Advocates:
['SURYAWANSHI KAMLAKAR J', 'COPY SERVED ON GP', '', 'NO CAVEAT']

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.10050 OF 2016

Maharashtra State Cooperative

Patasanstha Federation Limited, Mumbai

through Its Treasurer

Shri Dadarao Bhaurao Tupkar

Petitioner

Versus

The State of Maharashtra

Respondents

Mr.K.J. Suryawanshi advocate for the petitioner

Mr.S.S. Dande, AGP for Respondent

_______________

CORAM : R.M. BORDE &

V.K. JADHAV, JJ

(Date : 4th October, 2016.)

PER COURT :-

1

Heard.

2

The petitioner is praying for issuance of writ of certiorari,

orders or directions in the nature of writ of certiorari, to quash

and set aside the Government Resolution dated 30.8.2014,

seeking to amend Rules framed under the Maharashtra

Cooperative Societies Act and more particularly amendment to

Rule 107 incorporating clauses (11)(d-1) and (f), (13) and (14) of

Rule 107 of the Maharashtra Cooperative Societies Rules, 1961.

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3

The petitioner contends that, the amended Rules are in

excess of powers of delegation, in as much as, those are arbitrary

and unreasonable. The petitioner also contends that, the amended

rules, referred to above are contrary and inconsistent with the

provisions of Section 100(2) of the Maharashtra Cooperative

Societies Act, 1960.

4

Rule 107 (11)(d-1)(i) provides that, no sale of immovable

property shall take place unless possession of the property is

taken or caused to be taken. Clause (9) of sub-Rule 11 of Rule

107 provides :-

“(f)

When any immovable property is sold under

these rules, the sale shall be subject to the prior

encumbrances of the property, if any. The applicant

shall, when the amount for the realisation of which

the sale is held excess Rs.100, furnish to the

(Recovery Officer) within such time as may be fixed

by him or by the Recovery Officer, an encumbrance

certificate from the Registration Department for the

period of not less than twelve years prior to the date

of attachment of the property sought to be sold, or in

cases falling under the proviso to sub-rule (10), prior

to the date of the application for execution. The time

for production of the encumbrance certificate may be

extended at the discretion of the (Recovery Officer),

as the case may be. The sale shall be by public

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auction to the highest bidder. ”

So also sub-rule 13 and 14 of Rule 107 of the Maharashtra

Cooperative Societies Rules provide thus:-

“ 13(i)

Where immovable property has been sold

by the (Recovery Officer), any person either owning

such property or holding any interest therein by

virtue of a title acquired before such sale may apply

to have the sale set aside on his depositing with the

Recovery officer -

(a)

for payment to the purchaser a sum

equal to 5 per cent of the purchase money; and

(b)

for payment to the applicant, the amount

of arrears specified in the proclamation of sale as

that for the recovery of which the sale was order

together with interest thereon and the expenses of

attachment, if any, and sale and other costs due in

respect of such amount, less amount which may

since the date of such proclamation have been

received by the applicant.

(ii)

If such deposit and application are made within

thirty days from the date of sale, the Recovery

Officer shall pass an order setting aside the sale and

shall repay the purchaser, the purchase money so far

as it has been deposited, together with the 5 per

cent deposited by the app