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SCA/3337/2010 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3337 of
2010
=========================================================
JITENDRABHAI
JETHALAL CHAUDHRI & 1 - Petitioner(s)
Versus
INSPECTING
OFFICER AND ASSISTANT DISTRICT REGISTRAR & 2 - Respondent(s)
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Appearance
:
MS
ARCHANA R ACHARYA for
Petitioner(s) : 1 - 2.
MR CB UPADHYAY for Respondent(s) : 1,
MR
MANISHSSHAH for Respondent(s) : 3,
none for Respondent (s) : 2,
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 16/03/2010
ORAL
ORDER
Leave to amend cause
title is granted. The amendment may be carried out forthwith.
1. This
petition has been filed challenging the order dated 17.02.2009,
passed by respondent No.1, Inquiry Officer and Assistant District
Registrar, Cooperative Societies(Housing), Himmatnagar, whereby the
father of petitioner No.1 and husband of petitioner No.2, who was
serving as Secretary of the respondent No.3-Mandli, has been held
guilty of misappropriation and a recovery of an amount of
Rs.4,75,746.50/-, has
been directed to be made.
2. Ms. Archna R.
Acharya, learned Counsel for the petitioners, has submitted that the
deceased, father of petitioner No.1 and husband of petitioner No.2,
expired on 22.04.2002 and it is only thereafter an inquiry has been
initiated against him, in which he has had no opportunity to defend
himself, therefore, the impugned order is nothing but, a nullity,
having been passed against a dead person.
3. Mr. Manish S. Shah,
learned Counsel for the Caveator(respondent No.3, Mandli) has
submitted that the petition is not maintainable, as there is an
alternative statutory remedy available to the petitioners. It is
further submitted that there is no explanation for the delay
occasioned in filing the petition. It is submitted that several
proceedings have been challenged in the same petition and, therefore,
this Court may not interfere.
4. Mr. C.B. Upadhyay,
learned Counsel for respondent No. 1, has submitted that the
petitioners can voice their grievances, which are raised in this
petition, before the appropriate statutory authority and all rights
and contentions of the parties can be kept open, including the issue
of limitation. To this, Ms. Archna R. Acharya, learned Counsel has
reiterated that the impugned order is a nullity and, therefore, the
issue of limitation does not arise.
5. I have heard learned
Counsel for the respective parties. Having perused the averments made
in the petition, contents of the impugned order and the relevant
provisions of the Gujarat Cooperative Societies Act, 1965, the
following order is passed:
(i) The petitioners are
at liberty to approach the appropriate authority under the Act, if
they are desirous of challenging the impugned order dated 17.02.2009,
on or before 5th
April, 2010.
(ii) The petitioners
may also move the appropriate authority for staying the said order,
and till such time as the appropriate authority does not pass any
order on the stay application moved by the petitioners, the
operation, implementation and execution of the impugned order dated
17.02.2009, passed
by respondent No.1, shall remain STAYED.
(iii) It is open to the
parties to raise all rights and contentions available to them, before
the appropriate authority, which shall consider and adjudicate upon
the same, in accordance with law.
Needless to say that
all consequential actions taken in pursuance of the order dated
17.02.2009, shall also remain
STAYED till such time, as the competent authority passes
an order on the stay application, if filed by the petitioners.
6. It is clarified that
this order has not been passed on the merits of the case, and no
observation made herein should be construed as such. The competent
authority is at liberty to decide the matter in accordance with law,
without being influenced by the factum of filing of the petition,
contentions of parties, or any other observation made by this Court.
7. The petition is
disposed of, in the above terms.
(SMT.
ABHILASHA KUMARI, J.)
Umesh/
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