Bombay High Court
Kiran K Sharma And Another vs Laxmi Estate Co-Operative Housing ... on 25 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:1744
kishor 1/5 23 WP 3479 of 2023 (OS) .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3479 OF 2023
Kiran K Sharma And Another ...Petitioner
Versus
Laxmi Estate Co-operative Housing
Society Limited And 2 Ors. ...Respondents
....
Mr. Tushar Gujjar a/w. Mr. Deepak Singh i/b. SL Partners, for Petitioner
Mr. Vishal Kanade a/w. Ms. Tanaya Patankar i/b. Mr. A. R. Mishra, for
Respondent No.1.
Ms. Uma Palsuledesai, AGP for State.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 25 JANUARY 2024.
P.C. :
The challenge in the present petition is to the Order dated 08
March 2021 passed by the Deputy Registrar, Co-operative Societies issuing
certificate under Section 101 of the Maharashtra Co-operative Societies Act,
1960 (MCS Act) for recovery of dues from the Petitioner. The dues are not
towards maintenance but towards penalty imposed under bye law No.167A
for alleged commission of encroachment upon common space within the
Society as well as interest on the amount of penalty. It appears that the Society
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has levied penalty of Rs.4,82,420/- and interest of Rs.46,419/- on Petitioner
under provisions of bye law No.167A.
2. In ordinary course this Court would be loath in entertaining the
petition against recovery certificate issued by Deputy Registrar in view of
availability of alternate remedy of filing of Revision under Section 154 of the
MCS Act. However, what is noticed in the present case is the fact that by
issuing recovery certificate, Deputy Registrar has essentially dealt with the
issue of nature of construction allegedly put up by the Petitioner. One of the
contested issues before the Deputy Registrar was whether the construction
put up by the Petitioner is authorized or otherwise. The Deputy Registrar has
considered the certificate issued by the Architect and has recorded a finding of
fact that the construction allegedly put up by Petitioner is unauthorized one.
In my view, the remit of inquiry under Section 101 of the MCS Act is
extremely limited. While exercising the jurisdiction under Section 101 of the
Act, the Registrar is not empowered to adjudicate upon the nature of
construction and correctness of levy of penalty for putting up unauthorized
construction. In its Judgment in M/s. Top Ten, A Partnership Firm Vs. State
of Maharashtra, 2011 SCC OnLine Bom 1608 the Division Bench of this
Court has held that the very small type of disputes in which very limited
inquiry into quantification of arrears due can be looked into by the Registrar
while undertaking inquiry under Section 101.
3. In that view of the matter adjudication of factual disputes about
nature of construction put up by Petitioner would clearly be outside the scope
of the inquiry under Section 101 of the MCS Act.
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4. Mr. Kanade has invited my attention to bye law No.167A which
is now renumbered as 169 which provides as under :
"169. The Society shall not let out or give on leave and license basis
or permit any subletting, giving on leave and license basis any oepn
spaces available under the staircases, Terraces / Open Ground / Lowns
/ Club House / Common Hall, etc. or to any person whether the
member of the Society or not, for any purpose whatsoever.
(a) All open / common area meant for use of all members for eg.
staircase, steps, landing areas, parking spaces, lift, carridor, and such
other spaces, cannot be occupied by any member for his own use. The
use of such areas shall be restricted to the cause for which these are
meant. Any member found to be violating the above condition by
encroachment shall have to vacate the encroachment and further he /
she shall pay an amount equal to five times the monthly maintenance
charges per month for the period for which he / she has encroached
such spaces and further members must not carry out any
constructions, structural changes over and above the sanctioned plan
without prior permission of the society and concerned Municipal
Authorities / Competent Authorities.
Also members must use the flat / unit for purpose it was meant /
sanctioned.
Any member violating the above directives shall pay an amount equal
to five times the monthly maintenance charges, per month with
retrospective effect for the period for which violation is existed."
5. No doubt under bye law No.167A, the Society is empowered to
levy penalty from member for encroaching upon staircase, steps, landing areas,
lifts, corridor or other common spaces. However, whether the construction
put up by a member is of authorized nature or whether it violates the
sanctioned plans is something which cannot strictly be covered by bye law
No.167A. bye law No.167A cannot be interpreted to mean license for the
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Society to recover penalty from it's members who indulge into unauthorized
construction. Recovery of such penalty in respect of unauthorized
construction may be construed to mean authorization thereof and may also
result in unjust enrichment to the Society. If the construction is unauthorized,
the planning authority is bound to take action in respect thereof. The object
behind incorporation of bye law No.167A is not to provide license to the
Society to enrich itself on the basis of unauthorized construction put up by
the member. Penalty under bye law No.167A is restricted only where a
member encroaches upon common areas such as staircase, steps, landing areas,
parking space, lift, corridor, etc. In my view therefore, the Registrar has
exceeded jurisdiction in adjudicating factual dispute about nature of
construction put up by the Petitioner. Thus, Order passed by Deputy
Registrar is clearly unsustainable and deserves to be set aside.
6. Coming to the issue of availability of alternate remedy, since the
Registrar's order is without jurisdiction, mere availability of alternate remedy
would not bar jurisdiction of this Court. In M/s. B. D. Jogani and Company
and anr. Vs. Jaywant Industrial Premises Co-operative Society Limited and 2
Ors., Writ Petition (L) No.1803 of 2016 this Court has held as under :-
Heard learned Counsel for the parties. The petition challenges
a recovery certificate issued by the Deputy Registrar of Co- operative
Societies. The controversy pertains to certain penal parking charges
levied by the Society against the Petitioners on the basis of a resolu
resolution passed by the Society. The merits of the Society's claim,
namely, whether or not the Petitioners are using the parking space in
an unauthorized manner, is already a subject matter of a pending suit
between the parties, though subsequent to the application of the
Society for a recovery certificate. Be that as it may, the question in the
present application for recovery certificate is whether or not the
Society is entitled to levy such penalty charges from a particular
member. Prima facie, this is not a question, which the Deputy
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Registrar can go into in an application for recovery under Section 101
of the Maharashtra Co- operative Societies Act.
2. Learned Counsel for the Respondents submits that since there
is an alternative remedy provided under Section 154 of the
Maharashtra Co-operative Societies Act, this petition should not be
entertained. The question as to whether or not the impugned recovery
certificate could have been issued by the Deputy Registrar, is a matter
pertaining to his jurisdiction. The case of the Petitioners is that the
Deputy Registrar has exercised a jurisdiction, which does not belong
to him. Since this pertains to illegal assumption of jurisdiction, prima
facie existence of an alternative remedy will not bar a writ petition.
3. Hence, Rule. Pending hearing and final disposal of the petition,
the recovery certificate issued by the Deputy Registrar is stayed,
subject to the Petitioners paying Items Nos. 1 to 7 forming part of the
recovery certificate.
4. Learned Counsel for Respondent No.1 states that Items Nos.1
to 6 are paid and are comprised within the amount of Rs. 13,24,634/-.
Anyway that is a matter of account. It is for the Society to check the
same. If there is any controversy in that behalf, the parties can always
come back to this Court.
7. At the same time, if indeed Petitioner has put up any
unauthorized construction, Society is at liberty to file complaint with the
Municipal Corporation for taking action in respect of Petitioner's structure.
Nothing observed in the present Order would come in the way of Society
filing such complaint and the Municipal Corporation taking action in the
event of construction being found unauthorized.
8. Writ Petition is accordingly disposed of by setting aside the
Deputy Registrar's Order dated 08 March 2021. Petitioner would be at liberty
to withdraw the amount deposited in this Court alongwith accrued interest.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU KAMBLE
KAMBLE Date: 2024.02.01
14:53:19 +0530
