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Showing contexts for: section 91 mcs act in Smita P. Dalvi vs The Deputy Registrar, Co-Operative ... on 7 August, 2024Matching Fragments
2. On the earlier date, Mr. Shukla, learned Counsel appearing for the Petitioner raised several contentions including that the Assistant Registrar has no jurisdiction to deal with the Application for issuance of Recovery Certificate under Section 154B-29 of the MCS Act, as the alleged default is regarding the charges/penalty charges with respect to parking space. He submitted that proper remedy is to file dispute under Section 91 of the MCS Act. To substantiate said contention, he relied on Bye-Law No.174(B)(iv) of Model Bye-laws of the Co-operative Housing Society Limited ("Model Bye-Laws"). He further submits that another member Ms. Anita Madan is staying out of India and therefore, she has permitted the Petitioner to occupy the parking space allotted to her. It is his submission that the parking charges are also levied to said member-Ms. Anita Madan and as the Petitioner is occupying the parking slot allotted to said Anita Madan, the society is imposing penalty charges on the Petitioner. He submitted that the impugned order passed without taking into consideration these aspects is required to be quashed and set aside.
6. It is necessary to consider the submission of Mr. Shukla, learned Counsel of the Petitioner that recovery proceedings under Sonali 23-WPL-14480-2024-J.DOC Section 154B-29 of the MCS Act are not maintainable with respect to charges relating to parking and only recourse is to file dispute under Section 91 of the MCS Act. As already noted to substantiate said contention, Mr. Shukla, has relied on Bye-Law No.174(B)(iv) of the Model Bye-Laws.
(Emphasis added) Thus, Section 154B-29 of the MCS Act specifies that the same will apply notwithstanding contained in Section 91 of the MCS Act. Thus, Section 154B-29 of the MCS Act regarding recovery of certain sums and arrears due to housing societies is applicable notwithstanding anything contained in Section 91 of the MCS Act.
9. The Supreme Court in the decision in the case of Iridium India Telecom Ltd. v. Motorola Inc.1 discussed the effect of the clause "Notwithstanding anything contained in" and has held in paragraph No.34 as follows:
Sonali 23-WPL-14480-2024-J.DOC (Emphasis added)
10. Thus, it is clear that the clause beginning with the expression 'notwithstanding anything contained in Sections 91, 93 and 98...." as appearing in Section 154B-29 clearly shows that Section 154B- 29 will have overriding effect over Section 91 of the MCS Act.
11. In any case, it is clear that Bye-Law No.174 and Section 154B-29 operates in different spheres.