-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.4301 of 2007 Shri Ashokkumar Gupta and others ..Petitioners vs. 1. R.S.Harkal, Authorised Officer and others ..Respondents Shri G.S.Godbole for petitioners Smt.V.S.Mhaispurkar for respondent Nos.1, 7 and 8 Shri Amit Borkar for respondent no.2. Shri C.P.Deogirikar for respondent nos. 3 to 6. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. 8th January, 2008 8th January, 2008 8th January, 2008 P.C. P.C. P.C. 1. The petitioners have approached this Court in its jurisdiction under Articles 226 and 227 of the Constitution of India challenging the order passed by the Principal Secretary, Department of Cooperation, Marketing and Textile, Government of Maharashtra dated 21st May, 2007 and that of the Appellate Authority, namely, Divisional Joint Registrar, Cooperative Societies, Konkan Bhavan, Belapur dated 6th November, 2006 in Appeal no.61 of 2005. 2. These orders confirm the order of respondent no.1 who is the Authorised Officer appointed -2- under section 88 of the Maharashtra Cooperative Societies Act, 1960. He has passed the order dated 15th October, 2005 whereunder he has held that the petitioners before me are jointly and severally responsible for the loss sustained by the subject Cooperative Society and should pay to the Cooperative Society within 30 days from the date of issuance of the said order the sums which have been stipulated therein. 3. None disputes the fact that this order is appealable under section 152 of the Maharashtra Cooperative Societies Act, 1960 and the Divisional Joint Registrar was the Appellate Authority. 4. Shri Godbole submits that the Appellate Authority has completely abdicated its functions as such and without applying its independent mind confirmed the order of the Authorised Officer. He has invited my attention to the conclusions which have been drawn by the Appellate Authority in one para. He submits that there are no reasons assigned as to why the Appellate Authority found that there is no substance in the contention of the appellants/original petitioners nor is there -3- anything to show that the Appellate Authority has applied its mind to the controversy. 5. Reliance is placed by Shri Godbole upon a decision of the Division Bench of this Court reported in 1981 Mh.L.J.936 (Patesinghrao Anandrao Naik and others Vs.R.V.Deshmukh, Joint Director and Joint Registrar, Cooperative Societies and others) which has been followed subsequently. In the context of the Appellate powers conferred upon the Appellate Authority under the Maharashtra Cooperative Societies Act, this is what the Division Bench has observed: " 25. As observed in Pandit Bhullan’s case an appeal is a creation of statute. Further there is a vast difference between the revisional powers and the appellate powers. An appeal, as stated by Lord Davery in Pannamma vs. Arumoosa is a proceeding in which a question is whether the order of the Court from which the appeal is brought was right on the materials which the Court had before it. In Legal Parlance appeal means judicial examination of the decision by the higher court of an inferior Court, -4- It amounts to, in essence and pith, a complaint to higher forum that the decision of the subordinate tribunal is erroneous and therefore liable to be rectified or set aside. From this it would follow that an appellate court has power to go not only into the question of law, but also into questions of fact. Such a power would further enable the appellate court to review or reassess the entire evidence and come to its own conclusion. Litigant is entitled to a full, fair and independent consideration of evidence and the material at the appellate stage. Under section 152 of the Act, right of appeal is provided in very wide and general terms. The appellate authority has to decide the appeal as a quasi-judicial authority. To say the least the appellate authority cannot act mechanically as a mere rubber stamp. In the present case in memorandum of appeal various substantial questions of fact were raised by the appellants. All these contentions are disposed of by the appellate authority by observing : -5- "I have gone through the appeal memo, the records produced before me. The Joint Director has given sufficient reasons in para 5 of his order which the action of supersession is necessary. It is not necessary for me again to reproduce all the facts. I totally agree with him. I therefore, pass the following order." 6. Shri Deogirikar appearing for the original complainants/respondent nos.3 to 5 before me submits that the Appellate order is consistent with the findings which have been recorded at the prima facie stage by this Court in the Writ Petition. He submits that arrangements arrived at by the parties and which are subject matter of the proceedings are vitiated as the petitioners have not accounted for and have committed breach of trust with regard to the property of the society. 7. I have perused the Appellate Authority’s order. The Appellate Order only notices the rival contentions and in one para renders the conclusion. Precisely, this is what has been -6- frowned upon repeatedly by this Court. Appellate Authority is not the rubber stamp and does not sit there as such only to put his seal of approval on the orders impugned before him/it. It is expected from the Appellate Authority to apply its independent mind. That is how the importance of the powers of appeal have been emphasised by the Hon’ble Supreme Court and this Court. 8. When the Appellate Authority’ order is impugned before the State, even the Secretary commits the same mistake. The Secretary has also in single para upheld the orders of the authorities impugned before him. 9. In such circumstances, I called upon the parties as to whether they are ready and agreeable to have the appellate and revisional orders set aside and matter restored to file of the Appellate Authority for decision afresh on merits and in accordance with law. Shri Godbole and Shri Deogirikar in all fairness do not oppose this course of action. Accordingly, the orders of the Appellate Authority dated 6th November, 2006 and that of the revisional authority dated 21st May, 2007 are quashed and -7- set aside. Appeal no.61 of 2005 is restored to file of the Divisional Joint Registrar for decision afresh on merits and in accordance with law. The Appellate Authority to decide the matter uninfluenced by any observations, findings and instructions either rendered by it earlier or issued by any higher authorities. The Appellate Authority must after considering the oral and written arguments, if any, pass the reasoned orders. 10. The parties to appear before the Appellate Authority on 17th January, 2008 at 11 a.m. The Appellate Authority to endeavour and dispose of the appeal preferably within a period of 3 months from the date of appearance of the parties. Till the Appellate Authority decides the appeal the order of the Authorised Officer shall remain stayed. Needless to say that I have not gone into the merits of the rival contentions. They are kept open for being urged before the Appellate Authority. Petition is e disposed of accordingly. (S.C.HARMADHIKARI J.) (S.C.HARMADHIKARI J.) (S.C.HARMADHIKARI J.)