sbw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10464 OF 2011 Shri Albert Pistoba Bardaskar and ors. .... Petitioner. V/s. Bhudargad Nagari Sahakari Pat Sanstha Maryadit and ors. ... Respondents. Mr. Kishor Patil for the Petitioner. Mr. Chetan Patil for the Respondent nos.3 & 4. Mr. S.D. Rayrikar AGP for the Respondent nos.5 to 7. CORAM : G.S.GODBOLE J. DATED : 10 th February, 2012. P.C. 1. Heard Mr.Kishor Patil for the petitioners, Ld. AGP for respondent nos. 5 to 7 and Mr. Chetan Patil for respondent nos. 3 and 4. 2. It is the submission of the advocate for the petitioners that the certificate issued under section 101 of the M.C.S. Act, 1960 was issued without notice to the petitioners and that they were never heard. If that be so, the remedy of the petitioners is to approach the same authority namely the Assistant Registrar of Cooperative Societies, Gargoti who had issued the recovery certificate in favour of respondent no.1. Mr. Kishor Patil therefore prayed for leave to withdraw this writ petition with liberty to file an appropriate application for recall of the recovery certificate before thesbw 2 same officer who has issued the recovery certificate. 3. This prayer is opposed by Mr. Chetan Patil appearing for respondent no.3 & 4, firstly, by relying upon Section 94(3A) of the M.C.S. Act, 1960 and secondly by relying upon the provisions of Rule 86A to 86 F contained in Chapter VIII A of the M.C.S. Rules, 1961. According to him, since neither the Act (Section 101) nor Rules 86A to 86F confer any power of review on the Assistant Registrar, such a course is impermissible and the petitioners cannot be given liberty to file an application for recalling the order granting recovery certificate. 4. In this regard, Mr. Kishor Patil Ld. Advocate for the petitioner has rightly relied upon the observations in paragraph 19 of the judgment of the Supreme Court in the case of K.M.E. Union V/s. Birla Cotton Spinning and Weaving Mills Ltd. AIR 2005 Supreme Court 1782 in which it is observed as under: “Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the partysbw 3 seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, in as much the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding.” 5. In my opinion, the ratio of the aforesaid judgment of Supreme Court is squarely applicable. Whether the petitioners were duly served with the notice of the recovery proceedings before the Assistant Registrar or is not a question of fact which need not be and cannot be gone into in this petition. However, if the petitioners or any one of them are not served with the proceedings of recovery certificate, then they are certainly entitled to make an application to the Assistant Registrar, Gargoti who shall verify the original record and find out whether the notice of the proceedings was duly served or not and if it is found that the notice of the proceedings was not duly served, the logical consequences of recalling the earlier order will have to follow. 6. Hence the writ petition is allowed to be withdrawn with a liberty to file an application for recalling the original order granting recovery certificate. All contentions of parties about the factum of service orsbw 4 otherwise of the original proceedings are kept open. 7. Mr. Kishor Patil makes a statement that such an application will be made within four weeks from today. The statement is accepted. If an application is made, since the only issue which is required to be considered in the application is whether service of notice was effected or not, the Assistant Registrar will finally decide such application on or before 15/4/12. Till 30/4/12 the parties will maintain status quo in respect of the property in question in all respects. Writ petition is disposed off in the aforesaid terms with no order as to costs. ( G.S.Godbole, J.)
