Challenging Recovery Orders: A Legal Examination of Parking Charge Disputes in Co-operative Societies.
07 August 2024
Civil Suits >> Civil & Consumer Law
In a recent legal development of Smita P. Dalvi v/s The Deputy Registrar, Co-operative Housing Society & Others, a Writ Petition was filed under Article 226 of the Constitution of India, challenging the validity of an order issued by the Assistant Registrar of Co-operative Societies in Mumbai. The order, dated February 29, 2024, authorized the issuance of a Recovery Certificate for Rs. 98,620 in favor of a housing society (Respondent No. 3) against the petitioner.
Background of the Case:
The petitioner’s counsel, Mr. Shukla, argued that the Assistant Registrar lacked jurisdiction to issue the Recovery Certificate, as the alleged default pertained to parking charges. He contended that the appropriate remedy should have been to file a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (MCS Act). Supporting his argument, he referenced Bye-Law No. 174(B)(iv) of the Model Bye-laws of Co-operative Housing Societies, which stipulates that disputes related to parking should be addressed in a Co-operative Court.
Mr. Shukla further claimed that another member of the society, Ms. Anita Madan, who resides abroad, had permitted him to occupy her designated parking space. Consequently, any penalty imposed by the society on the petitioner for using this space was unjust, as it was also charged to Ms. Madan.
Counterarguments:
On the opposing side, Ms. Paswan, representing Respondents 2 and 3, raised issues regarding the maintainability of the petition, suggesting that an alternate remedy via a revision under Section 154 of the MCS Act was available. Nonetheless, since jurisdiction was a central issue, it was imperative to address this point.
Jurisdictional Analysis:
The crux of the matter hinged on the interpretation of Section 154B-29 of the MCS Act, which allows housing societies to recover dues, including service charges, as arrears of land revenue. Notably, this section explicitly states that it applies “notwithstanding anything contained” in Section 91 of the Act. This means that even if disputes arise regarding parking charges, the society can seek recovery under Section 154B-29.
Legal precedents, such as the Supreme Court's decision in Iridium India Telecom Ltd. v. Motorola Inc., clarify that non-obstante clauses provide a statutory mechanism that can override conflicting provisions. Consequently, Section 154B-29 offers a comprehensive framework for the recovery of dues, making it clear that parking charges and any penalties associated fall within its purview.
Conclusion and Remand:
Upon reviewing the arguments, the court acknowledged that the Assistant Registrar had not adequately considered the various contentions raised by the petitioner, particularly the issue of occupancy of the parking space. Thus, the court quashed the impugned order and remanded the case back to the Assistant Registrar for further consideration. The parties were ordered to appear for a hearing on September 2, 2024, with the expectation that the matter would be resolved by December 31, 2024.
This ruling emphasizes the need for thorough consideration of all relevant facts and legal provisions in disputes concerning co-operative societies. It also highlights the balance between statutory powers and the rights of society members, ensuring that all grievances are addressed fairly. The merits of the case regarding parking and penalty charges remain open for future deliberation.