2024:BHC-OS:6942

Neeta Sawant WPL-4104-2024 and WP-1421-2024-FC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1421 OF 2024

New Manoday Co-operative

Housing Society Limited .. Petitioner

Versus

Uday Madhavrao Jagtap & Ors. .. Respondents

AND
WRIT PETITION (L) NO. 4104 OF 2024

Bhupesh Gajanan Sankhe and Anr. .. Petitioners

Versus

State Of Maharashtra Through

Department Of Co-Operation
Marketing And Textile and Ors. .. Respondents

WITH
INTERIM APPLICATION (L) NO.11031 OF 2024
IN
WRIT PETITION (L) NO. 4104 OF 2024

Ujjwala Uday Kale nee

Ujjwala Madhavrao Jagtap & Anr. .. Applicants/Intervenors

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IN THE MATTER BETWEEN

Bhupesh Gajanan Sankhe and Anr. .. Petitioners

Versus

State Of Maharashtra Through

Department Of Co-Operation
Marketing And Textile and Ors. .. Respondents

Mr. Mayur Khandeparkar a/w Mr. Amogh Singh, Mr. Santosh Pathak,
Mr. Chirag Thakkar & Anubha Singh i/b Law Origin, for Petitioner in
both Petitions.

Mr. Devdatta A. Sakhalkar, for Respondent Nos. 4 to 6 in

WP/1421/2024 and for Respondent Nos.2, 3 & 6 in WPL/4104/2024.

Ms. Sneha Phene a/w Mr. Yash Juwatkar, Respondent Nos. 2 & 3 in
WP/1421/2024 and for Applicant in IAL/11031/2024.

Ms. Nazia Shaikh, AGP a/w Himanshu B. Takke, AGP for State, for
Respondent No.7 in WP/1421/2024 and for Respondent Nos. 1, 4 & 5 in
WPL/4104/2024.

CORAM : SANDEEP V. MARNE J.

RESERVED ON : 22 APRIL 2024.
PRONOUNCED ON : 30 APRIL 2024.

JUDGMENT :-

A. THE CHALLENGE

1) Petitioners-Society has filed these two Petitions challenging (i)

Order passed by Competent Authority rejecting its application for grant

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of unilateral deemed conveyance of land and (ii) the Order passed by

Minister-Cooperation directing the Divisional Joint Registrar of Co-
operative Societies to initiate action for cancellation of registration of
Petitioner-Society. Although the Impugned Orders are passed by two
separate authorities in independent proceedings filed seeking different
reliefs, as the reason for passing of both the Orders is common, both the
Petitions are decided by this common judgment. In Writ Petition
No.1421 of 2024, Petitioner-Society has challenged Order dated 18
October 2023 by which Society's Application filed under Section 11 of
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (MOFA) for
grant of unilateral deemed conveyance of land admeasuring 1583.46
sq.mtrs. has been rejected. In Writ Petition (L) No. 4104 of 2024, the
Society has challenged Order dated 24 January 2024 passed by Minister,
Co-operation directing Divisional Joint Registrar of Co-operative
Societies to initiate action for de-registration of Petitioner-Society. The
common reason cited for passing both the orders is pendency of Suit
filed by persons claiming share/ownership in the larger portion of the
land. Therefore, the issue that arises for consideration is whether
pendency of a title suit by persons against promoters claiming
ownership and/or share in the land can be a reason for i) deregistration
of a Co-operative Society formed by flat purchasers in a building
constructed on part of such land and ii) for denying unilateral deemed
conveyance of such part of land.

B. FACTS

2) A brief factual narration would be necessary for better

understanding the exact controversy involved in the Petitions. Late
Madhavrao Jagtap was the original owner in respect of land bearing

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Survey No. 55, Hissa No.1B and Final Plot CTS No. 229, 229/1 to 7
admeasuring 9438 sq. yards i.e. 7890.17 sq. mtrs. situated at village
Kanheri at Dattapada Road, Borivali (East), Mumbai 400 066 (larger
land). There is factual dispute about the marriage(s) performed by late
Madhavrao Jagtap. Manoramabai claims marriage with Madhavrao and
out of their claimed wedlock, three children named Uday Jagtap,
Ujwala Jagtap and Mangala Jagtap are born. After the demise of late
Madhavrao Jagtap, it is claimed that Manoramabai and Uday Jagtap
came in occupation and possession of the said larger land. That
Manoramabai’s name came to be reflected in the revenue records
pertaining to the larger land. It appears that Manoramabai and Uday
Jagtap took smaller portion of land admeasuring 1583.46 sq. mtrs. for
development and submitted plans for construction of a building.
Intimation of Disapproval (IOD) for construction of the building was
issued on 28 March 1973 and the Commencement Certificate was issued
on 30 November 1977. They executed agreements with flat purchasers
for sale of various flats constructed in the building named "Manoday".
Under the said agreements executed from time to time during the years
1997, said Manoramabai and Uday Jagtap inter alia undertook to form a
co-operative society of flat purchasers and to convey the land, which is
the subject matter of the agreement in favour of such co-operative
society. After construction of the building was complete, Occupancy
Certificate was issued on 3 January 1978.

3) One Alice John Madhavrao also claim marriage with

Madhavrao Jagtap and that out of their claimed wedlock, daughter
named Nalini Ramakant Jadhav was born. Nalini is now no more and
has Vibhawari Mohan Shinde, Sunita Ashok Shinde and Anjali Ashok
Shinde as her daughters. During her lifetime, Nalini Jadhav filed
initially a pauper application in this Court on 8 January 1975, which was

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converted into Suit No. 246 of 1977. The Suit was against Manoramabai,
Uday, Ujwala and Mangala. In the Suit, Nalini initially claimed
undivided one-fifth share in the suit property and for partition and
separate possession thereof. It appears that the suit has been later
amended and the prayer for partition is substituted by prayer for
declaration that Plaintiff-Nalini is the sole owner of the suit property
and is entitled to occupy and possess the same.

4) During pendency of the suit, as observed above, Manoramabai

and Uday continued construction of the building, sold flats and
procured Occupancy Certificate on 3 January 1978. It is Petitioner's case
that Plaintiffs in Suit No. 246 of 1977 failed to secure any injunction on
account of which the construction of the building and occupation of the
flats continued without any obstruction. After Nalini's death her heirs
Vibhawari, Sunita and Anjali are prosecuting the same. The suit is still
pending. Petitioner-Society attempted to intervene in the Suit, but its
application was resisted by Plaintiffs therein and has been rejected
observing that Petitioner-Society could pursue separate legal action in
respect of its rights. Therefore Petitioner-society is not a party to the
Suit.

5) The flat purchasers who purchased flats in the building, formed

and registered ‘New Manoday Co-operative Housing Society Limited’
under Registration Certificate dated 18 November 1988. Suit No.246 of
1977 was transferred to City Civil Court and registered as Suit No. 9750
of 1977.

6) Petitioner-Society filed application for grant of unilateral deemed

conveyance before the Deputy Registrar of Cooperative Societies and
Competent Authority. According to Petitioner, due to oversight

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conveyance of larger plot of land was sought, though the agreements

with flat purchasers were only in respect of land admeasuring 1583.46
sq. mtrs. Society's application was rejected by the Competent Authority
on 31 December 2012 inter alia holding that Nalini Jadhav is the owner
of the land, who did not execute agreements for sale of flats. Petitioner-
Society filed Writ Petition No. 477 of 2014 challenging the Order dated
31 December 2012, which was disposed of by Order dated 12 January
2023 after recording submissions on behalf of Petitioner-Society that it
was seeking conveyance of only of 1583.46 sq. mtrs. and sought liberty
to file fresh application before the Competent Authority. The Writ
Petition was accordingly disposed of granting liberty to Petitioner-
Society to file fresh Application by Order dated 12 January 2023. Review
of the Order dated 12 January 2023 was sought on behalf of heirs of
Nalini and by consent, the Order dated 12 January 2023 was recalled
and Writ Petition No.477 of 2014 was restored. On 16 March 2023, Writ
Petition No.477 of 2014 was disposed of by setting aside Order dated 31
December 2012 and recording that Petitioner-Society has filed fresh
application for deemed conveyance and directing decision thereon. By
Order dated 18 October 2023, the Competent Authority proceeded to
reject the application for deemed conveyance of land admeasuring
1583.46 sq. mtrs. on the ground of pendency of title suit filed by heirs of
Nalini Jadhav. Order dated 18 October 2023 is subject matter of
challenge in Writ Petition No.1421 of 2021.

7) During pendency of proceedings for grant of unilateral deemed

conveyance in favour of Petitioner-Society, heirs of Nalini Jagtap filed
Application No. 6 of 2023 before Divisional Joint Registrar of Co-
operative Societies on 31 January 2023 under Section 21A of
Maharashtra Co-operative Societies Act (MCS Act) seeking
deregistration of Petitioner-Society on the ground of misrepresentation.

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By Order dated 24 April 2023, Divisional Joint Registrar dismissed

Application No.6 of 2023. The Order of the Divisional Joint Registrar
was challenged by heirs of Nalini Jadhav by filing Appeal No. 380 of
2023 before Minister, Cooperation under Section 152 of the MCS Act.
The Hon'ble Minister, Cooperation passed Order dated 31 December
2012 and set aside the Order passed by the Divisional Joint Registrar
and directed initiation of proceedings for deregistration of Petitioner
Society under provisions of Section 21A of the MCS Act. The learned
Minister, Co-operation has cited the very same reason of pendency of
title suit filed by heirs of Nalini Jadhav while directing initiation of
proceedings for deregistration of Petitioner-Society. Petitioner-Society is
aggrieved by the Order dated 24 January 2024 passed by the Minister,
Co-operation and has filed Writ Petition (L) No.4101 of 2024.

8) This is how pendency of Suit No. 9750 of 1977 is cited as a reason

both for rejection of Society's Application for grant of certificate of
unilateral deemed conveyance as well as for ordering Society’s
deregistration.

9) Writ Petition (L) No. 4104 of 2024 was initially filed by two
members of the society by impleading the rest of the members as
proforma Respondents, under a presumption that the Minister’s Order
has already derecognized the society. However subsequently, the
Petition has been amended and now the society is also impleaded as
Petitioner No.3 in Writ Petition (L) No. 4104 of 2024. It must be noted
here that while the proceedings were contested essentially between the
branches of Manoramabai and Alice, who claim to be wives of
Madhavrao Jagtap, a new twist is now added by daughters of
Manoramabai, who are also claiming share in the larger plot and

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contend that Manoramabai and Uday Jagtap did not have authority to
either construct building or sale flats therein to their exclusion.
Accordingly, Ujawala Jagtap and Mangala Jagtap have filed Interim
Application (L) No.11031 of 2024 in Writ Petition (L) No. 4104 of 2024
seeking intervention. In Writ Petition No. 1424 of 2024 they are
impleaded as Respondent Nos.2 and 3 and they have filed Affidavit-in-
Reply claiming share in larger property.

C. SUBMISSIONS

10) Mr. Mayur Khandeparkar, the learned counsel appearing for

Petitioner-Society in both the Petitions would submit that mere
pendency of title suit filed by the branch of Nalini Jadhav could not
have been the reason either for the Competent Authority to reject
application for unilateral deemed conveyance or for the learned
Minister to order deregistration of Petitioner-Society. So far as the
Order passed by the learned Minister for deregistration of Petitioner-
Society is concerned, Mr. Khandeparkar would submit that the society
was registered on 18 November 1988 and proceedings filed seeking
deregistration by the heirs of Nalini Jadhav were clearly time barred
and were rightly rejected by the Divisional Joint Registrar. That heirs of
Nalini Jadhav do not have locus standi to challenge registration of
Petitioner-Society. The application for deregistration was filed by
someone who are not members of the Society and who had absolutely
no relationship with Society's affairs. That no injunction is granted in
the pending suit and therefore mere pendency of the suit cannot have
any effect on deregistration of Petitioner-Society. He would submit that
Plaintiffs in the suit opposed impleadment of Petitioner in Suit No. 9750
of 1977 and now they are using pendency of the suit for the purpose of
seeking deregistration of Petitioner-Society. That the building in

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question has been constructed in the year 1977 and occupancy certificate
has been issued in the year 1978. That therefore application filed under
Section 21A of MCS Act after delay of 35 long years could not have
entertained.

11) Mr. Khandeparkar would further submit that the learned Minister
pendency of title dispute between the parties cannot be a reason for
deregistration of the society. He would also rely upon judgment of
Single Judge of this Court Airoli Neha Apartment Co-op. Housing
Society Ltd. Vs. State of Maharashtra & Ors. 1 in support of his
contention that once the building is fully occupied, no Order for
deregistration of the society can be passed. He would therefore pray for
setting aside the Order dated 24 January 2024 passed by the learned
Minister, Co-operation.

12) So far as Writ Petition No.1421 of 2024 is concerned, Mr.

Khandeparkar would contend that mere pendency of Suit No.9750 of
1977 filed by Nalini Jadhav/her heirs cannot have any effect on the
obligation of the promoter to convey the land under Section 11 of
MOFA. That MOFA agreements executed in favour of flat purchasers
have not been challenged in any proceedings. That in absence of
challenge to MOFA agreements, the statutory right of flat purchasers to
form a society and to seek certificate of unilateral deemed conveyance
cannot be kept in abeyance merely on account of pendency of suit filed
by Nalini Jadhav/heirs before the City Civil Court. That the Society is
entitled to have the land conveyed in its favour, which has not been
conveyed for more than 40 long years. That Society’s right to seek
unilateral Deemed Conveyance cannot be made dependent on
pendency of title suit. In support of his contention, he would rely upon

1
2023(3) Mh.L.J. 529.

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Order of this Court in Om Shakuntal Co-op. Housing Society Ltd. Vs.

Patel Wood Works & Tiber Mart & Anr. 2 That there is no injunction
granted by City Civil Court and that therefore there is no impediment in
conveying the land in favour of society

13) Mr. Khandeparkar would further submit that it is settled position

of law that an order granting deemed conveyance does not conclude
issue of right, title or interest in the land and that the same is always
subject to decision of Civil Suit. That the scope of application under
Section 11 of MOFA is extremely limited, where the Competent
Authority has to merely verify the documents on record and convey the
land in accordance with the agreement executed with the flat
purchasers.

14) Alternatively, Mr. Khandeparkar would submit that even if any

order is passed by the City Civil Court in pending suit, the land on
which Society's building is constructed can always be allocated to the
share of Manoramabai and Uday Jagtap and that therefore pendency of
suit can never be a reason for rejection of application for conveyance of
the land.

15) Per contra, Mr. Sakhalkar the learned counsel appearing for heirs
of Nalini Jadhav (Respondent Nos. 2, 3 and 6 in Writ Petition (L)
No.4104 of 2024) would oppose the Petition and support the Order
passed by the learned Minister. He would submit that the Order passed
by the learned Minister does not by itself deregister the Society as is
erroneously portrayed by Petitioner. That he has merely directed
Divisional Joint Registrar to initiate proceedings for deregistration. That
the Petition is premature as the Divisional Joint Registrar is yet to pass

2
Writ Petition No.2578 of 2020 decided on 18 March 2024.

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an Order deregistering Petitioner-Society. Mr. Sakhalkar would

therefore pray for dismissal of Writ Petition No.1421 of 2024.

16) Mr. Sakhalkar would submit that Manoramabai or Uday Jagtap

have absolutely no right, title or interest in any portion of the larger
property. That they illegally and unauthorisedly constructed building
on land admeasuring 1583.46 sq. mtrs. That construction of the building
on the land was undertaken and flats were sold with full knowledge of
pendency of Suit No.9750 of 1977. That therefore no equities can be
claimed either by Manoramabai and Uday Jagtap or by the flat
purchasers through their society. That registration of the society is by
misrepresentation and suppression of pendency of the suit.

17) Mr. Sakhalkar would further submit that Madhavrao Bhikaji

Jagtap had married Alice John on 18 February 1932 and daughter
named Nalini was born to the couple on 21 September 1936. That Alice
died on 25 April 1943 and Madhavrao died in the year 1955. That Nalini
got married and Vibhawari, Sunita and Anjali are her daughters. That
after Madhavrao’s death, Manoramabai illegally got her name mutated
in revenue records in respect of the larger land as Manoramabai Bhikaji
Jagtap and subsequently in the year 1966 she got her name changed as
Manoramabai Madhavrao Jagtap. After Nalini got wind of attempts to
sell larger portion of land by Manoramabai and Uday, Suit No.246 of
1977 was filed in this Court. The suit was initially filed for partition of
larger land under the misbelief that Manoramabai was wife of
Madhavrao. However, in their Written Statement, Manoramabai and
Uday Jagtap denied marriage between Madhavrao with Alice and
relationship with Nalini as daughter. That without Nalini’s consent,
Manoramabai and Uday got constructed building on part of the larger
land. That flat purchasers unilaterally registered of the society on 18

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November 1988 without disclosing the factum of pendency of suit filed

by Nalini. Upon noticing that the society was trying to create further
interest in the property by granting development of rights to a
developer, heirs of Nalini filed Application before Divisional Joint
Registrar under Section 21A of MCS Act seeking deregistration of the
Society on the ground of misrepresentation. That the Application was
erroneously rejected by Divisional Joint Registrar, which error has been
corrected by the learned Minister, Co-operation by Order dated 24
January 2024.

18) So far as Writ Petition (L) No. 4104 of 2024 is concerned, Mr.
Sakhalkar would submit that no portion of the land can be conveyed in
favour of the Society in the light of specific declaration sought in Suit
No.9750 of 1977 that Nalini/her heirs are absolute owners in respect of
the entire larger land. That the suit continues to remain pending. That
Society's demand for conveyance of land admeasuring 1583.46 sq. mtrs.
is also not maintainable and has been rightly rejected. That conveyance
of any portion of land would create complications in the matter. That
therefore the Competent Authority has rightly rejected Society's
Application for grant of unilateral deemed conveyance.

19) Ms. Sneha Phene, the learned counsel appearing for Respondent
Nos. 2 and 3 in Writ Petition No. 1421/2024 and for Intervenors in Writ
Petition (Lodg.) No.4104/2024, who are daughters of Madhavrao and
Manorama and sisters of Uday Jagtap, also oppose both the petitions.
She would submit that the agreements are executed by Manoramabai
and Uday in favour of the flat purchasers behind the back of the sisters.
That sisters have share in the property of Madhavrao Jagtap. That in
para-1.2 of Writ Petition No. 1421 of 2024, Petitioner has accepted that
Respondent Nos.1 to 3 therein are legal heirs of the original owners.

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That since ownership of the two sisters is not disputed, purchase of flats
by members of Petitioner-Society without owners being parties to the
agreement, are void. That therefore no land can be conveyed in favour
of the Society on the basis of agreements executed in favour of the
society’s members. That pendency of Suit No. 9750 of 1977 was in the
knowledge of members of the Petitioner-Society. She would also submit
that daughters of Nalini Jadhav have no locus in the present
proceedings as they are not the heirs of Madhavrao Jagtap.

20) In the alternative, Ms. Phene would submit that in the event of
this Court granting deemed conveyance on any portion of land in
favour of the Society, such conveyance be made subject to the rights of
her clients. Further, entitlement to conveyance be restricted to use of FSI
only in respect of land admeasuring 1583.46 sq.mtrs and not in respect
of the entire larger property.

21) I have also heard Ms. Shaikh and Mr. Takke, the learned AGPs for
the State.

D. REASONS AND ANALYSIS

22) After having heard the learned counsel appearing for the parties
and after having gone through the orders impugned in the present
petitions, it is seen that pendency of Suit No. 9750 of 1977 before the
City Civil Court is the common ground used by both, the learned
Minister as well as the Competent Authority for ordering de-
registration of Petitioner-Society and for denying deemed conveyance to
it respectively. Since the reason for passing impugned orders is
common, both the petitions are being decided by this common
judgment.

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D. 1 CONTESTING PARTIES
23) As observed above, there are three sets of parties, who claim right
to succeed to the estate of Madhavrao Jagtap. The first set of comprises
of Manoramabai Jagtap (wife) and Uday Jagtap (son). The second set
comprises of Ujwala Jagtap and Mangala Jagtap, who are the daughters
of Madhavrao and Manoramabai. The third set comprises of daughters
of Nalini Jadhav viz. Vibhawari, Sunita and Anjali who claim right to
succeed to Madhavrao's estate through their grandmother, Alice John,
who is also claimed to be Madhavrao’s wife. The competing claims
amongst alleged heirs of Madhavrao Jagtap arises on account of
possible two marriages performed by him. Both Manoramabai as well
as Alice claim marriage with Madhavrao and therefore their children
and grandchildren claim right to succeed to Madhavrao's estate. The
surviving parties today are Vibhawari, Sunita and Anjali, who claim
right through their grandmother, Alice John, whereas Uday, Ujwala and
Mangala claim to be the children born out of wedlock between
Madhavrao and Manoramabai. Here again, there are disputes, inter-se,
between children of Madhavrao and Manoramabai. Son, Uday is on one
side and daughters, Ujwala and Mangala are on the other. The
following family tree, with indication of warring groups in different
colours, would better explain the position of contesting parties:

Madhavrao Jagtap

Alice John Manoramab

ai

Nalini Uday Ujwala Mangala

Vibhawari Sunita Anjali

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D. 2 SUIT FILED BY NALINI

24) Though it is not necessary for this Court to go into the issue of
rights of various persons claiming to be the heirs of Madhavrao Jagtap,
their competing claims are discussed only for the purpose of
understanding as to why they are opposing registration of Petitioner-
Society and grant of deemed conveyance. Though there are three sets of
claimants, one set of claimant is not opposing either registration of
society or grant of deemed conveyance. This is because Uday and his
mother, Manoramabai have caused construction of the building and
have sold flats to the members of the Petitioner-Society. The main
opposition is by Vibhawari, Sunita and Anjali who claim to be the
granddaughters of Madhavrao and Alice and believe that they alone are
exclusive owners of the entire larger portion of the land. Their mother,
Nalini Jadhav initially filed Pauper Petition before the City Civil Court
in the year 1977, which was subsequently numbered as Suit No. 246 of
1977. The said suit has been renumbered as Suit No.9750 of 1977 after its
transfer to the City Civil Court. A copy of the latest amended plaint is
placed on record by Mr. Sakhalkar. The amended plaint reveals that the
suit was instituted by Nalini Jadhav claiming to be the daughter born
out of the wedlock between Madhavrao and Alice John. Since Nalini
Jadhav has died on 25 March 2015, her daughters, Vibhawari Shinde,
Sunita Shinde and Anita Shinde are now prosecuting the suit.
Defendants to the suit are, Uday Jagtap, Ujwala Jagtap and Mangala
Jagtap. Initially, Plaintiff sought prayer for partition and one-fifth share
in the suit property. However, subsequently prayer clauses (b) to (e) are
apparently deleted and instead Plaintiffs now seek a prayer that they
the exclusive owners of the suit property and are entitled to occupy and
possess the same. The amended claim towards exclusive ownership in
the suit property is premised on an assertion that Manoramabai is not

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the legally wedded wife of Madhavrao Jagtap and that Madhavrao

married only Alice John, i.e. the Plaintiff's grandmother. The suit filed in
the year 1977 is apparently still pending before the City Civil Court.

D. 3 CONSTRUCTION OF BUILDING AND SALE OF FLATS

25) As observed above, out of the larger portion of the land

admeasuring 7890.17 sq.mtrs, Manoramabai and Uday decided to
develop smaller portion of the land admeasuring 1583.46 sq.mtrs. IOD
for construction of the building was issued on 28 March 1973 i.e. before
filing of the suit. Issuance of the Commencement Certificate dated 30
November 1977 appears to be contemporaneous with filing of the suit.
Perusal of the plaint shows that prayer clause ‘(i)’ contains prayer for
interim injunction from causing any construction or from selling flats in
the proposed building to be constructed in the suit property. It is
common ground that no injunction was granted in the suit restraining
Manoramabai or Uday from causing construction or from selling flats in
the building, with the result, construction of the building progressed
and was completed with issuance of Occupancy Certificate on 3 January
1978. Manoramabai and Uday executed agreements with the flat
purchasers. Copy of one such agreement dated 28 October 1977 is
placed on record. The Agreement shows that land admeasuring 1583.46
sq.mtrs out of the larger portion of land admeasuring 7890.17 sq.mtrs
was taken up for development and for construction of the building
named ‘Manoday’. In this regard, recital-(b) to the agreement is relevant
and reads thus:

(b) The party of the First Part has evolved a scheme for construction of
a building to be named as “MANODAY” (hrein after referred to as
“The said building”) on a piece of land admeasuring 1583.46 Sq. Mtrs.
and being plot No. A comprised in the bigger piece or parcel of the
land more particularly described at FIRSTLY in Schedule I (The said

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smaller piece of land bearing Plot A is herein after for the sake of
brevity referred to as the ‘said Piece of land’), consisting of self
contained flats for residential purposes and
use/shops/offices/garages on the ___ floor and/or in the open
compound, in accordance with plans elivations and sections
sanctioned and approved by the Bombay Municipality and for giving
and /or selling such flats, shops and offices on what is known as
“Ownership basis”, with a view that the Party of First Part shall,
ultimately, in co-operation with the owners of such flats etc. in the said
building, form a co-operative Housing Society or a Limited Company
in whose favour a conveyance of the said piece of land together with
the said building constructed thereon would be executed (and for sake
of brevity the said piece of land together with the said building
constructed thereon are herein after referred to as “The Said
Property”),

26) Under Clause-38, it was agreed that the purchasers of the flats
were to form a Co-operative Society and under Clause-40, the same was
to be known as 'Manoday Co-operative Housing Society'. Under Clause-
41, Manoramabai and Uday agreed to execute conveyance of the land in
favour of such Co-operative Society. Clauses-38, 40 and 41 of the
Agreement read thus:

38. The flats/shop/offices/garage Purchasers-Owners-Occupiers by

the party of the First Part form a Co-operative Housing Society or
Limited Company with the usual rules and regulations and bye-laws
with such additions and modifications as may be required to suit in
this particular case. The party of the Second Part agrees to join with
the other flats/shop/offices/garage Purchasers-Owners-Occupiers in
the said building in forming the Society Limited Company as
provided herein above and shall become a member of the said
Society/Limited Company with such rights as allowed to persons
holding flats/shop/offices/garage and agrees to receive and accept
the shares the shares of the said Society or Limited Company and at
no time hereafter he/she/it shall have right to repudiate the allotment
of the said shares. This agreement shall be treated as an application by
the Purchasers-Owners-Occupiers for allotment of shares or
membership of the Society or Limited Company. The Society or
Limited Company will execute in favour of said
flats/shop/offices/garage Purchasers-Owners-Occupiers Co-
ownership or Co-partnership tenancy agreement in respect of
flats/shop/offices/garage held by him/her/them containing usual
covenants and conditions.

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40. The said building shall always be known as ‘MANODAY’ and the
name of the Co-operative Society or Limited Company to be formed
shall bear the name “MANODAY” Co-operative Housing Society” or
“MANODAY Company Limited” and this name shall not be changed
without the written permission of the party of the First Part.

41. After the building is complete and ready and fit for occupation and
after the Co-operative Housing Society or a Limited Company is
formed or incorporated and registered only after all the
flat/shops/offices/garages in the said building have been sold and
disposed off by the party of the First Part and after the party of the
First Part has received all dues payable to them under terms of the
agreements with various flats/shop/offices/garage Purchasers-
Owners-Occupiers, the party of First Part shall execute an assignment
in favour of the said Co-operative Society or Limited Company.

27) Petitioner-Society came to be registered on 18 November 1988. All

these events occurred during pendency of the suit. Plaintiffs in the suit
did not stop construction of the building, sale of flats or registration of
Society.

D. 4 DECISION REJECTING DEEMED CONVEYANCE

28) The Society filed application on 7 January 2012 for issuance of

certificate of unilateral deemed conveyance under Section 11 of the
MOFA before the Competent Authority. In that application, Manorama
and Uday were impleaded as Respondent Nos. 1 and 2, who failed to
remain present in the proceedings before the Competent Authority.
Nalini Jadhav was impleaded as Respondent No.3, who appeared
through her advocate and pressed her claim to be the owner of the land.
She brought to the notice of the Competent Authority the factum of
pendency of suit. She claimed that despite being the owner, she did not
execute any agreement under Section 4 of MOFA with members of the
Society and therefore opposed the application for grant of certificate of
unilateral deemed conveyance. The Competent Authority passed Order
dated 31 December 2012 rejecting Society's application for Deemed

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Conveyance. Perusal of the order passed by the Competent Authority

indicates that it conducted a sort of title enquiry while deciding
application under Section 11 of MOFA, which is clearly impermissible.
The Competent Authority while passing Order dated 31 December 2012
held that Nalini Jadhav is the owner in respect of the land in question
and therefore rejected Society's application for deemed conveyance.

29) As observed above, the Writ Petition challenging Order dated 31

December 2012 (Writ Petition No. 477 of 2014) was withdrawn with
leave to file a fresh application seeking conveyance of smaller portion of
land admeasuring 1583.46 sq.mtrs.

30) In the fresh application filed by the Society, conveyance of smaller

portion of land admeasuring 1583.46 sq.mtrs was sought. The
Competent Authority has proceeded to reject Society's application
referring to the pendency of suit filed by Nalini Jadhav/her heirs. The
Competent Authority has held that, allowing Society's application
would tantamount to interference in or pre-deciding or frustrating the
issue pending in Suit No. 9750 of 1977. Therefore, without going into the
merits, the Competent Authority has proceeded to dismiss the
application.

31) In my view, the Competent Authority has erred in going into the
title disputes raised by Nalini Jadhav/her heirs while deciding
application under Section 11 of MOFA. Under Section 11, jurisdiction of
Competent Authority is in extremely narrow compass. The limited
remit of enquiry before the Competent Authority is only to convey what
the promoter fails to convey as per the agreements executed under
Section 4 of MOFA. Under Section 11, an obligation is imposed on the

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Promoter to take necessary steps to complete his title and to convey to

the Society, his right, title and interest in the land in accordance with the
agreement executed under Section 4. Sub-section (3) of Section 11 is a
special provision empowering the Competent Authority to do
something which the promoter fails to do despite the mandate of
Section 11(1). Thus, the role of Competent Authority under Section 11(3)
is limited to conveying what is agreed upon in agreement executed
under Section 4. While doing so, the Competent Authority is not
supposed to entertain, go into or consider title disputes between the
original owners/promoters. If there is an agreement of flat purchase
under Section 4 of MOFA and the agreement contains obligation on the
part of the Promoter to convey his right, title and interest in the land in
favour of the Society, the Competent Authority has no option but to
issue a certificate of deemed conveyance as per Section 4 Agreement.

32) In the present case, the Competent Authority has overstepped its
jurisdiction by unnecessarily going into title disputes between various
persons claiming to be the heirs of Madhavrao Jagtap. The Civil Court
will determine rights of persons to succeed to the estate of Madhavrao
Jagtap. The Competent Authority neither has jurisdiction nor is
supposed to go into such title disputes between the parties. All that the
Competent Authority was required to do in the present case was to
simply read covenants of agreement executed with the flat purchasers
by the promoter under Section 4 of MOFA. Failure to perform
obligation by the promoter in the present case under Section 11(1) is
writ large. Once this position was obtaining before the Competent
Authority, there was no scope for the authority to reject Society's
application for issuance of certificate of unilateral deemed conveyance.
It ought to have ignored pendency of title dispute between various
persons claiming to be the heirs of Madhavrao Jagtap.

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33) Perusal of covenants of the agreement dated 28 October 1977

executed by Manorama and Uday in their capacity as ‘promoters' with
flat purchasers clearly show obligation on the part of the promoters to
convey land admeasuring 1583.46 sq.mtrs in favour of the society
formed by the flat purchasers. The promoters ought to have fulfilled the
said obligation by executing conveyance under Section 11(1) in favour
of the Society. Since there is admitted failure on the part of the
promoters to discharge their obligation under Section 11(1), the
Competent Authority ought to have done what the promoter has failed
to do under Section 11(1). The statutory scheme of MOFA is such that
the Competent Authority exercising jurisdiction under Section 11
thereof is not supposed to institute an enquiry into disputes relating to
title. If there is a promoter who has constructed a building and sold flats
therein, there is an obligation imposed on the promoter to convey the
land, on which the building is constructed in favour of the society. The
dispute relating to promoter’s title in the land is something which is
outside the scope of enquiry under Section 11 of MOFA. If any person
claims that promoter is not the owner or not the exclusive owner in
respect of the land on which building is constructed and if such person
claims ownership in such land, it is for that person to institute civil suit
and establish his rights to the land in question. Pendency of such title
disputes cannot be a ground for not conveying land under Section 11 by
the Competent Authority. This is especially true when there is no fetter
on grant such conveyance in the form of any injunction granted by the
Civil Court. In the present case, there was no reason for the Competent
Authority to injunct itself from performing its statutory functions under
Section 11 of MOFA in absence of any injunction granted to that effect
by the Civil Court. In my view, therefore the Competent Authority has
failed to perform its statutory obligations under Sections 3, 4 and 5 of
MOFA and has committed palpable error in entertaining and

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considering title disputes between the parties while rejecting Society’s

application for Deemed Conveyance. In 2012, the Competent Authority
had infact conducted enquiry into title disputes and had held Nalini
Jadhav to be the owner in respect of the land in question. That order
has already been set aside by this Court. In the fresh application filed
by the Society, though merits of title dispute this time are skirted by the
Competent Authority, pendency of title dispute is used as a ruse for not
performing statutory functions under Section 11 of the MOFA. The
entire approach of the Competent Authority, to my mind, appears to be
faulty.

34) It needs no reiteration that issuance of Certificate of unilateral

Deemed Conveyance by Competent Authority under Section 11 of
MOFA, is not determinative of rights and contentions of the parties to
the land in question. It has been repeatedly held by this Court that such
conveyance is always subject to the orders that would be passed by
Civil Court. Reference in this regard can be made to the judgments of
this Court in Mazda Construction Company and others V/s.
Sultanabaad Darshan Co-operative Housing Society 3, ACME
Enterprises Another V/s. Deputy Registrar, Co-operative Societies and
others4 and Tirupati Shopping Centre Premises Co-operative Society
Ltd. V/s. Shabayesha Construction Company Pvt. Ltd.5

35) The issue effect of competing claims between promoters and

other persons to the title of the land on jurisdiction of competent
authority under Section 11 of MOFA has been considered by this Court
in Vasundhara Dhananjay Dongre Vs. State of Maharashtra 6, wherein
this Court held as under:
3
2012 SCC OnLine 1266.
4
2023 4 AIR Bom.R 817.
5
(2021) 6 Mh.L.J. 557.
6
WP(L) 23095 of 2021 decided on 12 March 2024

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24 Even if the claim of the Petitioner is to be considered on merits, by

ignoring the objection of delay and laches, I am of the view that no
case is made out by the Petitioner for interference in the order dated 16
March 2012 and communication dated 19 October 2013. Petitioner
cannot seek establish her title by filing a Petition under Article 227 of
the Constitution of India under the guise of challenging a certificate of
unilateral deemed conveyance issued by the Competent Authority
under section 11 of the MOFA. Perusal of pleadings raised by
Petitioner(s) in the Petition, in great details, would indicate that the
Petition is in the nature of a suit for title. Respondents rely upon
relinquishment deed dated 16 November 1979 by which Petitioner
allegedly relinquished her rights in respect of various properties
including land bearing CTS No.143. On the contrary, it is the case of
Petitioner that the said document is forged and fabricated. This is
something which only a civil court can decide and these issues cannot
be raised in a Petition filed for challenging the certificate of unilateral
deemed conveyance.

25 The contentions of the Petitioner that the scope of enquiry under

provisions of sub-sections 3 and 4 of section 11 of the MOFA includes
verification of the documents of title cannot be accepted. Use of the
words “after verifying the authenticity of the documents submitted”
would not mean an enquiry into title of the promoter. The scope of
enquiry by the Competent Authority under section 11 of the MOFA is
restricted to conveyance of promoter’s right, title and interest in the
land and building. Whether promoter has validly acquired title in
respect of land is something which would be outside the scope of
enquiry under section 11 of the MOFA. That issue can only be decided
in a civil suit. Useful reference in this regard can be made to the
observations of this Court in paragraph 20 of its judgment in Mazda
Construction Company & Ors. (supra) in which it is held as under:

“20. To my mind, reading of Sections 10 and 11 together with

Section 5A would make it amply clear that what is to be
performed by the Competent Authority is a duty and
obligation which the promoter is to perform in law. That is to
convey the title and execute the documents according to the
agreement. If that is the duty which is to be performed by the
promoter, but which he fails to perform, then, the Competent
Authority steps in to fulfil it. That is a duty towards the flat
purchasers and which duty cannot be avoided except at the
cost and pains of legal proceedings including a criminal
prosecution. In these circumstances and when sections 10 and
11 are read together and harmoniously with the preceding
sections including those which contain the particulars of the
agreement, then, it becomes absolutely clear that what has to
be conveyed even by a purchasers to acquire the Promoter's
right, title and interest in the land and the building. Therefore,
it cannot be said that an unilateral deemed conveyance
conveys something more than what belongs to the Promoter.
Section 11(1) provides for conveyance of Promoter's right, title
and interest in the land and building as is clear from the words

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"his right, title and interest...." appearing therein. I am not in

agreement with Mr. Samdani that there are no guidelines
guiding and enabling the Competent Authority to grant a
deemed conveyance and therefore, the powers are likely to be
abused or exercised arbitrarily in every such case. There are
inbuilt checks and safeguards inasmuch as what is to be issued
is a certificate entitling a unilateral deemed conveyance. It is
not a document which stands alone or is a distinct transaction.
It is a grant or conveyance in terms of what the agreement
between parties stipulates and provides for being conveyed to
the flat purchasers. Therefore, the Applicant is permitted to
apply to the Competent Authority u/s 11(3) and such
application is to be accompanied by true copies of the
registered agreements for sale, executed by the Promoter with
each individual member/flat purchaser and other relevant
documents. It is to further that and to insist on the promoters
fulfilling their obligations within the prescribed period, but
noticing that their failure has resulted in hardship to flat
purchasers, that the Legislature has stepped in. To my mind,
this is not a power which can be exercised by the Competent
Authority in ignorance of or by brushing aside the earlier
provisions and contents of the agreement with the flat
purchasers. Equally, the Competent Authority has to take into
consideration the contents of other relevant documents.”

(emphasis supplied)

36) Similarly, in Om Shakuntal CHS Ltd. (supra), a Single Judge of

this Court has held that mere pendency of suit relating to title dispute
cannot be a ground for rejection of application for unilateral deemed
conveyance. This Court has held in paras- 1 and 2 as under :

1. The society registered under the Maharashtra Cooperative Societies

Act, 1960 is challenging an order passed by the competent authority in
exercise of power under section 11(3) of the Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale, Management
and Transfer) Act, 1963 (hereafter, “MOFA Act”, for short) refusing to
pass an order of deemed conveyance mainly on two grounds: (i)
owner of the property has filed a suit against the promoter in relation
to ownership rights; and (ii) the details of balance FSI has not been
placed on record by way of certificate issued by Architect.
2. Purpose of introducing section 11(3) of the MOFA Act was to
expedite the process of deemed conveyance in favour of the
purchasers. Refusal to exercise power under section 11(3) of the
MOFA Act on the flimsy ground defeats the purpose. The authorities
under section 11(3) of the MOFA Act must be alive to the purpose for
which section 11(3) of the MOFA Act has been introduced by
legislature. It is well settled by the judgment of this Court in Mazda

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Construction Co. v. Sultanabad Darshan CHS Ltd. reported in 2012

SCC OnLine Bom 1266 of confirmation of deemed conveyance and it is
not for effect of conferring substantive rights on the society and the
person aggrieved can get his right adjudicated before the Civil Court.
Despite such position of law being settled almost 12 years back, still
the authorities under section 11(3) of the MOFA Act are refusing to
exercise their power under section 11(3) of the MOFA Act. Mere
pendency of suit in absence of restraint orders from the Civil Court,
would not take away the power competent authority to issue deemed
conveyance under section 11(3) of the MOFA Act. Broad compliance
with section 4 of the MOFA Act is necessary. Therefore, once the
ingredients of section 4 read with relevant provisions of the Act are
prima facie complied with by the society, the authority under section
11(3) of the MOFA Act is under obligation to issue order of deemed
conveyance subject to rights of aggrieved party to institute civil suit.
Hence, the impugned order passed by the competent authority cannot
be sustained.
(emphasis supplied)

37) Thus mere pendency of title suit between promoter and other
persons claiming a right or share in the land sought to be conveyed
cannot be a ground for avoiding performance of statutory duty by the
Competent Authority under Section 11(3) of MOFA.

38) In the present case as well, Certificate of unilateral Deemed

Conveyance would obviously be subject to the decree that would be
passed in Suit No. 9750 of 1977. Issuance of such Certificate would not
impinge upon rights and contentions of any of the parties in the said
suit. Mr. Khandeparkar has submitted that Society had attempted to
intervene in the suit but its intervention application was opposed by
Plaintiffs therein and the Society is not permitted to participate in the
decision of the suit. He would therefore submit that decree passed in the
suit would not be binding on the Society. This is something which the
Plaintiffs need to take into consideration. So far as Writ Petition No.
1421 of 2024 is concerned, it would be sufficient to clarify that issuance

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of certificate of unilateral deemed conveyance would be subject to the

decree passed by the City Civil Court in Suit No. 9750 of 1977.

D. 5 ORDER OF DEREGISTRATION OF SOCIETY

39) Coming to Writ Petition (Lodg.) No. 4104 of 2024, the learned
Minister has directed de-registration of Petitioner-Society by initiating
action by Divisional Joint Registrar under Section 21A of the M.C.S. Act.
As observed above, Petitioner-Society has been registered on 18
November 1988, the application seeking de-registration of Petitioner-
Society was filed by the heirs of Nalini Jadhav for the first time on 31
January 2023 i.e. after 36 long years from the date of registration of the
Society. Society’s de-registration is sought under the provisions of
Section 21A of the M.C.S. Act on the ground that the registration was
obtained by misrepresentation without obtaining consent of Nalini
Jadhav who is the owner of the land in question. Section 21A of M.C.S.
Act reads thus:

21A. De-registration of societies.

(1) If the Registrar is satisfied that any society is registered on
misrepresentation made by applicants, or where the work of the
society is completed or exhausted or the purposes for which the
society has been registered are not served, or any primary agricultural
co-operative credit society using the word ‘Bank’, ‘Banking’, ‘Banker’
or any other derivative of the word ‘Bank’ in its name, he may, after
giving an opportunity of being heard to the Chief Promoter, the
committee and the members of the society, de-register the society :
Provided that, where the number of members of the society is so large
and it is not possible to ascertain the correct addresses of all such
members from the records in the office of the Registrar and, in the
opinion of the Registrar it is not practicable to serve a notice of hearing
on each such individual member, a public notice of the proceedings of
the de-registration shall be given in the prescribed manner and such
notice shall be deemed to be notice to all the members of the society
including the Chief Promoter and the members of the Committee of
the Society, and no proceeding in respect of the de-registration of the
society shall be called in question in any Court merely on the ground
that individual notice is not served on any such member.
(2) When a society is de-registered under the provisions of sub-section
(1), the Registrar may, notwithstanding anything contained in this Act

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or any other law for the time being in force, make such incidental and
consequential orders including appointment of Official Assignee as
the circumstances may require.
(3) Subject to the rules made under this Act, the Official Assignee shall
realise the assets and liquidate the liabilities within a period of one
year from the date he takes over the charge of property, assets, books,
records and other documents, which period may, at the discretion of
the Registrar, be extended from time to time, so however, that the total
period does not exceed three years in the aggregate.
(4) The Official Assignee shall be paid such remuneration and
allowances as may be prescribed; and he shall not be entitled to any
remuneration whatever beyond the prescribed remuneration or
allowances.
(5) The powers of the Registrar under sub-sections (1) and (2) shall not
be exercised by any officer below the rank of a Joint Registrar of Co-
operative Societies.

40) Thus, under Section 21A, misrepresentation made by the

applicants is recognised as one of the grounds for de-registration of the
Society. However, the issue in the present case is whether failure to
obtain consent of Nalini Jadhav can be treated as misrepresentation by
the applicants who sought registration of the Society? As observed
above, members of Petitioner-Society have purchased flats in
accordance with agreements executed in their favour by promoters-
Manoramabai and Uday Jadhav. The agreement specifically contains a
covenant for formation of the Society. Under Section 10 of MOFA, the
promoters were under obligation to form and register a collective body
of flat purchasers.

10. Promoter to take steps for formation of cooperative society or

company

(1) As soon as a minimum number of persons required to form a Co-

operative society or a company have taken flats, the promoter shall
within the prescribed period submit an application to the Registrar
for registration of the organization of persons who take the flats as
a co-operative society or, as the case may be, as a company; and
the promoter shall join, in respect of the flats which have not been
taken, in such application for membership of a co-operative society
or as the case may be, of a company. Nothing in this section shall
affect the right of the promoter to dispose of the remaining flats in
accordance with the provisions of this Act.

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Provided that, if the promoter fail within the prescribed period to

submit an application to the Registrar for registration of society in
the manner provided in the Maharashtra Co-operative Societies
Act, 1960, the Competent Authority may, upon receiving an
application from the persons who have taken flats from the said
promoter, direct the District Deputy Registrar, Deputy Registrar
or, as the case may be, Assistant Registrar concerned, to register
the society:

Provided further that, no such direction to register any society

under the preceding proviso shall be given to the District Deputy
Registrar, Deputy Registrar or, as the case may be, Assistant
Registrar, by the Competent Authority without first verifying
authenticity of the applicants’ request and giving the concerned
promoter a reasonable opportunity of being heard.

(2) If any property consisting of building or buildings is

constructed or to be constructed and the promoter submits such
property to the provisions of the Maharashtra Apartment
Ownership Act, 1970, by executing and registering a Declaration as
provided by that Act then the promoter shall inform the Registrar
as defined in the Maharashtra Co-operative Societies Act, 1960,
accordingly; and in such cases, it shall not be lawful to form any
co-operative society or company.

41) Thus MOFA mandates formation of Co-operative Society or a

company immediately after minimum number of flats in a building are
sold. It imposes an obligation on promoter to make an application to the
Registrar for registration of society. Thus what is done in the present
case is fulfilment of statutory obligation by the promoters. In absence of
any prohibitory orders being passed in the Suit, there was no fetter on
formation and registration of society. Therefore, failure to obtain Nalini
Jadhav’s consent cannot be treated at the time of registration of the
society as misrepresentation. Nalini Jadhav/her heirs are yet to
establish her right, title and interest in the land in question. Therefore,
necessity of consent of Nalini Jadhav for registration of the society is
something which is yet to be decided. In these circumstances, failure to
obtain Nalini Jadhav’s consent cannot be treated as misrepresentation

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within the meaning of Section 21A of the MCS Act. The Divisional Joint
Registrar had rightly rejected the application filed by heirs of Nalini
Jadhav by Order dated 24 April 2023. The learned Minister has erred in
reversing the order of the Divisional Joint Registrar.

42) The learned Minister has failed to appreciate that ordering

deregistration of cooperative housing society at this distant point of
point would result in a complete chaotic situation so far as management
of affairs of the building are concerned. The society has managed the
affairs of the building for the last 36 long years. It must have promoted
transfer of flats and effected transfer of memberships in its records
during all these years. The Order passed by the learned Minister, if
implemented, would result in suspending the collective body of flat
purchasers till heirs of Nalini Jadhav establish their rights in the
pending suit. Interestingly, the Society is not even a party to the suit. If
what Mr. Khandeparkar has stated is to be believed, Society’s
application for intervention in the Suit was opposed by the Plaintiffs
therein. Thus, as of now, the Society has absolutely no connection with
the Suit pending before the City Civil Court, however pendency of that
Suit is used as a ruse to annihilate a collective body of flat purchasers
formed 36 years ago.

43) Yet another reason for outright rejection of application filed by

the heirs of Nalini Jadhav under Section 21A was gross and inordinate
delay in filing the same. The application for de-registration was filed on
31 January 2023 i.e. after the lapse of period of 36 long years. The said
application ought to have been rejected on the ground of delay as no
plausible explanation was given for such long and inordinate delay.
Nalini Jadhav and her heirs were aware about construction of building,
sale of flats and formation of Society. Their application filed in the year

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2023 seeking de-registration of the Society registered on 18 November

1988 was hopelessly barred by principles of delay and laches. Mere
absence of prescription of period of limitation for initiation of
proceedings under Section 21A does not mean that the proceedings
seeking de-registration of a cooperative society can be initiated at any
point of time. It is well settled law that in absence of prescription of
period of limitation, the proceedings must be filed within ‘reasonable
time’. In State of Punjab v. Bhatinda District Coop. Milk Producers
Union Ltd.7, the Apex Court has held as under:

18. It is trite that if no period of limitation has been prescribed,

statutory authority must exercise its jurisdiction within a reasonable
period. What, however, shall be the reasonable period would depend
upon the nature of the statute, rights and liabilities thereunder and
other relevant factors.

44) More recently, in North Eastern Chemicals Industries (P) Ltd.

and Anr. Vs. Ashok Paper Mill (Assam) Ltd. and Anr 8, the Apex Court
has held as under:

54. When a statute, either general or specific in application, provides

for a limitation within which to file an appeal, the parties interested in
doing so are put to notice of the requirement to act with expedition.
However, opposite thereto, in cases such as the present one where
neither statute provides for an explicit limitation, such urgency may be
absent. While it is still true that, as held in Ajaib (supra), this does not
entitle parties to litigate issues decades later, however shorter delays,
in such circumstances, would not attract delay and laches.

59. In the absence of any particular period of time being prescribed to

file an appeal, the same would be governed by the principle of
‘reasonable time’, for which, by virtue of its very nature, no straitjacket
formula can be laid down and it is to be determined as per the facts
and circumstances of each case. In the present lis, having regard to the
sequence of events, as taken note of above-the Claimant - Appellants

7
(2007) 11 SCC 363
8
2023 SCC OnLine SC 1649

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cannot be said to have transgressed the boundaries of reasonable time

in filing their appeal before the District Judge.

45) In my view, period of 36 years for seeking de-registraion of a

cooperative housing society cannot be considered to be ‘reasonable’ in
any sense. In North Eastern Chemicals Industries., the Apex Court has
referred to its decision in Ajaib Singh v. Sirhind Coop. Marketing-cum-
Processing Service Society Ltd9 wherein while considering the
provisions of the Industrial Disputes Act 1947, the Court has held that it
is not the function of Courts to prescribe period of limitation, when the
Legislature thought it fit not to prescribe any period. At the same time,
the case where no period of limitation applies, the defence of delay can
still be employed if a demonstrable case is made out that loss or
prejudice would be suffered on condonation of delay. The Apex Court
has held:

51. We further refer to observations made in Ajaib Singh v. Sirhind

Coop. Marketing-cum-Processing Service Society Ltd to the effect that
Courts should be wary of prescribing specific period of limitation in
cases where the legislature has refrained from doing so. It was further
observed that where the defence of delay is employed in a situation
where no limitation is prescribed vide statute, the exact prejudice or
loss suffered by the party if such a delay is condoned, must be shown
on facts. In other words, in the absence of a specific limitation it would
be improper for courts to dismiss a plea is solely on the ground of
delay without having examined the nature of laws order prejudice
caused to the other party in the facts and circumstances of the case at
hand. The holding in Ajaib Singh (supra) was affirmed by a three-
Judge Bench of this court in Purohit & Co. v. Khatoonbee.

46) Applying the principle of Ajaib Singh, in the present case the loss
and prejudice that would be caused to the members of society on
account of entertainment of proceedings for de-registration under
Section 21A after 36 years long years is writ large. In my view therefore,
9
(1999) 6 SCC 82

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initiation of proceedings under Section 21A after 36 years of registration

of the Society itself was a sufficient ground for rejecting application of
heirs of Nalini.

47) The learned Minister, Co-operation has committed palpable error

in setting aside the order passed by the Divisional Joint Registrar. Here
again, what is done by the learned Minister is exercise of determination
of title dispute between the parties, which is not the scope of enquiry
under Section 21A of M.C.S. Act. Pendency of suit filed by Nalini
Jadhav/her heirs and rejection of Society’s application for Deemed
Conveyance are the only two reasons cited by the learned Minister for
passing impugned order dated 24 January 2024. The learned Minister
had no reason to consider pendency of title disputes for the purpose of
ordering de-registration of the Society. Rejection of Society’s application
for deemed conveyance has absolutely no relation for deciding the
application under Section 21A of MCS Act.

48) In Airoli Neha Apartments CHS Ltd. (supra), the Single Judge of
this Court has held that once building is completed and fully occupied,
application for de-registration of the society cannot be entertained on
the ground of illegality or irregularity in construction. This Court held
in paras-10, and 11 as under:

10. Learned counsel for the respondents are not in a position to point
out any provision under the MCS Act which would confer jurisdiction
on the Registrar, who would be authorized to register or de-registrar
co-operative Society or the higher authorities exercising the appellate
and revisionary powers, that merely because there is some illegality or
any irregularity in the construction of the building of the Society, the
Society could be de-registered. If the reasons as set out in the
impugned order are accepted to be the correct position in law it would
not only run contrary to the provisions of Section 8 to 10 providing for
registration of the co-operative Society but also create a chaotic
situation. Such position also becomes clear from the provisions of

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Section 21A of the Maharashtra Cooperative Societies Act, 1960, which

provides for de-registration of Society. It would be appropriate to note
the said provisions, which reads thus:
--
--

11. Thus, it is clear that an issue and/or a subject matter which is

completely alien to the MCS Act and not relevant to the registration
and de-registration of a Society cannot be a subject matter of
consideration to de-register the petitioner Society. This is exactly what
Section 21A would also depict. There is no manner of doubt that the
impugned order passed by the Hon’ble Minister is based on reasons
which are extraneous to the provisions of Maharashtra Cooperative
Societies Act as discussed above.

(emphasis supplied)

49) In my view, therefore the order passed by the learned Minister

directing initiation of process for de-registration of the Society is
unsustainable and is liable to be set aside.

50) Though Mr. Sakhalkar has attempted to canvass that the order of
the learned Minister does not effect de-registration of the Society and
merely directs initiation of procedure under Section 21A for de-
registration, I am unable to agree with the said submission. Order dated
24 January 2024 passed by the learned Minister while exercising
appellate powers under Section 152 of the M.C.S. Act over the order
passed by the Divisional Joint Registrar leaves no room of discretion for
the Divisional Joint Registrar, who is now under obligation to pass
formal order of de-registration of the Petitioner-Society. Therefore, it is
necessary to set aside the order passed by the learned Minister on 24
January 2024.

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E. ORDER

51) Consequently, both the Writ Petitions succeed, and I proceed to

pass the following order:

(I) The Order dated 24 January 2024 passed by the learned

Minister, Co-operation directing de-registration of the
Petitioner-Society under Section 21A of the M.C.S. Act is
set aside.

(II) Order dated 18 October 2023 passed by the District

Deputy Registrar and Competent Authority is set aside
and Application No.23 filed by the Society shall stand
restored before on the file of District Deputy Registrar
and Competent Authority, who shall proceed to issue
certificate of unilateral deemed conveyance of land
admeasuring 1538.46 sq.mtrs in favour of the Society.
Such conveyance shall however be subject to the Decree
that would be passed in L.C. Suit No. 9750 of 1977.

52) With the above directions, Writ Petition (L) 4104 of 2024 and Writ
Petition No. 1421 of 2024 are allowed. There shall be no order as to
costs.

53) With the disposal of Writ Petition (L) No. 4101 of 2024, nothing
survives in Interim Application (L) No. 11031 of 2024, the same also
stands disposed of.

SANDEEP V. MARNE, J.

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