[Cites 4, Cited by 0]
Bombay High Court
Deveshkumar Jamnaprasad Vyas vs Kohinoor Co-Operative Housing Society ... on 28 January, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:4199
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10681 OF 2015
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
SHABNOOR
AYUB
The Deputy Registrar,
PATHAN
Digitally signed by
Cooperative Societies & Ors. ... Respondents
SHABNOOR AYUB
PATHAN
Date: 2026.01.28
19:17:12 +0530
WITH
INTERIM APPLICATION (ST) NO.8852 OF 2023
WITH
INTERIM APPLICATION NO.668 OF 2021
IN
WRIT PETITION NO.10681 OF 2015
Deveshkumar Jamnaprasad Vyas ... Applicant
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
WRIT PETITION NO.10682 OF 2015
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.670 OF 2021
1
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Deveshkumar Jamnaprasad Vyas ... Applicant
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
WRIT PETITION NO.10684 OF 2015
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.672 OF 2021
Deveshkumar Jamnaprasad Vyas ... Applicant
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
WRIT PETITION NO.10685 OF 2015
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar, ... Respondents
Cooperative Societies & Ors.
2
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WITH
INTERIM APPLICATION NO.673 OF 2021
Deveshkumar Jamnaprasad Vyas ... Applicant
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
WRIT PETITION NO.10687 OF 2015
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.679 OF 2021
Deveshkumar Jamnaprasad Vyas ... Applicant
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
WRIT PETITION NO.10686 OF 2015
Kohinoor Cooperative Housing ... Petitioner
Society Ltd. Through
3
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Secretary / Chairman
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
CIVIL APPLICATION (ST) NO.19966 OF 2019
IN
WRIT PETITION NO.10686 OF 2015
Bhawana Ramkrishna Naik & Anr. ... Applicants
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.678 OF 2021
Deveshkumar Jamnaprasad Vyas ... Applicant
In the matter between
Kohinoor Cooperative Housing
Society Ltd. Through
Secretary / Chairman ... Petitioner
V/s.
The Deputy Registrar,
Cooperative Societies & Ors. ... Respondents
Mr. Ashutosh R. Gole, for the Petitioner.
Ms. Mamta Sadh a/w Mr. Ajay Panicker, Binu Karnaith
i/b Ajay Law Associates, for Respondent No.3.
Mr. P. V. Nelson Rajan, AGP, for the State - Respondent
Nos.1 & 2 in WP/10681/2015.
Ms. V. R. Raje, AGP, for the State - Respondent Nos.1 &
2 in WP/10682/2015.
Ms. S. R. Crasto, AGP, for the State - Respondent Nos.1
4
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& 2 in WP/10684/2015.
Ms. M. S. Shrivastava, AGP, for the State - Respondent
Nos.1 & 2 in WP/10685/2015.
Ms. S. D. Chipade, AGP, for the State - Respondent
Nos.1 & 2 in WP/10687/2015.
Ms. M. P. Thakur, AGP, for the State - Respondent Nos.1
& 2 in WP/10686/2015.
Mr. Harshavardhan G. Khambete, for the Applicant in
CAW(L)/1966/2019.
CORAM : AMIT BORKAR, J.
DATED : JANUARY 28, 2026
PC.:
1. Since all these writ petitions raise identical issues of law and
fact, they are being decided together by this common judgment.
2. The petitioner society has challenged the orders passed by
the authorities under the Maharashtra Cooperative Societies Act,
1960 exercising powers under Section 23(2), by which the
petitioner society has been directed to admit respondent No. 3 as a
member.
3. The relevant facts are as follows. The dispute concerns Shop
Nos. A1 to A4 and B3 and B4 situated in the petitioner society,
which comprises two wings known as Wing A and Wing B. The
father of respondent No. 3 was the promoter of the society.
Respondent No. 3 contends that as the members of the society
were unable to pay the promoter towards the cost of construction
undertaken by his father, the shops in question were allotted to his
father pursuant to a Managing Committee Resolution dated 9
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March 1974 and a General Body Resolution dated 14 May 1980.
The petitioner society treated the father of respondent No. 3 as a
member and issued one share certificate in his name having regard
to the cooperative principle of one person one membership. During
his lifetime, the father of respondent No. 3 executed a nomination
in favour of respondent No. 3 in respect of the said shops. The
nomination was submitted to and accepted by the petitioner
society.
4. On 24 December 2009, the father of respondent No. 3,
Jamna Prasad, died. On 9 September 2010, respondent No. 3
applied for membership in respect of Shop Nos. A1 to A4 and B3
and B4. By letter dated 7 January 2011, the petitioner society
rejected the application on the ground that no share certificate had
been issued in respect of Shop Nos. A1 to A4 and that the only
share certificate issued pertained to Shop No. B3.
5. Respondent No. 3 thereafter preferred an appeal under
Section 23(2) of the MCS Act. By order dated 6 February 2012, the
Appellate Authority directed the petitioner society to admit
respondent No. 3 as a member and to issue a share certificate in
his name. The petitioner society filed Revision Applications Nos. 34
to 39 of 2012 which were dismissed by the Revisional Authority by
judgment dated 30 July 2014. Hence the present petition.
6. Mr. Gole, learned Advocate for the petitioner, submitted that
respondent No. 3 is not entitled to membership as he does not
hold any document of title. He argued that neither the Managing
Committee Resolution nor the General Body Resolution can
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constitute a document of title. He submitted that Rule 19(iii) read
with Bye-law No. 19(iv) requires production of a certified copy of
a registered agreement with the promoter or with the Registrar
under Section 4 of the Maharashtra Ownership Flats Act. In the
absence of a registered document, membership cannot be granted.
He further submitted that at best respondent No. 3 could be
treated as a nominal member in respect of the shops in Wing B.
7. He further submitted that respondent No. 3 relies upon a
bogus completion certificate dated 2 April 1975 and an occupation
certificate dated 16 July 1995 to contend that the shops in Wing A
were regularised. Upon learning of this irregularity, the Thane
Municipal Corporation issued a notice under Section 260 on 5
October 2017. The Executive Engineer thereafter submitted reports
dated 24 August 2018 and 16 November 2018 stating that Wing A
did not have permission for shops on the ground floor. Although
respondent No. 3 has filed a suit and Writ Petition No. 16266 of
2025 challenging the municipal action, no interim relief has been
granted. In spite of this, respondent No. 3 persists in seeking
membership.
8. In reply, Ms. Mamta Sadh, learned Advocate for respondent
No. 3, submitted that the record, including the application filed by
the petitioner society under Section 101 of the MCS Act,
maintenance bills, and the letter dated 21 January 2021 addressed
by respondent No. 3 to the Chief Promoter seeking clarification as
to issuance of a single share certificate for multiple premises,
clearly establishes the membership of respondent No. 3's father.
She submitted that the Chief Promoter clarified that a single share
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certificate was issued because the father of respondent No. 3 had
only one vote.
9. She further relied on the order dated 3 May 2007 passed by
the Deputy Registrar in recovery proceedings under Section 101 of
the MCS Act wherein it was recorded that the father of respondent
No. 3 was a member of the petitioner society. She also relied upon
the nomination form dated 16 April 2009 submitted by the father
of respondent No. 3 to the petitioner society by registered post
together with the acknowledgment.
10. She further relied upon a release deed executed by the other
legal heirs of the deceased father relinquishing their rights in
favour of respondent No. 3. She submitted that the father of
respondent No. 3 was validly enrolled as a member pursuant to
the Managing Committee and General Body Resolutions.
Therefore, the application of respondent No. 3 ought to be treated
as an application for transmission of membership. She submitted
that in proceedings under Section 23(2) of the MCS Act, the
inquiry is confined to whether the deceased was a member and
whether there is consent among the legal representatives
regarding enrollment of one person in his place. The issue of title
cannot be examined in such proceedings. She therefore submitted
that the petition merits dismissal.
Reasoning and analysis:
11. Section 23(2) confines the appellate jurisdiction to the
correctness of the society's decision on membership. The enquiry
in transmission proceedings is limited. The court or the Appellate
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Authority must determine whether the deceased was a member
and whether his legal representatives or nominee are entitled to
transmission. The authority does not become a forum to try title
disputes which require fuller evidence and different legal
processes. Where the record shows membership, transmission may
be ordered subject to manifest legal bar or fraud. The Appellate
Authority thus acted within its jurisdiction by testing membership
and succession rather than holding an inquiry about marketable
title to the premises.
12. The material on record supports the conclusion that the
father of respondent No. 3 was treated as a member. The
Managing Committee and General Body resolutions recorded
allotment. The society issued a share certificate to him and the
Deputy Registrar recorded his membership in recovery proceedings
dated 3 May 2007. Maintenance bills, the society's own application
under Section 101, and correspondence including the Chief
Promoter's explanation that a single share certificate was issued
because the promoter had only one vote, all point to consistent
recognition of membership. A nomination submitted by registered
post with acknowledgment and a release deed executed by other
legal heirs constitute further probative evidence of succession and
consent. Taken together these documents satisfy the limited factual
threshold for transmission under Section 23(2).
13. On the contention that the society issued a share certificate
only for Shop No. B3 and not for A1 to A4, it appears that it is the
society's practice of issuing a single share certificate to a person
who held multiple premises and who had only one vote accords
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with cooperative principle of one person one membership.
Documentary irregularity in the form or numbering of share
certificates does not, standing alone, negate membership where
the society has consistently treated the person as member and
where the books and dealings reflect that position. The Chief
Promoter's clarification that a single certificate was issued because
the promoter had only one vote is direct evidence to rebut the
society's later contention. The Appellate Authority reasonably
accepted that evidence.
14. On the requirement of a registered agreement under MOFA
and Rule 19(iii) read with Bye-law 19(iv). The Rules and Bye-laws
prescribe documentary proof for enrolment to prevent false claims.
That requirement is material where a claimant seeks fresh
admission on the basis of a contract with the promoter. In
transmission proceedings the question is different. The claimant
asks for continuity of membership from a deceased who was
already treated as a member. Where the deceased has been treated
as a member and the society's records and conduct buttress that
treatment, strict insistence on a registered MOFA agreement as a
precondition to transmission would elevate form over substance.
The Appellate Authority evaluated the overall matrix and evidence
of membership. It did not ignore the rules; it applied them in
context. There is no reason to hold that the absence of a registered
agreement alone renders the impugned order perverse.
15. On the allegations of forged completion and occupation
certificates and municipal action, the society alleges that Wing A
lacks lawful sanction for ground floor shops and relies upon
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municipal notices and engineer reports dated 2018. Those
proceedings address municipal sanction and construction legality.
Illegality in municipal permissions may attract separate remedies
and penalties; it does not ipso facto determine membership of the
promoter in the cooperative society. The Appellate Authority was
entitled to treat municipal action as collateral and not decisive on
the question of whether the deceased was a member and whether
his nominee could succeed. Moreover the society's own conduct in
treating the promoter as member, prior to the municipal notices,
weakens any contention that municipal irregularity should defeat
transmission. The fact that respondent No. 3 has challenged the
municipal action in a suit and in a writ petition and has not
secured interim relief does not convert that pending controversy
into a bar against transmission in the membership context. The
municipal controversy concerns building sanction; the membership
controversy concerns identity and succession, both are distinct.
16. On the claim that the completion and occupation certificates
are bogus, it is an assertion which requires trial evidence and
possibly criminal or civil proceedings to determine forgery. In the
absence of final adjudication in those proceedings the Appellate
Authority could not treat the allegation as established. The
existence of municipal notices and reports is relevant. It is not
decisive. The Appellate Authority acted within reason in not
permitting an unproven accusation of forgery to override the
accumulated documentary evidence of membership and
succession.
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17. The Revisional Authority reviewed the matter and confirmed
the appellate decision. The Revisional Authority found no
jurisdictional error, no perversity in fact-finding, and no error in
law in allowing transmission. This court's jurisdiction under Article
226 is supervisory and not appellate in the strict sense. This
petition does not demonstrate that the Appellate or Revisional
Authority acted without jurisdiction or in a manner so arbitrary or
unreasonable as to require interference.
18. The society's long recognition of the promoter as member, its
issuance of share certificate and its conduct in recovery
proceedings constitute conduct that estops it from later denying
membership in the absence of decisive proof of fraud. Cooperative
societies must be able to rely on their own records and settled
practice. Where the society itself created the entitlement it cannot
lightly retract that position to the detriment of persons who claim
by succession and who have secured corroborative documentary
support such as nomination, release deed and Deputy Registrar
records.
19. The Appellate Authority correctly identified the limited scope
of inquiry under Section 23(2). It evaluated the relevant evidence
and reached a conclusion that the father of respondent No. 3 was a
member and that respondent No. 3 was entitled to transmission.
The Revisional Authority found no jurisdictional error. The petition
fails to show any jurisdictional defect, perversity of findings, or
error of law warranting interference.
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20. Hence, for the reasons stated above, the petitions are
dismissed.
21. The order dated 6 February 2012 of the Appellate Authority
and the judgment dated 30 July 2014 of the Revisional Authority
stand confirmed.
22. Pending interlocutory applications stand disposed of.
23. No order as to costs.
24. Learned Advocate for the petitioner seeks extension of the
interim relief granted earlier. The ad-interim relief, which has
remained in force for the past ten years, is continued for a period
of six weeks from today.
(AMIT BORKAR, J.)
