[Cites 5, Cited by 0]
Bombay High Court
Snehal Tower Co-Op. Hsg. Soc. Ltd. Theu ... vs Mr. Milind Surve And Ors on 28 January, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:4197
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2471 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Vandana Hitesh Mistry & Ors. ... Respondents
WITH
WRIT PETITION (ST.) NO.7803 OF 2019
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Milind Surve & Others ... Respondents
WITH
WRIT PETITION NO.2463 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Francis Anis & Miss Lisilviya Annis
& Ors. ... Respondents
WITH
WRIT PETITION NO.2473 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Veerendra Chavan & Others ... Respondents
WITH
WRIT PETITION NO.2468 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Ryan D'Souza & Others ... Respondents
WITH
1
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WRIT PETITION NO.2475 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Ludvin Sequera & Others ... Respondents
WITH
WRIT PETITION NO.2474 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Flora Robert Olivera & Others ... Respondents
WITH
WRIT PETITION NO.2476 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Hemant Patil & Others ... Respondents
WITH
WRIT PETITION NO.2465 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Jayashree Ramesh Kadam & Others ... Respondents
WITH
WRIT PETITION NO.2470 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Shashikant Tukaram Kharat & Ors. ... Respondents
WITH
WRIT PETITION NO.2462 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Wilson D'Silva & Ors. ... Respondents
2
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WITH
WRIT PETITION NO.2466 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Nelson D'Silva & Others ... Respondents
WITH
WRIT PETITION NO.2464 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Anthony T. Fernandes & Ors. ... Respondents
WITH
WRIT PETITION NO.2477 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Remezio Dennis & Others ... Respondents
WITH
WRIT PETITION NO.2469 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Satish Bhagwan Bhoite & Others ... Respondents
WITH
WRIT PETITION NO.2467 OF 2020
Snehal Tower Coop. Housing Soc. Ltd.
through Secretary Mr. P. Gopinath ... Petitioner
V/s.
Pramod Khandekar & Others ... Respondents
3
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Ms. Shruti Tulpule for the petitioner-Society.
Mr. Abhishek Patil with Mr. Sahil Wagh for respondent
No.1 in each writ petition.
Smt. M.P. Thakur, AGP for State in WP/2470/2020.
Ms. S.S. Jadhav, AGP for State in WP/2462/2020.
Ms. A.A. Nadkarni, AGP for State in WP/2466/2020.
Smt. V.S. Nimbalkar, AGP for State in WP/2464/2020.
Ms. Savina R. Crasto, AGP for State in WP/2471/2020.
Mr. P.V. Nelson Rajan, AGP for State in WP/7803/2019.
Smt. M.S. Shrivastava, AGP for State in
WP/2463/2020.
Smt. M.S. Bane, AGP for State in WP/2473/2020.
Smt. S.D. Chipade, AGP for State in WP/2468/2020.
Smt. V.R. Raje, AGP for State in WP/2475/2020.
Mr. Y.D. Patil, AGP for State in WP/2476/2020.
Mr. S.L. Babar, AGP for State in WP/2465/2020.
CORAM : AMIT BORKAR, J.
DATED : JANUARY 28, 2026
P.C.:
1. The petitioner housing society challenges the Judgment and
Order dated 28 August 2018 passed by the Divisional Joint
Registrar. That order dismissed the petitioner's revision application
and confirmed the order dated 14 June 2018 passed by respondent
No.2 under Section 23(2) of the MCS Act. The effect of the order
was to direct the petitioner society to admit respondent No.1 as a
member.
2. The material facts are as follows. On 15 October 1992, thirty
six Air India employees formed the petitioner society under the
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MCS Act. On 31 July 1997, the members purchased the subject
property for construction of residential flats after their retirement.
On 17 June 2001, the petitioner appointed a developer to execute
the construction in terms of a construction agreement dated the
same day.
3. The parties executed a supplementary agreement dated 27
August 2002 that substituted certain terms and conditions of
development. On the same date, the petitioner executed a power
of attorney appointing one Vishnu Ganpat Jadhav to act on behalf
of the society. The petitioner alleges that Mr. Jadhav, in collusion
with the developer, illegally retained flats in the A wing of the
building. The petitioner relies on clause 21 of the construction
agreement dated 17 June 2001, which reads as under:
"It is agreed that unless and until possession of all flats agreed to
be provided to the Society and of all the tenements agreed to be
provided to the said Tenants as and by way of permanent
alternative accommodation which is to complete in all respects as
agreed and with proper occupation certificate issued by the
Municipal Corporation of Greater Mumbai is delivered to the
Society and the said Tenants, the contractors shall not part with
possession of any of the premises in the said Additional
Construction to the respective purchasers thereof, though the
Contractors shall be entitled to enter into agreements for sale of
the premises in the said Additional Construction and to receive
amounts payable under such agreements for sale of premises in the
said Additional Construction".
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4. Under the construction agreement, A wing was to house
seven tenants as permanent alternate accommodation. After that,
B wing would be constructed to provide residential flats to all
members of the society.
5. Under the agreement with Minal Construction Company, the
developer had no authority to sell flats to outsiders until the
tenants received permanent alternate accommodation and the
members of the society received residential flats in B wing.
Possession of such flats was to be delivered only after construction
was complete in all respects. The developer constructed up to the
fourth floor and then stopped construction. The construction has
not resumed since 2010.
6. In December 2015, respondent No.1 applied before
respondent No.2 under Section 22(2) of the MCS Act seeking
deemed membership. On 25 February 2016, the petitioner society
informed respondent No.1 that, in terms of a resolution dated 4
February 2016, membership issues of residents could be resolved
only after completion of B wing.
7. On 4 October 2016, the Deputy Registrar dismissed
respondent No.1's application under Section 22(2) of the MCS Act.
Respondent No.1 then filed a revision before respondent No.3.
Respondent No.3 remanded the matter to respondent No.2 for
reconsideration. By order dated 14 June 2018, the Deputy
Registrar allowed respondent No.1's application and directed the
petitioner to admit respondent No.1 as a member. On 13 July
2018, the petitioner filed a revision before the Divisional Joint
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Registrar, who dismissed it by order dated 28 August 2018. The
petitioner has therefore filed the present writ petitions.
8. Counsel for the petitioner referred to the permanent
alternate accommodation agreement between the developer and
respondent No.1. She submitted that the agreement stipulates that
respondent No.1 will not be entitled to membership of the
petitioner until the entire project is completed and all tenants
receive possession. She contended that the developer lacked
authority to execute agreements with respondent No.1. She
submitted that the building was constructed to house thirty six
retired Air India employees. She argued that granting membership
to outsiders would disturb the functioning of the society because
enrollment of sixteen persons would affect its management. She
sought setting aside of the impugned orders.
9. Counsel for respondent No.1 submitted that the impugned
orders conform to the MCS Act, the Rules, and the Bye laws. He
relied on clause 19 of the agreement for sale, which provides that
prospective purchasers shall have the same rights and benefits as
existing members. He submitted that the clause also provides that
no transfer fees or premium is payable, except entrance fee and
share money as per the bye laws. He submitted that the petitioner's
grievance is essentially a dispute between the society and the
developer, which falls outside the scope of Section 22(2) of the
MCS Act. He submitted that the petitioner cannot penalize
respondent No.1 for lapses of the developer. He pointed out that
respondent No.1 applied for membership with all required
documents and fees. He therefore submitted that the impugned
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orders do not warrant interference.
10. I have considered the rival submissions and the material on
record. The narrow question before the Court is whether
respondent No.1 is entitled to membership under the MCS Act on
the basis of the statutory scheme, the Rules and the Bye laws. The
petitioner asks the Court to deny membership by relying on clauses
in private agreements between the developer and the society. I am
not persuaded that such clauses can override the statutory
provisions.
11. The petitioner society formed under the MCS Act. The
admissions to membership are regulated by Sections 22 and 23 of
the MCS Act, the Rules framed under the Act and the registered
Bye laws of the society. The Legislature created a complete code on
the subject of admission, refusal and deemed admission. The
Registrar acts under the statute. He decides eligibility with
reference to the Act, the Rules and the Bye laws. He does not
decide contractual rights under development agreements.
12. Respondent No.1 applied for membership under Section
22(2) with supporting documents and fees. The Deputy Registrar
rejected the application on the first occasion. The Divisional Joint
Registrar remanded the matter. The Deputy Registrar then allowed
the application and directed the society to admit respondent No.1.
The Divisional Joint Registrar upheld that view. The petitioner now
seeks to upset those concurrent findings.
13. The petitioner cites clauses in the construction agreements.
The petitioner argues that respondent No.1 cannot seek
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membership till the project is complete and the tenants receive
possession. The petitioner asserts that the developer had no
authority to sell flats to outsiders and that the purpose of the
building was to house retired Air India employees. The petitioner
further argues that induction of respondent No.1 and similarly
placed persons will affect the management of the society.
14. I am unable to accept these contentions. A clause in a private
agreement cannot take away a right granted by statute. Section 22
confers a right to apply for membership on a person who acquires
a flat in the society's building and fulfills the Bye laws. The
Registrar must examine whether the applicant satisfies the
statutory criteria. He cannot be guided by private covenants that
curtail statutory rights. The Act does not permit the society to
create a closed group forever. The Bye laws may prescribe
qualifications, fees and procedure. They cannot defeat the statute.
15. The petitioner's submission that the developer lacked
authority to enter into agreements with respondent No.1 is a
matter between the society and the developer. That dispute may be
agitated in appropriate proceedings. It cannot be a ground to deny
membership to a bona fide purchaser who has complied with the
statutory requirements. The society cannot punish the purchaser
for the alleged misconduct of the developer. The scheme of Section
22(2) confirms this approach. If the society wrongfully refuses
admission, the Registrar may direct deemed admission.
16. Respondent No.1 relies on the agreement for sale and on
clause 19 which states that prospective purchasers will have the
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same rights and benefits as existing members on payment of
entrance fee and share money. This clause matches with the Bye
laws and the statutory framework. Respondent No.1 contends that
the Registrar has no jurisdiction to adjudicate contractual disputes
between the society and the developer. Respondent No.1 points out
that all documents and fees were submitted. I find merit in these
submissions.
17. I have also considered the argument that induction of new
members will disturb the functioning of the society. This argument
does not have legal force. The Act and the Bye laws envisage
induction of eligible persons. They do not recognise inconvenience
as a ground to deny membership. The right to manage the affairs
of the society must yield to the statutory mandate.
18. The orders passed by the authorities disclose proper
application of mind to the statutory criteria. Respondent No.1
acquired interest in the flat. Respondent No.1 applied with the
requisite documents and fees. The society refused admission on
grounds that are alien to the MCS Act. The authorities correctly
disregarded contractual clauses that attempt to postpone
membership. Those clauses cannot override the command of the
statute.
19. The Court cannot rewrite the statutory scheme to suit the
convenience of the petitioner. The Legislature intended fairness in
admission to cooperative societies. Private agreements cannot
curtail these statutory safeguards. I therefore hold that the
impugned orders do not suffer from any jurisdictional error or
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perversity. The authorities acted within the four corners of the Act,
the Rules and the Bye laws.
20. For these reasons, the writ petitions are dismissed.
21. There shall be no order as to costs.
22. Pending interlocutory application(s), if any, stand disposed of
as infructuous.
(AMIT BORKAR, J.)
