SMT. GULAB PANDURANG MORE DECD THRU LHRS AND LRSversusSTATE OF MAHARASHTRA THRU SECRETARY, MINISTRY OF COOPERATION AND ORS

2026:BHC-AS:34300
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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO.4481 OF 2024
             Gulab Pandurang More
             since deceased through her heirs
             and legal representatives
             Manisha Patil & Anr.                                       ....Petitioners
                      V/S
             State of Maharashtra & Ors.                                ....Respondents
                                               _________
             Mr. Shailendra S. Kanetkar with Mr. Pranay Kothari for the Petitioners.
             Ms. Charles De Souza with Mr. Sharnapa Shivraman and Ms. Pragati
             Gothi for Respondent No.3.
             Ms. Priyanka Bhadrashete for Respondent No.4-Society.
             Dr. Dhruti Kapadia, AGP for Respondent/State.
                                           __________

                                       CORAM : SANDEEP V. MARNE, J.
                                       DATE : 18 AUGUST 2026.
             P.C.:

             1.       By this Petition, Petitioners have challenged order dated 1 August
             2022 passed by the Divisional Joint Registrar, Co-operative Societies,
             Mumbai Division, Mumbai, dismissing Revision Application No.517 of
             2018 and confirming the order dated 20 October 2018 passed by the
             Assistant Registrar. The net result of the impugned orders dated 20
             October 2018 passed by the Assistant Registrar and 1 August 2022
             passed by the Divisional Joint Registrar is that Petitioners are denied
             membership in Respondent No.4-Society qua Unit No.515.


             2.       I have heard Mr. Kanetkar, the learned counsel appearing for the
             Petitioner, Ms. De Souza, the learned counsel appearing for Respondent
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No.3, Ms. Bhadrashete, the learned counsel appearing for Respondent
No.4-Society and Dr. Kapadia, the learned AGP appearing for the
Respondent/State. I have considered the submissions canvased by them.
I have gone through the various orders passed by the Registrars from
time to time. I have also perused the records of the case filed alongwith
the Petition.


3.       The case has checkered history. Unit No.515 was originally owned
by the mother of Respondent No.3-Ms. Jay Laxmi Rao. It is the case of
the Petitioners that Ms. Jay Laxmi Rao executed Agreement for Sale
dated 10 April 1972 by virtue of which she put the original Petitioner
into possession of Unit No.515. It appears that Ms. Jayalaxmi Rao filed
Suit No.894 of 1975 for recovery of possession of Unit No.515. The Suit
was apparently dismissed for non-prosecution. The original Petitioner
applied to the Assistant Registrar for grant of membership qua Unit
No.515. By order dated 16 January 1995, the Assistant Registrar directed
the fourth Respondent-Society to admit original Petitioner as its
member. The order passed by the Assistant Registrar on 16 January 1995
remained unchallenged for some time. The original Petitioner therefore
filed proceedings under Section 79(2) of the Maharashtra Co-operative
Societies Act, 1960 (MCS Act) for execution of the order dated 16
January 1995. By order dated 23 November 2012, the Assistant Registrar
appointed Authorized Officer for implementing the order dated 16
January 1995. The order passed by the Assistant Registrar appointing
Authorized Officer on 23 November 2012 was, however, challenged by
Respondent No.3 by filing Appeal before the Divisional Joint Registrar.

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The Appeal preferred by Respondent No.3 came to be allowed by the
Divisional Joint Registrar by order dated 8 October 2015. In Appeal
No.240 of 2012, Respondent No.3 challenged not just the order dated 23
November 2012 but also the original order dated 16 January 1995. The
Divisional Joint Registrar set aside both the orders dated 16 January 1995
and 23 November 2012. Original Petitioner filed Revision before the
Hon’ble Minister in which he succeeded and order dated 8 October 2015
passed by the Divisional Joint Registrar was set aside and orders dated 16
January 1995 and 23 November 2012 of Assistant Registrar were
confirmed. Respondent No.3 approached this Court by filing Writ
Petition No.8046 of 2016, which was disposed of by recording Consent
of the parties, by which the order passed by the Hon’ble Minister
on 9 May 2016, order passed by the Divisional Joint Registrar on 8
October 2016 and order passed by the Assistant Registrar on 23 October
2012 were set aside by consent. The proceedings were remanded before
the Assistant Registrar for re-adjudication. Here, there appears to be
some inadvertence in the order dated 11 June 2018 which did not
specifically set aside the order dated 16 January 1995. This Court set
aside only the order appointing Authorized Officer passed by the
Assistant Registrar on 23 November 2012. Otherwise, this Court
envisaged re-adjudication of the entire proceedings by the Assistant
Registrar consequent to the order of the remand.


4.       After the remand of the proceedings, the Assistant Registrar
passed a fresh order dated 20 October 2018 holding that Petitioner must
secure appropriate decree from Court of competent jurisdiction qua

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ownership in respect of Unit No.515. This is how the Application
preferred by the Petitioners came to be rejected. The order passed by the
Assistant Registrar is confirmed in Revision by the Divisional Joint
Registrar by passing order dated 1 August 2020. This is how the orders
passed by the Assistant Registrar on 20 October 2018 and by the
Divisional Joint Registrar on 1 August 2022 are subject matter of
challenge in the present Petition.


5.       Mr. Kanetkar has submitted that the original order passed by the
Assistant Registrar on 16 January 1995 continues to operate and that
what is set aside was only Section 79(2) order dated 23 November 2012.
He submits that the final outcome of the proceedings is that the order
appointing Authorized Officer for implementation of the order dated 16
January 1995 stands set aside and that the order dated 16 January 1995
continues to operate. I am unable to agree. This Court obviously
envisaged conduct of fresh enquiry by the Assistant Registrar into the
issue of membership while passing order dated 11 June 2018. This Court
has set aside the order passed by the Hon’ble Minister on 9 May 2016 as
well as order passed by the Divisional Joint Registrar on 8 October 2015.
The Divisional Joint Registrar’s order had set aside the original order of
the Assistant Registrar dated 16 January 1995. Since this Court
contemplated fresh adjudication of the entire dispute, the Assistant
Registrar was required to conduct a fresh enquiry not just into the aspect
of appointment of Authorized Officer for execution but the whole issue
of entitlement of Petitioner to membership of the Society. Accordingly,
fresh enquiry has been conducted and the Assistant Registrar and

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Divisional Joint Registrar have concurrently held that the issue involved
disputed questions of title which Petitioners need to get adjudicated
before the Court of competent jurisdiction.


6.       Considering the above position, in my view, it cannot be
contended that the order dated 16 January 1995 continues to survive and
needs to be implemented. A fresh adjudication has been done by the
Assistant Registrar and Divisional Joint Registrar with regard to rights of
the Petitioners to secure membership of the fourth Respondent-Society.
The result of the enquiry has gone against the Petitioners. In that view,
Petitioners cannot contend that the order dated 16 January 1995
granting membership to them still continues to serve.


7.       Even otherwise, the original Petitioner claims to beneficiary in
respect of a mere Agreement for Sale executed by Ms. Jayalaxmi Rao on
10 April 1972. His initial claim was based on receipt of possession
through part performance. However, it is a matter of fact that today the
position is with Respondent No.3. In that sense, dismissal of suit
preferred by Ms. Jayalaxmi Rao for seeking possession of Unit No.515 has
no bearing. Ms. Bhadrashete confirms that the Society has granted
membership qua Unit No.515 in favour of Respondent No.3. He is also in
possession of the said Unit. In such circumstances, if Petitioner still
claims any right in respect of Unit No.515, the appropriate remedy lies
elsewhere. Petitioners must secure a declaration from Civil Court of title
in respect of Unit No.515 as and when such declaration is made, record
of the Society can always be brought in tune with declaration so made.

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8.        Additionally, the learned counsel for Respondent No.3 has also
relied on certain observations made by Division Bench of this Court in
Rajmohan Narsingh Rao vs. Bank of Maharashtra and Others 1. The
Petition was filed challenging the order passed by the Debt Recovery
Appellate Tribunal in relation to proceedings initiated by Bank of
Maharashtra, who claimed rights in respect of the Unit based on certain
interest allegedly created by the Petitioner. While deciding the Petition,
the Division Bench of this Court has made certain observations qua
rights of Petitioner and it would be apposite to reproduce observations
in paragraphs 22 to 24 of the said order:

         “22. Under clauses 3 and 4 of the said agreement, parties had agreed that
         within four weeks, the Owner and Petitioner would make out a marketable title
         and shall perform all acts and execute the necessary documents, Deed of
         Conveyance and any other papers so as to effectively transfer, assign and
         convey the Suit Property in favour of Respondent No.5. Prior thereto,
         Respondent No.5 was required to make payment of the balance consideration
         of Rs.45,000 (out of the total consideration of Rs.50,000). However, admittedly,
         since then, neither has Respondent No.5 called upon the Owner and Petitioner
         to execute any document, conveyance, etc. nor have the parties in fact,
         executed any such document, Deed of Conveyance, etc. so as to effectively
         transfer, assign and convey the Suit Property in favour of Respondent No.5.
         Moreover, even though the Petitioner contends that Respondent No.5 has
         failed to make payment of the balance consideration, which has been disputed
         by Respondent Nos.2 and 4, they have not been able to point out any
         documentary evidence from the record, which would corroborate their
         contention of such balance consideration having been paid. As a result,
         admittedly there is no document, registered or otherwise, transferring
         ownership of and/or title to the Suit Property from the Owner in favour of
         Respondent No.5. In such circumstances, the mere fact that Suit No.894 of
         1975 came to be dismissed, and which order has since, not been challenged,
         would not result in the ownership of the Suit Property being divested from the
         Owner, as erroneously sought to be contended by Respondent Nos. 2 and 4.
         23. The reliance on Section 53-A of the TOPA by Respondent Nos.2 and 4 is
         entirely misconceived inasmuch as, the said provisions can come to the
         defence of part-performance to a transferee to an action for ejectment by the
         owner of the property. In the present case, the Owner had preferred Suit

1    Writ Petition No.6375 of 2024, decided on 13 January 2026.
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                                  No.894 of 1975 for re-delivery of possession of the Suit Property. However, this
                                  suit came to be dismissed for non-prosecution. Hence, there is no occasion for
                                  Respondent Nos. 2 and 4 to now take shelter under the said defence of part-
                                  performance in the present Writ Petition or before the DRT or the DRAT,
                                  especially since, they have admittedly not been in possession of the Suit
                                  Property since January 2001. Resultantly, the reliance on the judgment in
                                  Nathulal (supra) is entirely misconceived and of no assistance to Respondent
                                  Nos. 2 and 4. On the other hand, as more particularly held in Raheja Universal
                                  (supra), Ram Gopal Reddy (supra) and Sadashiv Chander Bhamgare (supra),
                                  since Respondent No. 5 has claimed to be a transferee in possession of the Suit
                                  Property under Section 53-A of the TOPA, she cannot simultaneously claim to
                                  be its owner.
                                  24. Moreover, despite continued efforts, Respondent No.5 has not been
                                  successful in getting her name added as a member of Respondent No.8 –
                                  Society in respect of the Suit Property. As more particularly highlighted
                                  hereinabove, the last order that has been passed in the long list of
                                  proceedings filed by the parties is that of the Divisional Joint Registrar dated
                                  1st August 2022 upholding the earlier order of the Assistant Registrar, who, on
                                  remand by this Court, held that since disputed questions of ownership and
                                  title were involved in the matter, he did not have jurisdiction to decide the
                                  same and accordingly, directed the parties to file appropriate proceedings
                                  before a civil court to adjudicate the same. Admittedly, Respondent Nos.2 and
                                  4 have not approached any civil court since then and in these circumstances,
                                  they cannot rely upon earlier receipts issued by Respondent No.8 – Society
                                  and/or contend that the share certificate/membership has been transferred in
                                  the name of Respondent No.5. On the contrary, if pursuant to the execution of
                                  the said agreement, Respondent No. 8 – Society treated Respondent No. 5 as
                                  its member in respect of the Suit Property, there was no need and/or occasion
                                  for the Petitioner to be impleaded as a party to Suit No. III/1674 of 1990
                                  preferred by Respondent No. 8 – Society before the Co-Operative Court for
                                  recovery of outstanding dues of the Suit Property.”


                         9.       Thus, it is more than apparent that the Petitioner will have to
                         secure a declaration title qua Unit No.515 from Court of competent
                         jurisdiction. I therefore do not find any valid reason to interfere in the
                         impugned order. Writ Petition is accordingly rejected.                         However, all
                         issues relating to title over Unit No.515 are expressly kept open to be
                         decided by the Court of competent jurisdiction.


                                                                                        (SANDEEP V. MARNE, J.)
                          katkam
Signed by: Sudarshan R. Katkam                                        Page No. 7 of 7
Designation: PS To Honourable Judge
Date: 20/08/2026 11:24:42