Premlaksha R. Padubidri vs The State Of Maharashtra Through ...
2017 Latest Caselaw 5369 Bom

                                                  501-WP-8657-2017.DOC




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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 8657 OF 2017

 1. Premlaksha R. Padubidri
 Adult, Indian inhabitant, 12, Arinda Co-
 Operative Housing Society Limited,
 Section 10, Vashi, Navi Mumbai 400 073.                ...Petitioner

         Versus

 1. The State of Maharashtra
 Represented by the Chief Secretary,
 Mantralaya, Mumbai 400 032.
 2. The Jankalyan Sahakari Bank Ltd.
 140, Sindhi Society, Vivek Darshan, Opp.
 Bhakti Bhavan Chember, Mumbai 400
 071.
 3. The Assistant Registrar
 Bhartiya Krida Mandir Bldg., 4th Floor,
 Wadala, Mumbai 400 031.
 4. The Special Recovery and Sales
 Officer /
 The    Authorised   Officer,  Jankalyan
 Sahakari Bank Ltd., 140, Sindhi Society,
 Vivek Darshan, Opp. Bhakti Bhavan,
 Chembur, Mumbai 400 071.
 5. The District Magistrate, Thane
 6. The Tahasildar, Thane.
 7. Mandal Adhikari, Belapur,
 Near Ramtanu Mata Mandir, Turbe Village,
 Navi Mumbai.
 8. The Senior Inspector of Police
 Vashi Police Station, Navi Mumbai.               ...Respondents




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                                                        501-WP-8657-2017.DOC




 Mr. Mathew Nedumpara, i/b Rohini M. Amin, Adv. for the
      Petitioner.
 Mr. Bhupesh V. Samant, AGP for Respondents Nos. 1 and 2.

                               CORAM:   B.R. GAVAI AND
                                        RIYAZ I. CHAGLA, JJ.

DATED: 1st August 2017.

J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. The Petitioner by the present Petition has challenged

the constitutional validity of Section 101 and Section 154 (2a)

of the Maharashtra Co-Operative Societies Act, 1960

("hereinafter referred to as the Act"). The Petitioner has

also challenged the constitutionality of Rule 107 (11) (D-1) of

the Act by notification dated 30th August 2014 issued by

Respondent No.2. The Petitioner has also sought a

declaration from this Court declaring the order dated 16th

July 2016 passed by the District Magistrate, Thane for taking

physical possession of the subject property and the notice

dated 29th June 2017 issued by Respondent No.7 in

execution of the impugned order dated 16th July 2016 as null

and void.

501-WP-8657-2017.DOC

2. The Petitioner is a borrower from Respondent No.2

bank. The Petitioner's loan account had been become NPA

and Respondent No.2 bank had sought recovery proceedings

under the Act. The Respondent No.2 bank had obtained

recovery certificate under Section 101 of the Act. The subject

property of the Petitioner was attached on 21st November

2016. The revision application filed by the wife of the

Petitioner Mrs. Sandra Padibidri was dismissed by the

Divisional Joint Registrar under Section 154 of the Act on

25th May 2015. The Respondent No.2 bank filed application

before the District Magistrate, Thane for getting possession of

the subject property. The District Magistrate, Thane allowed

the application and ordered the Tahasildar, Thane to take

physical possession of the subject property and handover the

same to the Respondent No.2 bank. The Petitioner has filed

a Suit being Regular Civil Suit No. 414 of 2016 before the

Civil Court, Belapur which is pending. The Petitioner filed the

present Writ Petition before this Court.

3. Shri Nedumbara, learned counsel for the Petitioner has

contended that the provisions of the Act viz. Section 101 and

501-WP-8657-2017.DOC

154 (2a) are unconstitutional. Shri Nedumbara has also

submitted that Rule 107(11) (D-1) which provides for

possession and sale of the subject property by the Recovery

Officer by delivering a possession notice as prescribed under

the Rule for securing compliance and for the District

Magistrate to take appropriate steps, is unconstitutional. Shri

Nedumbara has argued on the unconstitutionality of the said

provisions and the said Rules without going into validity of the

order passed by the District Magistrate and / or attachment of

the subject property.

4. Shri Samant, learned AGP appearing for Respondents

Nos. 1 and 2 has contended that the Petitioner has shown no

interest in complying with the order of the District Magistrate,

Thane dated 16th August 2016 and has preferred a Suit

before the Civil Court, Belapur on 24th October 2016 and

which Suit is pending. Shri Samant has also submitted that

the constitutionality of the said provisions of the Act had been

raised previously before this Court in the case of Mohan

Kewalram Tejwani Vs. Special Recovery Officer & Sales

501-WP-8657-2017.DOC

Officer, Jankalyan Sahakari bank Ltd. & Ors. 1 This Court

which had upheld the constitutionality of the said provision by

relying upon previous judgment of this Court and that of the

Apex Court. Shri Samant has submitted that in view of the

constitutionality of the said provisions having been upheld in

the said order / judgment dated 8th March 2013, wherein the

very same counsel Shri Nedumbara had appeared for the

Petitioner, it is not open to raise the same challenge in these

proceedings. Shri Samant has submitted that the order of the

District Magistrate was passed way back on 16th July 2016

and the Petitioner had also filed a Suit before the Civil Court,

Belapur in respect of the subject matter which is pending.

Shri Samant has also submitted that notice had been issued

on 29th June 2017 for execution of the said order of the

District Magistrate and it is only then that the Petitioner has

filed the present Petition. Shri Samant has further contended

that the Petitioner is not interested in settling the dues of the

Respondent No.2 bank and that the present Petition be

dismissed.

1 Writ Petition (L) No. 2001 of 2012 with Writ Petition (L) No. 2772 of 2012 decided on 8th March 2013.

501-WP-8657-2017.DOC

5. We are of the considered view that the constitutionality

of the said provisions which are challenged in the present

Petition had already been challenged in an earlier Petition,

wherein counsel Shri Nedumbara, himself, had appeared and

the Division Bench of this Court on 8th March 2013 had

upheld the constitutional validity of the said provisions. We do

not consider it appropriate for Shri Nedumbara to once again

bring up the constitutionality of the said provisions. We are

also of the view that there is no infirmity in the order passed

by the District Magistrate, Thane on 16th July 2016 and the

notice dated 29th June 2017 for execution of the impugned

order. We are also of the considered view that the Petitioner

has availed of alternate remedy by filing Suit before the Civil

Court, Belapur, which is pending.

6. We accordingly dismiss this Petition. There shall be no

order as to costs.

       (RIYAZ I. CHAGLA J.)                 ( B.R. GAVAI J.)