The protection of rights of the bona fide Auction Purchaser and the distinction between the Auction Purchaser and the Third Party Auction Purchaser need to be upheld by the court.

JUDGMENT :

1. For the reasons stated in the Application, the Application is allowed.

WRIT PETITION NO. 1262/2010

2. This is a Writ Petition under Articles 226 & 227 of the Constitution of India challenging the Certificate issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the said Act") dated 03/05/2002. The present Writ Petition was filed on 15/03/2010. In the interregnum, the Special Recovery Officer conducted the Auction Proceedings under Rule 101 of the Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as “the said Rules”). The auction is complete. The Sale Certificate had been issued in favour of the Auction Purchaser. Petitioners challenge the validity of the Sale Certificate by the amendment on 11/06/2010.

3. According to the learned Advocate for the Petitioners, the Certificate under Section 101 of the said Act had been issued without giving him an opportunity to hear. The Certificate contains no reasons. The mandatory procedure required while conducting the auction under Section 107 has not been followed. The proclamation is not in the newspaper having wide circulation. The auction had been conducted after six months from the date of fixing the upset price. If the order of issuance of Certificate under Section 101 is set aside, consequential Proceedings under Rule 107 are a nullity. Therefore, the Sale Certificate along with the Certificate under Section 101 of the said Act, deserves to be set aside. According to him, the delay/laches in filing the present Writ Petition was on the ground of wrong advice given by the Advocate. The Petitioner, the laymen, acted per the earlier Advocate's directions.

4. Learned Advocate for the Respondent – Society and the Auction Purchaser submitted that the only remedy available with Petitioners was to challenge the certificate by way of Revision under Section 154 of the said Act after compliance with Section 154(2A) of the said Act. Compliance with Section 154(2A) has been held to be mandatory by the Hon’ble Apex Court in the case of Arun B. Khanjire vs. The Ichalkaranji Urban Coop. Bank reported in 2009(2) SCC 187 and by this Court in the case of Greater Bombay Co-Operative Bank Ltd. v. Dhillon P. Shah, : (2004) 1 Mah LJ 996. The Writ Petition is also objected on the ground that the Petitioners had the opportunity to deposit the entire amount of dues as per the Certificate issued under Section 101 during the auction process; within 30 days from the date of the auction, which the Petitioners failed to avail. Therefore, according to them, the remedy to challenge the Auction Proceedings was to file an objection before the Special Recovery Officer, and such an order passed by the Special Recovery Officer is subject to Revision under Section 154 of the said Act. Additionally, the Petitioners have the right to institute the Civil Suit as per Rule 107(19)(C) of the said Rules. In that view of the matter, it is submitted that there is no merit in the Writ Petition.

5. Having reflected on the contentions raised by the Petitioners, in my opinion, there is no merit in the Writ Petition, and it deserves to be dismissed. The first ground for dismissal of the Writ Petition is laches in filing the Writ Petition. The impugned order had been passed on 03/05/2002. The Writ Petition was filed on 15/03/2010, almost a lapse of 8 years. The only explanation furnished in the Writ Petition is wrong advise by the Advocate, and the Petitioner is a layman. In my opinion, the said explanation to entertain the Writ Petition after almost eight years is unacceptable. In the interregnum, the Auction Proceedings are complete, and the Sale Certificate is issued in favour of the Auction Purchaser.

6. There is no substance in the learned Advocate for the Petitioners submission that in case the Certificate under Section 101 is set aside, the Auction Proceedings being consequential is rendered illegal. In my opinion, the challenge to the Certificate un