Bombay High Court
Nainesh Sanghvi And Ors vs The State Of Maharashtra And Ors on 19 November, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:49695
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3011 OF 2024
ATUL Dr. Shrirang Arun Limaye & Anr. ... Petitioners
GANESH
KULKARNI V/s.
Digitally signed by
ATUL GANESH
KULKARNI
Navvinayak Cooperative Housing
Date: 2025.11.19
14:39:37 +0530
Society Limited & Anr. ... Respondents
WITH
WRIT PETITION NO.3169 OF 2024
Shrirang Arun Limaye & Anr. ... Petitioners
V/s.
Navvinayak Cooperative Housing
Society Limited & Anr. ... Respondents
Mr. Rafique Dada, Senior Advocate with Mr. Nitin P.
Deshpande for the petitioners.
Mr. Shailendra S. Kanetkar with Mr. Shubham
Suryawanshi for for respondent No.1.
Smt. Tanu Bhatia, AGP for State in WP/3011/2024.
Mr. P.V. Nelson Rajan, AGP for State in WP/3169/2024.
CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 19, 2025
P.C.:
1. These writ petitions question the legality of an order passed
by the State of Maharashtra in exercise of its revisional jurisdiction
under Section 154 of the Maharashtra Cooperative Societies Act,
1960. The State allowed the revision filed by the housing society.
The petitioners challenge this action.
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2. The proceedings arise from an order passed by the Registrar
under Section 79(2) of the Act. The Registrar directed respondent
No.1 housing society to issue a no-objection certificate for transfer
of the plot in a Tenant Ownership Society. The plot is said to be in
possession of petitioner No.2 in each writ petition and was sought
to be transferred in favour of petitioner No.1.
3. The material facts are simple. Respondent No.1 is a Tenant
Ownership Society registered in 1966. Petitioner No.2 claims
allotment of plot Nos.3 and 4 from the society. Share certificates
were issued on 30 April 1995 and 4 December 1995 for plot No.3
and on 30 April 1995 and 26 February 1996 for plot No.4.
Petitioner No.2 states that after receipt of these share certificates
he exercised all membership rights. He attended general body
meetings. He paid maintenance. He received compensation for
road widening of part of the plots. On these facts the petitioners
claim that petitioner No.2 holds leasehold rights in plot Nos.3 and
4.
4. Petitioner No.2 wanted to transfer these leasehold rights to
petitioner No.1. He sought a no-objection certificate from the
society. The society refused. The petitioners approached the
Registrar. By order dated 10 January 2018 the Registrar directed
respondent No.1 to issue a no-objection certificate for transfer of
plot Nos.3 and 4 in favour of petitioner No.1.
5. The society filed appeals. The appeals were dismissed. The
society then preferred revision applications. The State allowed the
revision by the impugned orders. The petitioners have therefore
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approached this Court.
6. Mr. Dada, learned Senior Advocate for the petitioners,
submitted that the allotment letter of 1995 and the share
certificates acknowledged petitioner No.2 as a member of the
Tenant Ownership Society. He pointed out that petitioner No.2
continued to exercise membership rights without interruption. He
paid maintenance. He attended general body meetings. He
accepted compensation for partial acquisition of the plot. Learned
Senior Advocate submitted that the present Chairman wants the
plot for himself at a lower price and that the dispute has been
raised only for that reason. He submitted that the society was duty
bound under its bye-laws to grant the no-objection certificate. The
Registrar recognised this obligation and exercised jurisdiction
correctly. He submitted that the revisional authority acted without
legal basis in interfering with that decision.
7. To support his argument that the 1995 allotment created a
valid transfer of interest amounting to conveyance, he relied on
the judgment of the Gujarat High Court in Shivali (Vejalpur)
Cooperative Housing Society Limited and another versus State of
Gujarat and another, 2009 CJ (Guj) 649.
8. Mr. Kanetkar, learned Advocate for respondent No.1,
opposed the petitions. He submitted that there is no registered
instrument creating rights in favour of petitioner No.2. He
submitted that this position is admitted. According to him,
petitioner No.2 acted in collusion with the then Managing
Committee and created documents to show his membership. He
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pointed out that the name of petitioner No.2 does not appear in
the I register or J register of the society. He submitted that without
a registered instrument petitioner No.2 cannot claim any right,
title, or interest in plot Nos.3 and 4. He also submitted that the
society has filed a civil suit challenging the claim of petitioner No.2
as a lessee and has also questioned the assignment executed by
petitioner No.2 in favour of petitioner No.1. He therefore
submitted that serious civil disputes exist. In such a situation the
Registrar exercising limited jurisdiction under Section 79(2) could
not adjudicate these questions and could not direct the society to
issue a no-objection certificate.
9. For the purpose of adjudication of the issue involved, it is
necessary to set out Section 79(2) of the MCS Act, which reads
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 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.
(1-1A) The Registrar may direct any society or class of
societies to take action to comply with the provisions of this
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Act, rules made thereunder, by-laws of the society or any
order passed by the Registrar under this Act; and the officer
or officers of the society shall be bound to comply with order
within the period specified therein.
(1A) Every society shall file returns within six months of the
close of every financial year to which such accounts relate, to
the Registrar or to the person authorised by him. The returns
shall contain the following matters, namely :--
(a) annual report of its activities ;
(b) its audited statement of accounts ;
(c) plans for disposal of surplus funds as approved by
the general body of the society ;
(d) list of amendments to the by-laws of the society,
if any ;
(e) declaration regarding date of holding of its
general body meeting and conduct of elections when
due ;
(f) any other information required by the Registrar
in pursuance of any of the provisions of this Act.
(1B) Every society shall also file a return regarding the
name of the auditor or auditing firm from a panel approved
by a State Government in this behalf, appointed in the
general body meeting together with his written consent,
within a period of one month from the date of annual
general body meeting.
(2) Where any society is required to take any action
1[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
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(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 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."
10. For deciding the controversy, it is necessary to understand
the scope of Section 79(2) of the Act. This provision gives the
Registrar the power to ensure that a society performs its duties
under the Act, Rules, Bye-laws, or any order passed by the
Registrar. The section permits the Registrar to step in when a
society fails to act within the time fixed by law or within the time
specified by the Registrar. The Registrar can then carry out the
required act himself or through another authorised person. The
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cost is recoverable from the society. The provision also empowers
the Registrar to fix responsibility on defaulting office bearers after
hearing them.
11. A plain and careful reading of Section 79(2) shows that the
power given to the Registrar is supervisory in nature. The Registrar
can compel the society to discharge obligations created by the Act,
Rules, and Bye-laws. The power is meant to ensure compliance. It
is not meant to decide disputed rights of parties. When facts are
clear and undisputed, the Registrar may act. When a serious
dispute exists about the rights claimed by a person, the Registrar
cannot decide such rights under Section 79(2). This is because the
section is not framed as an adjudicatory provision. It is only an
enforcement mechanism.
12. In the present case, the rival claims depend on the meaning
and effect of the allotment letter of 1995. The dispute also
concerns the legal requirement of a registered instrument for
creating leasehold rights over immovable property. These questions
are not simple. They require evidence. They involve interpretation
of documents. They concern substantive civil rights. Such issues
must be decided in proper proceedings before a competent forum.
The Registrar, while acting under Section 79(2), did not have
jurisdiction to decide these disputed claims. Therefore, the
revisional authority acted within its power in setting aside the
Registrar's order. On these facts, there is no ground to interfere
with the revisional order.
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13. It is open to any aggrieved party to take appropriate
proceedings before a competent court for declaration and
enforcement of their rights.
14. It is made clear that this Court has not expressed any opinion
on the correctness of the rival claims. The parties are free to
pursue their remedies.
15. Both the writ petitions stand disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
