Registrar Cannot Decide Flat Ownership Dispute by Cancelling Society Membership Under Section 79: Bombay High Court
Facts
The dispute concerned Flat No. A/4, measuring approximately 650 square feet, in Nandan Cooperative Housing Society at Veer Savarkar Marg, Shivaji Park, Mumbai.
The Society had originally issued the share certificate solely in the name of Balmukund Acharya, who claimed ownership of the flat.
Balmukund permitted his brother, Dattakumar Parshuram Acharya, to reside in the flat. On the strength of his occupation, Dattakumar applied to have his name added to the Society’s records as a joint or nominal member.
The Society added Dattakumar’s name to the share certificate on 18 October 1981. Balmukund subsequently objected to this addition.
In 1997, Balmukund filed a suit before the Small Causes Court seeking Dattakumar’s eviction on the ground that he was only a gratuitous licensee. He also sought deletion of Dattakumar’s name from the Society’s membership records.
During earlier writ proceedings, Balmukund agreed to withdraw the prayer concerning deletion of Dattakumar’s name so that the eviction proceedings could continue before the Small Causes Court. The suit was ultimately returned for want of jurisdiction.
Balmukund died on 28 June 2011. His son, Durgadas Acharya, died on 3 August 2012.
Saili Durgadas Acharya, the daughter of Durgadas and granddaughter of Balmukund, applied to the Society to transfer the membership and issue the share certificate in her name. On 21 October 2012, the Society transferred the membership and issued a duplicate share certificate to Saili.
Dattakumar objected and relied upon an alleged family arrangement under which he claimed joint membership.
Saili subsequently asked the Society to cancel the car parking allotted to Dattakumar. The Society cancelled the parking allotment in February 2013.
Dattakumar then approached the Deputy Registrar of Cooperative Societies and sought:
- Cancellation of Saili’s membership and share certificate;
- Restoration of the flat’s water supply; and
- Restoration of his car parking space.
By an order dated 16 May 2016, the Deputy Registrar exercised purported powers under Section 79(2) of the Maharashtra Cooperative Societies Act, 1960, and directed the Society to:
- Cancel Saili’s membership and share certificate;
- Restore water supply to Flat No. A/4; and
- Return the parking space to Dattakumar.
Saili challenged this order before the Bombay High Court.
During the proceedings, Dattakumar died, and his daughter, Nandita Acharya, was brought on record.
Issues
- Whether the Deputy Registrar could cancel a person’s Society membership and share certificate under Section 79(2) of the MCS Act.
- Whether Section 79 gives the Registrar adjudicatory power to decide competing claims concerning ownership, title or possession of a flat.
- Whether a prior order directing cancellation of the petitioner’s membership was necessary before Section 79(2) could be invoked.
- Whether Saili’s writ petition was maintainable despite the statutory remedy of an appeal under Section 152 of the MCS Act.
- Whether Saili’s earlier intervention in the Society’s appeal and filing of a dispute before the Cooperative Court amounted to pursuing parallel remedies.
- Whether the directions restoring water supply and car parking were within the Deputy Registrar’s jurisdiction.
- Whether setting aside the cancellation order conclusively established Saili’s title to the flat.
Petitioner’s Arguments
Saili argued that the Deputy Registrar’s order cancelling her membership and share certificate was entirely without jurisdiction.
Section 79 permits the Registrar to enforce a Society’s statutory obligations or compliance with an existing order. It does not authorise the Registrar to decide ownership or title disputes.
No competent authority had previously passed an order directing the Society to cancel Saili’s membership. Therefore, the jurisdictional requirement for invoking Section 79(2) was absent.
Saili contended that the Deputy Registrar had effectively decided a long-standing title dispute between her branch of the family and Dattakumar’s branch without any power to do so.
She maintained that Balmukund had purchased the flat from his own funds and that Dattakumar was merely permitted to occupy it as a gratuitous licensee.
The withdrawal of the prayer seeking deletion of Dattakumar’s name in the earlier Small Causes Court proceedings did not amount to an admission that he owned the flat or had permanent membership rights.
Saili further argued that she was entitled to approach the High Court directly because the impugned order was passed without jurisdiction. Availability of a statutory appeal did not bar the writ petition.
She denied suppressing material facts and pointed out that her intervention in the Society’s appeal and her Cooperative Court dispute had been expressly disclosed in the petition.
Respondent’s Arguments
Nandita Acharya, representing Dattakumar’s branch of the family, argued that the writ petition should not be entertained because Saili had pursued parallel remedies.
Saili had intervened in the Society’s appeal before the Divisional Joint Registrar and had also filed an independent dispute before the Cooperative Court. According to the respondent, she could not simultaneously pursue a writ petition concerning the same subject matter.
The respondent also relied upon the statutory appellate remedy available under Section 152 of the MCS Act.
On the merits, it was argued that Dattakumar had been in possession of the flat from the beginning and that his name was added to the share certificate under a family arrangement.
His joint membership had continued since 1981. Saili had allegedly secured transfer of the membership by improperly removing Dattakumar’s name.
It was further contended that Balmukund had abandoned his claim for exclusive membership when he withdrew the prayer seeking deletion of Dattakumar’s name from the earlier suit.
Accordingly, the Deputy Registrar was justified in restoring the original position by cancelling Saili’s membership.
The respondent also argued that the Society had improperly discontinued water supply and cancelled Dattakumar’s parking allotment.
Society’s Arguments
The Society supported Saili’s petition.
It stated that a resolution had been passed on 31 August 2008 cancelling Dattakumar’s associate membership. Dattakumar had never challenged that resolution, and it had attained finality.
Therefore, cancellation of Saili’s membership would not automatically revive Dattakumar’s membership.
Analysis of the Law
Scope of Section 79(2) of the MCS Act
Section 79 primarily concerns the Society’s obligation to maintain accounts, file returns and statements, produce records and perform duties imposed by:
- The MCS Act;
- The applicable rules;
- The Society’s bye-laws; or
- An order passed by the Registrar under the preceding provisions.
If the Society fails to perform such an obligation, the Registrar may take or enforce the required action at the Society’s expense.
The power is therefore supervisory and enforcement-oriented.
It does not authorise the Registrar to adjudicate substantive civil disputes concerning ownership, title or possession of immovable property.
Requirement of a Prior Legal Obligation
For Section 79(2) to apply, the Society must have failed to perform an act that it was already required to perform under the Act, rules, bye-laws or a valid order.
Cancelling Saili’s membership was not an existing statutory duty of the Society. Nor had any competent authority previously ordered the Society to remove her name.
The Deputy Registrar could not create the obligation and then enforce it under the same supervisory provision.
Distinction Between Membership and Title
Membership of a cooperative housing society and ownership of a flat may be connected, but serious disputes concerning title cannot be decided through summary administrative directions.
The dispute had continued since 1981 and involved competing claims based upon purchase, inheritance, occupation, an alleged family arrangement and the earlier litigation.
Such questions required adjudication by a competent court or forum after giving the parties a proper opportunity to produce evidence.
Writ Petition Despite Alternative Remedy
Ordinarily, the High Court may decline to entertain a writ petition when an effective statutory appeal is available.
However, this rule does not apply rigidly where the impugned order is passed without jurisdiction.
Since the Deputy Registrar lacked power to cancel the membership under Section 79, Saili was not required to be relegated to the appellate remedy.
The Court also considered that the petition had remained pending for approximately eight years and that the impugned order had already been stayed.
Water Supply and Parking
Restoration of essential services and Society-related facilities could fall within the Registrar’s supervisory powers.
Since Dattakumar’s branch remained in occupation of the flat, the Court found it necessary to preserve the water supply and parking associated with the premises.
Therefore, only the membership-cancellation direction was beyond jurisdiction.
Precedent Analysis
Sadashiv Nagappa Kadam v. State of Maharashtra
The Bombay High Court held that the Registrar’s powers under Section 79 or Section 154B-27 of the MCS Act are limited and supervisory.
These provisions do not confer the powers of a civil court to determine title, ownership or consequential rights in immovable property.
The Court applied this principle and held that the Deputy Registrar could not indirectly decide entitlement to the flat by cancelling Saili’s Society membership.
Whirlpool Corporation v. Registrar of Trade Marks
The Supreme Court held that availability of an alternative statutory remedy does not bar the High Court from exercising writ jurisdiction where:
- The authority acted without jurisdiction;
- Principles of natural justice were violated; or
- Fundamental rights were involved.
Since the Deputy Registrar’s membership-cancellation direction was without jurisdiction, the Bombay High Court entertained Saili’s petition despite the appellate remedy under the MCS Act.
Court’s Reasoning
The Court found that there was a serious and long-standing title dispute between Saili and Dattakumar’s branch of the family.
The dispute began when Dattakumar’s name was inserted into the share certificate in 1981. It subsequently led to objections, eviction proceedings and competing claims of ownership and membership.
The Deputy Registrar expressly acknowledged the existence of the title dispute but nevertheless directed cancellation of Saili’s membership. In doing so, he exceeded the limited supervisory jurisdiction conferred by Section 79.
There was no prior order directing removal of Saili’s name, and cancellation of her membership was not an act the Society was independently required to perform under the Act, rules or bye-laws.
The Court also rejected the assumption that cancelling Saili’s name would automatically restore Dattakumar’s joint membership. The Society claimed that Dattakumar’s membership had already been cancelled by a resolution passed in 2008.
However, the Court declined to decide whether Saili or Dattakumar’s heirs had title to the flat. That dispute had to be resolved by a competent court.
The Court rejected the objection concerning alternative remedy because the impugned direction was without jurisdiction.
It also found no suppression of material facts. Saili had disclosed both her intervention in the Society’s appeal and the Cooperative Court proceedings.
Her participation in the Society’s appeal did not prevent her from independently challenging an order that directly affected her rights. Similarly, the Cooperative Court dispute did not involve a direct challenge to the Deputy Registrar’s order and had subsequently been withdrawn.
The Court nevertheless upheld the directions restoring water supply and parking because they fell within the Deputy Registrar’s supervisory jurisdiction and protected the person occupying the flat.
Conclusion
The Bombay High Court partly allowed Saili’s writ petition.
It set aside the Deputy Registrar’s direction cancelling Saili’s Society membership and share certificate, holding that the Registrar had no jurisdiction under Section 79(2) to decide the underlying title dispute.
However, it maintained the directions requiring the Society to:
- Restore water supply to Flat No. A/4; and
- Return the car parking space connected with the flat.
The Court clarified that restoring Saili’s membership did not amount to declaring her the owner of the flat.
Nandita Acharya remained free to approach the competent authority or court to seek cancellation of Saili’s membership or adjudication of title and possession.
All substantive rights concerning ownership and possession were left open.
Case Details
Case: Saili Durgadas Acharya v. Nandan Cooperative Housing Society Limited & Others
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Number: Writ Petition No. 890 of 2018; CNR No. HCBM010475062017
Judge: Justice Sandeep V. Marne
Reserved On: 8 July 2026
Date: 17 July 2026
Result: Petition partly allowed. The direction cancelling the petitioner’s membership and share certificate was set aside for lack of jurisdiction. Directions restoring water supply and car parking were maintained. The parties’ title and possession claims were left open for adjudication by the competent forum.
