((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.99 OF 2006 Poparao B. Saste Petitioner versus Hon’ble Minister for Co-operation and others Respondents Mr.P.A.Pol for petitioner. Mr.R.M.Patne, AGP for State. Ms.Shobhana Gopal for respondents 2 and 3. CORAM : S.C.DHARMADHIKARI, J. DATE : 27th January 2006 PC : 1. Rule. Respondents 1 to 3 waive notice. 2. This writ petition is directed against a high handed action of the Special Recovery Officer in proceeding to attach the property of the petitioner, which according to the third respondent society, does not belong to him but to his predecessor. 3. The facts lie in very narrow compass. The ((-2-)) petitioner claims to have purchased a flat in respondent no.3 society. The flat number bearing C-9 is situate in the premises namely shri Sagar Darshan Coop. Housing Society Ltd; Sector 16, Nerul, Navi Mumbai. Respondent no.3 society claims that all allottees who have been put in possession by CIDCO, have organised themselves into a co-operative housing society which is managing and administering the subject property. The society claims that one Abdul Kundigar was the allottee/member and he is in default of the society charges. Petitioner claims to have purchased this flat prior to the registration of this society from said Kundigar. He claims that the society has accepted bills and maintenance charges and also subscription fees by cheque. He submits that the membership application was rejected and thereafter the matter was carried to the authorities under Maharashtra Co-operative Societies Act and a direction was issued to the society to accept petitioner herein as it’s member. 4. The grievance of the petitioner is that he is working with Maharashtra State Co-op. Cotton Growers Marketing Federation, at Dhule. He is residing in the said flat with his wife and ((-3-)) daughter. However, on account of his posting at Dhule, the flat is occupied by his wife and daughter. Under the garb of the petitioner taking over entire liability of payment, but not recognising his right and issuing a notice of attachment to the said Kundigar, the third respondent society proceeded to attach the flat and thereafter has dispossessed the petitioner. 5. Shri Pol - learned counsel for the petitioner has invited my attention to all factual aspects as also the orders passed by this Court on two writ petitions. He submits that assuming without admitting, at this stage, that the liability is taken over by the petitioner, the second respondent Special Recovery Officer has no authority, power and jurisdiction in law while executing a decree/award in favour of third respondent society to dispossess the petitioner. That too prior the objections of the petitioner to the attachment of the property being decided. He has invited my attention to the attempts made unsuccessfully by the petitioner to invoke jurisdiction of Revisional Authority. In his submission, the Special Recovery Officer has proceeded in high handed manner and instead of following mandate of Rule 107, proceeded to ((-4-)) dispossess the petitioner. 6. Ms.Gopal - learned advocate appearing for third respondent society sought to justify the entire action by contending that the entire case set out in the petition is bogus. Reliance is placed on documents which are not genuine and the attachment cannot be raised. However, she was unable to point out any provision which authorises the Special Recovery Officer to dispossess the petitioner when a claim is preferred to attachment of property. 7. The second respondent has filed an affidavit and in the affidavit all that is stated is that the petitioner has not complied with an undertaking given to this Court. 8. The entire affidavit is silent as to how the petitioner could have been dispossessed from the possession of the immovable property. 9. Despite repeated queries neither Shri Patne nor Ms.Gopal could bring to my notice the provision/s by which petitioner could be dispossessed by the Recovery Officer. Thus, there is much substance in the contention raised ((-5-)) by the petitioner. Petitioner has pointed out in paras 18 and 19 as to how objections raised were not taken cognizance of and when petitioner’s wife and daughter were residing in the premises, they were high handedly dispossessed. 10. In my view, now interest of society is being taken care of by the petitioner by showing his bona fides and depositing a sum of Rs.1.50 lakh in this Court. Further, upon noticing the provisions contained in the rules it is clear that the mandate is to first adjudicate upon the claim or objections made to the attachment of the property attached. That mandate flows from the power to attach the property. In my view, the Special Recovery Officer could not have proceeded in the manner he has proceeded in the instant case. It is, therefore, necessary to restore possession of the premises to the petitioner, of course, by imposing terms and conditions as also protecting the interest of third respondent society. Accordingly following order. 11. ORDER :- A) Rule is made absolute in terms of prayer clause (a). The impugned notice is set aside. Possession of the premises is restored to the petitioner. ((-6-)) B) The objections raised by the petitioner to the attachment in question shall be decided by the appropriate authority (Special Recovery Officer, Thane District Co-operative and Agricultural (Rural) Multi Purpose Bank Ltd.) in accordance with law and after giving opportunity not only to the petitioner but to the third respondent society. He shall pass appropriate orders in accordance with the provisions referred to in the rules in that behalf. C) The petitioner as well as respondent no.3 to appear before the second respondent on or before 7th February 2006 and after all opportunities are given to both - the petitioner as well as respondent no.3, the second respondent to decide the validity of objections within a period of four weeks thereafter. D) The amount deposited in this Court shall stand transferred to Special Recovery Officer. The said deposit is without prejudice to the rights and contentions of both sides. E) Respondent no.2 to pay costs quantified at Rs.5,000/- to the petitioner. ((-7-)) 12. At this stage Shri Patne states that respondent no.2 Shri H.R.Gawade, Special Recovery Officer is present in the Court and he instructs that direction to pay costs be set aside. He undertakes through Shri Patne to restore the possession of the premises to the petitioner during the course of the today. He further undertakes to break open the seal and permit the petitioner to enter the premises. This should be done after a Panchanama of the premises is drawn up. The keys of the premises be handed over to the petitioner. Needless to observe that if all this is not done by 29th January 2006, the payment of costs shall stand enhanced to Rs.10,000/- instead of said direction being set aside. Costs should be paid personally by second respondent. Attachment of flat to continue till further orders of the Special Recovery Officer. (S.C.DHARMADHIKARI, J.)