:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 5624 OF 2007 Shri. Jiten M.Desai and Ors. ...Petitioners Versus The Asstt.Registrar, Co-operative Socities, "N" Ward, and Ors. ....Respondents Mr.Y.S.Jahgirdar, Ld.Senior Counsel for the petitioners. Ms.P.S.Cardozo, AGP for respondent nos.1,2,4 and 6. Mr.S.U.Kamdar i/by.Tamhane & Co. Adv. for the respondent no.5. CORAM: S.C.DHARMADHIKARI, J. 16th January, 2008. :2: :2: :2: P.C. P.C. P.C. : : : 1. By this petition under article 226 and 227 of the constitution of India, the petitioners are challenging the order passed by the Revisional Authority rejecting the Revision Application and confirming the order passed on 23.5.2007 by the Divisional Joint Registrar Co-operative Societies, Mumbai Division, Mumbai. (For short, the Appellate Authority) 2. The Deputy Registrar Co-operative Societies, "N" Ward by the order dated 5.12.2006 as modified on 23.5.2007 has passed an order under Section 78(1) of the Maharashtra Co-operative Societies Act and has superseeded the Managing Committee of the Co-operative Housing Society. He has further passed an order appointing an Administrator and on 23.5.2007 has indicated that instead of one B.K.Hande, Mr.S.T.kate would be acting as an Administrator of the Co-operative Housing Society (New Chandroday Co-operative Housing Society Ltd, 152, Bhanushali Marg, Tilak Road, Ghatkopar (East), Mumbai-400 077. :3: :3: :3: 3. The petitioners challenged these orders by filing an Appeal before the Appellate Authority and the appellate authority has dismissed the subject appeal. The petitioners then challenged that order before the Revisional Authority and the Revisional Authority has also confirmed the order of the appellate authority. 4. The order of the Deputy Registrar Co-operative Societies (N-ward), Mumbai indicates that as many as 17 charges have been framed against the concerned managing committee member. There are explanations given and furnished to each one of them and the said Deputy Registrar has while confirming the allegations in the show cause notice gave a finding that the explanation thereto is not acceptable and proceeded to pass the above mentioned order. 5. The order passed by the Appellate Authority indicates that the Appellate Authority has addressed itself only to one of the issues, namely, the wife of one Jiten Desai who is the petitioner no.1 before me signing an Indemnity Bond on behalf of the Firm of Developers, which came to be forwarded to the Mumbai :4: :4: :4: Municipal Corporation. The said Jiten Desai is a Managing Committee Member whereas his wife is a partner in the firm of Developers. According to the appellate and Revisional authority, this firm of Developers was awarded a contract for developing the land and constructing thereupon a building which was later on termed as ‘C’ Wing. It is therefore held that the charge, insofar as, this aspect is concerned stands proved, the explanation being unsatisfactory, the order appointing the Administrator can be confirmed on this ground alone. There are other grounds which are referred to in the order passed by the Appellate and the Revisional Authority. The issue of consultation with the Federal Society was also raised. However, neither in the appellate nor in the revisional order there is any reference to the other charges or the explanation pertaining to the same. The appellate order also refers to only one charge. 6. Mr.Jahgirdar, learned Senior counsel appearing for the petitioners, therefore submits, that the impugned orders suffer from a patent illegality and perversity. It is not as if other grounds in the Memo :5: :5: :5: of Appeal and Revision Application were not pressed. The arguments on all charges were canvassed orally as well as in writing. There is a challenge to the entire order of the Deputy Registrar. However, the appellate and the Revisional Authority have not dealt with all charges, but, preferred to rest their conclusion only on the charge of the petitioner no.1’s wife alleged connection with M/s. Harihar Developers. 7. Mr.Kamdar, appearing for the original complainants/applicants before the Deputy Registrar supports the impugned orders and urges that the ultimate conclusion and appointment of Administrator can be justified on the charge which has been referred to in the order of the Appellate Authority and Revisional Authority. That charge is serious enough and can be made basis of an order under Section 78(1) of the Maharashtra Co-operative Societies Act, 1960. 8. I have perused the petition and the Annexures thereto including the impugned order. To my mind, the Appellate and the Revisional Authority have committed a serious error in not taking into consideration the :6: :6: :6: submissions and materials with regard to all charges that have been referred to in the order of the Deputy Registrar. None dispute the fact that an order under Section 78(1) is a drastic order and the resort thereto is not to be made as a matter of course. This is not usual and normal order and very serious grounds should exist to take action under Section 78(1). This court has time and again emphasized the seriousness and gravity of the proceedings, so also, the power. The power has not to be exercised lightly. If there are number of charges framed, then, depending upon the explanation thereto and materials produced, the authority has to hold as to whether all or any of them are proved and merely because some of them are proved, still, it is not necessary to take the drastic step. This satisfaction of the authorities needs to be reflected in the order itself. 9. In the present case, the Appellate Authority in a one para conclusion has upheld the impugned order. To my mind, the disposal of the Appeal in this manner is not at all satisfactory. The order is cryptic in :7: :7: :7: nature. It does not deal with the submissions or explanations of either parties. In such circumstances, the Revisional Authority should have stepped in and corrected the obvious error. That having not been done, even the revisional order cannot be sustained and upheld. In these circumstances, the orders passed by the Appellate Authority on 23.5.2007 and by the Revisional Authority on 20.7.2007 are quashed and set aside and the Appeal filed by the petitioners being Appeal No.222 of 2006 is restored to the file of the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai for disposal afresh on merits and in accordance with law. The said Appeal should be decided uninfluenced by any observations in the earlier order of the Appellate Authority, so also, the Revisional Authority. 10. The order dated 5.12.2006 passed by the Deputy Registrar, Co-operative Societies, N-Ward, Mumbai Division, Mumbai shall remain stayed during the pendency of the Appeal. The appellate authority to endeavour and dispose off the appeal as expeditiously as possible and within a period of three months from :8: :8: :8: the date of appearance of parties. Parties to appear before the appellate Authority on 29.1.2008. All contentions on merits are kept open. Petition disposed off accordingly. sd/- ********