Bombay High Court
Shri Jaikisan S/O Londuji ... vs The Vidarbha Premier Co-Op. ... on 11 July, 2017
Bench: I.K. Jain
WP 7209.16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.7209 OF 2016
1] Shri Jaikisan s/o Londuji Gajbhiye,
Aged about 53 years, Occu :
2] Smt. Lalila Jaikisan Gajbhiye,
Aged about 49 yers,
Occupation - Housewife,
Both R/o.141, Chihali Layout,
Nagpur. .. PETITIONERS
.. VERSUS ..
1] The Vidarbha Premier Co-operative
Housing Society Limited, through its
Authorized Officer, Sanjay Laxmikant
Deshmukh, Age 56 years,
Occupation-Service, R/o. Gandhi Sagar,
Mahal, Nagpur, having office at Vidarbha
Premier Housing Cooperative Society
Limited, Gandhi Sagar, Mahal,
Nagpur.
2] Gulab s/o Ramdasji Gaidhane,
Aged 27 years, Occupation-Business,
R/o. Chikhali, Kalamna Market,
Nagpur.
3] Deputy Registrar, Cooperative Societies
Nagpur City-2, having its office at
Sahakar Bhawan Hindusthan Colony,
Amravati, Nagpur-33.
4] District Magistrate, through delegated
Authority i.e. Sub-Divisional Officer,
(Cooperative Societies), Nagpur.
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5] Chairman/President of Nagpur
Improvement Trust, Nagpur. .. RESPONDENTS
..........
Shri P.S. Sahare, Advocate for petitioners,
Shri S.S. Ghate, Advocate for respondent no.1,
Shri R.K. Thakkar, Advocate for respondent no.2,
Shri A.M. Balpande, A.G.P. for respondent nos.3 and 4,
Shri Pratik D. Khedikar, Advocate holding for Shri Girish A.
Kunte, Advocate for respondent no.5-NIT.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 11, 2017.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for parties.
2] This petition takes an exception to the order dated
19.10.2016 passed by Sub-Divisional Officer/Magistrate,
Nagpur (City) in Application No.01/MRC-81/2016-17.
3] By the said order, respondent no.4-Sub-Divisional
Officer ordered the petitioners to immediately vacate the
possession of sold property as per auction dated 26.12.2011
and hand over the possession to auction purchaser-
respondent no.2 through respondent no.1-society. On failure
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to comply with the order, authority further directed
respondent no.1 to apply for police aid for possession.
4] The facts giving rise to the petition may be stated
in brief as under :
(i) In the year 1996, petitioners borrowed
loan of Rs.1,00,000/- from respondent no.1-society. They
mortgaged house property for securing the loan.
Respondent no.1 sanctioned the loan to petitioners and
repayment was to be made in monthly instalments. As
petitioners were not regular in making payment,
proceedings under section 101 of the Maharashtra
Cooperative Societies Act, 1960 were taken up against
petitioners and guarantor. Recovery Certificate was issued
by the Registrar, Cooperative Societies on 18.10.2005. After
issuance of recovery certificate, notice was issued to
petitioners. They did not comply with the same and so
property was put to auction.
(ii) Respondent no.2 being the highest
bidder in the auction proceedings, purchased the property.
sale certificate dated 12.3.2013 was issued in favour of
respondent no.2. Petitioners were requested to hand over
vacant possession to respondent no.2. Petitioners filed the
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dispute before the Cooperative Court, Nagpur seeking
interim relief and challenging the auction proceedings.
Interim relief was not granted.
(iii) As petitioners did not hand over
possession, respondent no.2 filed Writ Petition No.1279/2016
praying for direction to hand over the possession in view of
the sale certificate. Vide order dated 30.8.2016, the
Division Bench of this court directed respondent no.5-Sub-
Divisional Officer to decide the application made by
respondent no.1 under Rule 107 of the Maharashtra
Cooperative Societies Rules within a period of three weeks
from the date of order.
(iv) In pursuance to the said order, Sub-
Divisional Officer decided the application filed by respondent
no.1 and directed the petitioners by order dated 19.10.2016
to hand over the possession. It is this order which is the
subject matter of present writ petition.
5] Heard Shri Sahare, learned counsel for petitioners,
Shri Ghate, learned counsel for respondent no.1, Shri
Thakkar, learned counsel for respondent no.2, Shri
Balpande, learned A.G.P. for respondent nos.3 and 4 and
Shri Khedikar, learned counsel holding for Shri Kunte,
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learned counsel for respondent no.5-NIT.
6] With the assistance of the learned counsel for
parties, this court has gone through the impugned order
passed by Sub-Divisional Officer. It is not in dispute that
petitioners borrowed the loan from respondent no.1 in the
year 1996. It is also not in serious dispute that recovery
proceedings were initiated against petitioners and recovery
certificate was issued. It is apparent that property
mortgaged to respondent no.1 was put to auction and
before action, notice was issued to petitioners. Respondent
no.2 was the highest bidder and his bid was accepted and
sale certificate was accordingly issued in favour of
respondent no.2. Petitioners never challenged the recovery
certificate, notice issued before auction and sale certificate.
7] For the first time, grievance is made in this petition
that respondent no.2 had played fraud with the authority
and though several complaints were made to respondent
no.5, no action was taken against respondent no.2.
Submission is that the scheme floated by respondent no.5
was defective and permission of respondent no.5 was never
obtained before confirming the sale in favour of respondent
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no.2.
8] Needless to state that these grievances are
pertaining to the civil rights of the parties and outside the
purview of extra-ordinary jurisdiction of this court. This
court in writ jurisdiction has to see whether impugned order
suffers from illegality or perversity.
9] Inaction on the part of petitioners in not
challenging recovery certificate, notice before auction and
confirmation of sale, clearly indicates that the order
impugned in this petition does not suffer from any perversity
or illegality. On the contrary, the same is based on the
material available on record.
10] In the above premise, no interference is warranted
in writ jurisdiction. Hence, the following order :
ORDER
(i) Writ Petition No.7209/2016 stands dismissed.
(ii) Rule is discharged.
(iii) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
