Mr. Niraj Ghanshyam Bidawatka And ORS. v. State Of Maharashtra And ORS.

1 WP 7854-15.doc-22

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7854 OF 2015 Mr. Niraj Ghanshyam Bidawatka & Ors.

] ... Petitioners

Versus

State of Maharashtra & Ors.

] ... Respondents Mr. Niraj Ghanshyam Bidawatka, Petitioner, present in person. Ms. Kavita N. Solunke, AGP for State.

CORAM :- R. M. SAVANT & SARANG V. KOTWAL, JJ.

DATE :- 06 OCTOBER, 2017 P. C. :- 1.

The above Writ Petition has been filed for the following reliefs :

"(a) for removal of Mr. Vijay Nagare from the panel of Certified Auditors, (b) to finish the inquiry ordered by the respondent no.3 vide letter dated 16/12/2014 so as to ascertain the loss caused to the Society due to unauthorized hiring of security services and due to unlawful appointment of Advocates,

2 WP 7854-15.doc-22 (c) to direct the respondent no.4 to take expeditious action on the petitioners' letter dated 16/03/2015 whereby the petitioners had informed that payment to the Society's official security agency was not paid for the period August 2014 to January 2015 and that loss was caused on account of excess payments made to the security agency, (d) to direct respondent no.6 - Special Auditor Class-II to take expeditious action as per law in the matter of lodging FIR against the committee members, (e) to disqualify two members of the Managing Committee, (f) to direct respondent no.4 - Deputy Registrar (R/South Ward) to take expeditious action under Section 78A and 79A of the MCS Act, (g) to direct respondent no.4 - Deputy Registrar (R/South Ward) to exercise his powers under Section 14 of the MCS Act in order to get bylaws of the Kankia Park Cooperative Housing Society Ltd. amended in consonance with the 97th constitutional amendment and to appoint an Administrator on the Society since the elections of the Society were conducted without amending the bylaws."

2.

On behalf of respondents, an affidavit has been filed by one Mr. Rajendra Tukaram Palekar, Deputy Registrar of Co-operative

3 WP 7854-15.doc-22 Societies, R/S Ward, Kandivali, Mumbai. Each of the prayers as aforesaid has been dealt with in the said affidavit. 3.

So far as prayer (a) is concerned, the said Vijay Nagare has already been removed. Insofar as prayers (b) and (c) are concerned, it is stated that an inquiry was conducted and a report has been submitted in that regard. Insofar as security agencies which were appointed by the Board of Administrators whilst they were in power, and the Managing Committee thereafter it has been mentioned that the security agencies were not registered under the Maharashtra Security Guards Act.

Insofar as the said report is concerned, the petitioner herein has taken exception to the said report qua the issue of the alleged illegal appointment of the Advocates and hence though the report has been submitted, the Deputy Registrar of Co-operative Societies, R/S Ward, Kandivali, Mumbai, vide his letter dated 25/01/2016, addressed to the Divisional Joint Registrar, has sought clarification in respect of Item No.5 of the Inquiry Report from the Special Auditor Class-I who was appointed to conduct the inquiry. It seems that though the said letter had been addressed as long back as on 25/01/2016, the steps taken by the Special Auditor Class-I, have not come on record. In the event the Special Auditor Class-I has not given the clarification as on date, he is directed to do so within four weeks from date.

4.

Insofar as prayer clause (d) is concerned, the party in person states that an FIR has, in fact, been lodged by the Auditor

4 WP 7854-15.doc-22 during the pendency of the above petition but the police have filed a 'C' Summary report in the concerned Court. It would, therefore, be open for the petitioner to take such steps as are available and are permissible in law in respect of the said 'C' Summary report filed by the police.

5.

Insofar as prayer clause (e) is concerned, it is stated in the said affidavit that the Administrative Board of the Society was looking after the affairs of the Society till first week of April 2015. When election of the Society was conducted, newly elected Managing Committee has taken charge of the Society in the middle of April 2015. It is further stated that taking any action against the two members of the Administrative Board would not be proper. It is further stated that a show-cause notice has been issued under Section 79(3) of the MCS Act to the present Secretary of the Society for not having complied with the directions under Section 79(2)(a) of the MCS Act. In view thereof, we find that the authorities have issued the necessary directions which are required to be taken to their logical conclusion.

6.

Insofar as prayer clause (f) is concerned, no relief can be granted as the said provisions are not applicable to the Society in question which is, admittedly, not a Government aided Society. 7.

Insofar as prayer clause (g) is concerned, we are informed by the petitioner himself that during the pendency of the petition, the

5 WP 7854-15.doc-22 bylaws were got amended by the Deputy Registrar for Co-operative Societies by issuing directions under Section 14 of the MCS Act to bring them in sync with the 97th constitutional amendment. Hence, no relief as sought by prayer clause (g) is required to be granted. 8.

The petitioner who appears in person, makes a grievance of the fact that the elections were held without amending the bylaws. If that be so, it is for the petitioner to question the elections which were held in pursuance to which the incumbent Managing Committee is in office. It is not possible for this Court to grant any relief insofar as election of the members of the Managing Committee is concerned, and it is for the petitioner to adopt appropriate proceedings in that regard. Hence from what has been stated hereinabove, it is clear that most of the grievances of the petitioners have been met, save and except the completion of the inquiry in respect of Item No.5 in respect of which we have already issued direction to the Special Auditor to carry out the said exercise within four weeks from date. The authorities would be free to take action in terms of the inquiry report, if they so deem it appropriate. It is, therefore, not necessary to keep the above Petition pending which to accordingly stand disposed of. (SARANG V. KOTWAL, J.) (R. M. SAVANT, J.)