Bombay High Court
PUSHPA CO.OPERATIVE HOUSING SOCIETY LTD.versusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
- Bench
- AMIT BORKAR
Holding
The civil court's finding that the premises constitute a flat under the Maharashtra Ownership Flats Act is final and binding, rendering the writ petitions untenable.
Summary
The Pushpa Co-operative Housing Society Ltd filed writ petitions challenging the admission of a respondent as a member on the ground that the premises in question did not qualify as a "flat" under the Maharashtra Cooperative Societies Act. The respondent relied on a civil court judgment (L.C. Suit No. 722 of 1995) which had held that the premises, a garage, constituted a flat under the Maharashtra Ownership Flats Act. The High Court observed that, in the absence of any appeal against that civil judgment, its finding had attained finality and was binding on the parties. Consequently, the court held that the writ petitions could not be entertained and directed the petitioner to approach a civil suit if it wished to contest the finding. The petitions were therefore disposed of.
Issues considered
- Whether the premises in question qualify as a "flat" within the meaning of the Maharashtra Cooperative Societies Act and the Maharashtra Ownership Flats Act.
- Whether a civil court's determination that the premises are a flat is binding on subsequent proceedings under the Cooperative Societies Act.
Legislation cited
- Maharashtra Cooperative Societies Act — s. 23
- Maharashtra Ownership Flats Act — s. 2(a)
Subjects
- cooperative society
- membership admission
- flat definition
- civil court judgment
- finality of judgment
- writ petition
- Section 23
- Chapter VIII
Judgment
16-WP-11828-16+final.doc
Sayali
SAYALI
DEEPAK
UPASANI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed by
SAYALI DEEPAK
UPASANI
Date: 2026.03.24
19:37:58 +0530
WRIT PETITION NO. 11828 OF 2016
WITH
WRIT PETITION NO. 11822 OF 2016
Pushpa Co-operative Housing Society
Ltd … Petitioner
V/s.
The State of Maharashtra and Others … Respondents
Mr.Sanjiv Sawant with Mr. Abhishek M and Malhar
Bageshwar, for Petitioner.
Mr. Pradeep J. Thorat with Ms. Aditi S. Naikare, for
Respondent no. 2 in both petitions.
Ms. A. A. Nadkarni, AGP for State-Respondent no. 1
in WP/11828/2016.
Ms. Mamta Shrivastava, AGP for State-Respondent
no. 1 in WP.11822/2016.
CORAM : AMIT BORKAR, J.
DATED : MARCH 24, 2026
P.C:
1. The present petitions call in question proceedings initiated
under Section 23 of the Maharashtra Cooperative Societies Act.
The principal submission advanced on behalf of the petitioner
society is that the subject premises, in respect of which
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16-WP-11828-16+final.doc
Respondent No. 2 seeks admission as a member, does not qualify
as a “flat” within the meaning of the Act. It is thus contended
that, in absence of such qualification, the claim for grant of
membership in respect of the said premises is not legally
sustainable.
2. Per contra, learned Advocate appearing for Respondent No.
2 has placed reliance upon the judgment and decree passed by
the Civil Court in L.C. Suit No. 722 of 1995 dated 28 September
2005. It is submitted that the Civil Court, upon adjudication, has
recorded a categorical finding that the premises in question,
being one of the garages forming part of the subject matter of the
said suit, constitutes a “flat” within the meaning of Section 2(a)
of the Maharashtra Ownership Flats Act. On that basis, it is urged
that such finding is binding on the authorities under the Act and
cannot be disregarded in the present proceedings.
3. In my considered view, in the absence of any challenge to
the aforesaid judgment of the Civil Court, the finding therein,
declaring the subject premises as a flat under the provisions of
the Maharashtra Ownership Flats Act, has attained finality. This
position assumes significance particularly because the
proceedings arise from a period prior to the insertion of Chapter
VIII in the Maharashtra Cooperative Societies Act. Once a
competent Civil Court has made observation regarding the nature
of the premises and recorded a finding to that effect, such finding
binds the parties inter se. If the petitioner society is aggrieved by
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the said finding, the appropriate remedy lies in filing an appeal
against the judgment or in instituting a substantive proceeding
seeking to avoid its binding effect in accordance with law.
4. In view of the subsisting finding of the Civil Court, the
present petitions cannot be entertained. However, it is clarified
that the petitioner society shall be at liberty to institute an
appropriate Civil Suit seeking such reliefs as may be permissible
in law. In the event such proceedings are initiated, it shall be
open to all parties to raise all contentions available to them in
accordance with law.
5. The petitions are accordingly disposed of.
(AMIT BORKAR, J.)
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