1wp-6374-08 Lrs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.6374 OF 2008 WITH CIVIL APPLICATION No.1647 of 2009 WITH CIVIL APPLICATION No.1968 of 2009 WITH CIVIL APPLICATION No.2421 of 2009 WITH CIVIL APPLICATION No.2422 of 2009 M/s Paranjpe Construction Co. & Ors. ..Petitioners. vs. The Collector & Ors. ..Respondents. Mr V.P. Sawant i/b Mr V.M. Bhate for the Petitioners. Mr V.S. Gokhale, A.G.P., for Respondent Nos.1 to 3. Mr H.S.S.Murthy, Advocate for Respondent Nos.4 and 5. Mr S.D. Paithane  Intervener. Mr Anand Patwardhan i/b A & I Law for Intervener. 2wp-6374-08 Mr A.G. Damle for Intervener. CORAM: D.K. DESHMUKH AND K.K.TATED,JJ DATED: 16TH NOVEMBER,2009 P.C.:- 1. By this petition, the petitioner challenges the power of the Collector to take steps to recover dues of the Co-operative Bank pursuant to a recovery certificate issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the M.C.S.Act ). It appears that the Tahsildar, Vasai, District Thane, issued a notice which was published in the newspaper on 27.8.2008 proposing to sell the property of the petitioner for recovery of dues pursuant to the several decrees passed by the Consumers Forum, as also pursuant to a recovery certificate issued under the M.C.S. Act. There is no dispute that the recovery certificate of an amount in excess of rupees one and half crores has been issued against 3wp-6374-08 the petitioner. The petitioner has not challenged that recovery certificate and has accepted the same. The learned counsel appearing for the petitioner, relying on certain observations of a Division Bench of this Court in its judgment in the case of Satguru Construction Co. Pvt. Ltd. & Ors Vs Greater Bombay Co-operative Bank Ltd. 2007 (5) ALL MR 628 submits that the only mode for execution of a recovery certificate and to recover the dues in terms of such certificate is the proceeding under Section 101 of the M.C.S. Act and recourse to the recovery proceeding under the Maharashtra Land Revenue Code for recovery of the dues, as arrears of land revenue, cannot be had. The learned counsel for the petitioner submits that the decision to send the recovery certificate to the Collector for the recovery against the petitioner as arrears of land revenue, was taken by the Managing Committee which did not execute a bond which was required to be executed under the provisions of the M.C.S. Act and, 4wp-6374-08 therefore, the entire Managing Committee ceased to hold the office because of the provisions of Section 73 (1AB) of the M.C.S.Act, and therefore the act of transfer of recovery certificate to the Collector is itself unauthorized. 2. So far as the first submission is concerned, in our opinion, what is contained in Section 101 is enough to negate it. Section 101 reads as under: 101. Recovery of arrears due to certain societies as arrears of land revenue: Notwithstanding anything contained in sections 91, 93 and 98, on an application made by a resource society undertaking the financing of crop and seasonal finance as defined under the Bombay agricultural Debtors Relief Act, 1947, [ or advancing loans for other agricultural purposes repayable during a period of not less than eighteen months and not more than five years] for the recovery of arrears of any sum advanced by it to any of its members on account of the 5wp-6374-08 financing of crop or seasonal finance [ or for other agricultural purposes as aforesaid] or by a crop-protection society for the recovery of the arrears of the initial cost or of any contribution for obtaining services required for crop-protection which may be due from its members or other owners of lands included in the proposal (who may have refused to become members) or by a lift irrigation society for the recovery of arrears of any subscription due from its members for obtaining services required for providing water supply to them, (or by a Taluka or Block level village artisans multipurpose society advancing loans and arranging for cash credit facilities for artisans for the recovery of arrears of its dues,] [ or by a co-operative housing society for the recovery of arrears of its dues, or by a co-operative dairy society advancing loans for the recovery of arrears of any sum advanced by it to any of its members 6wp-6374-08 or by an urban co-operative bank for the recovery of arrears of its dues, or by salary-earners co-operative society for the recovery of arrears of its dues, or by a fisheries co- operative society for the recovery of arrears of its dues], [or by any such society or class of societies, as the State Government may, from time to time, notify in the Official Gazette, for the recovery of any sum advanced to, or any subscription or any other amount due from, the members of the society or class of societies so notified;] and on the society concerned furnishing a statement of accounts in respect of the arrears, [the Registrar may, after making the inquiry in such manner as may be prescribed, grant a certificate for the recovery of the amount stated therein to be due as arrears. The application for grant of such certificate shall be made in such form and by following such procedure, accompanied by such fees and documents as may be prescribed]. 7wp-6374-08 Explanation. -- For the purposes of this sub-section, the expression other agricultural purposes includes dairy, agriculture and poultry]. (2)Where the Registrar is satisfied that [the concerned society has failed to take action under the foregoing sub-section in respect of any amount due as arrears], the Registrar may, of his motion, after making such inquiries [as may be prescribed], grant a certificate for the recovery of the amount stated therein, to be due as arrears and such a certificate shall be deemed to have been issued as if on an application made by the society concerned. (3) A certificate granted by the Registrar under sub-section (1) or (2) shall be final and a conclusive proof of the arrears stated to be due therein, and the same shall be recoverable according to the law for the time being in force, for the 8wp-6374-08 recovery of land revenue. (4) It shall be lawful for the Collector and the Registrar to take precautionary measures authorized by Sections 140 to 144 of the [Bombay Land Revenue Code, 1879] or any law or provision corresponding thereto for the time being in force, until the arrears due to [the concerned society], together with interest and any incidental charges incurred in the recovery of such arrears, are paid, or security for payment of such arrears is furnished to the satisfaction of the Registrar . 3. Perusal of Section 101(3) of the M.C.S., Act indicates that the amount for which recovery certificate is issued by the Registrar, is recoverable according to law for the time in being force as arrears of land revenue. The law in relation to recovery of land revenue is the 9wp-6374-08 Maharashtra Land Revenue Code, which empowers the Collector to recover amounts of arrears of land revenue according to the procedure given in the Maharashtra Land Revenue Code. Sub section (4) of Section 101 of the M.C.S.Act,also empowers the Collector, as also the Registrar, to take measures authorized by Sections 140 to 144 of the Bombay Land Revenue Code, 1879 or any law or provision corresponding thereto for the time being in force, until the arrears are paid. Thus, sub Section (4) of Section 101 vests power in the Collector, as also in the Registrar, to attach the property which is proposed to be sold for the recovery of the dues pursuant to a recovery certificate. 4. So far as Section 156 of the M.C.S.Act is concerned, it empowers the Registrar to recover the amounts that are due under a recovery certificate. Reading of Sections 156 and 101 of the M.C.S.Act, together shows that the amount for which recovery certificate is issued, is recoverable by two modes one as arrears of land revenue and second it can be 10wp-6374-08 recovered by the Registrar by following the procedure laid down by the Maharashtra Co-operative Societies Act and the Rules framed thereunder. 5. So far as the judgment of the Division Bench in the case of Satguru Construction (cited supra) is concerned, it considers the question whether amount for which recovery certificate has been issued by the Registrar can be executed as a decree of the Civil Court and all observations have been made by the Division Bench for deciding that question. The Division Bench came to the conclusion that recovery certificate issued under Section 101 cannot be executed under the provisions of Civil Procedure Code as a decree of the Civil Court. The Division Bench was not considering the question, whether the amount for which recovery certificate is issued can be recovered as arrears of land revenue. In our opinion, clear provisions of Section 101 leave one in no doubt, that one of the modes of recovery of the amount for which the recovery certificate has been issued, is by adopting procedure under the land 11wp-6374-08 revenue code for recovering dues as arrears of land revenue. In our opinion, therefore, there is no substance in the contention raised on behalf of the petitioner. 6. So far as second contention is concerned Section 73 (1AB) of the M.C.S. Act is relevant which reads as follows: [(1AB) The members of the committee shall be jointly and severally responsible for all the decisions taken by the committee during its term relating to the business of the society. The members of the committee shall be jointly and severally responsible for all the acts and omissions detrimental to the interest of the society. Every such member shall execute a bond to that effect within fifteen days of his assuming the office, in the form as specified by the State Government by general or special order. The member who fails to execute such bond within the specified period shall be deemed 12wp-6374-08 to have vacated his office as a member of the committee: Provided that before fixing any responsibility mentioned above, the Registrar shall inspect the records of the society and decide as to whether the losses incurred by the society are on account of acts or omissions on the part of the members of the committee or on account of any natural calamity, accident or any circumstances beyond the control of such members: Provided further that any member of the committee, who does not agree with any of the resolution or decision of the committee, may express his dissenting opinion which shall be recorded in the proceedings of the meeting and such member shall not be held responsible for the decision embodied in the said resolution or such acts or omissions committed by the committee of that society as per the said resolution. Such dissenting member, if he so desires, may also communicate in writing his dissenting note to the Registrar within seven 13wp-6374-08 days from the date of the said resolution or decision. Any member, who is not present for the meeting in which the business of the society is transacted, and who has not subsequently confirmed the proceedings of that meeting, such member shall also not be held responsible for any of the business transacted in that meeting of the society. 7. Perusal of Section 73 (1AB) of the M.C.S.Act shows that every member of the managing committee has to execute a bond within the period specified in the provision. Failure to execute such a bond within the specified period results in disqualification of the person to continue as a member of the managing committee. In this petition, it is not necessary to decide the question whether failure to execute the bond results automatically in vacation of office by the members of the Managing Committee, because according to us, even assuming that for failure to execute the bond the members of 14wp-6374-08 the Managing committee cease to hold the office, then also, in our opinion, their act of sending recovery certificate to the Collector for recovery in accordance with the provisions of the Maharashtra Land Revenue Code, because the Collector was already proceeding against the petitioner for recovery of the amounts pursuant to the decrees passed by the Consumers Forum, cannot be held to be invalid. The action of the members of the Managing Committee was in the interest of the Bank. In our opinion, this Court will not be justified in setting aside that action of the Bank in its extra ordinary jurisdiction under Article 226 of the Constitution of India, at the instance of the petitioner, who, admittedly, owes money to the bank. There is recovery certificate issued against him, validity of which he has not challenged. The action of the Managing Committee of sending the recovery certificate to the Collector for recovery of the dues is an action taken by the managing committee in the interest of the Bank, it cannot be held to be 15wp-6374-08 rendered invalid for alleged non obstante of a provision which has been made in the Act for protecting the interest of the Bank. 8. Taking over all view of the matter, in our opinion, there is no substance in the petition. Petition is hereby rejected. All the civil applications are disposed of. 9. At this stage, a request is made for directing the parties to maintain status quo. In our opinion, considering that the property is being sold for recovery of the dues pursuant to the orders passed by the Consumers Forum and dues of the Co- operative Bank pursuant to a recovery certificate which is not even challenged by the petitioner it will not be appropriate to grant any interim order. Request is rejected. (D.K. DESHMUKH,J) (K.K.TATED,J)