1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.1065 OF 2008 WITH WRIT PETITION LOD.1066, 1067, 1068, 1069 AND 1070 OF 2008 Shree Laxmi Ashish Industrial Premises Coop.Society Ltd. .. Petitioner Versus Deputy Registrar & Ors. .. Respondents Mr.Vijay Thorat, Senior Advocate with Ms.Lakshmi Murali for petitioner Mr.Anirudha Joshi with Mr.Lalit Jain i/b. L.J.Law for inervenor Mr.Niranjan Pandit, A.G.P. for respondentr Mr.Pradeep Jadhav, A.G.P. in Lod.1065 & 1066 Mr.Milind More, A.G.P. in Lod.1068 & 1069 Ms.Daksha Shah for intervenor in Lod.1066 to 1070 CORAM : S.C.DHARMADHIKARI, J. DATE : 29th April 2008 P.C. 2 . These petitions are directed against the order dated 9th April 2008 which has been passed by Dy.Registrar, C.S. of the concerned division in Mumbai. It is not in dispute that the petitioners are various coop.societies which have been registered under the Maharashtra Coop.Societies Act, 1960. It is also not in dispute that by an order passed under section 78(1) of M.C.S. Act, the Board of Administrator has been appointed on the subject societies. My attention is invited to the orders passed by the Appellate Authority viz., Divisional Joint Registrar whereby he disposed of the appeals only by partially modifying the order of appointing Administrator and substituting it with direction to appoint Board of Administrators consisting of three persons. It further appears that on 4th April 2008 the Divisional Joint Registrar addressed a letter to the Dy.Registrar and pursuant thereto the Dy.Registrar has by the impugned order modified the direction to appoint 3 Board of Administrators and instead appointed single Administrator. The name of the Administrator is notified in the order dated 9th April 2008. 2. Aggrieved by these orders and directions present petitions have been filed. The only submission of Mr.Thorat, learned Senior Counsel is that the Divisional Joint Registrar having passed an order in the pending appeals and disposed them off finally, is functus officio. He cannot issue any further directions to Dy.Registrar to substitute his orders and appoint single Administrator instead of the Board designated and nominated by him. In other words, the order of the Divisional Joint Registrar having gained finality the only remedy of the aggrieved persons was to challenge it by instituting further proceedings. It was not open for the Divisional Joint Registrar to direct the Dy.Registrar to modify his earlier order. That 4 apart, even the Divisional Joint Registrar had no powers to review or modify his own order. Further, the contention is that the provisions of section 78(1)(a)(ii) read with proviso thereto confer a discretion to modify or substitute the Administrator, but such orders have to be passed only after compliance with the principles of natural justice. 3. Mr.Pandit appearing for State supports the impugned orders and submits that there is enough discretion to modify or alter the composition of the Administrator or the Board of Administrators. That is not a judicial or quasi judicial power. That is an administrative discretion for which there is no necessity to comply with principles of natural justice. There is no question of any lis or dispute between parties. Substantive proceedings contemplated under section 78(1) and the exercise of discretion by the proviso are distinct in nature. 5 For the discretion to be exercised under the proviso, there is no question of any notice or hearing. In such circumstances, the source of power is to be found in these provisos and the order and direction is by the Dy.Registrar, who was the one, who passed initial order of supersession of the Managing Committee and appointing Administrator. There is no question of abiding only by the mandate or the direction of the Divisional Joint Registrar or his letter. The Divisional Joint Registrar thus has not usurped the power of the Dy.Registrar. 4. The intervenor appearing through Mr.Joshi has supported this contention of A.G.P. He submits that additionally it was a clear case where the Board of Administrators consisted of the very persons who had moved the appeal before Divisional Joint Registrar. These are the very persons who were part of the managing committee and were removed when the same was superseded. 6 By a back door method, they cannot be appointed as Administrators and put in charge and thereby flouting the order in that behalf. For this reason the petition be dismissed. 5. After hearing both sides for some time, in my view, any larger issues need not be gone into in the peculiar facts of the case. 6. I indicated to both sides that their apprehension can be taken care of by appointing independent person as Returning Officer. Once the process of election is going on and election to about two societies have been concluded, then, to have fair and impartial electoral process, the parties must take instructions and agree to an independent officer being appointed. I had suggested to Mr.Pandit that any retired officer in the department of Cooperation who has acted as Registrar or Dy.Registrar at some time but not in the said ward be chosen and his name can be 7 notified as a Returning Officer for holding elections. 7. After taking instructions, Mr.Pandit states that Mr.M.D.Rane, Dy.Registrar (Retd), who was functioning as such not in the subject ward is ready and agreeable to take up the assignment. Accordingly, Mr.Rane is appointed as Returning Officer for holding elections of the Managing Committee of the societies to which elections have already not been held and concluded. 8. Now the question remains as to what the Returning Officer should do and Mr.Joshi appearing for intervenor suggests that he should notify fresh election programme. Ms.Murali on the other hand would urge that programme is already notified and all that the fresh Returning Officer can do is to modify some dates and to start some of the processes afresh. 8 9. After taking an over all view of the matter and considering that the newly appointed Returning Officer would require some time to take charge and peruse the record, interest of justice would be sub-served if electoral process is commenced by the Returning Officer afresh from the stage of scrutiny of the existing Nomination papers. However, as a special case and in facts peculiar to these petitions, if any of the intervenor is desirous of contesting elections, the Returning Officer to accept his/her nomination forms, provided the same are forwarded to him within a period of three days from his taking charge. Thus, along with existing nomination forms, the Returning Officer must scrutinise these forms as well. Then, he shall notify the date for withdrawal of nominations, date of publication of final list of contesting candidates. He must notify other stages of election and in any event complete electoral process within a period of six weeks from today. 9 The Returning Officer shall take charge within a week from today. Ms.Murali states that the petitioner would hand over election papers to the newly appointed Returning Officer by 6th May 2008. 10. Needless to state that the expenses to be incurred by the Returning Officer and his remuneration shall be borne by the societies in equal proportion. Needless to further clarify that wherever elections are concluded, it would be open for the aggrieved parties to resort to such proceedings as are permissible in law to challenge the elections and the result thereof. 11. Petitions disposed of. Office objections to be removed within one week from today. Unless the same are removed, petitions will not be numbered and no C.C. be issued. 10 (S.C.Dharmadhikari, J)