IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 1149 of 2008 Shri Vijay C.Mehta & Ors. ..Petitioners vs. 1. Mahendra Kalyankar and others ..Respondents Mr.S.U.Kamdar with Mr.Makarand Narvekar for petitioners. Mr.S.S.Joshi, A.G.P. for respondents. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 5th May, 2008 5th May, 2008 5th May, 2008 P.C. P.C. P.C. 1. Heard learned Counsel appearing for the petitioners and learned A.G.P. for the State. Respondent No. 4 is served. However, no relief is claimed against it. Its presence is not necessary for disposal of the petition. By consent petition placed on board and disposed of. 2. All that this writ petition projects is that the Divisuional Joint Registrar is seized of an appeal and a stay application. The Appeal is directed against the order of the Deputy Registrar, Cooperative Societies, "D" Ward, Mumbai dated 4th April, 2008 superseding the Managing Committee of the Cooperative Housing Society in question. The entire Managing Committee has been superseded and, therefore, once such an action is taken under section 78(1) it is undisputed that the appeal is maintainable under sec.152 of the Maharashtra Cooperative Societies Act, 1960. Further, it is undisputed that the Appellate Authority has a power to grant stay of the orders impugned before him. In 1981 Mh.L.J.936 (Patesinghrao Anandrao Naik and others Vs. R.V.Deshmukh, Joint Director and Joint Registrar, Cooperative Societies and others) (para 25), this Court has held that the Appellate Authority is not a rubber stamp and is not supposed to put blindly his seal of approval on the orders of the Deputy Registrar challenged before him. When the action is drastic and of the nature of supersession of the Managing Committee so also there is a statutory right of appeal against such an order, then, the least that is expected from the Appellate Authority is an independent application of mind to the material before him. Once the appeal is pending, then, a situation cannot be brought about when the same is rendered wholly infructuous. In all these matters mechanical observation is made that the Administrator has taken charge and, therefore, now nothing remains in the stay application. That apart, the stay applications are also not taken up expeditiously. This is the grievance projected by Mr.Kamdar, learned Counsel appearing for the petitioners. He has invited my attention to the averments inthe writ petition. 3. In the present petition, in para 6, it has been specifically stated that on the very next date i.e. on 5th April, 2008, the Administrator approached the petitioner no.2 and appraised him about his appointment and called upon him to hand over the charge of the society office and record to him. When the petitioners brought to his notice that sufficient time should be granted to make available all the documents and record and advance notice ought to be given, the Administrator decided to come back on 9th April, 2008. On 7th April, 2008 an appeal was lodged by the petitioners before respondent no.1. The matter was moved for urgent orders before him on 8th April, 2004 at 4 p.m. as appointment of the Administrator was a drastic step. It is stated in para 7 that advance copy was given of the hearing of the appeal to respondent no.1 on 7th April, 2008 itself and on 8th April, 2008 it was served on respondent no.2. Thus, respondent nos. 2 and 3 had adequate notice of filing of the appeal and application for stay being moved. 4. The Appellate Authority did not take up the appeal nor the stay application and the petitioners were informed that he has gone to Mantralaya for some meeting. They were told to come back. However, the Appellate Authority did not pass any orders on the application for stay. On 9th April, 2008, respondent no.3 forcibly entered the office of the petitioners although he was informed of filing of the appeal and pendency of the stay application. He has taken charge of the society and put his seal on the cupboard of the society on 9th April, 2008. Further, the Bankers of the Cooperative Housing Society in question have informed the petitioners that in view of the letter received from the Administrator, they have frozen the account of the societies,. It is in such circumstances that the petitioners have approached this Court. 5. It is not as if they did not make any attempt after 9th April, 2008. In paras 8 and 9 of the petition, it has been STATED that the Appellate Authority was not available on 9th April, 2008. Fresh hearing was fixed on 15th April, 2008. However, it IS specifically ALLEGED in para 9 of the petition that one Darshan Dharamsibhai Devani who is the flat purchaser in respect of flat no.702 and at whose behest notice under section 78(1) has been issued, was seen in the cabin of the Appellate Authority. The Appellate Authority did not take up the stay application even on 15th April, 2008 but adjourned it to 16th April, 2008. 6. Now, the petitioners are apprehending that not only stay application but their appeal itself would be dismissed in such state of affairs. There are serious ALLEGATIONS made in the grounds of the writ petition as well. 7. When this matter was placed before me on the earlier occasion, I had directed that it should be listed first on board today subject to numbering. However, when it was not appearing on board, Mr.Kamdar mentioned the matter with advance notice to learned A.G.P. Even the Administrator is present in Court. 8. There are no denials of the averments in the writ petition. The learned A.G.P. fairly concedes that stay application as well as appeal is pending. He has instructions to make a statement that appeal would be disposed of by end of May, 2008. 9. It is high time that the authorities notice that they are taking drastic actions mechanically and casually. The authorities must realise that when the power is drastic and action causes prejudice to officers managing the affairs and the Cooperative Societies as a whole, then, the least that is expected from them is initiation and prosecution thereof fairly and impartially. Serious allegations are made before me in the subject writ petition that the action under sec.78(1) is resorted to as a matter of course and where there are interse disputes and there are factions or groups within a cooperative society. In 1982 Mh.L.J.368 (M,.R.Bhuibhar Vs.Divisisonal Joint Registrar, Cooperative Society, Nagpur and others) this Court has outlined the ambit and scope of the power under sec.78(1), the nature of the same and consequences thereof. (See paras 14 and 15 pagess 373-375). 10. It is unfortunate that all this has to be emphasised once again because the authorities seem to be of the view that they can resort to powers under sec.78(1) as a matter of course and routine or deal with quasi judicial proceedings casually. The powers are not to be exercised at the behest of somebody or at the instance of a group or faction desirous of usurping or assuming power. 11. It is in these circumstances and that not to render the appeal infructuous so also to ensure fair play, equity and justice that I direct the Administrator to hand over the charge back to the petitioners on or before 7th May, 2008. He should also withdraw the communication addressed to the bankers of the society. A strong prima facie case being made out by the petitioners and the balance of convenience being in their favour that this order deserves to be granted. In the light of the serious allegations they will suffer irreparable loss and prejudice. Needless to state that if respondent no.3 does not abide by these orders and directions this Court would be constrained to proceed against him for breach of violation and directions or orders of this Court. This order and direction shall be the interimn arrangement during the pendency of the appeal. The stay application pending before the Appellate Authority is allowed in these terms. 12. Considering the serious charges and in fact peculiar to this case, it is directed that Mr.Mahendra Kalyankar shall not hear the appeal preferred by the petitioner and Registrar Cooperative Societies shall direct that the appeal be heard by any other Divisional Joint Registrar or shall take it up himself. He shall dispose of the appeal as expeditiously as possible and on or before 30th June, 2008. 13. It is made clear to the petitioners that this order is without prejudice to the rights and contentions of both sides. It is also made clear that the petitioners should carry on only day today affairs after the charge is handed over to them. They will not not take any major policy decisions. They will not entertain and grant any application for membership nor shall transfer the same. They shall not allow the concerned members of the Managing Committee to take any steps which would ultimately frustrate a serious and drastic against them. They are permitted to manage the affairs in the above manner till the hearing and final disposal of the appeal. 14. It is clarified that this Court has not expressed any opinion on merits of the controversy. This Court was required to step in only because the Appellate Authority did not pass any order on the stay application preferred by the petitioners and a case is made out of the action of the Appellate Authority rendering the entire appeal infructuous. It is in these peculiar facts that this writ petition is entertained and allowed in above terms. There shall be no order as to costs. 15. The parties to act on authenticated copy of this order. .(S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)