Rajasthan High Court - Jaipur
Bhom Raj vs State Of Rajasthan And Ors. on 18 March, 1994
Equivalent citations: AIR1994RAJ241, 1994(2)WLC422
ORDER N.K. Jain, J.
1. By this writ petition, the petitioner seeks a direction to quash the order dt. 16-2-1994 (Annexure 2), passed by the Assistant Registrar disqualifying the petitioner under Section 34(7A) of the Rajasthan Co-operative Societies Act, 1965.
2. Breifly stated the facts of the case as alleged by the petitioner are that he was elected as Chairman of Barsinghsar Gram Seva Sahakari Samiti on 20-1-1991 and represented his Society Shri Barsinghsar Gram Seva Sahakari Samiti in the election of the Central Coop. Bank as President of the primary society. It is alleged that the petitioner was elected as Chairman of the Central Cooperative Bank on 15-9-1992 and since then he is working. It is also alleged that after the election of the petitioner as Chairman, the non-petitioner No. 4 along with some other persons challenged the election under Section 75 on the ground that he is disqualified under Section 34(7 A) of the Rajasthan Cooperative Societies Act, 1965 (hereinafter referred to as the Act), which was dismissed by the Joint Registrar vide order dated 18-5-1993 (Annexure 1). Thereafter, the non-petitioner No. 4 moved an application under Section 34(7A) of the Act on 1-1-1994 before the Assistant Registrar, which remained pending and after settling bargain of his transfer from Bikaner to Jaipur he passed the impugned order as per the desire of non-petitioner No. 4 disqualifying the petitioner under Section 34(7A) on 16-2-1994 vide Annex. 2. Being aggrieved with the said order, the petitioner Bhom Raj has approached this Court under Article 226 of the Constitution.
3. The writ petition has been filed on 18-2-1994 and listed before the court on 21-2-1994. On that date Mr. M.S. Singhvi appeared for the caveator and prayed for time to file reply and the case was adjourned. Reply was filed on behalf of N.P. No. 4 and rejoinder was also filed. As agreed by the learned counsel for the parties the case was heard finally.
4. The main contention of the learned counsel for the petitioner is that the impugned order dated 16-2-1994 (Annexure 2) passed by the Assistant Registrar is illegal on the ground that once order under Section 75 of the Act challenging the petitioner's election was passed by the Joint Registrar on 18-5-1993, the same could not be reopened as it is hit by the principle of res judicata and the Assistant Registrar had no jurisdiction under Section 34(7A) and Sub-section (8) under the Act and he being an officer below in rank to the Joint Registrar could not revive the order. The impunged order dated 16-2-1994 has been challenged by Mr. Choudhary on one more ground that while passing the order principles of natural justice have not been followed and the petitioner was not afforded opportunity of being heard. He has also submitted that the petitioner has not completed requisite period in one society to disqualify him from election. He has submitted that the order of disqualification has been on settling bargain between the Assistant Registrar and n.p. No. 4 about transfer of Assistant Registrar from Bikaner to Jaipur. He has relied on Shrawan Kumar Jha v. State of Bihar (AIR 1991 SC 309).
5. Mr. Singhvil, learned counsel for the non-petitioner No. 4 has raised preliminary objection that the petitioner has not come with clean hands as he has completed six years. He has submitted that the Assistant Registrar before passing impugned order issued notice to the petitioner and assuming without admitting that the order has been passed in the breach of principles of natural justice then too as per the admitted facts, the petitioner has become disqualified to hold the office and therefore, the principles of natural justice cannot be pressed into service. He has also submitted that the proceedings under Setion 34(8) of the Act is independent of the Section 75 and it was open for the Assistant Registrar to declare the petitioner disqualified and the principles of res judicata also does not apply as no question has been decided under Section 75. He has further denied the allegation of bargaining and submitted that the prior to relieving the non-petitioner No. 2 passed some other orders also which is not illegal. Mr. Singhvi has submitted that the petitioner is trying to mislead the Court by referring to a superseded notification which did not give power to Assistant Registrar to decided the matter under Section 34(7A) whereas as per Notification No. F 4(7) Coop/I/65 dated 8-2-1974 the Assistant Registrar has all powers of the Registrar under the Act. Mr. Singhvi has also submitted that Section 34(7A) read with the Bye-law 11(5) clearly provides that a person cannot hold the membership of a committee beyond six years or two terms whichever is less and the petitioner has held the office for more than two terms as also beyond six years. He has also referred to letter dated 28-2-1994 issued by the Assistant Registrar, Cooperative Societies, Bikaner confirming that the petitioner has remained member of committee of Barsingsar Gram Seva Sahakari Samiti Ltd. from 20-6-1973 and also letter dated 2-3-1994 issued by Branch Manager of Bikaner, Central Cooperative Bank Ltd. confirming that the petitioner has been operating the Bank Account of Barsingsar Gram Seva Sahakari Ltd. since Sept. 1983. Lastly he has submitted that the averment made by the petitioner that he remained member of different societies, so six years term does not complete is false. In this regard he has produced letter of Central Co-operative Bank Ltd. Bikaner dated 4-3-1994 and a letter witten by the Assistant Registrar, Cooperative Societies, Bikaner to show that no society in the name of the Barsinghsar Lalamdesar Gram Seva Sahakari Samiti Ltd. of which the petitioner claims to be member is in existence. He has prayed that the writ petition may be dismissed with costs. He has relied on S.Jagadeesan v. Ayya Nadar Janaki Ammal College, (AIR 1984 SC 1512), Jagan Singh v. State Transport Appellate Tribunal, Raj (AIR 1980 Raj 1) (FB), Ram Prakash v. State (1992) (3) WLN (Raj) 533) and Ex. Capt. K. Balasubramanian v. State of Tamil Nadu (1991) 2 SCC 708.
6. Heard learned counsel for the parties and perused the relevant provisions as well as the material on record and case law cited at Bar.
7. First of all I proceed to examine the contention whether the Assistant Registrar has jurisdiction under Section 34(7A) or not.
8. It is no doubt true that the notification issued under Section 3 of the Act bearing No. F4(7) Coop/65 by Cooperative Department, Rajasthan on 1-1-1966 in exercise of powers conferred by Section 3 of the Rajasthan Cooperative Societies Act, 1965 which is specified in column 1 of the Schedule officers annexed to assist the registrar and confers on them the powers of the Registrar, respectively specified against them in column 2 of the Schedule, At S. No. 5 of Column 1 Assistant Registrar and Additional Asstt. Registrar have been specified and against them in column 5(ii), many setions including Section 34 have been mentioned of which they have no powers. But the subsequent notification No. F4(7) Coop/I/65 dated 8th Feb. 1974 issued in supersession of all previous notifications in exercise of powers conferred by Section 3 of read with Section 147 of the Act, at S. No. 4 Column I Asstt. Registrars have been specified and against them it is mentioned that all powers of the Registrar under the Act in so far as they relate to the primary Societies, Agricultural Marketing Societies and powers under Sections 70, 71, 73, 37, 135 of the Act in so far as they relate to Central Societies within their respective jurisdiction but no powers so far as they relate to the matter and affairs of the Apex Societies and under Sections 124 and 128 of the Act. This notification is in existence today also undisputedly and no subsequent notification contrary to the said notification was shown by the counsel for the petitioner. In view of the aforesaid notification dated 8-2-1974. the powers of the Assistant Registrar cannot be disputed and, therefore, it can be said that the Assistant Registrar was competent to deal with the matter.
9. So far as the contention of counsel for the petitioner that no subsequent notification has been issued after insertion of Sub-section 7A of 16-4-1982 empowering the Assistant Registrar under Section 34 of the Act is concerned, the same is not tenable for the reason that insertion of Sub-section (7 A) on 16-4-1982 relates to disqualification of membership of a committee only and has nothing to do with the powers of the Asstt. Registrar particularly when it is the powers of the Registrar which have been conferred by the Government by its notification issued under Section 3 of the Act upon the Assistant Registrars and further Sub-section (8) of Section 34 does not provide that any of the disqualification mentioned under Section 34 of the rules shall be decided by the Registrar only.
10. So far as the contention that when the Joint Registrar has ealier decided the matter vide Annex. 1 dated 18-5-1993, it was not open to the Assistant Registrar to reconsider the matter again is concerned, suffice it to say that before the Joint Registrar election of Chairman of the Bank was under challenge whereas before the Assistant Registrar the election of the petitioner as President of Barasingsar Gram Sewa Sahakari Samiti Ltd. was challenged. It is clear from the order of Joint Registrar wherein he has observed that for the election of Barsingsar Gram Sewa Sahakari Samiti no petition has been filed before him and has arrived at a finding that the points agitated before him does not relate to the election of Bank. Therefore, the argument that once the superior authority has decided a matter, the Subordinate authority. has erred in reconsidering the same has no substance because both the matters were distinct.
11. It has been next contended on behalf of the petitioner that the petitioner has not completed two terms or six years and the factual position mentioned in the order is not correct. In the reply, the respondent has stated that the petitioner was elected first time on 20-6-1973 then on 8-10-1986 and lastly on 21-1-1991. Though in rejoinder the petitioner has come out with a case that Barsinghsar Gram Sewa Sahakari Samiti ceased to be in existence from 1979 and presently the petitioner is Chairman of Barasinghsar Lalam-desar Sahakari Samiti of which the election took place on 20-1-1991 but no document has been placed to substantiate the same. On the contrary the respondent No. 4 has produced several documents to refute the claim of the petitioner. The respondent No. 4 has produced a letter dated 28-2-1994 issued by the Assistant Registrar, Cooperative Societies Bikaner confirming that the petitioner has remained member of Committee of Barsinghsar Gram Sewa Sahakari Samiti Ltd. from 20-6-1973. A letter dated 2-3-1994 (Annexure Rule 4/3) has also been produced issued by the Branch Manager of Bikaner Central Co-operative Bank Ltd. to the effect that the petitioner has been operating the Bank Account of Barsinghsar Gram Sewa Sahakari Ltd. since Sept. 1983. The non-petitioner No. 4 has also placed on record letters dated 4-3-1994 and 5-3-1994 issued by the Central Co-operative Bank Ltd. Bikaner and Assistant Registrar Co-operative Societies Bikaner respectively stating that no society in the name of Barsingsar Lalamdesar Gram Sewa Sahakari Simiti Ltd. is in existence. These documents have gone un-rebutted by the petitioner rather in the writ petition in paras 3 and 4 of the petitioner has claimed himself to be chairman of Barsinghsar Gram Sewa Sahakari Samiti only and no avertments have been made regarding other societies. That apart the argument that the petitioner has chaired three different societies, which itself is contrary as in the rejoinder also he claimed only two societies. Though the claims of the respective parties cannot be gone into under Article 226 being disputed question of fact, however, under the circumstances of the case at this stage I am not satisfied that the petitioner has succeeded in establishing that he has not completed two terms of six years and there is no reason to disbelieve the case of the respondent.
12. Now it brings me to the last contention Mr.Choudhary that impugned order is illegal as it has been passed in violation of principles of natural justice.
13. It is no doubt true that before passing any adverse order, one should be given proper opportunity of hearing and on violation of principles of natural justice, the order so passed can be set aside. At the same time, it is also well accepted that principles of natural justice cannot be put in any strait jacket formula. Application of this principle cannot be uniform and every action/ order cannot be declared as void merely on the plea that opportunity of hearing was not given. Even in cases where opportunity of hearing is not given, the Court cannot issue a writ once it is found that the very order on which a right is claimed by a person was void.
14. In the instant case, as stated above, the petitioner has completed two terms/six years and admitttely as per the petitioner's case he was elected as Chairman of the Barsingsar Gram Sewa Sahakari Simiti Ltd. on 20-1-1991 for three years on the basis of which he was elected chairman of the Apex Body i.e. Bikaner Central Coop. Bank on 15-9-1992 and now in the garb of his election as Chairman of the Bank on 15-9-1992 he wants to continue to hold he office particularly when his term of three years of Barsingsar Gram Sewa Sahakari Samiti Ltd. has already expired. As stated above, when the petitioner has been able to a establish that he has not compeleted two terms/ six years and, therefore, he had no legal right to hold the office and under the circumstances as already stated the powers exercised by the Asstt. Registrar cannot be said to be illegal exercise of the powers and the petitioner having no legal right cannot challenge the order on the ground of not affording an opportunity of hearing to him. Apart from that, the claim of the respondents that the question of principles of natural justice does not arises as the petitioner had knowledge of the proceedings finds support from the order of Asstt. Registrar wherein he has observed that he went to Barsingsar Samiti for inspecting the record. Under these circumstances, the petitioner cannot take shelter and advantage of the principles of natural justice and no relief can be granted to the petitioner on this ground as it will perpetuate the illegality.
15. The petitioner has also alleged mala fides against the Asstt. Registrar on the ground of bargaining settled between the non-petitioner No. 4 and the Assistant Registrar but the bald allegations made by him appears to be baseless in the absence of any document having been placed on record. Thus, on the basis of material on record the petitioner has failed to prove the mala fides and make out a ground for interference.
16. No other point has been pressed before me.
17. In view of what I have discussed above, the petitioner is not entitled for any relief and I am not inclined to interfere in the writ jurisdiction under Article 226 in the order passed by the Asstt. Registrar dated 16-2-1994 (Annexure 2).
18. Consequently, the writ petition has no force, so it is hereby dismissed with cost of Rs. 2000/-.