Case Note & Summary
The petitioner, Smita P. Dalvi, filed a Writ Petition under Article 226 of the Constitution of India challenging an order dated 29 February 2024 passed by the Assistant Registrar, Co-operative Societies (East and West Suburbs), Slum Rehabilitation Authority, Mumbai. By that order, a Recovery Certificate under Section 154B-29 of the Maharashtra Co-operative Societies Act, 1960 (MCS Act) was issued for an amount of Rs.98,620/- in favour of the respondent-society and against the petitioner. The dispute arose over charges/penalty relating to parking space. The petitioner contended that the Assistant Registrar had no jurisdiction to issue the Recovery Certificate because the alleged default pertained to parking charges, and the proper remedy was to file a dispute under Section 91 of the MCS Act before the Co-operative Court. The petitioner relied on Bye-Law No.174(B)(iv) of the Model Bye-laws of the Co-operative Housing Society Limited, which specifically provides that disputes pertaining to parking shall be filed in the Co-operative Court under Section 91. The petitioner also submitted that another member, Anita Madan, who was out of India, had permitted the petitioner to occupy her allotted parking space, and the society was imposing penalty charges on the petitioner for using that slot. The respondents raised the issue of maintainability of the writ petition on the ground of alternate remedy of revision under Section 154 of the MCS Act. However, the court noted that since a jurisdictional issue was raised, it was necessary to decide the matter. The court examined Section 154B-29, which contains a non obstante clause overriding Sections 91, 93, and 98, and allows the Registrar to issue a recovery certificate for dues such as repairs, maintenance, construction cost, and service charges. However, the court observed that Bye-Law No.174(B)(iv) specifically assigns parking disputes to the Co-operative Court. Relying on the Supreme Court decision in Iridium India Telecom Ltd. v. Motorola Inc., the court held that a non obstante clause overrides only the provisions expressly mentioned, but does not override bye-laws which are binding contracts between the society and its members. Since the dispute pertained to parking charges, the Assistant Registrar lacked jurisdiction to issue the Recovery Certificate under Section 154B-29. The court quashed and set aside the impugned order, leaving it open to the society to take appropriate proceedings under Section 91 of the MCS Act. The court also directed that the amount deposited by the petitioner pursuant to the interim order shall abide by the final outcome of any proceedings under Section 91.
Headnote
A) Co-operative Law - Jurisdiction - Recovery Certificate for Parking Charges - Section 154B-29, Section 91, Maharashtra Co-operative Societies Act, 1960 - Bye-Law No.174(B)(iv) of Model Bye-Laws - The petitioner challenged a Recovery Certificate issued under Section 154B-29 for parking penalty charges. The court held that disputes pertaining to parking are specifically assigned to the Co-operative Court under Section 91 by Bye-Law No.174(B)(iv). The non obstante clause in Section 154B-29 does not override the bye-law which is binding on the society. The Assistant Registrar lacked jurisdiction to issue the certificate. The impugned order was quashed and set aside. (Paras 6-11) B) Co-operative Law - Alternate Remedy - Revision under Section 154 - Maintainability of Writ Petition - Section 154, Maharashtra Co-operative Societies Act, 1960 - The respondent raised the issue of alternate remedy of revision under Section 154. However, since the petitioner raised a jurisdictional issue, the court proceeded to decide the matter on merits. (Para 3) C) Co-operative Law - Non Obstante Clause - Effect of 'Notwithstanding' - Section 154B-29, Section 91, Maharashtra Co-operative Societies Act, 1960 - The court, relying on Iridium India Telecom Ltd. v. Motorola Inc., held that a non obstante clause overrides only provisions expressly mentioned, but does not override bye-laws which are binding contracts between members and society. (Paras 8-9)
Issue of Consideration
Whether the Assistant Registrar under Section 154B-29 of the Maharashtra Co-operative Societies Act, 1960 has jurisdiction to issue a Recovery Certificate for charges/penalty relating to parking space, or whether such disputes must be adjudicated under Section 91 of the MCS Act before the Co-operative Court.
Final Decision
The impugned order dated 29 February 2024 passed by the Assistant Registrar issuing Recovery Certificate under Section 154B-29 of the MCS Act is quashed and set aside. It is left open to the respondent-society to take appropriate proceedings under Section 91 of the MCS Act. The amount deposited by the petitioner pursuant to the interim order shall abide by the final outcome of any proceedings under Section 91.
Law Points
- Non obstante clause in Section 154B-29 does not override Bye-Law 174(B)(iv) which specifically assigns parking disputes to Co-operative Court under Section 91
- Recovery Certificate under Section 154B-29 is not maintainable for parking charges
- Assistant Registrar lacks jurisdiction to issue recovery certificate for parking dues
