The Bombay High Court has clarified the rights of members in co-operative housing societies to access financial and procedural documents, while firmly rejecting attempts to bypass statutory remedies through writ petitions. The judgment reinforces the principle that constitutional jurisdiction under Article 226 cannot be invoked prematurely when efficacious statutory alternatives exist.
Background & Facts
The Dispute
The petitioner, Mr. Sudhir Diwan, a 72-year-old senior citizen and member of Augustus Daisy Co-op. Housing Society Ltd., filed a writ petition seeking multiple reliefs against the Society, its Managing Committee, the Deputy Registrar of Co-operative Societies, the Brihanmumbai Municipal Corporation (BMC), and the Cuffe Parade Police Station. His grievances centered on denial of access to society records, alleged misconduct by the Chairman, financial irregularities in repair expenditures, and failure to register a criminal complaint.
Key Facts
- The petitioner became a member of the Society on 16.09.2013 through nomination.
- He requested access to all documents of the Society from 1976 to 03.09.2021 under Section 32 and Section 154B-8(1) and (2) of the Maharashtra Co-operative Societies Act, 1960 (MCS Act).
- The Society refused to provide documents prior to 2013, claiming he was only a provisional member and entitled to records only from his membership date.
- The Society demanded Rs.5/- per page for photocopies, contrary to Rule 27 of the MCS Rules, 1961, which prescribes Rs.2/- per page for A4-sized documents.
- On 18.05.2023, the Society’s Secretary sent a communication demanding Rs.445/- for copying charges at Rs.5/- per page.
- The petitioner alleged that the Chairman, who is not a shareholder but a legal representative of his wife, is in conflict of interest due to his wife’s illegal construction in common areas, which BMC and the Chief Fire Officer have declared unlawful.
- The petitioner filed Criminal Complaint No. SW/153/2014 alleging inflated repair costs of Rs.71 lakhs between 2009 - 2013, with police report indicating fabrication of painted area (48,000 sq.ft claimed vs. 32,000 sq.ft actual).
- A second repair project in 2021 was planned at double the cost of the first, without structural audit.
- The petitioner lodged complaints with the Deputy Registrar on 09.01.2024, but received no substantive response.
- The Deputy Registrar passed an order on 05.03.2025, which the petitioner seeks to challenge.
Procedural History
- 16.09.2013: Petitioner became member of Augustus Daisy Co-op. Housing Society Ltd. via nomination.
- 2009 - 2013: Major repairs carried out at alleged inflated cost of Rs.71 lakhs.
- 2014: Criminal Complaint No. SW/153/2014 filed before Magistrate, Esplanade.
- 2016: First Appeal No.35/2016 filed before Bombay High Court regarding illegal construction.
- 16.07.2019: Order by Divisional Joint Registrar confirming Deputy Registrar’s directive on document access.
- 18.05.2023: Society demanded Rs.5/- per page for document copies.
- 09.01.2024: Petitioner filed formal complaint with Deputy Registrar, Co-operative Societies, ‘A’ Ward.
- 05.03.2025: Deputy Registrar passed order on complaint.
- 18.06.2026: Writ Petition No.1954 of 2025 heard and decided by Bombay High Court.
The Parties' Positions
Petitioner’s Claims:
- Right to inspect all historical documents under Section 154B-8(1) and (2) of MCS Act.
- Society’s demand of Rs.5/- per page violates Rule 27 of MCS Rules.
- Chairman is ineligible due to non-shareholding and conflict of interest.
- Financial irregularities in repairs warrant enquiry under Section 88 of MCS Act.
- Police must register FIR for criminal misconduct by Chairman.
Respondents’ Positions:
- Society offered to provide available documents within three weeks.
- Chairman’s position is legally valid as legal representative of a member.
- No audit or inspection report exists to trigger Section 88 enquiry.
- Police cannot be directed by writ; statutory remedies under BNSS must be exhausted.
- Deputy Registrar’s order is subject to appeal under MCS Act.
Relief Sought
The petitioner sought:
- Mandamus to Deputy Registrar to act on his complaint.
- Removal of Chairman for conflict of interest.
- Direction to conduct enquiry under Section 88 of MCS Act for financial irregularities.
- Direction to Cuffe Parade Police to register FIR and investigate criminal acts.
- Compliance with statutory rates for document copies (Rs.2/- per page).
The Legal Issue
The central questions were: (1) Whether a member of a co-operative society is entitled to inspect documents dating back to before their membership under Section 154B-8 of the MCS Act, and at what cost? (2) Can the High Court issue writs directing police to register an FIR or the Registrar to initiate an enquiry under Section 88 of the MCS Act in the absence of statutory prerequisites? (3) Is removal of a society office-bearer a matter for constitutional writ jurisdiction or statutory dispute resolution under Section 91?
Arguments Presented
For the Petitioner
The petitioner relied on Section 154B-8(1) and (2) of the MCS Act, arguing that every member has an absolute right to inspect society documents without cost, and copies must be provided at the rate prescribed under Rule 27 of the MCS Rules - Rs.2/- per page. He cited the Divisional Joint Registrar’s 2019 order as binding precedent. He contended that the Chairman’s conflict of interest, arising from his wife’s illegal construction and his failure to impose penalties under Model Bye-law 112, rendered his position unlawful. He argued that inflated repair costs constituted criminal misappropriation, warranting FIR registration. He further asserted that Section 88 enquiry was warranted due to prima facie evidence of financial fraud.
For the Respondent
The State and Society conceded that Rs.5/- per page was excessive and agreed to provide documents at Rs.2/- per page within three weeks. The BMC and Registrar’s office argued that no audit, inspection, or inquiry report under Sections 81, 83, 84, or 105 existed to trigger Section 88 powers. The police authorities, through legal representation, emphasized that Section 175(3) of the BNSS provides a complete remedy for refusal to register an FIR, and direct writs under Article 226 are impermissible without exhausting such remedies. The Society contended that the Chairman’s position is valid under the bye-laws as a legal representative of a member, and any dispute regarding his conduct must be resolved under Section 91 of the MCS Act.
The Court's Analysis
The Court undertook a detailed statutory interpretation of the MCS Act and Rules, alongside constitutional jurisprudence on writ jurisdiction. It held that Section 154B-8(1) grants every member the right to inspect society documents without cost, and sub-section (2) permits copies to be provided upon payment of fees as fixed by the Registrar. Rule 27 of the MCS Rules, 1961, explicitly prescribes Rs.2/- per page for A4-sized documents. The Society’s demand of Rs.5/- per page, based on an ambiguous bye-law, was held to be in direct conflict with statutory rules.
"Hence, in our view, since the statutory Rules itself provide for Rs.2/- per page to be charged for the demanded documents which are to be provided to the member of the Society, therefore, the demand made by the Society for payment of Rs.5/- per page is contrary to the Rule and the prayer of the petitioner to that extent deserves to be granted."
Regarding the Chairman’s removal, the Court observed that allegations of conflict of interest and failure to impose penalties are internal disputes concerning the functioning of the society. Such matters fall squarely within the definition of ‘dispute’ under Section 91 of the MCS Act, which provides a comprehensive adjudicatory mechanism before the Co-operative Court. The Court held that constitutional jurisdiction under Article 226 cannot be invoked to resolve such internal governance issues.
On the request for a Section 88 enquiry, the Court emphasized that the power to initiate such proceedings is contingent upon a prior report from an auditor (Section 81), an inquiry officer (Section 83), an inspector (Section 84), or a liquidator (Section 105). The petitioner’s allegations, however plausible, were based on suspicion and unsupported by any such report. The Court stated:
"The power under Section 88 is not to be exercised merely on suspicion or general allegation, it has to be exercised on tangible material supported with documents about misapplication or misuse of the funds of the property of the Society."
On the prayer for FIR registration, the Court relied on the recent Supreme Court decision in Sujal Vishwas Attavar v. State of Maharashtra, which held that Article 226 cannot be invoked to direct police to register an FIR when statutory remedies under Section 175(3) of the BNSS are available. The petitioner had not approached the Superintendent of Police under Section 173(4) of the BNSS, nor had he filed a complaint before the Magistrate. The Court reiterated:
"Ordinarily, where a statute provides a complete and efficacious remedy, the same must be exhausted before invoking constitutional jurisdiction."
Finally, the Court noted that the Deputy Registrar had already passed an order on the petitioner’s complaint dated 09.01.2024 on 05.03.2025. Any dissatisfaction with that order must be challenged through the statutory appeal mechanism under the MCS Act, not via writ.
The Verdict
The writ petition was partly allowed. The Court directed the respondent No.3-Society to provide the documents requested by the petitioner under Section 32 and Section 154B-8(1) and (2) of the MCS Act, at a rate of Rs.2/- per page for A4-sized documents, within three weeks from the date of this order. All other prayers - for removal of Chairman, Section 88 enquiry, FIR registration, and directions to the Deputy Registrar - were dismissed. The Court held that the petitioner’s remedies lie exclusively within the statutory framework of the MCS Act and BNSS, and constitutional jurisdiction cannot be invoked prematurely.
What This Means For Similar Cases
Document Access Rights Are Statutorily Guaranteed
- Practitioners must advise co-op society members that they are entitled to inspect all historical records, regardless of when they became members, under Section 154B-8(1).
- Copying charges must strictly adhere to Rule 27 of MCS Rules: Rs.2/- per page for A4, Rs.3/- for larger sizes. Any higher charge is void.
- Societies cannot impose arbitrary fees or restrict access based on membership date.
Statutory Remedies Must Be Exhausted Before Writs
- Writ petitions seeking FIR registration will be dismissed unless the complainant has first approached the Superintendent of Police under Section 173(4) BNSS and then the Magistrate under Section 175(3) BNSS.
- Courts will not entertain writs against police inaction unless statutory channels are demonstrably exhausted.
- The Sujal Vishwas Attavar precedent now binds all High Courts in India on this issue.
Section 88 Enquiries Require Foundational Reports
- Section 88 cannot be triggered by mere allegations or complaints.
- A prior audit (Section 81), inquiry (Section 83), or inspection (Section 84) report is mandatory.
- Practitioners must ensure that any request for Section 88 action is backed by documented evidence from a statutory authority.
Internal Society Disputes Are Not Writ Matters
- Conflicts over office-bearer eligibility, conflict of interest, or failure to impose penalties are disputes under Section 91 of the MCS Act.
- Writ petitions seeking removal of office-bearers will be dismissed unless they involve violation of fundamental rights or ultra vires actions.
- Co-operative Courts are the exclusive forum for such grievances.
