dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.6691 OF 2008 PETITION NO.6691 OF 2008 PETITION NO.6691 OF 2008 ARW Engineers (India)Pvt.Ltd. Petitioner Vs. The State of Maharashtra & ors. Respondents ALONG ALONG ALONG WITH WITH WITH WRIT WRIT WRIT PETITION NO.6693 OF 2008 PETITION NO.6693 OF 2008 PETITION NO.6693 OF 2008 Smt.Varsha Avdhoot Wagh Petitioner vs. The State of Maharashtra & ors. Respondents Mr.S.G.Deshmukh for the petitioners. Mr.A.I.Patel, AGP for respondents 1 and 2. Mr.S.D.Patil for respondent no.5. Mr.Nilesh B. Pavaskar & Ms.Aparna D. Vhatkar for respondent no.6. CORAM CORAM CORAM : : : ANOOP V.MOHTA,J ANOOP V.MOHTA,J ANOOP V.MOHTA,J. DATED DATED DATED : 25th February,2009. : 25th February,2009. : 25th February,2009. P.C. P.C. P.C. Heard finally by consent. 2. The petitioners have challenged in these two writ petitions the impugned order dated 1.09.2008 whereby the basic order dated 20.06.2008 passed by Special Recovery Officer has been confirmed. That resulted into the maintenance of order regarding handing over possession of Gala nos.5063 and 5064 to respondent no.6. The petitioners are in actual possession of ( 2 ) the said galas based upon the earlier order which was passed by the Recovery Officer. The petitioners are still in possession of the same. 3. The basic action arose as respondent no.6 could not pay the amount at the relevant time, a Recovery Certificate was issued. The auction took place as there was no complete payment made as per the petitioners as well as the society. Respondent no.6, however, disputing this and basically contending that prior to said auction, initial part payment and subsequently balance payments were made, but the society refused to accept the same. Therefore, there was no question of putting these galas for such auction. 4. The Recovery Officer, however, at the relevant time passed order in favour of the petitioners and the society put the petitioners in possession. All these factual aspects therefore need detailed enquiry and scrutiny. 5. The respondent-society has already preferred the Appeal against the impugned order under Section 152 of the Maharashtra Cooperative Societies Act. That Appeal is still pending. Respondent no.6 is party to ( 3 ) the said proceeding. The petitioners are not made party, though they are in actual possession of the said premises. 6. Considering the rival submissions as raised, I am of the view of that the said Appeal be heard preferably within four weeks from today by giving hearing to both the parties. 7. The learned counsel for the society makes statement that they will join the petitioners as party as they are in actual possession of the premises in question. The Appellate Authority to pass appropriate order even on application, if any, made for interim relief or any such order. 8. The learned counsel for respondent no.6 has strongly relied on the judgment passed by this Court in Jankalyan Sahakari Bank Ltd. vs. Mr.Mahendra Jankalyan Sahakari Bank Ltd. vs. Mr.Mahendra Jankalyan Sahakari Bank Ltd. vs. Mr.Mahendra Kalyankar, Kalyankar, Kalyankar, Divisional Joint Registrar, Co-operative Divisional Joint Registrar, Co-operative Divisional Joint Registrar, Co-operative Societies Societies Societies in Writ Petition No.6836/2008 dated in Writ Petition No.6836/2008 dated in Writ Petition No.6836/2008 dated 4.2.2009. 4.2.2009. 4.2.2009. The action of Recovery Officer should be within the frame work of law just cannot be disputed. The question is once the possession in question has been given, based upon then existing condition which subsequently at the instance of same Officer has ( 4 ) changed and therefore impugned orders just cannot be overlooked. Once the Appellate Authority comes to a particular conclusion that the action of the Recovery Officer was uncalled for or in breach of the provisions, in that case, an appropriate order can be passed by following the principle of natural justice. Therefore, at this stage, in view of the grounds raised, this judgment will not assist to respondent no.6 to vacate the interim order already granted by this court on 1.10.2008. 9. However, it is made clear that the Appellate Authority to pass appropriate order even on the aspect of granting interim relief and/or status-quo afresh, after considering the rival contention of both the parties. The Appellate Authority to pass orders uninfluenced by the observation as made above. 10. In view of this, both the writ petitions are disposed of. The interim order granted by this court as referred above shall continue for ten days from today. The petitioners are at liberty to apply for an interim relief, if any. The Appellate Court to hear and dispose of the appeal within four weeks from the receipt of copy of this order. ( 5 ) 11. The parties agreed and therefore directed to appear before the Appellate Authority on 03.03.2009 for further course of action. 12. Both these petitions are disposed of accordingly. No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)