Bhartiya Sarkari Karmachari Co-op. Housing Society Ltd. vs Shantibai G. Patel and Others

C.S. Dharmadhikari, J.—The petitioner before us is a Co-operative Housing Society registered in the year 1969. The respondents Nos. 1 and 2 were partners of the Construction firm known as M/s. Ishwar Builders whereas respondents Nos. 3, 4 and 5 were the Chief Promoters of the Society. After registration they have also acted as office bearers. The respondents Nos. 6, 7 and 8 were members of the first Managing Committee and respondents Nos. 6 and 7 were also Chief Promoters of a branch of the said Society known as Lok Sevak. The respondents Nos. 8, 9 and 10 were the office bearers of an organisation known as Swatantrya Sangram Sainik Sangh and took leading part in formation as well as enrolment of members and collection of funds. The respondent No. 11 is a Proprietor of a firm described as an estate agent under the name and style of M.C. Shah and Associate and respondent No. 12 was working as typist-cum-Clerk in the said Society.

It is not necessary to make a detailed reference to the other averments in the petition because it appears from the record that a suo motu enquiry u/s 83 of the Maharashtra Co-operative Societies Act, 1960 was instituted and thereafter an order was passed for taking action u/s 88 of the Maharashtra Co-operative Societies Act. It then appears that when the proceeding under the said section were pending an application was filed before the Authorised Officer and a request was made that till the tendency of a criminal case this proceeding should be stayed. The said application was rejected by the Authorised Officer vide order dated 9th July, 1974. Aggrieved by the said order the present respondents Nos. 1 and 2 filed a Revision Application before the Maharashtra State Co-operative Tribunal and ultimately the learned Members of the Tribunal vide order dated 20th November, 1974 set aside the said order passed by the Authorised Officer and directed that the proceeding pending before the Authorised Officer should be stayed pending the disposal of the Criminal Case No. 164 of 1974 in the Court of the Metropolitan Magistrate No. 28, Esplanade, Bombay. It is this order which is challenged in this writ petition.

With the assistance of the learned Counsel Shri Rajani appearing on behalf of the petitioner Society, we have gone through the entire material which is placed before us. It is no doubt true that a criminal case is also filed before the Competent Criminal Court against the respondents. However, only because similar allegations of breach of trust are made in these proceedings also in our opinion that by itself was not sufficient ground for staying the enquiry The area and field covered by section 88 and the criminal proceeding is distinct and different. These two proceedings are neither overlapping nor they are interdependent. The criminal case filed in the year 1974 is still pending. In these circumstances it will not be fair to stay proceedings pending before the Authorised Officer till everybody concerned forgets about it. In these circumstances, in the interest of justice end for protecting the interest of the members of the Co-operative Society, it is absolutely necessary to proceed, with the enquiry u/s 88 of the Maharashtra Co-operative Societies Act as ex ponderously as possible. In our view the authorised officer had rightly exercised the discretion in this behalf and therefore, the Maharashtra State Co-operative Tribunal has committed an error apparent on the face of record in ordering the stay of the said enquiry pending before the Authorised Officer only on the ground that the criminal case is pending in the competent Court. In the result, therefore, the writ petition is allowed. The order passed by the Maharashtra State Co-operative Tribunal dated the 20th November, 1974 is set aside and that of the authorised officer dated 9th July, 1974 is restored. Hence rule is made absolute. However, in the circumstances of the case there will be no order as to the costs.