Mandatory conditions for auction sales under the Maharashtra Co-operative Societies Act cannot be waived; violation results in nullity of the sale and requires fresh proceedings.

JUDGMENT :

MANOJ MISRA, J.

1. Leave granted.

2. These six appeals are directed against common judgment and order dated 26.03.2018 passed by the High Court of Judicature at Bombay¹[High Court.] whereby four writ petitions i.e., W.P. No. 1543 of 2009; W.P. No. 6544 of 2009; W.P. No. 393 of 2010; and W.P. No. 1779 of 2010 were disposed of.

Facts

3. A plot of land bearing No. 21, admeasuring 810 Sq. mtr., pertaining to Survey No. 14, Village Chembur, Tehsil Kurla, Bombay Suburban District²[Hereinafter described as property in dispute.] was subjected to auction sale to recover dues of Mahanagar Co- operative Bank³[Hereinafter described as the Bank.] payable by a partnership firm i.e., M/s. Borse Brothers⁴[Hereinafter referred to as the firm.]. The firm had availed cash credit facility of Rs. 10,00,000/- from the Bank. As it failed to repay the amount, proceedings were initiated by the Bank under Section 91 of Maharashtra Co-operative Societies Act, 1960⁵[Hereinafter referred to as the 1960 Act.]. In the said proceedings, on 04.04.1994 the Co-operative Court passed an ex parte award of Rs.24,19,904.92 plus interest @ 17.5% per annum against the firm, which was represented through its partners including Panditrao Borse. Pursuant to the award, on 04.07.1996 the Co-operative Court issued a recovery certificate under Section 98 of the 1960 Act. Thereafter, a notice of demand of Rs.52,27,800 was served upon the firm and its partners. On 16.04.2004, the Special Recovery and Sale Officer⁶[Hereinafter referred to as SRO] took possession of the disputed property. However, legal representatives of Panditrao Borse i.e., one of the partners, who died in between, moved an application before the Co-operative Court for setting aside the ex parte award and for stay of execution. This application was rejected by the Co- operative Court on 06.09.2004. On 24.12.2004, notice inviting bids for the property in dispute was published in the local newspapers. On 29.01.2005, SRO found bid of M/s. Adhishakti Developers at Rs.1,51,00,000 highest and the same was accepted. On the same day, M/s. Adhishakti Developers deposited Rs. 52,85,000 and balance of Rs. 98,15,000 was deposited on 17.03.2005, which the Bank accepted. On 18.03.2005, SRO issued order for confirmation of sale and handed physical possession to M/s. Adhishakti Developers. Thereafter, on 21.03.2005, sale certificate was issued, followed by execution of registered conveyance deed dated 13.06.2005 in favour of M/s. Adhishakti Developers.

4. The heirs/ legal representatives of Panditrao Borse filed a writ petition before the High Court, which was dismissed on the ground of availability of alternative remedy under Rule 107 of MAHARASHTRA CO-OPERATIVE SOCIETIES RULES , 1961⁷[Hereinafter referred to as 1961 Rules]. However, instead of availing that remedy, the legal representatives of Panditrao Borse filed a Revision Application No. 326 of 2008 under Section 154 of 1960 Act before Divisional Joint Registrar, Co- operative Societies, Mumbai⁸[Hereinafter referred to as Joint Registrar].

5. In between, acting on the conveyance deed, the appellant i.e., M/s Adishakti Developers (i.e., the appellant in the appeal title) moved an application for correction / mutation of the revenue records. However, the Collector, vide order dated 09.03.2006, rejected the application. This order was challenged by the appellant by filing an appeal which came to be dismissed vide order dated 01.12.2008. Aggrieved therewith, t