Bombay High Court
Kritika Jewels Co-Op Hsg Society Throu. ... vs State Of Maharashtra Sec. Corporation ... on 19 November, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:49798-DB
907-wp12234-2024.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SHABNOOR WRIT PETITION NO.12234 OF 2024
AYUB
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN
Kritika Jewels Coop. Housing Society
Date: 2025.11.19
18:23:26 +0530 through Chairman Piyush N. Pathak ... Petitioner
V/s.
State of Maharashtra & Ors. ... Respondents
Mr. Rahul Walia with Mr. Vishwajeet V. Mohite for the
petitioner.
Mrs. P. J. Gavhane, AGP for respondent Nos.1 to 3-
State.
Mr. Simil Purohit, Senior Advocate with Mr. Vishal
Pattabiraman & Mr. Rutwij Bapat i/by Mr. R.B. Mokashi
& Associates for respondent No.4.
CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 19, 2025
P.C.:
1. The petitioner questions the legality of the order dated 17
October 2019. The grievance is simple. The Registrar has
permitted the formation of the petitioner society. At the same time,
the Registrar has reserved in favour of the promoter a right to form
a separate cooperative society for the 14 commercial shops located
on the first floor above the stilt parking. Respondent No.2 has
affirmed this reservation in appeal. The petitioner contends that
such a reservation has no legal basis.
2. The factual background must be set out to appreciate the
controversy. Respondent No.4 is the lessee of the plot in question.
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CIDCO granted the lease. The sanctioned plan approved by CIDCO
shows three buildings. The buildings contain 120 residential units
and 14 commercial shops. The petitioner asserts that the shops are
not housed in a separate structure. The shops form part of the
building blocks known as Solitaire and Emerald. The petitioner
submits that the sewage system is common. The sewage tank lies
within the society premises. The shops draw water from the water
tank situated in the society premises. These are physical indicators
of a single integrated project. According to the petitioner, these
indicators show that the shops are part of the common township of
the residential building and not an independent commercial block.
The submissions rest on the sanctioned plan and the layout
approved by CIDCO.
3. The next set of facts relates to the steps taken for formation
of the society. CIDCO issued the occupancy certificate. Even after
obtaining the certificate, respondent No.4 did not take steps to
form and register a cooperative housing society. The flat
purchasers therefore moved an application on 11 July 2019 for
registration of the petitioner society. The Registrar issued notices.
The Registrar heard the parties. The Registrar accepted that the
flat purchasers were entitled to form their society. The Registrar
ordered registration of the petitioner society. However, the
Registrar added a condition. The Registrar reserved the promoter's
right to form a separate society for the shops as per the sanctioned
plan.
4. The petitioner preferred an appeal before the higher
authority. Respondent No.2 dismissed the appeal on 17 May 2024.
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The dismissal has led to the present writ petition. The challenge
rests on two main pillars. First, the petitioner contends that the
Registrar has no power to create or reserve a future right in favour
of the promoter unless such a right flows from the statute or the
sanctioned layout. Second, the petitioner argues that the material
on record shows that the shops form part of the same building
unit.
5. Mr. Walia, learned Advocate for the petitioner, submitted
that the Registrar exceeded his jurisdiction while deciding the
application for registration of the housing society. He argued that
the Registrar could not reserve in favour of the promoter any right
to form a separate cooperative society. He pointed out Clauses
4(g), 20, 28, 30 and 44 of the registered agreements executed with
the purchasers. These clauses record the promoter's clear
undertaking to establish one common cooperative society for all
occupants. The undertaking covers both residential flat purchasers
and commercial shop purchasers. He submitted that once such a
binding contractual commitment exists, the authority could not
introduce a contrary reservation without support in law.
6. He further submitted that the sanctioned plans do not depict
the commercial shops as a separate building or separate wing. The
shops form part of the same structure. He pointed out that the
promoter has not sold any of these commercial shops to outsiders.
In the absence of any sale, there are no independent purchasers.
Without at least five independent members, as required under the
MCS Act, no separate cooperative society can legally come into
existence. He therefore argued that there was no factual or legal
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basis for the Registrar to reserve any liberty in favour of the
promoter. The reservation is without jurisdiction. It has no support
in the approved plans or in the statutory scheme. He submitted
that such a reservation deserves to be quashed.
7. In reply, Mr. Purohit, learned Senior Advocate for
Respondent No.4, referred to the statutory framework. He relied
on Section 2(16) of the MCS Act, which defines a housing society.
He referred to Section 12 of the Act, which empowers the Registrar
to classify societies. He also relied on Rule 10 of the Maharashtra
Cooperative Societies Rules, 1961, which confers similar powers of
classification. According to him, the petitioner-society, as per its
principal object and bye-laws, is meant only for residential units.
He submitted that residential and commercial units have different
user, different obligations and different interests. He argued that
classification by the Registrar is within his authority.
8. He submitted that the promoter has not yet sold the
commercial units to any outsider. Therefore, there are no
independent purchasers at present. He stated that nothing in law
prevents the promoter from selling the commercial units in future.
Once the units are sold, at least five independent purchasers can
form a separate society. He placed reliance on two decisions of this
Court. The first is Sadguru Universal CHS Ltd. v. State of
Maharashtra, 2025 SCC OnLine Bom 438 . The second is Haresh
Vijaysinh Bhatia v. District Deputy Registrar, decided on 8 May
2025. He submitted that these decisions recognise that formation
of multiple societies within the same building or structure is
permissible in law. He therefore submitted that the petition has no
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merit and must be dismissed.
9. I have considered the rival submissions. I have examined the
sanctioned plans, the registered agreements and the orders passed
by the authorities. The issue is narrow. The authorities have
accepted that the petitioner society is entitled to registration. The
dispute relates only to the reservation inserted by the Registrar in
favour of the promoter. The Registrar has stated that the promoter
will retain liberty to form a separate cooperative society for the
commercial shops. The question is whether such a reservation has
support in law or in the record.
10. The MCS Act lays down the procedure for registration of
societies. The Registrar can verify compliance with statutory
requirements. The Registrar can classify societies as per Section 12
and Rule 10. These provisions do not permit the Registrar to grant
a future right to the promoter to form another society in respect of
the same premises unless the material on record shows that the
premises is indeed an independent unit capable of separate
registration.
11. The agreements executed with the flat purchasers form a
reliable and binding record of what the promoter promised at the
time of sale. These agreements are not casual statements. They are
registered documents. They reflect the understanding between the
promoter and every purchaser. When the promoter has undertaken
in these agreements to form one common cooperative society for
both residential and commercial units, that promise carries legal
weight.
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12. Such a commitment cannot be ignored while deciding the
nature of the society to be registered. The agreements show that
the promoter treated the entire building, including the commercial
shops, as one single project meant to be managed through one
common society. This is credible evidence of the promoter's
intention at the time of construction and sale.
13. Once the promoter has given a clear undertaking, he cannot
later change his stand unless supported by lawful reasons or
changed circumstances proved on record. No such material has
been placed before the authorities. There is no document to show
that the promoter altered the sanctioned plan. There is no record
to show that the promoter informed the purchasers that he
intended to create a separate society for the shops. There is no
evidence that the commercial shops form a separate independent
block.
14. In these circumstances, the contractual undertaking binds
the promoter. It is a strong piece of evidence that the entire
building was meant to be governed by one common society. The
Registrar could not overlook this commitment while deciding the
registration application.
15. Once the Registrar accepted the application for registration
of the petitioner society, the Registrar ought to have either
accepted or rejected the promoter's claim on the basis of record.
The Registrar cannot add a condition reserving future rights
without a legal foundation.
16. The promoter argues that the commercial units can be sold
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in future and that a separate society may then be formed. The
possibility of a future sale cannot confer a present legal right. A
cooperative society can be formed only when statutory
requirements stand fulfilled. One of these requirements is the
presence of at least five independent members. Admittedly, such
members do not exist today. The Registrar cannot assume future
events and reserve future rights on that basis.
17. The judgments relied upon by the promoter, including the
decisions in Sadguru Universal and in Haresh Bhatia, recognise
that more than one cooperative society can exist within the same
building. In the present case, the promoter has given a clear
contractual undertaking to form one common society for both
residential and commercial units. This undertaking forms part of
the registered agreements with the purchasers. There is no such
undertaking in the cases cited by the promoter. In fact, the Courts
in those cases proceeded on a different factual foundation where
no promise of a single combined society existed. A contractual
undertaking cannot be disregarded unless the promoter places
material to show that circumstances have changed or the
sanctioned plan has been modified. No such evidence has been
brought on record. The cited judgments cannot override a binding
contractual promise. They also cannot be applied where the
physical structure itself does not support separation. For these
reasons, the decisions in Sadguru Universal and Haresh Bhatia do
not assist the promoter and cannot justify the reservation made by
the Registrar in the present case.
18. These judgments do not assist the promoter because the
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record in the present case does not show the shops to be a separate
structural unit. The sanctioned plan shows the contrary. A judicial
precedent cannot justify a reservation unsupported by facts.
19. The appeal authority has affirmed the Registrar's reservation
without independent analysis. The appellate order does not deal
with the sanctioned plans. The appellate authority has not
examined the binding covenants in the agreements. The appellate
authority has not addressed the absence of independent members.
Such an order cannot stand.
20. The statutory power must be exercised within its limits. The
Registrar can either grant or refuse registration. The Registrar
cannot create rights that are not in the statute or the approved
layout. The reservation in favour of the promoter is beyond
jurisdiction. It lacks support in the record. It therefore cannot be
sustained.
21. Hence, I pass following order
(a) The writ petition is allowed.
(b) The reservation inserted by the Registrar in the order
dated 17 October 2019, granting the promoter liberty to
form a separate cooperative society for the 14 commercial
shops, is quashed and set aside.
(c) The appellate order dated 17 May 2024 passed by
Respondent No.2 affirming the said reservation is also
quashed and set aside.
(d) Registration of the petitioner cooperative housing society
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shall stand confirmed without the impugned reservation.
(e) No order as to costs.
(AMIT BORKAR, J.)
