Case: Taranjeet Singh Mohan Singh Sawhny&amp;Ors Vs. Dist. Dy.Registrar Coop.Societies

the writ petition, the appellants filed an application for interim stay. The learned Single Judge took cognizance of the assertion made in the writ petition that notice of preponement of the date of hearing was not served upon them, but refused to grant stay on the ground that the writ petition was filed after four months of the order passed by respondent No.1 and during the intervening period conveyance deed had already been registered for a sum of Rs.95 lacs and the Society and respondent No.3 had entered into development agreements with builders.14. Shri Mukul Rohatgi, learned senior counsel for the appellants argued that the order passed by respondent No.1 is liable to be declared as nullity because he arbitrarily preponed the date of hearing and decided the application of respondent No.3 without bothering to find out whether the notice issued to the parties about the changed date had been delivered/served. Shri Rohatgi referred to the English translation of the order sheets recorded by respondent No.1, xerox copies of communications dated 15.2.2013 sent by Senior Superintendant of Post Offices, Mumbai City (North) to Ms. Pritha Dave, counsel for respondent No.3 and the counter filed on behalf of respondent No.1 before the High Court to show that the notice issued in terms of the direction given by respondent No.1 on 16.5.2012 was not served upon the appellants. Learned senior counsel then argued that due to non service of notice, the appellants could not appear on 21.5.2012 and on that account their cause has been seriously prejudiced. Shri Rohatgi then submitted that the absence of the counsel/representatives of all the parties except respondent No.3 on 21.5.2012 should have alerted respondent No.1 that there was something wrong with the service of notice and prompted him to make an inquiry to ascertain whether the notice had been served on all the parties, but the concerned officer deliberately did not take any action in this regard and proceeded to close the matter for orders. Shri Rohatgi argued that the explanation given by respondent No.1 for preponing the date of hearing, i.e., fixation of excess number of cases on the particular date, i.e., 19.6.2012 should not be accepted because even on 15.5.2012, the concerned officer must have been aware of the fact that he had already fixed large number of cases on 19.6.2012.15. Shri Shyam Divan, learned senior counsel for respondent No.3, supported the decision of respondent No.1 to prepone the date of hearing by pointing out that the officer concerned was compelled to do so because he was required to decide the application within six months of its institution. Shri Divan referred to letter dated 15/18.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City (North 2) to Ms. Pritha Dave and argued that the intimation given to the appellants? counsel was sufficient to make them aware of the decision taken by respondent No.1 to prepone the date of hearing. Shri Divan submitted that the appellants cannot plead denial of hearing by respondent No.1 as the ground for quashing the order passed by him because their advocate had been duly intimated about the changed date of hearing. However, learned senior counsel could not offer any clarification about the delivery of notice to the sender on 22.5.2012. 16. We have considered the respective arguments and carefully scrutinized the record. 17. By producing xerox copies of the receipt of speed post and two communications dated 15.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City (North) to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 nor it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has not been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.18. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in paragraph (Z) of the counter affidavit filed by respondent No.1 substantially supports the appellants? assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that notice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the notice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19.6.2012 to 21.5.2012. The documents produced by respondent No.3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only adds to the confusion. If the second letter dated 15.2.2013 sent by the Senior Superintendent of Post Office was delivered on 22.5.2012 then we have no option but to hold that the notice issued by the office of respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after the date fixed for hearing.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. By producing xerox copies of the receipt of speed post and two communications dated 15.2.2013 sent by Senior Superintendent of Postth) to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 nor it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has not been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.18. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in paragraph (Z) of the counter affidavit filed by respondent No.1 substantially supports the appellants? assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that notice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the notice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19.6.2012 to 21.5.2012. The documents produced by respondent No.3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only adds to the confusion. If the second letter dated 15.2.2013 sent by the Senior Superintendent of Post Office was delivered on 22.5.2012 then we have no option but to hold that the notice issued by the office of respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after the date fixed for hearing.