Mr.Gajanan Mahadeo Kulkarni & Ors vs State Of Maharashtra & Ors on 4 December, 2008

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                             WRIT PETITION NO. 6382 OF 1996




                                                                               
      Mr.Gajanan Mahadeo Kulkarni & ors.                       ... Petitioners




                                                       
              v/s
      State of Maharashtra & ors.                              ... Respondents


      Mr.C.P.Deogirikar for the petitioners.




                                                      
      Mr.S.D.Rayrikar, A.G.P. for rpespondent Nos.1 to 3.

      Mr.Sachin Shete i/by P.G.Karande for the Resp.No.5.




                                            
                                          CORAM: SMT.NISHITA MHATRE, J.



      ORAL JUDGMENT:
           JUDGMENT

                              ig          DATED: 4TH DECEMBER, 2008
                            
      1.   The     petitioners            have impugned the        order       of     the

      Divisional        Joint       Registrar,     Co-operative             Societies
        

(Appeal), Mumbai, by which he has dismissed the revision

application filed by the petitioners and confirmed the

orders passed by the Assistant Registrar on 20.2.1993

and 10.10.1994.

2. The petitioners were members of the respondent No.5

Society and were in fact members of the Managing

Committee of the Society during the period from

31.1.1982 to 30.9.1990. A General Body meeting of the

Society was held on 30.9.1990 when it was resolved that

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a Committee should be appointed to conduct an enquiry

into the misuse of the Society’s funds by the Managing

Committee. The Committee called upon the petitioners to

provide information to it in respect of the misuse of

funds. The petitioners requested the Committee to

provide them details of the information which they were

expected to furnish. A resolution was passed at the

Annual General Body meeting held on 26.1.1992 declaring

that the petitioners will be responsible for the

corruption during the period from 31.1.1982 to 30.9.1990

with respect to the Society. The General Body also

resolved that

the flats allotted to the petitioners

should not be sold by then till a decision was taken by

either the Court or the Government.

3. An enquiry was instituted under Section 83 of the

Maharashtra Co-operative Societies Act, 1960. The

enquiry was initially conducted by one Shri

P.V.Deshpande but was later abandoned. Thereafter

another enquiry officer, Shri Khadakkar, was appointed

and he was directed to complete the enquiry within two

months. The petitioners appeared before the Enquiry

officer and submitted whatever information was required

by him. The enquiry was completed and the report was

submitted by the Enquiry officer, Khadakkar to the

Society through the Deputy Registrar, Co-operative

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Societies, “T” Ward. The report was however not

furnished to the petitioners, despite the petitioners’

request for the same.

4. The petitioners were then informed that a fresh

enquiry was instituted under Section 83 of the Act in

respect of the same subject matter for which the earlier

enquiry was conducted by Khadakkar. The petitioners

questioned the appointment of another enquiry officer

when they had already faced the enquiry conducted by

Khadakkar. However, the Deputy Registrar insisted on a

fresh

enquiry by his order dated 10.1.1995. A revision

application was filed by the petitioners before the

Joint Registrar, Co-operative Societies. The Deputy

Registrar was directed to furnish the enquiry report of

Khadakkar to the petitioners. The revision application

was dismissed by the Joint Registrar and the order of

the Deputy Registrar appointing a new enquiry officer to

conduct an enquiry into the same charges was confirmed.

5. The report of the enquiry conducted against the

petitioners by Mr.Khadakkar has been annexed to the

petition. It indicates that the enquiry was completed

and in conclusion it was held as follows:-

“Conclusion. The members of the Managing
Committee who are for the period 81-82 to

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30.6.90 will be held responsible for every
losses of the society in respect of the
building construction of the society. As per
the opinion authorised Valuer should appoint
to assess the construction cost of the

buildings of the Society. And the difference
between the assessed value and actually paid
to the contractor in respect of the building

construction to be recovered from the members
of the Managing Committee who are for the
period i.e. 81-82 to 30.6.90 if it was excess
paid.”

6. A perusal of Section 83 of the Act indicates that

the Registrar may, on his own or on an application made

by the members of the society, hold an enquiry into the

constitution, working and financial condition of a

society. The

sub-section (5) of Section 83 provides

that the Registrar may withdraw any enquiry from the

officer to whom it is entrusted and hold the enquiry

himself or entrust it to any other person as he deems

fit. The question therefore is, whether once an enquiry

is completed can it be entrusted to any other enquiry

officer only in order to ensure that the delinquents are

found guilty by the enquiry officer. Section 83(5), in

my opinion, is unambiguous. The Registrar may withdraw

any enquiry from the officer conducting it and entrust

it to any other person or hold it himself. This

obviously would indicate that the enquiry must be in

progress. If the enquiry is completed, then the

question of withdrawing any enquiry from an officer

would not arise. The word “withdrawal” would mean that

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the enquiry was being conducted by an officer and the

Registrar either on his own or otherwise, stops that

enquiry and either entrusts it to somebody else or

conduct it himself.

7. In the present case, admittedly, the enquiry was

completed, therefore, the question of recalling that

enquiry and entrusting it to somebody else does not

arise. The revisional authority ought to have

considered the objections and contentions raised in the

revision application on the merits of the first enquiry.

The order of the revisional authority indicates that the

revision has been dismissed only on the ground that the

Deputy Registrar had the power to withdraw the enquiry

if it was not being conducted properly.

8. In my opinion, the order of the Divisional Joint

Registrar must be set aside and the matter will have to

be remanded. The revision application must be

considered on merits. The revisional authority must

decide as to whether the contentions raised by the

petitioners in their revision application in respect of

the enquiry conducted by Shri Khadakkar are correct.

9. The petition is accordingly allowed. Rule made

absolute.

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10. Revision Application No.42 of 1995 is remanded to

the Divisional Joint Registrar to hear and decide the

revision on merits, as to whether the report of the

enquiry officer Shri Khadakkar can be accepted.

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