IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4822 OF 2008 WRIT PETITION NO. 4822 OF 2008 WRIT PETITION NO. 4822 OF 2008 Oscar D’Souza and others. ... Petitioners. V/s. The Deputy Registrar Co-operative Societies, Mumbai and others. ... Respondents. Amit Sale with Shital C. Sonawane for the petitioners. S.D.Rayrikar, AGP for the respondents. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 20th August 2008. DATED: 20th August 2008. DATED: 20th August 2008. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the petitioner and learned A.G.P. for the respondents. . Perused petition. 2. This petition is directed against the order dated 24th June, 2008 passed by respondent No.2- Divisional Joint Registrar, Mumbai Co-operative Societies, Mumbai Division in Appeal No.160/2008 confirming the order dated 3rd June, 2008 passed by the Deputy Registrar, Co-operative Societies, K/East Ward, dissolving the managing committee of the society and appointing Administrator. The Facts : The Facts : The Facts : --------- --------- --------- 3. The factual matrix reveals that the petitioners claim to be the members of the managing committee of one Lotus Co-operative Housing Society Ltd. situated at Andheri (East), Mumbai ("Society" for short). 4. The election of the managing committee of the Society took place on 6th August, 2004 for the period from 2004 to 2009. The results of the election were declared on 6th August, 2004. The newly elected members assumed office of the managing committee of the Society by taking charge of the Society from the outgoing managing committee members on 2nd September, 2004. That the newly elected managing committee members, after the election, claim to have executed bonds as required under section 73(1AB) of the Maharashtra Co-operative Societies Act, 1960 ("MCS Act" for short), within fifteen days from the date of their assuming office, in the form as specified by the State Government by general or special order. 5. As against the above, the respondent No.1 alleged that bonds as contemplated under section 73(1AB) were not at all submitted by the petitioners - 3 - to the office of respondent No.1. as the Managing Committee Members of the said society. 6. The respondent No.1 by invoking the provisions of the MCS Act issued show cause notice dated 7th March, 2008 calling upon the petitioners to submit their explanation as to why the office of the managing committee should not be taken as vacant. Accordingly, the petitioners were directed to attend the office of respondent No.1 on 25th March, 2008. 7. The petitioners submitted their reply and reiterated that necessary bonds as contemplated under section 73(1AB) of the MCS Act were submitted by them to the office of respondent No.1 on 14th August, 2004/ 2nd September, 2004 along with other documents. 8. On being asked to produce acknowledgment, they submitted that there were heavy floods in the Mumbai on 26th July, 2005. The entire city was merged into water including the office of the Society. That the old records of the Society got destroyed since the office of the Society is situate on the ground floor. Therefore, they expressed their inability to submit - 4 - the copies of the bonds and/or other records evidencing execution of bonds under section 73(1AB) of the MCS Act. 9. The said submission made by the petitioners did not find favour with the respondent No.1. Consequently, respondent No.1, vide his order dated 3rd June, 2008 treated the office of the managing committee of the Society as vacant and appointed Administrator on the said Society for a period of six months. 10. Being aggrieved by the aforesaid order, petitioners filed appeal before respondent No.2- Divisional Joint Registrar being Appeal No.160/2008 which came to be dismissed by the impugned order dated 24th June, 2008. 11. Not satisfied with the above order, the petitioners have invoked writ jurisdiction of this Court under Article 227 of the Constitution of India. 12. During the course of hearing, in order to find out the truth, this Court by order dated 29th July, - 5 - 2008 had directed the petitioners to file an affidavit indicating therein whether the amount spent for purchase of the stamp papers for furnishing undertakings/bonds was entered into the books of accounts of the society. They were further called upon to disclose the name of the stamp vendor from whom the stamp papers were purchased by them for execution of the bonds. 13. The petitioners have filed an affidavit stating that they do not have any record. They do not have any material in their possession to show from whom the stamp papers were purchased since entire record got destroyed in flood. 14. Needless to mention that the accounts of the Society are required to be audited. The amount of purchase of stamp papers ought to have been reflected in the accounts books of the Society. It is not the case of the petitioners that the accounts books of Society have also lost in the flood. The person purchasing the stamp papers cannot forget from whom they were purchased. They are expected to know the name of the stamp vendor. Enquiry could have been - 6 - made by the petitioners to find out his name. The petitioners are expected to show some evidence, may be a weak evidence, in support of their contention. I am constrained to hold that for want of material facts and particulars evidencing submission of bonds by the petitioners, the provision of section 73(1AB) has operated and resulted in automatic vacation of the office of the managing committee. Both the authorities below have recorded concurrent findings of fact that the bonds were never submitted by the petitioners. No proof of destruction of the record in flood is tendered expect a bald statement in the affidavit which does not inspire judicial confidence. 15. The learned Division Bench of this Court in the case of Gulab Rameshnath Khote v. State of Gulab Rameshnath Khote v. State of Gulab Rameshnath Khote v. State of Maharashtra Maharashtra Maharashtra, 2008 (1) Mh.L.J. 83 had occasion to consider the fact of nonexecution of bonds and consequences thereof. The said judgment holds that it is not necessary to hold enquiry under section 78 to find out as to whether or not actually bonds were executed by the petitioners and forwarded to the concerned authority by the Secretary in time. Since provision of section 73(1AB) is self-operative - 7 - provision, if the bonds are not executed within a specified time, the members who fail to execute such bonds within specified time are deemed to have vacated the office as managing committee members of the Society. 16. In the instant case, since the petitioners have failed to prove that they had executed bonds within the stipulated period as contemplated under section 73(1AB), the office of the managing committee of the Society has automatically become vacant warranting appointment of the Administrator. 17. The petition is without any substance. 18. In the result, petition is dismissed in limine with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)