Case Note & Summary
The petitioners, claiming to be owners of Flat No.4/99 in Prashanti Mangaldham Co-operative Housing Society Ltd., challenged a proclamation of sale issued on 22nd November 1997 by the Deputy Registrar under Section 156 read with Section 101 of the Maharashtra Co-operative Societies Act, 1960 and Rule 107 of the 1961 Rules. The proclamation was issued in recovery proceedings initiated by respondent no.2 (Jankalyan Sahakari Bank Ltd.) against respondent no.4 (M/s Konkan Gas Enterprises) and its partner Mr. Madhukar Sawant. The petitioners had purchased the flat from Mr. Sawant in 1994-95 and were put in possession. Their application for membership was rejected by the society, and they filed an application under Section 154 of the Act before the Divisional Joint Registrar, who remanded the matter. However, the proclamation of sale was issued, and the petitioners filed a revision under Section 154 against it, which was dismissed by the Divisional Joint Registrar. The petitioners then filed the present writ petition under Articles 226 and 227 of the Constitution. The court framed the issue of whether a revision under Section 154 is maintainable against a proclamation of sale. After hearing arguments, the court held that a proclamation of sale is merely a step in execution proceedings and not a 'decision' or 'order' under the Act, hence revision is not maintainable. The court also noted that the petitioners have an alternative remedy by way of a suit to establish their title. Consequently, the writ petition was dismissed, and the interim stay granted earlier was vacated.
Headnote
A) Co-operative Law - Revision - Maintainability - Section 154 of Maharashtra Co-operative Societies Act, 1960 - Proclamation of Sale - The court considered whether a revision under Section 154 lies against a proclamation of sale issued under Section 156 read with Section 101 and Rule 107. Held that a proclamation of sale is merely a step in execution proceedings and not a 'decision' or 'order' under the Act, hence revision is not maintainable. The court also noted that the petitioners have an alternative remedy by way of a suit. (Paras 1-10)
B) Co-operative Law - Execution - Proclamation of Sale - Section 156 read with Section 101 of Maharashtra Co-operative Societies Act, 1960 and Rule 107 - The court examined the nature of a proclamation of sale and held that it is a ministerial act in the execution process, not a quasi-judicial order. Therefore, it cannot be challenged by way of revision under Section 154. (Paras 5-8)
C) Constitutional Law - Writ Jurisdiction - Article 226/227 of Constitution of India - Discretionary Remedy - The court held that even if the revision was not maintainable, the High Court in its writ jurisdiction would not interfere because the petitioners have an efficacious alternative remedy by way of a suit to establish their title. The petition was dismissed. (Paras 9-10)
Issue of Consideration
Whether a revision under Section 154 of the Maharashtra Co-operative Societies Act, 1960 is maintainable against a proclamation of sale issued under Section 156 read with Section 101 of the Act and Rule 107 of the Rules?
Final Decision
The writ petition is dismissed. The interim order dated 21st December 1998 staying the proclamation of sale stands vacated. No order as to costs.
Law Points
- Revision under Section 154 of Maharashtra Co-operative Societies Act
- 1960 is not maintainable against a proclamation of sale under Section 156 read with Section 101 and Rule 107
- Proclamation of sale is a step in execution and not a decision or order under the Act
- High Court's writ jurisdiction under Article 226/227 is discretionary and not to be exercised when alternative remedy of suit is available
Case Details
2012 LawText (BOM) (12) 25
Writ Petition No.6498 of 1998
Mr. Mayur Khandeparkar i/b Lokhandwalla & Co for Petitioners; Ms. P.S. Cardozo AGP for Respondent no.1; Mr. Rahul Rao for Respondent nos. 2 and 3; Ms. Sweta Prabhu for Respondent no.4
Narsinha N. Naik & anr and Smt Nirmala N. Naik
The Divisional Joint Registrar, Coop Societies, Mumbai; Jankalyan Sahakari Bank Limited; Mr. H.N. Kulkarni; M/s Konkan Gas Enterprises; Mr. Chintamani Kedar; Mrs. Sugandha Pralhad Purandare
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging an order of the Divisional Joint Registrar dismissing revision against a proclamation of sale.
Remedy Sought
Petitioners sought to quash the proclamation of sale issued on 22nd November 1997 and the order of the Divisional Joint Registrar dismissing their revision.
Filing Reason
Petitioners claimed ownership of a flat and challenged the proclamation of sale issued in recovery proceedings against the previous owner.
Previous Decisions
The Divisional Joint Registrar had dismissed the petitioners' revision under Section 154 of the Maharashtra Co-operative Societies Act, 1960, confirming the proclamation of sale.
Issues
Whether a revision under Section 154 of the Maharashtra Co-operative Societies Act, 1960 is maintainable against a proclamation of sale issued under Section 156 read with Section 101 and Rule 107?
Whether the High Court should exercise its writ jurisdiction under Articles 226 and 227 when an alternative remedy of suit is available?
Submissions/Arguments
Petitioners argued that the proclamation of sale was illegal and that they had a right to be heard before its issuance.
Respondents contended that the revision was not maintainable as a proclamation of sale is not a decision or order under the Act, and that the petitioners have an alternative remedy by way of a suit.
Ratio Decidendi
A proclamation of sale issued under Section 156 read with Section 101 of the Maharashtra Co-operative Societies Act, 1960 and Rule 107 is merely a step in execution proceedings and not a 'decision' or 'order' under the Act. Therefore, a revision under Section 154 is not maintainable against it. Moreover, the High Court in its writ jurisdiction under Articles 226 and 227 would not interfere when the petitioners have an efficacious alternative remedy by way of a suit to establish their title.
Judgment Excerpts
By this Petition filed under Article 226 and 227 of Constitution of India, petitioners who claim to be owners of Flat No.4/99 in complex of one Prashanti Mangaldham Co-operative Society Ltd. have questioned the order passed by Divisional Joint Registrar, Co-operative Societies, Mumbai in Revision Application No. 36/1998 dismissing their revision and thereby confirming their proclamation for sale issued on 22nd November, 1997.
It is not in dispute that said proclamation is issued by the Dy. Registrar in exercise of powers under Section 156 read with Section 101 of Maharashtra Co-operative Societies Act,1960 and Rule 107 of 1961 rules framed thereunder.
The court held that a proclamation of sale is merely a step in execution proceedings and not a 'decision' or 'order' under the Act, hence revision is not maintainable.
Procedural History
The petitioners filed a revision under Section 154 of the Maharashtra Co-operative Societies Act, 1960 before the Divisional Joint Registrar against the proclamation of sale dated 22nd November 1997. The Divisional Joint Registrar dismissed the revision on 30th September 1998. The petitioners then filed the present writ petition under Articles 226 and 227 of the Constitution on 21st December 1998, and this Court granted ad-interim relief staying the proclamation. The petition was finally heard and dismissed on 12th December 2012.
Acts & Sections
- Maharashtra Co-operative Societies Act, 1960: 154, 156, 101
- Maharashtra Co-operative Societies Rules, 1961: 107
- Constitution of India: 226, 227
