Whether recovery officer of co-operative society can take possession of immovable property without approaching CMM or District Magistrate?

21. Rule 11(d-1) onwards are material for our purposes as they deal with taking over possession of immovable property. They are inserted by Government Notification dated 30th August 2014 and they read as follows:

"(d-1) (i) No sale of immovable property under these rules shall take place unless possession of the property is taken or caused to be taken.

(ii) For sale of attached immovable property, the Recovery officer shall take or cause to be taken possession, by delivering a possession notice prepared as nearly as possible in Form "Z" to these rules, to the judgment debtor and by affixing the possession notice on the outer door or at such conspicuous place of the property.

(iii) The possession notice as referred to in sub-rule (2) shall also be published in two leading newspapers, one in vernacular language having sufficient circulation in that locality, by the Recovery officer.

(iv) In the event of possession of immovable property is taken by the Recovery officer, such property shall be kept in his own custody or in the custody of any person authorised or appointed by him, who shall take as much care of the property in his custody has an owner of ordinary prudence would, under the similar circumstances, take care of such property.

(v) The Recovery officer shall take steps for preservation and protection of such property and insure it, if necessary, till it is sold or otherwise disposed of.

(vi) (a) Where the possession of the any property is required to be taken by the Recovery Officer under the provisions of this rule, the Recovery Officer may, for the purpose of taking possession, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction such property is situate to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him take possession of such property and forward such property to the Recovery Officer.

(b) For the purpose of securing compliance of this sub-rule, the Chief Metropolitan Magistrate or the District Magistrate, may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.

(c) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this sub-rule shall be questioned in any court or before any authority."

22. Thus, it follows that when a clear procedure is laid down in the Act and Rules, as per these Rules, only the possession of the suit property was required to be taken before its sale. Assuming that, in this case, the sale has taken place before these Rules were inserted, at-least as regards taking over possession of the suit property, the procedure prescribed in these Rules was required to be followed as possession is taken over from Respondent on 12th April 2015, after the Rules came in to effect.

23. Thus, when the statutory provisions contained in the Act and Rules clearly prescribe a particular mode to be adopted for delivery of possession of the property to the purchaser, as held in the above said authority of Satguru Construction Co. Pvt. Ltd. & Ors. (supra), it would not be open for the parties to take the law in own hands for obtaining the possession. It would be amounting to ignoring the mandate of Section 163 of the said Act. Neither the Recovery Officer nor the Applicant-auction purchaser can take the law in their hands and with the help of police dispossess the Respondent from the suit premises. 

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 455 of 2016

Decided On: 05.04.2018

 Kadir Ilahi Bagwan Vs. Usha  Anandrao Yadav

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2019(1) MHLJ 705

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Whether recovery certificate issued under S 101 of Maharashtra co-operative societies Act can be challenged by filing writ petition?

 At the outset, the crux of the matter is that although alternate statutory remedy was available with Respondent Nos. 1 and 2 herein, under Section 154 (1) of the Cooperative Act, of filing appeal or revision before the State Government, as held by the Hon'ble Supreme Court in the case of Arun Khanjire (supra), it appears that without resorting to the said alternate statutory remedy, Resp.Nos.1 and 2 herein have filed writ petition No.2957 of 2009 under Article 227 of the Constitution of India, and obtained interim relief by way of impugned order dated 8.9.2009, which appears to be with a view to avoid deposit/payment of 50% of the amount due under the recovery certificate obtained by the appellants herein u/Sec.101 of the Cooperative Act, against present Resp. Nos. 1 and 2, in accordance with Sec.154(2A) of Co-operative Societies Act.

Bombay High Court

The Maharashtra Nagri Sahakari ... vs Ravindra on 29 October, 2010

Bench: S.B. Deshmukh, Shrihari P. Davare

Citation;2011(1)ALLMR365,2011(1) MHLJ930

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What remedy is available for challenging recovery certificate issued U/S 101 of Maharashtra co-operative societies Act?

Having considered the rival submissions I would first advert to the decision in the case of Bhusaval Peoples' Co-op. Bank Ltd. (supra), relied by the Counsel for the petitioner. In paras 10 and 11 of the said decision, the Court has analyzed the scheme of Section 91 and Section 101 of the Act and has unequivocably found that on conjoint reading of Sub-sections (1) and (2) and (3) of Section 101, it makes it plainly clear that the provisions of Section 91 is not available-whereas finality is attached to the certificate issued under Section 101 and it is a conclusive proof of arrears. The court has observed that when the statute gives finality to the action or order, the only way to challenge the same is in the manner as provided by the statute. In such cases, dispute under Section 91 is not the proper remedy, albeit completely barred. The only remedy to challenge the certificate is by way of revision under Section 154 of the Act.1

Bombay High Court

Kedarling Vikas Seva Socy. Ltd. vs Dinkar Bhimrao Raut And Ors. on 17 July, 2002

Equivalent citations: (2003) 2 BOMLR 1, 2003 (1) MhLj 152,2003(1) ALLMR66

Bench: A Khanwilkar

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