Himachal Pradesh High Court
Sh. Thakur Dass Bhardwaj And Others vs State Of Himachal Pradesh And Others on 6 August, 2015
Bench: Mansoor Ahmad Mir, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6738 of 2014 a/w CWPs No. 4964, 5055, 5093, 5663, 9404, .
11248 of 2011, 216, 420 of 2012
and 378 of 2015
Reserved on: 24.07.2015
Decided on: 06.08.2015
of
1. CWP No. 6738 of 2014
Sh. Thakur Dass Bhardwaj and others ...Petitioners.
rt Versus
State of Himachal Pradesh and others ...Respondents.
..................................................................................................................
2. CWP No. 4964 of 2011Sh. Manohar Lal and others ...Petitioners.
Versus The State of Himachal Pradesh and others ...Respondents. ..................................................................................................................
3. CWP No. 5055 of 2011Sh. Balak Ram and others ...Petitioners.
Versus The State of Himachal Pradesh and others ...Respondents. ..................................................................................................................
4. CWP No. 5093 of 2011Sh. Mehar Chand and others ...Petitioners.
Versus ::: Downloaded on - 15/04/2017 18:42:01 :::HCHP : 2 : The State of Himachal Pradesh and others ...Respondents. ..................................................................................................................
.
5. CWP No. 5663 of 2011Arki Tehsil Truck Operators Union and others ...Petitioners.
Versus State of Himachal Pradesh and others ...Respondents. ..................................................................................................................
of 6. CWP No. 9404 of 2011 Gram Panchayat Beral ...Petitioner.
rt Versus
State of Himachal Pradesh and others ...Respondents.
..................................................................................................................
7. CWP No. 11248 of 2011Labdh Ram and others ...Petitioners.
Versus State of Himachal Pradesh and others ...Respondents.
..................................................................................................................
8. CWP No. 216 of 2012Kisan Kalyan Samiti and others ...Petitioners.
Versus State of Himachal Pradesh and others ...Respondents. ..................................................................................................................
9. CWP No. 420 of 2012M/s Jaiparkash Associates Ltd. and another ...Petitioners.
Versus ::: Downloaded on - 15/04/2017 18:42:01 :::HCHP : 3 : State of Himachal Pradesh and others ...Respondents. ..................................................................................................................
.
10. CWP No. 378 of 2015Sh. Labdh Ram and another ...Petitioners.
Versus State of Himachal Pradesh and others ...Respondents.
of Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
rt The Hon'ble Mr. Justice P.S. Rana, Judge.
Whether approved for reporting? Yes.
CWP No. 6738 of 2014For the petitioners: Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 4. Mr. Vinay Kuthiala, Senior Advocate, with Mr. Rajiv Rai, Advocate, for respondents No. 5 and 6.
Mr. Vijay Chaudhary, Advocate, for respondent No. 7.
..................................................................................................................
CWPs No. 4964, 5055 & 5093 of 2011 For the petitioners: Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
::: Downloaded on - 15/04/2017 18:42:01 :::HCHP: 4 : For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to .
5.Mr. Suneet Goel, Advocate, for respondent No. 6.
Mr. Vijay Chaudhary, Advocate, for respondent No. 7.
of ..................................................................................................................
CWP No. 5663 of 2011For the petitioners: Mr. Sunil Mohan Goel, Advocate.
rt For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 3. Mr. Vijay Chaudhary, Advocate, for respondent No. 4.
Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate, for respondents No. 5 to 10.
..................................................................................................................
CWP No. 9404 of 2011For the petitioners: Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 3, 5 and 6.
Mr. Vijay Chaudhary, Advocate, for respondent No. 4.
::: Downloaded on - 15/04/2017 18:42:01 :::HCHP: 5 : Mr. Suneet Goel, Advocate, for respondent No. 7.
.
Nemo for respondents No. 8 and 11.
Mr. Sunil Mohan Goel, advocate, for respondent No. 9.
Mr. Ramakant Sharma, Advocate, for respondent No. 10.
of Mr. Anand Sharma, Advocate, for respondent No. 12.
rt Other respondents already exparte. ..................................................................................................................
CWP No. 11248 of 2011For the petitioners: Mr. Vinay Kuthiala, Senior Advocate, with Mr. Rajiv Rai, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 4. Mr. Vijay Chaudhary, Advocate, for respondent No. 5.
Mr. Sunil Mohan Goel, Advocate, for respondent No. 6.
Mr. Anand Sharma, Advocate, for respondent No. 7.
Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate, for respondents No. 8 and 9.
..................................................................................................................
::: Downloaded on - 15/04/2017 18:42:01 :::HCHP: 6 : CWP No. 216 of 2012 For the petitioners: Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 3, 5 and 6.
Mr. Vijay Chaudhary, Advocate, for of respondent No. 4.
Mr. Suneet Goel, Advocate, for respondent rt No. 7.
Nemo for respondent No. 8.
Mr. Sunil Mohan Goel, Advocate, for respondent No. 9.
Mr. Ramakant Sharma, Advocate, for respondent No. 10.
Respondents No. 11 and 12 already ex parte.
..................................................................................................................
CWP No. 420 of 2012For the petitioners: Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 5. Mr. Suneet Goel, Advocate, for respondent No. 6.
Mr. Vijay Chaudhary, Advocate, for ::: Downloaded on - 15/04/2017 18:42:01 :::HCHP : 7 : respondent No. 7.
Mr. Sandeep Sharma, Advocate, vice Mr. .
Ashwani Pathak, Advocate, for respondent No. 8.
..................................................................................................................
CWP No. 378 of 2015For the petitioners: Mr. Vinay Kuthiala, Senior Advocate, with of Mr. Rajiv Rai, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, rt with Mr. Anup Rattan, Additional Advocate General, for respondents No. 1 to 4. Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate, for respondents No. 5, 6 and 8 to 11.
Mr. Nand Lal Chauhan, Advocate, for respondents No. 12 to 14, 17, 18 and 20.
Mr. Vijay Chaudhary, Advocate, for respondent No. 21.
Nemo for other respondents.
Mansoor Ahmad Mir, Chief Justice In CWP No. 6738 of 2014, the writ petitioners have questioned the order, dated 08.08.2014, made by the Chief Secretary (Cooperation) to the Government of Himachal Pradesh in the revision petitions to the extent that the amendment in the ::: Downloaded on - 15/04/2017 18:42:01 :::HCHP : 8 : byelaws carried out on 19.07.2009 have not been declared to be illegal and invalid despite the fact that the Chief Secretary has .
held that the general body meeting, dated 19.07.2009, was not held in terms of the mandate of the procedure and the entire exercise of the byelaws suffers from procedural flaws. The writ of petitioners have also sought writ of mandamus commanding the respondents to follow the unamended Byelaws, which were rt holding the field before 19.07.2009.
2. In CWP No. 378 of 2015, the writ petitioners have sought quashment of order, dated 08.08.2014, made by the Chief Secretary (Cooperation) to the Government of Himachal Pradesh to the extent that he has fallen in error in holding that the general body meeting held on 19.07.2009 was not in accordance with law and was suffering from procedural flaws, which finding is not correct.
3. In CWPs No. 4964, 5055 and 5093 of 2011, the writ petitioners have questioned paras 37 to 43 of the order, dated 20.06.2011, made by the Registrar, Cooperative Societies.
4. The writ petitioners in CWPs No. 5663, 9404 of ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 9 : 2011, 216 of 2012, have questioned the order, dated 20.06.2011, made by the Registrar, Cooperative Societies.
.
5. In CWP No. 420 of 2012, the writ petitioners have sought quashment of agreements, dated 17.02.2010 & 01.09.2011 and have also sought writ of mandamus directing the State of authorities to perform their constitutional obligations and statutory duties and to maintain law and order on spot.
rt
6. Before we deal with the factual background, the womb of which has given birth to these writ petitions, we deem it proper to record herein that this Court in CWP No. 4964 of 2011, while passing orders in CMP No. 6190 of 2011, issued directions vide order, dated 01.07.2011, the relevant portion of which reads as under:
"..............
When the JP Cement Factory was set up in Arki Sub Division, a division of labour in the matter of transportation was arrived at between Arki and NonArki people in the ratio of 70:30. The basis was that the people in Arki Sub Division, where the plant is set up, are the more affected persons when compared to the NonArki people. Of course, the people whose lands were acquired and who lost their houses are from Mangal and Beral ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 10 : Panchayats only apart from lost means of livelihood in these Panchayats since the plant is set up in those Panchayats only.
.
Taking clue from that division of transport, we feel that by way of an interim arrangement, 70% of the work allotted to the people of Arki Sub Division could be for the time being sub divided into 70:30. 70% will go to the members who are residents of Mangal and Beral Panchayats and 30% will go to non of residents of Mangal and Beral Panchayats in the Society. There will be a direction to respondents No. 3 to 5 to rt render necessary assistance to the Administrator of the 7th respondent Society to work out a formula, as above, if requested by the Administrator. There will be a direction to respondents No. 4 & 5 to file short affidavit as to the working out of the ratio as proposed in this interim order, within two weeks."
7. It appears that after noticing the said order, CWPs No. 5055 & 5093 of 2011 were filed and same directions came to be passed in the said writ petitions on different dates, i.e. on 04.07.2011 and 05.07.2011, respectively.
Background:
8. M/s. Jay Pee Himachal Cement Plant Limited Baga Bhalag, with its project site at Baga and mining area in Gram Panchayats Mangal and Beral, gave birth to a scheme on 22.08.2005 for rehabilitation of the affected persons and the non ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 11 : affected persons of Arki Tehsil, known as the Scheme for the Rehabilitation and Resettlement of the Oustees of the Jaypee .
Himachal Cement Project (A Unit of Jaiprakash Associates Limited (for short "the Scheme") and the Byelaws of The Mangal Land Loosers and Effected Transport Cooperatives Society of Limited Baga, P.O. Mangal, Tehsil Arki, District Solan, H.P. (for short "the Byelaws").
9. rt Rule 5 (iv) of the said Byelaws mandates that the Society is to provide transport business for the landless losers houseless and affected persons of Mangal and Beral Panchayats and nonaffected persons of Arki Tehsil. It is apt to reproduce Rule 5 (iv) of the Byelaws herein:
"5. ...................
(iv) the society is to provide 80% transport business for landless loosers houseless and Effected persons of the above Panchayats and 20% to other noneffected persons of Arki Tehsil."
10. It appears that the Byelaws were amended on 19.07.2009, whereby amendment was carried out in Rule 5 (iv), which reads as under:
::: Downloaded on - 15/04/2017 18:42:02 :::HCHP: 12 : "5(iv). The society is to provide 50% transport business for landless loosers houseless and Effected persons of above .
panchayats and 50% to other noneffected persons of Arki Tehsil."
11. Amendment of the said Rule in the Byelaws of the Society is the bone of contention between the landless losers, of houseless and affected persons of Gram Panchayats Mangal and Beral and nonaffected persons of Arki Tehsil.
12.
rt It is apt to record herein that a meeting was held on 08.02.2010 in the office of Deputy Commissioner, Shimla, under the chairmanship of Deputy Commissioner, Solan, with regard to the allocation of transport work from Jay Pee Cement Plant Bagga, wherein the following orders were made:
"................From the record it was found that people living in Solan district have lost maximum land. Therefore it was decided that higher allocation of transportation work of cement/clinker would go in favour of residents of Arki Sub Division of Solan District. Hence 70% transportation share was allocated to Mangal Gram Panchayat and Arki Sub Division of Solan District and 30% for affected Panchayats of District Bilaspur, which would include 5% share (25% + 5%) for the exservicemen of entire H.P. State through ExServicemen Corporation, Hamirpur."::: Downloaded on - 15/04/2017 18:42:02 :::HCHP
: 13 :
13. Thereafter, a representation was filed by the Arki Tehsil Truck Operators Union (for short "ATTOU") before the .
District Magistrate, Solan, who passed orders on 04.04.2011 and made distribution of 70% share of the transport business between the Society and ATTOU in equal shares. It is apt to reproduce of relevant portion of the said order herein:
".............
rt Therefore, in view of the decision dated 08 022010 & agreement drawn on 172 2010, I.C. Palrasu, District Magistrate Solan hereby order the following distribution of Transportation of cement/clinker between The Arki Tehsil Truck Operator Union (ATTOU) & The Mangal Looser & Affected Transport Co Operative Society Bagga in the following manner:
1. The Arki Tehsil Truck Operator Union (ATTOU) = 35%
2. The Mangal Looser & Affected Transport Cooperative Society Bagga = 35% The above arrangement would come into force with immediate effect to provide equal opportunity to all truck operators and make this viable and shall be operative as per agreement and the company shall not revise this system during the period as specified in the agreement."::: Downloaded on - 15/04/2017 18:42:02 :::HCHP
: 14 :
14. This order of the District Magistrate was questioned, by the medium of CWP No. 2086 of 2011 before this Court, which .
came to be disposed of vide judgment and order, dated 28.04.2011, with a direction to the Registrar, Cooperative Societies to pass appropriate orders after hearing the concerned of parties.
15. In sequel thereto, Registrar, Cooperative Societies rt passed fresh orders on 20.06.2011. It is apt to reproduce para 42 of the said order herein:
"42. The criteria for the distribution of transportation work has already been settled in principle in the judgment passed by the Hon'ble High Court of H.P. in CWP No. 606 of 2010 on 18.03.2010.
Accordingly, the land losers belonging to Mangal area deserve greater proportion of transportation quota in all eventualities and probabilities. Since 70% quota of Solan District is to be distributed among the Land Losers and affected persons of Mangal and Beral area on one side, and the nonaffected persons of Arki Sub Division on the other, therefore, there could not be any scientific formula devised for such distribution. I, therefore, order that 60% of the total transportation quota of Solan District as fixed in the meeting dated 8.02.2010 shall be allocated to the Mangal Land Losers and Affected Persons' Transport Cooperative Society comprising members of Mangal and Beral ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 15 : Panchayats and 40% to the new transport cooperative society to be formed by the division of the existing society."
.
16. The order, dated 20.06.2011, is subject matter of CWPs No. 4964, 5055, 5093, 5663, 9404, 11248 of 2011 and 216 of 2012, as discussed hereinabove, and amendment of the Byelaws of on 19.07.2009, as reproduced hereinabove, is the bone of contention in CWPs No. 6738 of 2014 and 378 of 2015.
17. rt Perusal of the entire pleadings does disclose that the basic issue is how to regulate the transport business and in which ratio?
18. While going through the Scheme and the Byelaws, the purpose was to provide relief to the affected persons, who became land losers, houseless and the other persons, i.e. non affected persons of Arki Tehsil. The Byelaws were registered on 30.07.2005, which contain a mechanism as to who can be the member of the Society, how to regulate the business and transportation work.
19. Unfortunately, the general house convened on 19.07.2009 gave birth to the dispute between the parties, who are the beneficiaries of the said Byelaws and Scheme.
::: Downloaded on - 15/04/2017 18:42:02 :::HCHP: 16 :
20. The writ petitioners in some of the writ petitions have questioned the convening of general house meeting on the ground .
that the said meeting was illegal and not in accordance with the mandate of law, Rules and Regulations occupying the field.
21. On their application/complaint, the Registrar, of Cooperative Societies directed the Joint Registrar (Marketing) Cooperative Societies to inquire into the affairs of the Society, rt particularly regarding the general house meeting held on 19.07.2009, who submitted the inquiry report to the Registrar, Cooperative Societies on 25.02.2012 and recommended for quashment of the amendments made in the Byelaws in the said general house meeting. It is apt to reproduce relevant portion of the report herein:
"...................
In view of the above narrations, submissions made by all the parties present on the day and the examination of the record of the above society, I have arrived at this conclusion that the General House which was convened on 19.7.2009 was attended by 132 members which constituted full quorum for the sake of General House and the business was transacted in a voice votes and no dissent or disagreement was recorded by any of the members present and the Assistant ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 17 : Registrar Cooperative Societies Solan registered the amendment in tune with the General House proceedings and the .
recommendations of Local Inspector but as for as the ByeLaws No. 24 is concerned the modusoperandi adopted by the managing committee to convene the General House was not in consonance with the ByeLaw No. 24 and hence legality and validity of the General House is questionable and can not be held good in of eyes of the Law but the enrollment and purchase of trucks by the non effected members of the Arki Area, were as a rt consequence of General House convened by the managing committee for which these members can not be held guilty.
......................."
22. The said report was accepted by the Registrar, Cooperative Societies and the Assistant Registrar, Cooperative Societies, was directed, vide letter, dated 20.02.2013, to de register the amendments carried out in the general house with immediate effects. It is apt to reproduce relevant portion of the said letter herein:
"With reference to the letter of this Directorate of dated 19.05.2011 vide Joint Registrar Cooperative Societies (Marketing) was ordered to conduct inquiry with regard to the General body meeting held on 19.07.2009 and the decisions taken in that meeting, on the complaint of 52 members/complainants. The Inquiry Officer submitted his findings ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 18 : on 25.02.2012 concluding therein that the General House convened on 19.07.2009 was illegal and conducted in violation of .
bylaws no. 24 of the Managal Land Looser & effected Transport Cooperative Society Ltd. Baga P.O. Mangal Tehsil Arki District Solan.
The inquiry report submitted by the Inquiry Officer was taken into consideration and accepted accordingly of and the general house convened on 19.07.2009 is hereby declared illegal and consequently the decisions taken in this rt general house are also illegal. The Assistant Registrar Cooperative Societies is further directed to deregister the amendments carried in this general house with immediate effect."
23. The order, dated 20.02.2013, made by the Registrar, Cooperative Societies was questioned by respondents No. 5 and 6 in CWP No. 6738 of 2014, by the medium of appeal, which was heard by the Principal Secretary (Cooperation), who accepted the appeal, in terms of order, dated 22.02.2013, kept the order, dated 20.02.2013, in abeyance and remanded the matter to the Registrar, Cooperative Societies. It is apt to reproduce relevant portion of the order, dated 22.02.2013, herein:
"................It would meet the end of justice if the matter is remanded to the Registrar, Cooperative Societies for examining the point of limitation as well as non association of necessary parties with the ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 19 : enquiry. Letter No. Coop PA/Joint RCS/2012 dated 20.2.2013 of the RCS will be kept in abeyance till such time. A .
proper speaking order shall be passed by the Ld. Registrar, Coop. Societies."
24. Respondents No. 5 and 6 in CWP No. 6738 of 2014, feeling aggrieved by the inquiry conducted by the Joint Registrar of (Marketing) Cooperative Societies, filed a revision petition before the Registrar, Cooperative Societies, Himachal Pradesh at rt Shimla, which was allowed, the inquiry report was quashed and the amendments made on 19.07.2009 in the Byelaws were held to be valid vide order, dated 27.05.2013.
25. The writ petitioners in CWP No. 6738 of 2014 questioned the said order by the medium of CWP No. 4277 of 2013H before this Court, which was allowed vide judgment and order, dated 26.06.2013, the order of Registrar, Cooperative Societies, dated 27.05.2013, was set aside, the case was remanded with a direction to consider the case afresh on its own merits in accordance with law without being influenced by the observations made by the Registrar, Cooperative Societies in its order, dated 27.05.2013.
26. The revision petition was revived and came up for ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 20 : hearing before the Registrar, Cooperative Societies, again parties were heard and vide order, dated 11.09.2013, it was held that the .
amendments carried out in the Byelaws on 19.07.2009 were valid. The writ petitioners in CWP No. 6738 of 2014 questioned the order, dated 11.09.2013, made by the Registrar, Cooperative of Societies, by the medium of CWP No. 7587 of 2013, was allowed vide order, dated 14.11.2013 and the order, dated 11.09.2013, rt made by the Registrar, Cooperative Societies, was set aside with some observations.
27. It appears that this Court, vide judgment and order, dated 14.11.2013, directed the writ petitioners to invoke the remedy of revision under Section 94 of the Himachal Pradesh Cooperative Societies Act, 1968 (for short "the Act"). The Revisional Authority, i.e. Secretary (Cooperation), was directed to examine all the questions on facts as well as law and the approach of the concerned Registrar was deprecated and the Secretary (Cooperation) was asked to take appropriate action against him in accordance with law. It was also observed that the writ petitioners were at liberty to resort to the remedy of ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 21 : contempt against the said Registrar.
28. Review petitions were filed before this Court, which .
were considered alongwith the contempt petition. The judgment and order, dated 14.11.2013, passed in CWP No. 7587 of 2013 was reviewed and recalled in terms of the order and judgment of made by this Court on 22.05.2014. CWP No. 7587 of 2013 was taken on Board with the consent of the learned counsel for the rt parties and the Principal Secretary (Cooperation) was directed to decide the revision petition uninfluenced by any observations made by this Court in series of the judgments. The observations/remarks made against the Registrar, Cooperative Societies were expunged and the action drawn against the Registrar, Cooperative Societies by the authority was ordered to be closed and dropped. The contempt proceedings were also closed. All the files were withdrawn from the dockets of the Registrar, Cooperative Societies with a direction to send all the files with record to the Secretary (Cooperation), who was directed to decide the entire lis.
29. It is stated that the Chief Secretary is also exercising ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 22 : the powers and authority of Secretary (Cooperation) and has determined the lis, vide order, dated 08.08.2014, by holding that .
the amendments carried out in the Byelaws in the general house meeting held on 19.07.2009 are not illegal or invalid but are valid despite the fact that there were some procedural flaws, which of cannot be a ground for declaring the said amendments in the Byelaws to be invalid.
30. rt Feeling aggrieved by the said order, two writ petitions, i.e. CWPs No. 6738 of 2014 and 378 of 2015, came to be filed before this Court. The writ petitioners in CWP No. 6738 of 2014 have questioned the order to the extent of not declaring the amendments carried out in the Byelaws on 19.07.2009 to be illegal and invalid. The writ petitioners in CWP No. 378 of 2015 have questioned the said order to the extent that it has fallen in an error in holding that there were some procedural flaws in holding the general body meeting and also the amendments were suffering from the procedural flaws.
31. The order, dated 20.06.2011, made by the Registrar, Cooperative Societies, has been questioned by the writ petitioners ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 23 : in CWPs No. 4964, 5055, 5093, 5663, 9404, 11248 of 2011 and 216 of 2012, who has made orders in pursuance of the orders, dated .
28.04.2011, passed by this Court in CWP No. 2086 of 2011, while quashing the order, dated 04.04.2011, made by the District Magistrate, Solan.
of
32. It is apt to record herein that interim arrangement was made by this Court in terms of order, dated 01.07.2011, rt passed in CWP No. 4964 of 2011, which also provides how to regulate the transport business and all the parties have been directed to ensure that the said directions are made practicable and applicable. The said directions are still in place and no grievance has been made by any of the parties till today.
33. While going through the Byelaws and the orders made by this Court, Chief Secretary (Cooperation), Registrar, Cooperative Societies and the District Magistrate, the basic issue is relating to transport business and how to regulate the work amongst the affected persons in terms of the Scheme and Bye laws. Thus, the entire controversy revolves around Rule 5 (iv) of the Byelaws, as reproduced hereinabove.
::: Downloaded on - 15/04/2017 18:42:02 :::HCHP: 24 :
34. Mr. R.L. Sood, learned Senior Counsel, argued that Rule 30 of the Byelaws has remained unamended, thus, the .
business is to be regulated in terms of the said Rule.
35. It is apt to reproduce Rule 30 of the Byelaws herein:
"DISTRIBUTION OF WORK of
30. The hereditary Land loosers and Houseless members of G.P. Mangal and Beral shall be authorized to ply 5 (Five) rt Trucks each and the effected members of the above said Panchayats shall be authorized to ply 3 Trucks each and members of other Panchayats of Tehsil Arki shall be authorised to ply 2 (Two) each through the society. However the priority in the work will firstly be given to the hereditary landlooser and effected members of G.P. Mangal and Beral."
36. While going through Rule 30 of the Byelaws, it appears that it is not creating any right or interest in favour of any person. It contains the procedure relating to distribution of the work, not business. Rule 5 (iv) of the Byelaws is the core of the lis.
37. In the given circumstances, the following questions arise for consideration:
(i) Whether this Court can settle and ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 25 : fix the ratio of the allocation of transport business between the parties .
in view of the Byelaws, which were made before the project was set up, i.e. on 30.07.2005?
(ii) Whether it can be held that the of amendments in the Byelaws carried out in the year 2009 are illegal and invalid?
rt
(iii) What is the effect of subsequent developments read with the fact that the membership of the Society has gone up from 260 to 1495?
(iv) Whether the persons, who became the members of the Society after amendment, i.e. from 261 to 1495, can be deprived of the rights, duties, liabilities and interests, which they have earned after they became members?
(v) Whether the writ petitioners, who had questioned the amendments of the Byelaws, were within their rights to ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 26 : question the same after a period of two years from the date when amendments .
were carried out in the Byelaws?
(vi) Whether the said writ petitioners are caught by law of limitation, estoppel, waiver and acquiescence?
of
(vii) Whether the Chief Secretary was competent to pass the order, dated rt 08.08.2014, as Chief Secretary, though, he was holding the additional charge of Secretary (Cooperation), but signed the same as Chief Secretary?
(viii) Was it possible to convene a general house of all the members of the Society and determine the issue afresh without entering into the controversy as to whether there were procedural lapses / deficiencies in convening the general house meeting on 19.07.2009 and whether the amendments made in the Byelaws were valid or invalid?
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: 27 :
(ix) Has the Chief Secretary
marshalled and thrashed out what .
procedural breach was committed by the general house, which was convened on 19.07.2009?
(x) Whether the procedural flaw(s), if of any, is/are sufficient ground(s) for quashing the amendments carried rt out in the Byelaws or whether such procedural defects were mere irregularities and could have been rectified?
38. The Chief Secretary and the authorities under the Act have not discussed all the said questions.
39. Admittedly, much water has flown down right from the year 2009 till the writ petitioners have raised the finger and the membership of the Society has gone from 260 to 1495 after the amendment was made, mention of which has been made in para 39 of the order, dated 08.08.2014. It is apt to reproduce para 39 of the said order herein:
"39. In fact I would venture to point out that procedural flaws occur in practically every sphere. We should go more by the ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 28 : consequences of the amendments to see whether these were as per the wishes of the members of the Society. Here we need to .
take note that practically nobody had any objection to the amendments for nearly 2 years. A large number of persons became members of the Society resulting in the situation that the number of member increased from 260 to 1495. This did not happen in overnight but happened over 2 years. Secondly as the new members of joined, many more trucks were purchased and started plying on the roads. It cannot be said that the new members or the new rt trucks were not seen by the original members. The very fact that objections were not raised by them for nearly 2 years indicates that the situation which was emerging was acceptable to them."
40. It was the duty of the Chief Secretary and the Registrar, Cooperative Societies to keep in mind that the procedure is meant to further the ends of justice and not to frustrate the same. They had also to keep in mind the purpose for which the project was set up, the aim and object of the Scheme and effect of the Byelaws.
41. The Apex Court in a case titled as Rani Kusum (Smt) versus Kanchan Devi (Smt) and others, reported in (2005) 6 Supreme Court Cases 705, has laid guidelines. It is apt to reproduce para 14 of the judgment herein:
::: Downloaded on - 15/04/2017 18:42:02 :::HCHP: 29 : "14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are .
the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
42. It would also be profitable to reproduce para 14 of the judgment rendered by the Apex Court in a case titled as R.N. of Jadi & Brothers and others versus Subhashchandra, reported in (2007) 6 Supreme Court Cases 420, herein:
rt "14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash vs. Nankhu, (2005) 4 SCC 480, which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 30 : the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no .
authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner."
43. The Apex Court in the case titled as Sadhuram Bansal versus Pulin Behari Sarkar and others, reported in of (1984) 3 Supreme Court Cases 410, held that some procedure here and there, mere technicalities here and there cannot be the rt ground to quash a rule. It is a duty of the Court to see that proper justice is granted and rights are protected. It is apt to reproduce paras 29, 30 and 35 of the judgment herein:
"29. Mr. S. S. Ray, appearing for the appellant, submitted that the entire question was a legal issue and there was no warrant for the learned Judges of the High Court to have imported the doctrine of social justice. In our opinion, there, appears to be some misapprehension about what actually social justice is. There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that at between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society. Social justice is the recognition of greater good to larger number without deprivation of accrual of legal rights of any body. If such a thing can be done then indeed social justice must ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 31 : prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a .
larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country. The owners, in this case, are getting legally Rs. 1 lac more.
30. We must remember that in of administering justice social or legal Jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human beings as human rt beings and human needs as human needs and if these can be fulfilled without deprivation of existing legal rights of any party concerned, Courts must lean towards that and if the Division Bench of the High Court, in the facts and circumstances of the case, has leaned towards that, it is improper for this Court in exercise of the discretion vested under Art. 136 of the Constitation to interfere with that decision. We would do well to remember that justice social, economic and political is preamble to our Constitution. Administration of justice can so longer be merely protector of legal rights but must whenever possible be dispenser of social justice.
xxx xxx xxx
35. In such a situation, therefore, in our opinion, the Division Bench of the High Court has done substantial justice throwing aboard the technicalities particularly for the reason that Courts frown over a champertous litigation or agreement even though the same may be ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 32 : valid. Thus, by its decision the Division Bench got more money for the owners an the one hand and on the other sought to .
rehabilitate the 38 families of the respondent who had already built permanent structures."
44. The Registrar, Cooperative Societies has not discussed in its order, dated 20.06.2011, which is impugned in of CWPs No. 4964, 5055, 5093, 5663, 9404, 11248 of 2011 and 216 of 2012, the effect of the amendments carried out on 19.07.2009, rt which is directly or indirectly related with the issue.
45. The authorities discharging the functions of Secretary, Registrar, Joint Registrar and Assistant Registrar under the Act read with the Himachal Pradesh Cooperative Societies Rule, 1971 (for short "The Rules") were and are under obligation to examine the provisions of the Act, Rules, Scheme, Byelaws and other prevailing factors, i.e. subsequent developments, which have creptin w.e.f. 30.07.2005 in order to pass directions which, according to them, were fit, in the given circumstances of the cases.
46. It is apt to reproduce Section 94 of the Act herein:
"94. Review and Revision: ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 33 : (1) The state Government except in a case in which an appeal is preferred under Section 93 may call for and examine the .
record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit.
(2) The Registrar may at any time: of
(a) review any order passed by himself; or
(b) call for and examine the record of any inquiry or inspection held or made under rt this Act of the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit;
Provided that before any order is made under subsection (1) and (2), the State Government or the Registrar as the case may be shall afford to any person likely to be affected adversely by such orders an opportunity of being heard.
Provided further that every application under subsection (1) and (2), to the State Government or the Registrar, as the case may be shall be made within ninety days from the date of the communication of the order sought to be reviewed or revised.
The section empowers the State Government and the Registrar to review and revise certain orders or proceedings made or held under this Act.
(Emphasis added)"
::: Downloaded on - 15/04/2017 18:42:02 :::HCHP: 34 :
47. Thus, the Secretary (Cooperation) as well as the Registrar, Cooperative Societies were within their powers to pass .
any order, as they would have thought proper and fit in the given circumstances and facts of the case.
48. The question arose before the Allahabad High Court of as to what orders can be made by the revisional authority and what is the mandate of the words 'as they think fit' in the case rt titled as Rati Ram versus Niader Mal, reported in (28) AIR 1941 Allahabad 215. It is apt to reproduce relevant portion of the judgment herein:
"............There was then a second appeal to this Court which came before me in April last year and in which I passed the order to which I have already referred. It was conceded that no appeal lay and, by what appears to me now to have been a great concession to the applicant, I refrained from dismissing the second appeal then and there and gave him time to launch the present revision application. This revision application was, accordingly, set on foot on 7th May. Two preliminary objections were first taken by Mr. Mukerji on behalf of the respondent. He says first that even this revision application is entitled under S. 115, Civil P.C., and, inasmuch as that section is wholly inapplicable to a proceeding under the Agra Tenancy Act, this revision is already 'out of Court'. I see the force of that, but I feel that so to hold ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 35 : would be taking a rather technical view, because, even if S. 115, Civil P.C., does not apply, S. 253, Agra Tenancy Act, itself .
clearly does. Mr. Mukerji then says that, if this is to be considered as a revision application under S. 253, Agra Tenancy Act, it still is defective, because what is being sought to be revised is not the judgment of the Assistant Collector but the judgment of the Additional District judge. I do not think that there is any real force of in that, because once the High Court is seized of the revision, then, in my view, it becomes its duty to cast its eye not merely rt on one part of the proceedings but the whole them. What come under the review of the High Court are the proceedings as a whole from start to finish and the object of the scrutiny of the High Court is that so far as possible justice may be done in the proceedings as a whole. Again, I feel that the point is a technical one.
(Emphasis added)"
49. The Apex Court in the case titled as Swastik Oil Mills Ltd. versus H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay, reported in AIR 1968 Supreme Court 843, has also discussed the issue. It is apt to reproduce para 2 of the judgment herein:
"2. In this appeal, Mr. S. T. Desai, appearing on behalf of the appellant, urged the same objections against the notice which were the basis of the prayer for writ in the High Court, and we proceed to deal with them in the order in which he has put them forward before us in his ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 36 : submissions. The first point urged by learned counsel was that, in exercise of the revisional powers, the Deputy .
Commissioner of Sales Tax, whether acting under the Sales Tax Act of 1946, or of 1953, or of 1959, could only proceed to take action on the basis of the material already present on the record and was not entitled to act on conjecture or to institute any enquiry so as to include additional material in order to judge the of correctness of the order sought to be revised. In support of this proposition, learned counsel referred us to a decision of the Andhra Pradesh High Court in rt State of Andhra Pradesh v. T. G. Lakshmaiah Setty & Sons., 196112 STC 663 (AP). In that case, the Deputy Commissioner, in exercising the revisional jurisdiction, was found by the High Court to have based his assessment on guesswork, and the Court held that "this conjecture could not be a justification for seeking to revise the order of the assessing authority. If the Deputy Commissioner could, on the material before him, find data for revising the assessment, it was open to him to do so. It must be made clear that he has no jurisdiction to travel beyond the record that is available to the assessing authority and the basis should be found on the record already in existence." We are unable to accept this principle laid down by that High Court as correct. Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. ............
(Emphasis added)"::: Downloaded on - 15/04/2017 18:42:02 :::HCHP
: 37 :
50. The word "think fit" is defined in the Webster's .
Encyclopedic Unabridged Dictionary of the English Language, Deluxe Edition, at page 1971, which reads as under:
"Think fit: to consider advisable or of appropriate: By all means, take a vacation if you think fit."
51. The Apex Court in a recent judgment rendered in the rt case titled as Hindustan Petroleum Corporation Ltd. versus Dilbahar Singh, reported in 2014 AIR SCW 5018, discussed the powers of the Appellate Court and the revisional Court and, while discussing the expressions 'legality', 'propriety', 'correctness' and 'regularity', held that though the revisional Court has vast powers, but has to determine only the questions of law. It is apt to reproduce paras 25 and 27 to 30 herein:
"25. Before we consider the matter further to find out the scope and extent of revisional jurisdiction under th above three Rent Control Acts, a quick observation about the 'appellate jurisdiction' and 'revisinoal jurisdiction' is necessary. Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not viceversa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 38 : party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, .
as the case may be. The power of the appellate court is coextensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a of part of appellate jurisdiction but ordinarily it cannot be equated with that of a fullfledged appeal. In other words, revision is not continuation of suit or of rt original proceeding. When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order passed by the Tribunal/Appellate Authority, the decision of the revisional court is the operative decision in law. In our view, as regards the extent of appellate or revisional jurisdiction, much would, however, depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction.
26. ............
27. The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription or doctrine; the quality of being legal.
28. The term 'propriety' means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition in conformity with requirement;::: Downloaded on - 15/04/2017 18:42:02 :::HCHP
: 39 : rules or principle, rightness, correctness, justness, accuracy.
.
29. The terms 'correctness' and 'propriety' ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, 'correctness' is compounded of 'legality' and 'propriety' and that which is legal and proper is 'correct'.
of
30. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord rtwith the principles of natural justice and fair play."
52. The Registrar, Cooperative Societies was hearing revision petition in terms of Section 94 of the Act against the inquiry conducted by the Joint Registrar (Marketing), Cooperative Societies, and vide order, dated 27.05.2013, declared the inquiry report bad in law and upheld the amendments carried out in the Byelaws.
53. At the cost of repetition, the said order was questioned before this Court by the medium of CWP No. 4277 of 2013, was set aside with a direction to the Registrar, Cooperative Societies to consider the case afresh and pass orders. He made order on 11.09.2013, was again questioned before this Court by the medium of CWP No. 7587 of 2013 and vide order, dated ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 40 : 14.11.2013, all the files were withdrawn from the dockets of the Registrar, Cooperative Societies and the Secretary (Cooperation) .
was directed to hear the revision petition instead of the Registrar, Cooperative Societies.
54. It is also apt to record herein that vide judgment and of order, dated 28.04.2011, made by this Court in CWP No. 2086 of 2011, the order, dated 04.04.2011, made by the District rt Magistrate, Solan, was quashed and the Registrar, Cooperative Societies was directed to pass appropriate orders after hearing the parties.
55. The Act contains the complete mechanism and provides complete procedure for invoking the jurisdiction of the authorities under the Act by the affected persons.
56. It is also beaten law of land that procedural laws are aimed at to provide relief to the affected persons and to rehabilitate them and not to defeat the same.
57. Having glance of the Act, the Rules made under the Act read with the Byelaws and the Scheme, it was the duty of the authorities, particularly the Registrar, Cooperative Societies, ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 41 : to see that the controversy is set at rest once for all by making an appropriate and just order, which they would have thought fit to .
pass, while keeping in mind the basic foundation of the Scheme, the Byelaws, subsequent events and aim/object of the procedural laws.
of
58. Respondents No. 5 and 6 in CWP No. 6738 of 2014 have taken pleas of limitation, estoppel, waiver and acquiescence rt in all the proceedings before the authorities under the Act and in all the writ petitions before this Court. All the authorities under the Act and this Court have not determined the said pleas so far.
59. The said pleas have also been taken by the private respondents, while filing replies in CWPs No. 4964, 5055, 5093, 5663, 9404, 216 of 2012 & 6738 of 2014 and the writ petitioners in CWPs No. 11248 of 2011 & 378 of 2015.
60. Applying the test in this case, all the parties litigating have been left in lurch and have been made to get entangled in the endless litigation.
61. Having glance of the above discussions, we deem it proper to set aside the order, dated 08.08.2014, made by the Chief ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP : 42 : Secretary (Cooperation) and the order, dated 20.06.2011, made by the Registrar, Cooperative Societies with a direction to the .
Registrar, Cooperative Societies to hear all the interested parties, i.e. the writ petitioners and respondents in all the writ petitions, on all the issues raised by the parties in these writ petitions of before this Court and before the authorities under the Act and pass fresh order(s) within three months with effect from 17 th rt August, 2015. While making the decision, Registrar, Cooperative Societies, is directed to keep in mind the basic foundation of the Byelaws, the aim and object of the Scheme and the discussions made hereinabove.
62. It is made clear that the Registrar, Cooperative Societies, shall not get influenced by the observations made by this Court, the Chief Secretary, his predecessor as the Registrar, the Joint Registrar (Marketing), Cooperative Societies or the District Magistrate(s) from time to time.
63. All the writ petitioners, through their respective counsel, are directed to cause appearance before the Registrar, Cooperative Societies, on 17th August, 2015.
::: Downloaded on - 15/04/2017 18:42:02 :::HCHP: 43 :
64. Viewed thus, all the writ petitions are disposed of, as indicated hereinabove, alongwith all pending applications.
.
(Mansoor Ahmad Mir) Chief Justice (P.S. Rana) Judge of August 06, 2015 ( rajni ) rt ::: Downloaded on - 15/04/2017 18:42:02 :::HCHP