[Cites 11, Cited by 0]
Bombay High Court
Prestige Properties vs The Deputy Registrar Of Cooperative ... on 5 December, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:53233
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6248 OF 2025
WITH
WRIT PETITION NO.6249 OF 2025
WITH
WRIT PETITION NO.6250 OF 2025
WITH
WRIT PETITION NO.6255 OF 2025
WITH
WRIT PETITION NO.6264 OF 2025
WITH
WRIT PETITION NO.6266 OF 2025
ATUL Prestige Properties,
GANESH
KULKARNI
Digitally signed by
an association of persons comprising of
ATUL GANESH
KULKARNI
Date: 2025.12.05 1) Mr. Mukesh Mehta, (2) Smt. Nancy Mehta
14:17:05 +0530
Gothi, and (3) Ms. Forum Mehta,
having address at Silver Utopia, Ground Floor,
Cardinal Gracious Road, Chakala,
Andieri (East), Mumbai 400 099 ... Petitioner
V/s.
1. The Deputy Registrar of Cooperative
Societies, K/E Ward, being the authority
under the Maharashtra Cooperative
Society Act, 1960, having office at
Truck Terminus, Wadala, Mumbai.
2. Silver Utopia Premises Cooperative
Society Limited, a cooperative society
form under the provisions of the
Maharashtra Cooperative Societies
Act, 1960, having registration No.
MUM/WKE/HSG/O/16436/2023-24/2024
Silver Utopia, Cardinal Gracious Road,
Chakala, Andheri (E), Mumbai 400 099
1
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3. The State of Maharasthra,
Ministry of Cooperation and Textile,
represented through the Government
Pleader, High Court, Appellate Side,
Mumbai ... Respondents
Mr. Pradeep J. Thorat with Ms. Aditi Naikare i/by Mr.
Bipin J. Joshi for the petitioner.
Mr. Ashish Kamat, Senior Advocate with Mr. N.N.
Bhadrashete, Mr. Sharad Bansal, Mr. M.S. Federal, Mr.
Veer Ashar, Mr. Sudarshan Satalkar, & Ms. Palomi
Vatsyayan i/by Federal & Co., for respondent No.2.
Mr. O.A. Chandurkar, Additional G.P. with Mr.
Bapusaheb Dahiphale, AGP for respondent No.3-State
in WP/6248/2025.
Smt. Vaishali Nimbalkar, AGP for respondent No.3-
State in WP/6349/2025.
Mr. P.V. Nelson Rajan, AGP for respondent No.3-State in
WP/6250/2025.
Smt. Sulbha Chipade, AGP for respondent No.3-State
in WP/6255/2025.
Smt. Savita Prabhune, AGP for respondent No.3-State
in WP/6264/2025.
Ms. Savina R. Crasto, AGP for respondent No.3-State in
WP/6266/2025.
CORAM : AMIT BORKAR, J.
RESERVED ON NOVEMBER 25.2025
PRONOUNCED ON : DECEMBER 5, 2025
JUDGMENT:
1. These writ petitions raise the same legal issue. It is,
therefore, appropriate to decide them by a common judgment and
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order.
2. The petitioner in each of these matters has approached this
Court under Articles 226 and 227 of the Constitution to challenge
the certificates issued under Section 154B-29 of the Maharashtra
Cooperative Societies Act, 1960. The petitioner has not invoked
the statutory remedy of revision under Section 154 of the Act. The
petitioner contends that the Registrar lacked jurisdiction. The
submission is that on the date when respondent No.2 initiated the
proceedings, it was not a registered housing society. Respondent
No.2 was, at that time, registered as a general society under clause
(10) of Rule 10 of the Maharashtra Cooperative Societies Rules,
1961, instead of a housing society under clause (5) of Rule 10. It is
stated that registration as a housing society took place during the
pendency of those proceedings.
3. The material facts are as follows. Respondent No.2 applied
for registration on 20 January 2020. The competent authority
registered respondent No.2 under the MCS Act. After registration,
the society commenced maintenance of the building known as
Silver Utopia, along with its common areas, and started incurring
expenses for those purposes.
4. On 30 June 2023, respondent No.2 filed six applications
under Section 154B-29 of the MCS Act for recovery of unpaid dues
relating to six units owned by the petitioner. The grievance of non-
payment is not in dispute. During the pendency of these
proceedings, litigation concerning the registration of respondent
No.2 reached this Court. By order dated 16 February 2024, this
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Court remanded the matter to the registering authority for fresh
consideration. The Court clarified that until the authority decided
the issue of registration, the bank account standing in the name of
respondent No.2 would continue, but it may be operated in the
name of the Chief Promoter.
5. On 20 March 2024, the District Deputy Registrar considered
the matter afresh and allowed the application of respondent No.2
for registration as a housing society. A certificate of registration
was issued on 22 March 2024. This Court upheld the order of
registration in Writ Petition No. 2725 of 2024. Thereafter, on 31
December 2024, respondent No.1 issued recovery certificates in
favour of respondent No.2. The petitioner has questioned these
certificates in the present writ petitions.
6. Mr. Thorat, learned Advocate for the petitioner, submitted
that the order passed by respondent No.1 lacks jurisdiction. He
stated that on the date when proceedings under Section 154B-29
were initiated, respondent No.2 stood registered as a general
society under Rule 10(9) of the MCS Rules. He pointed out that
Section 154B-29 applies only to applications filed by a housing
society for recovery of dues. According to him, proceedings
instituted by a general society are void at the threshold. He argued
that subsequent registration of respondent No.2 as a housing
society during the pendency of the proceedings cannot cure the
defect that existed at the inception. He further submitted that
when an order is ex facie without jurisdiction, the petitioner can
invoke writ jurisdiction under Articles 226 and 227 without being
compelled to pursue the revisional remedy under Section 154 of
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the MCS Act.
7. To support his contention that a defect going to the root of
jurisdiction cannot be cured by subsequent events, he relied upon
the judgment of the Supreme Court in Purshottam and another
versus Shivraj Fine Arts Litho Works and others, reported in
(2007) 15 SCC 58. The Supreme Court held that subsequent
registration of a partnership firm does not cure the original defect
of a suit filed by an unregistered firm. He submitted that the same
principle applies in the present case. He contended that the
impugned order is without authority of law and deserves to be
quashed and set aside.
8. In reply, Mr. Kamat, learned Senior Advocate for respondent
No.2, submitted that the petitioner never raised before the
Registrar the contention that respondent No.2 was not a housing
society on the date of filing of the proceedings. He stated that such
a contention cannot be permitted for the first time before this
Court. He pointed out that paragraph 45A of the petitioner's reply
before the Registrar contained a different objection, namely, that
the entire building was a commercial complex and, therefore,
respondent No.2 could not be treated as a housing society.
According to him, there was no plea before the Registrar that
respondent No.2 was registered as a general society and not a
housing society on the relevant date.
9. Relying upon the judgment of this Court in Deepak Manaklal
Katariya versus Ashok Motilal Katariya, 2024 SCC OnLine Bom
3700, he submitted that there is a clear distinction between
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jurisdiction and maintainability. He explained that jurisdiction
flows from the statute which confers authority to adjudicate, while
maintainability refers to compliance with statutory or procedural
requirements for initiating proceedings. Jurisdiction concerns the
power of the authority. Maintainability concerns the manner in
which proceedings are instituted. He argued that at the highest,
the petitioner's objection pertains to maintainability, not
jurisdiction.
10. He further submitted that the MCS Act was amended with
effect from 9 March 2019 to introduce a separate chapter for
cooperative housing societies. The definition of housing society in
the amended chapter differs from the earlier definition in Section
2(16). Corresponding amendments to Rule 10 of the MCS Rules
were not carried out. He submitted that the classification of
respondent No.2 as a general society did not alter the substance of
its functioning as a premises cooperative housing society. Referring
to Sections 9 and 12 of the MCS Act, and Rules 8 and 10 of the
MCS Rules, he submitted that classification is a post-registration
exercise based on the objects of the society. He argued that
classification is not vital to the validity of registration.
Classification may be corrected or altered at any stage.
11. Referring to Section 77 of the MCS Act, he submitted that no
act of a society done in good faith in pursuance of its business shall
become invalid merely because some defect is later discovered in
its organization. He relied upon the judgment of the Supreme
Court in B.K. Srinivasan and others versus State of Karnataka and
others, (1987) 1 SCC 658. In that decision, the Supreme Court
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described similar provisions as a "Ganga clause", intended to
protect actions taken in good faith from being invalidated due to
technical defects which do not result in prejudice. He submitted
that the same principle applies here.
12. He submitted that the writ petitions are an attempt by the
builder or developer to avoid paying legitimate dues of the society.
He submitted that this Court should not entertain such an attempt.
He, therefore, urged dismissal of the writ petitions.
13. I have heard learned counsel for the parties. I have read the
record. I have considered the submissions on both sides.
14. The core controversy is narrow. It is whether the proceedings
under Section 154B-29 of the Maharashtra Cooperative Societies
Act were rightly entertained and whether the recovery certificates
dated 31 December 2024 suffer from lack of jurisdiction. The
petitioner says respondent No.2 was a general society when it
initiated proceedings. The petitioner says a general society could
not invoke Section 154B-29. The petitioner says subsequent
classification as a housing society cannot cure an initial
jurisdictional defect. Respondent No.2 says the point about
classification was not taken before the Registrar. Respondent No.2
says classification is procedural and curable. It relies on
subsequent registration upheld by this Court.
15. I begin with the statutory scheme. Section 154B-29 provides
a remedy for recovery of dues by a housing society. The scheme
contemplates that a society which qualifies as a housing society
may file applications for recovery of dues under that provision.
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The statute confers power on the Registrar to entertain and decide
such applications. The power is statutory and must be exercised
within the limits fixed by the Act and rules.
16. The concept of jurisdiction must be carefully understood.
Jurisdiction means the statutory authority to decide a matter at all.
If an authority acts beyond the limits of the statute, its act is void.
Maintainability is a distinct concept. Maintainability concerns the
procedural or substantive prerequisites for entertaining a matter. A
defect of maintainability may be curable in suitable cases. The
distinction is real and must guide analysis of the present case.
17. The petitioner relies on the doctrine that an action instituted
by a body without capacity cannot be validated by subsequent
registration. The Supreme Court decision in Purshottam was cited.
The decision holds that where an unregistered partnership sues
and the firm later registers, the original suit does not acquire
validity by subsequent registration. The principle is salutary where
the statute makes registration a precondition to bring the cause of
action.
18. That principle has force in the particular context in which it
arose. It cannot be applied mechanically in all contexts without
close attention to the statutory scheme and the facts. The decisive
question is whether the defect at the inception was one which
deprived the Registrar of jurisdiction to decide the matter, or
whether it was a defect of classification or procedure which the
statute permits to be remedied or which did not cause real
prejudice.
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19. Turning to the facts, respondent No.2 applied for registration
on 20 January 2020. The society claimed the objects and began to
maintain the building called Silver Utopia. Disputes about
classification arose. The Registrar or the authority dealing with
registration must classify a society in accordance with its objects
after registration. The record shows that during pendency of
proceedings the question of registration and classification was
under adjudication. This Court remanded the registration matter
for fresh consideration by order dated 16 February 2024. The
District Deputy Registrar then allowed the application and issued a
housing society registration certificate on 22 March 2024. This
Court upheld that registration in Writ Petition No. 2725 of 2024.
20. The applications under Section 154B-29 were filed on 30
June 2023. The Registrar proceeded with recovery proceedings.
The petitioner challenges those proceedings on the ground that at
the moment of filing the society was classified as a general society.
The petitioner did not press before the Registrar the precise plea
that the society was registered only as a general society under Rule
10(9) and therefore the Registrar lacked jurisdiction. The
petitioner did raise an objection that the building was a
commercial complex. That objection is different in character.
21. The lapse to raise the classification point which is mixed
question of law and fact before the Tribunal or the Registrar is
significant. A party who sits on a point and omits to raise an
available statutory objection before the authority ordinarily cannot
raise that fresh in a writ petition unless the objection goes to
jurisdiction.
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22. The petitioner asks this Court to treat the classification
defect as jurisdictional. I have considered the argument carefully.
The statutory provisions and rules require registration in a class
appropriate to the objects. Classification is a function exercised by
the registering authority after registration. If a society is in
substance a premises cooperative housing society and it carries on
business as such, a classification recorded as general society
because of a technical omission in rule amendment does not, in my
view, ipso facto render every subsequent exercise of statutory
power by the Registrar void.
23. The facts show active steps taken by the society in
maintaining the building and incurring common expenses. The
Registrar and the Court engaged with the registration controversy.
The remand order of 16 February 2024 led to fresh consideration.
The District Deputy Registrar found that respondent No.2 merited
registration as a housing society and issued certificate dated 22
March 2024. This Court affirmed that order.
24. If an authority later determines that the society falls within
the housing category, the subsequent determination resolving the
initial uncertainty affects the legal position. Where the statutory
outcome is that the society did qualify as a housing society, it
would be unreasonable to hold that an otherwise regular exercise
of power must be declared void solely because of a prior
nomenclature recorded pending final decision.
25. The Purshottam line of cases must be read in context. They
invalidate proceedings where the very capacity to sue or initiate
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proceedings was absent at the time and where subsequent
regularisation cannot retrospectively confer power which the
statute denies. In the present facts, the record does not establish
that respondent No.2 lacked capacity in substance to act as a
housing society. The classification placed by the Registrar in the
register was the result of an unsettled administrative process. The
material shows that respondent No.2 carried on the functions of a
premises cooperative housing society. The later registration
confirmed that status.
26. The petitioner also raised delay in invoking statutory
revision. The petitioner chose to approach this Court under Articles
226 and 227 without first seeking revision under Section 154.
When the challenge is to a jurisdictional act which is void on its
face, writ jurisdiction may be invoked. When the objection pertains
to maintainability or to a procedural defect which is curable, the
remedy by revision is ordinarily the appropriate path. In this case
the record suggests that the complaint about classification was not
pressed before the Registrar and that the Court of competent
authority addressed the registration issue later and upheld
registration. Given these facts, the petitioner cannot claim that it
was denied an efficacious statutory remedy.
27. The distinction stressed by respondent No.2 between
jurisdiction and maintainability is well founded on the facts. The
petitioner's objection, if accepted, would at most raise a question
of maintainability or procedural regularity. It would not, in my
view, impeach the statutory authority of the Registrar to decide
recovery applications relating to societies which in substance
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function as housing societies. The ultimate determination by the
registering authority and this Court confirms that respondent No.2
falls within the housing category.
28. Learned counsel for the petitioner placed reliance on the
Purshottam decision. I have considered that authority. It does not
advance the petitioner's case on these facts. The partnership cases
concern a distinct statutory requirement and different
consequences of initial non-registration. The present controversy is
governed by the registration process which itself was tested and
affirmed. The Registrar and this Court have resolved the core
factual question in favour of respondent No.2.
29. The petitioner argued prejudice and the right to invoke
constitutional jurisdiction. I accept that constitutional writ
jurisdiction is a public right and a valuable remedy. I also hold that
it must be exercised in proper cases. It must not be used as a
method to bypass statutory remedies where those remedies are
effective and where facts show procedural default by the
petitioner.
30. The petitions are therefore not substantiated. The recovery
certificates issued in favour of respondent No.2 were founded on
proceedings which, in the factual matrix, do not suffer from
incurable jurisdictional defect. Registration of the society was a
matter under active adjudication and was ultimately declared to be
housing society. The petitioner omitted to take the specific point
which is mixed question of law and fact at the appropriate stage
and did not show real prejudice arising from the acts challenged.
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31. Before parting with the matter, it is necessary to clarify the
effect of this judgment on the other issues raised by the petitioner
before the Registrar.
32. This Court has confined its adjudication only to the question
which goes to the root of maintainability under Section 154B-29. I
have not examined the other factual or legal objections that the
petitioner raised in the reply filed before the Registrar. Those
issues have not been decided in this judgment.
33. It is, therefore, appropriate to observe that on all points
other than the maintainability objection decided herein, it shall
remain open to the petitioner to invoke the revisional jurisdiction
under Section 154 of the Maharashtra Cooperative Societies Act.
The petitioner may raise all other contentions which formed part
of the reply before the Registrar and which have not been
adjudicated upon in this judgment. The revisional authority may
consider such contentions on their own merits in accordance with
law.
34. For these reasons I hold that the writ petitions fail. I dismiss
the petitions. No order as to costs.
35. The 50% amount deposited by the petitioner shall be
allowed to be withdrawn by the housing society, and in case the
decision in revision goes against the society, the amount
withdrawn by the housing society shall be appropriated towards
future maintenance.
36. At this stage, Mr. Thorat, learned Advocate for the petitioner
seeks stay of this judgment. However, considering the reasons
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stated aforesaid, the request for stay is rejected.
37. The time spent in prosecuting present writ petition shall be
excluded while considering limitation for filing revision
application.
(AMIT BORKAR, J.)
