Bombay High Court
State Bank Of India Staff Gulmohar ... vs Municipal Corporation Of Greater ... on 30 January, 2026
2026:BHC-OS:5176-DB
902.1571.19-wp.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1571 OF 2019
BASAVRAJ State Bank of India Staff Gulmohar
GURAPPA
PATIL Cooperative Housing Society Ltd. .. Petitioner
Digitally signed by
BASAVRAJ GURAPPA
Vs.
PATIL
Date: 2026.02.25 Municipal Corporation of
20:57:58 +0530
Greater Mumbai & Anr. .. Respondents
...
Mr. Rajesh G. Singh a/w. Ms. Rutika R. Mody, Advocates
for the Petitioner.
Mr. G. S. Godbole, Senior Advocate with Ms. Oorja
Dhond, Advocates for Respondent No.1-BMC.
Mr. Piyush Raheja a/w. Mr. Rahul Soman, Mr. Sanmish
Gala and Mr. Deep Thakkar i/b. Mr. Sanmish Gala,
Advocates for Respondent No.2-M/s. Amulya Shelters
Pvt. Ltd.
CORAM : SHREE CHANDRASHEKHAR, CJ &
GAUTAM A. ANKHAD, J.
DATE : 30th JANUARY 2026 Per, Shree Chandrashekhar, CJ :
The State Bank of India Staff Gulmohar Cooperative Housing Society Ltd. is aggrieved by the order dated 5 th November 2018 passed by the Executive Engineer (Building Proposal), 'R' Ward, Municipal Corporation of Greater Mumbai.
2. Briefly stated, the petitioner which is a housing society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 was formed with the purpose of housing for its members. It claims that it is the owner of the subject property situated at Shimpoli, Borivali Taluka, in Greater Mumbai in the Registration Sub-District of Bandra, Bombay Suburban Division bgp Page | 1 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 ::: 902.1571.19-wp.docx under Survey No.2 Hissa No.1A(Part), Hissa No.2(Part) and Hissa No.3; Survey No.6 Hissa No.1 & 2 and Survey No.7 Hissa No.1 & 2 admeasuring 34100 sq. yards i.e. 28302 sq. meters. The petitioner- housing society was a Tenant Co-Partnership Housing Society defined under Rule 10 of the Maharashtra Co-operative Societies Rule, 1969. In January 2015, it adopted the New Model Bye-Laws for Bungalow-type Societies which was approved in February 2015. According to the petitioner-housing society, the Bye-Laws restrict the use of plots for housing purposes. On 4 th December 1969, Bhiva Ragho Kini, Smt. Janubai Bhaskar Bhandari alias Vaity alias Kini and Yeshwant Bhaskar Bhandari alongwith the petitioner-housing society entered into a registered Indenture of Conveyance for the subject property.
3. The Memorandum of Association (MoA) of the petitioner- housing society is not on record. This is also not disclosed how the consideration amount was paid by the petitioner-housing society. However, the minutes of meeting dated 18 th July 1983 throw some light on the nature of right of the members of the petitioner- housing society over the plots allotted to them. The disadvantages of holding single plot were discussed and recorded in the meeting held on 18th July 1983, as under:-
"Disadvantages of the first alternative:-
1. Society will be responsible for payment of betterment charges to TPS. Collection of money from members, keeping accounts and paying the bills to TPS will be very difficult for the society to manage.
2. Some members may pay promptly and some members may not, with the result payment to TPS might be held up.
3. Members from one block may pay and others may not. One member in a block may pay, the others may not. This will cause difficulties in making payment to TPS.
4. How to share the penalty for non-payment of betterment charges by some members will be a difficult question.
bgp Page | 2
::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 :::
902.1571.19-wp.docx
5. If one member in a block wants to develop his bungalow and if other members in the block has not paid betterment charges, then it would be very difficult for getting permission/clearance from Municipal authority for such development.
6. Sub-division of plots in the names of members, after the Bank's loan is liquidated, will be very difficult.
7. There will be only one bill for each block and so the Society will have to divide the bill amongst 38 members which is administratively difficult for the Society."
4. The benefits of opting the second alternative were also discussed and recorded in the said Minutes of Meeting. Mr. Piyush Raheja, the learned counsel for the ASPL referred to clause (2) of the advantages of second alternative wherein it is indicated that each member will be free to develop their own plot in their own way and that the payment or non-payment of betterment charges by other members shall not affect the others. It is also stated therein that the, transfer of title deeds and conveyance from the society to the members would be easier and the ownership of bungalows can also be easily transferred. It is also recorded therein that :
"all the above advantages and dis-advantages were discussed in the meeting at length. It was also clarified that Mr. Samant the Society's Architect was also consulted on the above matter and he was of the firm view that since ours is a bungalow type society with individual plots, it would be better if the society opts for the second alternative. After a great deal of further discussions and after careful considerations, it was unanimously decided to opt for the second alternative namely 38 individual sub-divisions as shown in the layout should be shown as original plots, wherein corresponding 38 final plots could be allotted in lieu of such individual-plots."
5. In the Annual General Body Meeting held on 18 th July 1970, the plots carved out from the subject property were allotted to the members on a first-come-first-serve basis. Bungalow No. 26 and Plot No. 578 were allotted to Mr. N. S. Chavan, vide letter dated 27th July 1970, who eventually transferred his rights by a deed of conveyance dated 19th June 2009 to Amulya Shelters Pvt. Ltd. (in bgp Page | 3 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 ::: 902.1571.19-wp.docx short, ASPL) which purchased all rights, title and interest in the capital of the society.
6. This is the case pleaded by the petitioner-housing society which is a Tenant Ownership Housing Society that its members own the houses but they do not have any right of ownership. A member is only an allottee and at best may only transfer its allotment. The ASPL-respondent no.2 applied for transfer of Membership Share Certificate on 1 st August 2009. In the Declaration/ Undertaking dated 25 th May 2011, the ASPL recorded the conditions which it would follow on being admitted as a member of the petitioner and it was admitted as a member vide letter dated 24th April 2012 which stipulated certain conditions regarding membership. It was expressly mentioned that the said property shall be used for the residential purpose of partners of the firm and their family members only and that the petitioner- housing society was the sole owner.
7. The petitioner-housing society states that it was decided in the Special Annual General Body Meeting on 21 st April 2013 that additional F.S.I. and fungible F.S.I could only be utilised by the members for residential use. This decision was approved at the Managing Committee Meeting dated 29th September 2013. The ASPL submitted its construction plans seeking a NOC for the construction on the subject property but the Managing Committee rejected the application for NOC in the meeting dated 24 th May 2015 and this decision was conveyed to the ASPL vide a letter dated 26th May 2015.
8. The petitioner-housing society further states that the ASPL applied for planning permissions from the MCGM without NOC and by misrepresenting the facts and started construction.
bgp Page | 4
::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 :::
902.1571.19-wp.docx
Regarding the illegal construction, the petitioner-housing society addressed a letter dated 9th May 2018 calling upon the ASPL to explain the construction made by it. The respondent no. 2 vide letter dated 6th June 2018, forwarded a copy of the Intimation of Disapproval (IOD) bearing No. CHE/WSII/1126/R/C/337 (NEW) dated 29th September 2017 and Commencement Certificate (CC) bearing reference No. (CHE/WSII/1126/R/C/337 (NEW) dated 18th December 2017 to the petitioner-housing society. In the meantime, the mutation in the name of the ASPL in the Property Card for the said property has been allowed. It is stated that the petitioner-housing society has challenged the mutation entry and the proceedings in that regard are pending before the adjudicating authority.
9. The petitioner-housing society approached this Court in Writ Petition (L) No. 3421 of 2018 for quashing of the IOD and CC and the writ petition came to be disposed off by an order dated 25th October 2018 and a direction was issued to the parties to approach the designated authority. Following the said order, the petitioner-housing society approached the Executive Engineer on 29th October 2018. However, the MCGM designated the same person who had adjudicated the matter in the previous proceeding. The designated Authority passed the impugned order dated 5 th November 2018 without considering the Bye-Laws and nature of the petitioner-housing society. The designated Authority held that the DCR indicates that the ASPL is the owner and, that, it is difficult to accept the claim of the petitioner-housing society as an owner. It was further held that a proper procedure was followed in the grant of IOD and CC and the MCGM was not an adjudicating Authority. The designated Authority further observed that no bgp Page | 5 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 ::: 902.1571.19-wp.docx challenge was laid to the conveyance of land before the competent authority and the mutation dated 23 rd September 2015 in the name of the ASPL is also not challenged before the Revenue Authority. The order dated 5th November 2018 reads as follows:
"It is undoubtedly clear at present that the ownership and possession of the plot is held by M/s. Amulya Shelters Pvt. Ltd. and the provisions of Regulation No. 2(3)(65) of D.C.R. 1991, Sec.3(m) of M.M.C. Act 1888, Sec.2(18) of M.R.&T.P. Act, 1966 merit M/s. Amulya Shelters Pvt. Ltd as an Owner of the plot. Having due regard to the said legal provisions, it is seen that proper procedure is followed in grant of IOD & C.C. to Resp. No. 2 M.C. G.M. is not a title adjudicating authority and it is an open admitted fact that the Petitioner Society has so far not challenged the conveyance of the land before Competent Authority, as well as, not challenged the mutation in Ownership dated. 23.09.2015 before Competent Revenue Authority i.e. City Survey Officer, it is therefore lawfully difficult to accept the claim of Petitioner Society as an Owner, as also, the Petitioner Society had not impleaded City Survey Officer as a Party Respondent in the present Petition.
Considering the orders of Hon'ble High Court in O.O.C.J.W.P.(L) No. 3421 of 2018 dated 25.10.2018, the representation of the Petitioner Society contained in the Petition is hereby disposed off, the claim and contention of the Society is open for challenge and adjudication before Competent Authority in Revenue Deptt. of Govt. of Maharashtra i.e. before City Survey Officer. In case, the Petitioner Society succeeds in securing the Ownership title in it's favour, the representation as an afresh may be submitted in future to M.C.G.M. As mentioned above, the representation of the Petitioner Society is hereby disposed off."
10. According to the petitioner-housing society, members are only holders of the allotted plots and cannot claim ownership. Mr. Rajesh G. Singh, the learned counsel for the petitioner-housing society refers to the undertaking given by the ASPL, the letter of allotment in its favour, the resolution of the society and other documents to support the stand of the petitioner-housing society. This is the case projected by the petitioner-housing society that it is the absolute owner of the aforementioned subject property and, that, the members of the petitioner-housing society have no title or bgp Page | 6 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 ::: 902.1571.19-wp.docx ownership over the plots allotted to them and they are entitled to raise the construction only for the purpose of residence.
11. Criticizing the order dated 5th November 2018, Mr. Rajesh G. Singh, the learned counsel for the petitioner-housing society submitted that the officer who passed the impugned order is the same person whose decision was criticized by the High Court in the order dated 25th October 2018 and the propriety required that the dispute between the parties should have been decided by some other officer. However, on a glance at the order dated 5 th November 2018, this is revealed that the petitioner-housing society was duly represented through two representatives. They made extensive submissions before the Executive Engineer (Building Proposal) 'R' Ward and there was no objection raised on behalf of the petitioner- housing society that the officer should not have dealt with the matter. In the order dated 5th November 2018, the respondent- authority has observed that the ownership and possession of the plot is held by 2nd respondent-ASPL. He has referred to the provisions of section 3(m) of Mumbai Municipal Corporation Act, 1888 (MMC Act), section 2(18) of the Maharashtra Regional & Town Planning Act, 1966 (MRTP Act) and Rule 6 of the Maharashtra Development Plans Rules, 1970 (Rules 1970). With reference to the said provisions in law, the respondent-authority came to a conclusion that the proper procedures were followed while granting Intention of Disapproval (IOD) and Completion Certificate (CC) to 2nd respondent-M/s. Amulya Shelters Pvt. Ltd. The respondent-authority has further observed that the Municipal Corporation is not the authority which can adjudicate the title of a party. Mr. G. S. Godbole, the learned senior counsel for 1st respondent-MCGM referred to various provisions under the bgp Page | 7 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 ::: 902.1571.19-wp.docx MMC Act, particularly, sections 337, 338 and 346 to give an outline how the notice of intention to construct a building is given to the Commissioner and the follow-up action is taken thereon. The learned senior counsel submitted that section 346 is couched in a negative term which reads as under:-
"346. Building or work which is disapproved by the Commissioner maybe proceeded with, subject to terms (1) If the Commissioner disapproves of any building or work of which notice has been given as aforesaid or fo any portion or detail thereof, by reason that the same will contravene some provision of this Act or some by-law made hereunder at the time in force or will be unsafe, he may, at any time within thirty days of the receipt of the notice or of the plan, section, description or further information, if any, called for under section 338, 340 or 343, as the case may be, by a written notice intimate to the person who gave the notice first hereinbefore in this section mentioned his said disapproval and the reason for the same, and prescribed terms subject to which the building or work may be deemed to be approved by him.
(2) The person who gave the notice concerning any such building or work may proceed with the same, subject to the terms prescribed as aforesaid but not otherwise, at any time within one year from the date of receipt by him under sub-section (1) of the written notice in this behalf, but not so as to contravene any of the provisions of this Act or any by-law made hereunder at the time in force."
12. Mr. G. S. Godbole, the learned senior counsel for 1st respondent-MCGM submitted that the respondent-MCGM is denuded of its powers to adjudicate a disputed question of title and it is bound by the statutory provisions acting under which it has granted IOD and CC. The learned senior counsel has referred to the decisions in "Star Deep Co-operative Housing Society Ltd." 1 and "Shree Sai Reality Through Partner Shri Sandeep Dindyal Aagarval2 .
13. The definition of 'owner' in sub section (18) of section 2 of the 1 Star Deep Co-operative Housing Society Ltd. v. Municipal Corporation of Greater Mumbai & Ors : 2025 SCC OnLine Bom 2433 2 Shree Sai Reality Through Partner Shri Sandeep Dindyal Aagarval & Ors. v. State of Maharashtra & Ors.: 2019 SCC OnLine Bom 1421 bgp Page | 8 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 ::: 902.1571.19-wp.docx the MRTP Act provides that the 'owner' includes any person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purpose, the rents or profits of the property in connection with which it is used. Rule 6 of the Rules of 1970 provides for making an application for permission for development. Under sub Rule 1 of Rule 6 of the Rules of 1970, a list of certain documents are given which is required to be submitted with every application under section 44 for permission to carry out any development on any land and the application is required to be made in Form-1. Clause (d) to sub- Rule (2) of Rule 6 refers to an extract of the Record of Right or Property Register Card or any other document showing the ownership of land proposed to be developed. There is no dispute that the ASPL possesses the Property Register Card (PR card) and the litigation by the petitioner-housing society to mutation entries in the name of the ASPL have failed. The respondent-authority has also observed in the order dated 5th November 2018 that the petitioner-housing society did not challenge the conveyance deed executed in favour of the respondent no.2. It was in the context of the aforementioned statutory provisions and indisputable documents that the respondent-authority has held that the proper procedures were followed for grant of IOD and CC to the respondent no.2. The respondent-authority was also quite careful in employing the expression 'ownership' in terms of the statutory provisions referred to therein and observed that the petitioner- housing society shall be at liberty to challenge the mutation entries in the name of the ASPL and can agitate its claim for ownership over the subject plot.
bgp Page | 9
::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 :::
902.1571.19-wp.docx
14. This is quite a well settled proposition in law that the dispute as regards the title and ownership over the immovable property cannot be adjudicated in writ proceedings. The Hon'ble Supreme Court in "Roshina T."3 held as under:-
"14. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pandey v. Usha Rani Rajgaria [Mohan Pandey v. Usha Rani Rajgaria, (1992) 4 SCC 61] and Dwarka Prasad Agarwal v. B.D. Agarwal [Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230] .)"
15. The order passed on 5 th November 2018 by the respondent no.1 cannot be challenged on the basis of use of the word 'ownership' in the said order. There is no illegality in the order dated 5th November 2018. The said order does not adjudicate the right, title and interest in the subject property acquired by the ASPL and the respondent-authority has employed the word 'ownership' in the order dated 5 th November 2018 as per the definition in the statutory provisions.
16. In view of the aforesaid discussion, Writ Petition No.1571 of 2019 is dismissed.
17. The interim order dated 14th February 2025 is vacated.
[GAUTAM A. ANKHAD, J.] [CHIEF JUSTICE] 3 Roshina T. v. Abdul Azeez K.T. & Ors. : (2019) 2 SCC 329 bgp Page | 10 ::: Uploaded on - 25/02/2026 ::: Downloaded on - 27/02/2026 20:39:30 :::