1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2208 OF 2008 Victor Dias & Ors. ..Petitioners V/s. Deputy Registrar & Ors. ..Respondents. Mr.M.M.Vashi i/b. M/s.M.P.Vashi & Associates for Petitioners. Mr.Pradeep Jadhav, AGP for Respondent Nos. 1 to 3. Mr.Aristotle Rego, Respondent No.4 present in person. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : SEPTEMBER 30, 2008. DATE : SEPTEMBER 30, 2008. DATE : SEPTEMBER 30, 2008. P.C. : P.C. : P.C. : 1. Heard. 2. Rule. Rule made returnable forthwith by consent. Notice on behalf of Respondent Nos. 1 to 3 is waived by the AGP. Respondent No.4 appears in person and waives notice. As short question is involved, Petition is taken up for hearing forthwith by consent. 3. This Writ Petition takes exception to the Judgment and Order passed by Mr.Rajendra Pawar, 2 Deputy Registrar, Co-operative Societies, G.S.Ward, Mumbai dated 30th August, 2008. The background, in which the said order has been passed will have to be adverted to. The proceedings were required to be conducted by the Authority on the basis of grievance made by the Respondent No.4 against the office bearers of the Respondent Society. The Respondent No.4 had filed Writ Petition before this Court being Writ Petition (L) No.1675 of 2008, which was eventually disposed of by the Division Bench on 14th July, 2008, by recording statement made on behalf of the Authority through Government Advocate, which statement was accepted by the Court. The Order reads thus: "1. The learned Government advocate on instructions states that the representation was wrongly addressed to the Deputy Registrar. However, the same has been forwarded to the Registrar and Registrar only will look into the matter and conduct the necessary inquiry, within 15 days from today. We accept the said statement and in view thereof, nothing survives in the petition. While accepting the said statement, petition is hereby disposed of. 2. It is made clear that this Court has not expressed any opinion on the points sought to be raised and all the points are kept open." (emphasis supplied) Significantly, after this Order was passed, instead of proceeding with the enquiry as was required in 3 terms of the assurance given before this Court, the Authority moved precipe before the Division Bench on 24th July, 2008 stating as follows: ". Be pleased to produce the paper and proceeding of the above matter before their Lordship the Hon’ble Mr.Justice R.M.S.Khandeparkar and the Hon’ble Mr.Justice A.A.Sayed on Friday i.e. 25th July, 2008 at 11.00 a.m. for speaking to the Minutes of Order dated 14th July, 2008 passed by their Lordship in respect of the authority i.e. Instead of Registrar it should be Joint Registrar or any Dy. Registrar authorized by Joint Registrar and paying for grant of further extension of period for conducting the inquiry." (emphasis supplied) The said request made on behalf of the authority was rejected on 25th July, 2008. Inspite of that on 16th September, 2008, the same precipe was once again listed, however, this time before another Division Bench- of which the Presiding Judge was different from the earlier Division Bench which had decided the Writ Petition and also rejected the request made on behalf of the Authority. Incidentally, even the subsequent Division Bench rejected the request in the said precipe by passing following order. . "On this application, no order was passed by the earlier Bench on 25th July, 2008. In that view of the matter, no orders are required to be passed." 4 Inspite of this position, the enquiry under section 75 and 73 r/w 78 of the Act was proceeded before Mr.Rajendra Pawar, Deputy Registrar and not the Registrar himself. In fact, objection was taken on behalf of the Petitioners before the said Deputy Registrar on two counts. Firstly, that the enquiry cannot proceed before any other officer except the Registrar. Secondly, the enquiry was required to be completed within 15 days from the date of the Order of the Division Bench dated 14th July, 2008 which period was long over. The said objections, it is placed on record in the written communication sent by the Advocate for the Petitioners to the concerned Deputy Registrar dated 30th August, 2008, were disregarded by the said Deputy Registrar. Instead, the said Officer had the audacity to observe that the High Court was not going to hang him for not deciding the matter in time or for that matter if he were to proceed with the enquiry instead of allowing the Registrar to do so. The grievance made by the Petitioners in this behalf will have to be addressed in the Contempt Petition filed by the Petitioners before this Court being Contempt Petition No.81 of 2008, in which I am inclined to issue notice not only to the concerned Deputy Registrar Mr.Rajendra Pawar but also to the Registrar Shri Krishna Lawekar, who 5 has abdicated his duty to proceed with the enquiry in terms of the Order dated 14th July, 2008. 4. Suffice it to observe that the Order which is impugned in this Petition has been passed by an Officer below the rank of Registrar, which is against the spirit of the Order dated 14th July, 2008 passed while disposing of the Writ Petition filed by the Respondent No.4. The fact that the said order was passed on the Petition filed by the Respondent No.4 makes no difference. It is the assurance given on behalf of the Authority-as has been placed on record in the Order dated 14th July, 2008, which the Authority was expected to comply not only its letter but also its spirit. That has not been done. That is good reason for treating the Order passed by Mr.Rajendra Pawar, Deputy Registrar as nonest in the eyes of law and to be treated as having been effaced from the record in terms of this order. 5. Accordingly, without going into the correctness of the opinion recorded in the impugned Order or into the fact that the said Rajendra Pawar, Deputy Registrar was biased against the Petitioners, keeping all those questions open to be decided at the appropriate stage(proceedings), the present Writ 6 Petition is allowed. The impugned Judgment and Order is set aside. Instead, it is ordered that the Registrar himself shall complete the enquiry in terms of the order dated 14th July, 2008 but within four weeks from today. 6. Counsel for the Petitioners submits that the question of proceeding with the enquiry by the Registrar does not arise as the Registrar had failed to conduct the enquiry within the specified time provided by the Division Bench of this Court. The fact remains that the enquiry had proceeded before the wrong Authority. That Order is being set aside at the instance of the Petitioners. The Petitioners cannot be heard to suggest that no enquiry can be proceeded against the Petitioners at all. If the law requires that the allegations against the Office bearers deserves to be enquired into, then the said enquiry will have to be taken to its logical end. For that, it would be inappropriate to observe that the enquiry should not be continued further. Thus understood, the argument of the Petitioners that no further enquiry be conducted by the Registrar will have to be stated to be rejected. 7. Accordingly, this Writ Petition succeeds to 7 this limited extent. The impugned Judgment and Order is set aside. Instead, it is ordered that the Registrar shall conduct the enquiry and conclude the same not later than four weeks from today. I am informed that the present Registrar is Mr. Krishna Lawekar. The Government Advocate assures to communicate this order to the concerned Registrar forthwith who in turn will proceed with the enquiry amongst others in respect of the grievance made of the Respondent No.4 in Writ Petition (L) No.1675 of 2008. All questions in the said enquiry are left open to be decided on its own merits in accordance with the law. Needless to observe that the enquiry shall be conducted by the concerned Registrar at Mumbai as the Registered Office of the Respondent Society is at Mumbai. 8. Insofar as the grievance of the Respondent No.4 that till the enquiry is concluded the Office bearers of the Respondent Society including the Petitioners herein should not be permitted to carry on the day to day activities of the Society in the interest of the Society. Even this aspect may be considered by the Registrar and appropriate order passed in that behalf, as may be advised. All question in that behalf are left open. 8 9. The Petition is allowed on the above terms with costs to be "personally" paid by Mr.Rajendra Pawar, Deputy Registrar and Mr.Krishna Lawekar, Registrar equally, quantified at Rs.5,000/-, to the Petitioners within two weeks from today. 10. Copy of this Order be forwarded to the Secretary, Co-operative Department, State of Maharashtra, for information and necessary action. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)