Bombay High Court
Rizvi Chambers Premises Co Op. Housing ... vs District Deputy Registrar Western ... on 20 September, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:39557
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.20114 OF 2025
WITH
WRIT PETITION (ST) NO.19437 OF 2025
WITH
WRIT PETITION (ST) NO.19440 OF 2025
WITH
WRIT PETITION (ST) NO.20117 OF 2025
WITH
WRIT PETITION (ST) NO.20325 OF 2025
WITH
WRIT PETITION (ST) NO.20328 OF 2025
WITH
WRIT PETITION (ST) NO.20334 OF 2025
WITH
WRIT PETITION (ST) NO.20335 OF 2025
Rizvi Chambers Premises
Cooperative Housing Society Ltd.
Through Signatories. ... Petitioner
V/s.
District Deputy Registrar
Western Suburbs, Mumbai & Ors. ... Respondents
Mr. Umair A. Ansari for the petitioner in all WPs.
Mr. Dhrupad Patil a/w Mr. Roy Varghe i/b Mr. Mahesh
R. Mishra, for & Arun I.
Mr. J. P. Patil, AGP, for the State - respondent in
WP(St)/21104/2025.
Mr. P. V. Nelson Rajan, AGP, for the State - respondent
in WP(St)Nos.19437, 19440, 20334 of 2025.
Ms. S. R. Crasto, AGP, for the State - respondent in
1
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WP(St)/20117/2025.
Ms. S. D. Chipade, AGP, for the State - respondent in
WP(St)/20325/2025.
Mr. D. S. Deshmukh, AGP, for the State - respondent in
WP(St) Nos.20325, 20334 of 2025.
Ms. Snehal S. Jadhav, AGP, for the State - respondent
in WP(St)/20335/2025.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 20, 2025
P.C.:
1. Rule. Rule is made returnable forthwith.
2. By these petitions under Article 227 of the Constitution of
India, the petitioner-Housing Society challenges the judgment and
orders passed by the Revisional Authority in exercise of powers
under Section 154 of the Maharashtra Cooperative Societies Act,
1960 (MCS Act). The challenge is directed against an order passed
by the Special Recovery Officer under sub-rule (19) of Rule 107 of
the Maharashtra Cooperative Societies Rules, 1961 (MCS Rules). A
recovery certificate under Section 101 of the MCS Act was issued
on 18 May 2022. On the basis of that certificate, the creditor-
Housing Society initiated recovery proceedings under Rule 107,
and a notice of attachment of immovable property was issued
under sub-rule (10) of Rule 107 of the MCS Rules.
3. The petitioner raised an objection stating that he was the
promoter/developer of the building and, as a condition of the
Intimation of Disapproval (IOD), he was bound to hand over the
premises in question to the Bombay Municipal Corporation.
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According to him, possession had already been handed over to the
Corporation, and therefore, he was not liable to pay the amount of
maintenance.
4. The Special Recovery Officer, by order dated 24 August
2023, rejected the objection under sub-rule (19) of Rule 107,
holding that such an application was not maintainable as it did not
relate to execution of the recovery certificate.
5. The petitioner challenged this order by filing a revision
application under Section 154 of the MCS Act. By order dated 25
November 2024, the Revisional Authority allowed the revision. In
consequence of that order, the Special Recovery Officer, by order
dated 28 February 2025, accepted the objection. However, he
observed that the ownership of the property which was to be
handed over to the Corporation was under a cloud, and since the
property was required to be transferred to the Corporation, it
would be appropriate for the Housing Society to seek relief before
the competent Tribunal.
6. Aggrieved by the order dated 28 February 2025, which
dismissed its request to attach the property, the Housing Society
has approached this Court.
7. Learned counsel for the petitioner relied upon the judgment
of Greater Bombay Cooperative Bank vs. Shri Dhillon P. Shah &
Ors., (2004) 1 Mah LJ 996. He submitted that in matters arising
from recovery under Section 101 certificate, compliance with
Section 154(2A) of the MCS Act is mandatory before a revision can
be entertained. This Court, in the said judgment, emphasized the
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words "against whom" used in Section 101 of the MCS Act, holding
that any person against whom a recovery certificate has been
issued must comply with Section 154(2A) before a revision is
entertained. The said view has been consistently followed by
several coordinate Benches and the Revisional Authorities.
However, in the present case, the Revisional Authority entertained
the revision filed by the respondent-developer without insisting on
compliance with Section 154(2A).
8. This deviation, according to the petitioner, amounts to patent
illegality and violates the principle of parity. The Revisional
Authority lacked jurisdiction to entertain the revision in absence of
the mandatory pre-deposit. The Special Recovery Officer, instead
of executing the recovery certificate issued under Section 101,
wrongly refused to act against the respondent. It is therefore
submitted that both the Revisional Authority as well as the Special
Recovery Officer acted without justification.
9. On the other hand, learned counsel for the developer
submitted that under the IOD conditions, the premises in question
had been handed over to the Corporation. Once the premises stood
transferred, no liability of maintenance could be fastened upon the
developer. He argued that even if a certificate under Section 101
had been issued, the immovable property of the developer could
not have been attached in such circumstances. He submitted that
the impugned orders passed by the authorities are legal and valid.
10. The rival submissions made on behalf of the parties fall for
determination. Both sides have placed reliance on statutory
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provisions and judicial precedents, and it is necessary to test their
arguments within the framework of the MCS Act and the Rules.
11. Having considered the material on record and the arguments
advanced, I find that the applicability of Section 154(2A) of the
Maharashtra Cooperative Societies Act, 1960 to revisions arising
from proceedings under Rule 107 of the MCS Rules, 1961, is well
settled. This Court, in a series of decisions including Greater
Bombay Cooperative Bank vs. Shri Dhillon P. Shah & Ors. (2004) 1
Mah LJ 996, has categorically held that no revision can be
entertained unless the statutory pre-deposit is made by the person
against whom a recovery certificate has been issued. This
requirement is not merely procedural but is a condition precedent
that goes to the jurisdiction of the Revisional Authority.
Consistently, statutory authorities have also adhered to this
mandate. In the present case, Respondent No.4, against whom the
certificate stood issued, filed a revision without compliance of
Section 154(2A). The Revisional Authority, in entertaining the
same, has acted in direct contravention of the statutory bar. Such
exercise of power is clearly without jurisdiction. Therefore, the
order dated 25 November 2024 passed by the Revisional Authority
cannot be sustained in law and is liable to be quashed and set
aside.
12. Turning to the second impugned order, it is evident that the
Special Recovery Officer, while exercising jurisdiction under Rule
107(19), has not only recalled his earlier order dated 24 August
2023 but has also directed the Housing Society to seek its remedies
before the competent Tribunal to establish rights in the property
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that was to be transferred by Respondent No.4 to the Corporation.
This reasoning reveals a fundamental error. The scope of enquiry
under Rule 107(19) is limited only to objections touching the
execution of a recovery certificate. It does not extend to deciding
disputes of civil title or property ownership. The Special Recovery
Officer is a statutory functionary empowered to execute the
certificate issued under Section 101. He cannot enlarge his
authority to determine substantive rights which lie exclusively
within the jurisdiction of civil or cooperative courts. By issuing
such directions, he has stepped beyond his lawful authority.
Consequently, the order dated 28 February 2025 is also vitiated
and liable to be quashed.
13. In my opinion, the Special Recovery Officer has acted beyond
his powers in passing the order dated 28 February 2025. Once a
recovery certificate under Section 101 of the MCS Act is issued
against a person, and the records of the Society show that such
person is either a member or in occupation of premises within the
Society, the Special Recovery Officer is bound to execute the
certificate in accordance with Rule 107. He cannot decline
execution merely on the ground that the property is alleged to
have been handed over to the Corporation, unless there is credible
and unimpeachable material establishing that no certificate is
issued against him and that he holds an independent title
altogether unconnected with the Society. Only in such a situation
can the objection be entertained and execution refused. That is not
the case here. The approach adopted by the Special Recovery
Officer thus suffers from patent illegality. Therefore, the orders
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passed by him also cannot be sustained.
14. In view of the above discussion, the Rule is made absolute in
terms of prayer clauses (a) and (b).
15. However, it is clarified that nothing contained in this
judgment shall prevent Respondent No.4 from initiating any
independent proceedings or availing any statutory remedy
available to him in law.
16. It is also clarified that all rival contentions of both parties on
questions of ownership, title, or liability are expressly kept open, to
be adjudicated in appropriate proceedings before the competent
forum.
17. All the writ petitions stand disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
