Case Note & Summary
The petitioner, Anil G. Tupte, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 16th March 2017 passed by the learned District Magistrate, Thane under Rule 107(11)(d-1)(vi)(a) of the Maharashtra Co-operative Societies Rules, 1961. The dispute arose from a recovery certificate issued against the petitioner by the Assistant Registrar in an application filed by respondent no.6, Sahyadri Sahakari Bank Ltd. The petitioner did not challenge the recovery certificate. Due to default, the bank initiated proceedings under Rule 107(11) of the Rules. Possession of the property was obtained by the Recovery Officer from the petitioner on 8th December 2016 under Rule 107(11)(d-1). The petitioner claimed that he was handed over possession again on the same day by the Special Recovery Officer under Rule 107(11)(d-1)(iv), which he argued entitled him to retain possession until the property was actually auctioned. The court examined the documents annexed to the petition and found that the petitioner's claim of symbolic delivery was not supported by any provision in the Rules. The court noted that the recovery certificate was not challenged and that possession had already been taken. The court held that once possession is taken under Rule 107(11)(d-1), the petitioner cannot claim any right to retain possession until auction. The writ petition was dismissed with no order as to costs.
Headnote
A) Co-operative Law - Recovery Proceedings - Rule 107(11)(d-1)(vi)(a) of Maharashtra Co-operative Societies Rules, 1961 - Challenge to order of District Magistrate - Petitioner did not challenge the recovery certificate; possession was taken by Recovery Officer on 8th December 2016 under Rule 107(11)(d-1) - Petitioner claimed symbolic delivery but no such provision exists - Held that once possession is taken, the petitioner cannot claim right to retain possession until auction (Paras 1-4).
Issue of Consideration
Whether the petitioner is entitled to retain possession of the property after symbolic delivery under Rule 107(11)(d-1)(iv) of the Maharashtra Co-operative Societies Rules, 1961, pending auction.
Final Decision
Writ petition dismissed. No order as to costs.
Law Points
- Recovery certificate not challenged
- possession taken under Rule 107(11)(d-1)
- no right to retain possession after symbolic delivery
- writ petition dismissed.
Case Details
2018 LawText (BOM) (04) 172
WRIT PETITION NO.4910 OF 2018
Manoj A. Patil for Petitioner, S.D. Rayrikar (AGP) for State Respondents 1-4, Sanjeev P. Kadam for Respondents 6 and 7
State of Maharashtra, Commissioner of Co-operation, District Collector of Thane, Tahsildar of Kalyan, Circle Officer of Thakurli, Sahyadri Sahakari Bank Ltd. (two entries)
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Nature of Litigation
Writ petition under Article 227 challenging order of District Magistrate under Rule 107(11)(d-1)(vi)(a) of Maharashtra Co-operative Societies Rules, 1961.
Remedy Sought
Petitioner sought to quash the order dated 16th March 2017 passed by the District Magistrate, Thane.
Filing Reason
Petitioner claimed that after possession was taken, he was handed over symbolic possession and thus could not be dispossessed until auction.
Previous Decisions
Recovery certificate was issued against petitioner by Assistant Registrar; not challenged. Possession taken on 8th December 2016 under Rule 107(11)(d-1).
Issues
Whether the petitioner can retain possession after symbolic delivery under Rule 107(11)(d-1)(iv) pending auction.
Submissions/Arguments
Petitioner argued that under Rule 107(11)(d-1)(iv), possession was handed back to him and he could not be dispossessed until actual auction.
Respondents argued that possession was lawfully taken and petitioner had no right to retain possession.
Ratio Decidendi
Once possession of property is taken by the Recovery Officer under Rule 107(11)(d-1) of the Maharashtra Co-operative Societies Rules, 1961, the petitioner cannot claim any right to retain possession until auction, especially when the recovery certificate is not challenged.
Judgment Excerpts
It is not in dispute that the recovery certificate was issued against the petitioner by the learned Assistant Registrar in the application filed by the respondent no.6. The said recovery certificate has not been impugned by the petitioner admittedly.
The possession of the property was obtained by the Recovery Officer from the petitioner on 8th December, 2016 under Rule 107(11)(d-1) of the Maharashtra Co-operative Societies Rules, 1961.
Procedural History
Recovery certificate issued by Assistant Registrar; not challenged. Bank initiated proceedings under Rule 107(11). Possession taken on 8th December 2016. District Magistrate passed order on 16th March 2017 under Rule 107(11)(d-1)(vi)(a). Petitioner filed writ petition on 25th April 2018.
Acts & Sections
- Maharashtra Co-operative Societies Rules, 1961: Rule 107(11), Rule 107(11)(d-1), Rule 107(11)(d-1)(iv), Rule 107(11)(d-1)(vi)(a)
- Constitution of India: Article 227
