicate .
The respondents, represented by Dattakumar's daughter Nandita Acharya after his death in February 2021, defended the order as a legitimate exercise of . They pointed to Balmukund's earlier withdrawal of a prayer seeking deletion of Dattakumar's name from the society's records, arguing this crystallized the .
The society itself supported Saili's petition, revealing that a resolution had been passed as early as cancelling Dattakumar's associate membership—a resolution he never challenged.
"Supervisory, Not Adjudicatory"
Justice Marne undertook a careful examination of Section 79, which reads in relevant part that where a society fails to take action required
"under this Act, the rules or the bye-laws, or to comply with an order made under the foregoing sub-sections,"
the Registrar may take such action at the society's expense.
The Court drew a sharp distinction between enforcement and adjudication.
"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 Bye-laws. It cannot be confused with the under which the Registrar can decide the disputes relating to the title or possession of a flat/unit in society's building."
The Court noted a critical : no prior order from any competent authority had directed the removal of Saili's name from the membership register. Cancellation of membership was also not an act the society was independently required to perform under the Act, Rules, or Bye-laws.
"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 ."
Precedent Reinforcing the Principle
The ruling draws support from a recent decision of the same Court in Sadashiv Nagappa Kadam v. State of Maharashtra (Writ Petition No. 2595 of 2026), where it was held:
"The Registrar, while acting under Section 79 or , is conferred only with limited and , and not with powers of a court to decide questions relating to title or ownership."
Justice Marne also invoked the Supreme Court's decision in Whirlpool Corporation v. Registrar of Trade Marks (AIR 1999 SC 22) to hold that the availability of an does not bar a writ petition when the impugned order is passed without jurisdiction.
Partial Relief Granted
The High Court partly allowed the writ petition and issued the following directions:
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Set aside the Deputy Registrar's direction cancelling Saili's membership and , holding it was "."
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Maintained the directions for restoration of water supply to the flat and return of the car parking space, as these fell within the Registrar's legitimate supervisory purview—particularly since Dattakumar's heirs remained in occupation.
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Clarified that setting aside the membership cancellation does not conclusively establish Saili's title to the flat. Nandita Acharya remains at liberty to pursue available remedies before the competent authority or court for cancellation of Saili's membership or adjudication of title and possession.
The Court also rejected allegations that Saili had suppressed material facts or pursued parallel remedies, noting she had disclosed both her intervention in the society's appeal and her subsequently withdrawn dispute before the .
"In the light of existence of serious between the parties, the Deputy Registrar could not have ventured into such title dispute for the purpose of issuance of directions for removal of the name of the Petitioner from the ."
The ruling reinforces a critical boundary in cooperative society law: administrative officers exercising supervisory jurisdiction cannot don the robe of an adjudicator and resolve substantive civil disputes over property ownership. That task remains firmly with courts of competent jurisdiction.
