Himachal Pradesh High Court
Ramesh Kumar Gautam vs State Of Himachal Pradesh And Ors on 25 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.764 of 2008
Date of Decision: 25.7.2016.
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______________________________ _________________________
[
Ramesh Kumar Gautam .........Petitioner.
Versus
State of Himachal Pradesh and Ors.
..........Respondents.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
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For the petitioner: Ms. Megha Gautam, Advocate.
For the respondents: Mr. Rupinder Singh Thakur, Additional
Advocate General, with Mr. Rajat
Chauhan, Law Officer, for respondents
No. 1 and 2.
Mr. Ashok Sood, Senior Advocate with
Mr. Dheeraj Thakur, Advocate, for
respondent No.3.
Sandeep Sharma, J. (Oral)
By way of present writ petition filed under Article 226 of the Constitution of India, petitioner has prayed for following reliefs:-
i. That the impugned orders dated 18.10.2006 (AnnexureP-6) dated 15.11.2006 (Annexure P-8), dated 8.1.2007 (Annexure P-9) and dated Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -2-
31.12.2007 (AnnexureP-10) may kindly be quashed and set-aside.
ii. That the respondents may be directed to .
produce entire record pertaining to the case for kind perusal of this Hon'ble Court.
iii. That the respondents may be burdened with the cost of this petition throughout.
iv. Any other writ, order or direction deemed just of and proper by this Hon'ble Court in the light of facts and circumstances of the case mentioned hereinabove may also be passed in favour of the
2. rt petitioner and against the respondents. Careful perusal of the pleadings available on record suggests that petitioner is aggrieved with the returning of revision petition filed by him under Section 94(I) of the H.P. Co-operative Societies Act, 1968 (in short the Act ) before the Secretary Co-operative Societies, exercising the powers of Govt. under H.P. Co-operative Societies Act. The averments contained in the writ petition suggest that petitioner aggrieved with the order dated 8.1.2007 approached the Secretary Co-operative Societies, exercising the powers of Govt. under H.P. Co-operative Societies Act by way of revision petition (Annexure P-11), specifically challenging therein order dated 8.1.2007. However, further ::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -3- perusal of Annexure P-10 suggests that aforesaid revision petition preferred by the petitioner was returned on the .
ground that remedy of appeal/revision petition under Section 93 and 94 has been already availed by the petitioner before the Court of Additional Registrar (Monitoring) and Registrar, Cooperative Societies, H.P and existing provisions of of HP. Cooperative Societies Act/Rule, do not provide for second revision petition under Section 94 of the Act.
3. rt At this stage, without adverting to the merits of the case, it is noticed by this Court that revision petition bearing No. 12 of 2006 tited "The Liquidator (Assistant Registrar Co-operative Societies) Central Co-operative Consumer stores Ltd., The Mall, Shimla, H.P, vs. Ramesh Kumar Gautam" invoking Section 94 of the Act, was filed by respondent Society not by the present petitioner namely Ramesh Kumar Gautam. It also emerge from the record that aforesaid revision petition preferred by the Liquidator of the respondent-Society was allowed by the Registrar Co-
operative Societies vide order dated 8.1.2007, wherein while allowing the aforesaid revision, order dated 26.6.2006 passed ::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -4- by the learned Additional Registrar Co-operative Societies (Monitoring) was quashed and set-aside.
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4. Accordingly, being aggrieved with the aforesaid order, present petitioner approached the Secretary, Cooperative Societies, and Government of Himachal Pradesh under Section 94 of the Act. However, he of without entertaining the revision petition returned the same by way of forwarding letter dated 31.12.2007 (Annexure P-
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10), to the petitioner stating therein as under:-
Annexure P-10 "With reference to your revision petition titled as Sh. Ramesh Gautam Vs. The Liquidator, (Asstt. Registrar Cooperative Societies), Central Co-operative Consumer Stores Ltd., The Mall Shimla received in this office on 20.12.2007.
In this regard, it is informed that remedy of appeal/revision petition under Section 93 and 94 has already been availed by you before the Court of Addl. Registrar (Monitoring) and Registrar, Cooperative Societies, H.P. and as per existing provisions of H.P. Cooperative Societies Act/Rule do not provide for entertaining second revision petition under Section 94 of the Act ibid.
You are, therefore, advised to take appropriate ::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -5- action accordingly. The petition is returned in original for taking recourse in an appropriate forum."
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5. Close scrutiny of the contents contained in the letter ibid, suggests that Secretary, Cooperative Societies returned the revision petition preferred by the petitioner without looking into the merits of the case and as such, of petitioner has been condemned unheard. This Court is of the view that once revision petition under Section 94 of the Act rt assailing therein order dated 8.1.2007 passed by the Registrar Cooperative Societies, H.P. in case No. 12 of 2006, was maintained before the Secretary Co-operative societies; it was incumbent upon him to decide the same in accordance with law. Secretary Co-operative societies by issuing letter dated 31.12.2007 (Annexure P-10) returning therewith revision petition filed by the petitioner, has fallen in grave error because if at all he was of the view that revision petition filed by the petitioner is not maintainable being second revision petition, he ought to have decided the issue of maintainability at first instance before returning the revision petition. But interestingly, in the present case, as clearly ::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -6- emerge from perusal of Annexure P-10, revision preferred by the petitioner was returned by way of forwarding letter .
dated 31.12.2007 stating therein that second revision petition under Section 94 of the Act is not maintainable. However, at this stage, it is not understood that on what basis Secretary, Cooperative Societies, concluded that revision petition of preferred by the petitioner against the order dated 8.1.2007 passed by Registrar Cooperative Societies, is a second rt revision because at no point of time, notices were issued to the parties and record was perused. Secretary, Cooperative Societies had no jurisdiction, whatsoever, to return the revision petition without deciding issue of maintainability at first instance. But in the present case, Secretary Co-operative Societies without affording any opportunity of being heard to the petitioner, returned the revision petition by stating that it is not maintainable being second revision. Had Secretary, Cooperative Society granted sufficient opportunity of being heard to the petitioner at the time of returning the revision petition, ::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -7- petitioner would have rendered assistance, if any in that regard qua maintainability of second revision.
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6. In view of the discussion made hereinabove, this Court deems it fit to remand this case back to the Secretary, Cooperative Society to decide the question of maintainability on the basis of record and pass detailed of order in accordance with law.
7. Consequently, in view of the detailed discussion rt made hereinabove, operation of Annexure-P10 letter dated 31.12.2007 is quashed and set-aside and Secretary, Cooperative Societies is directed to decide the revision petition (Annexure P-11) preferred by the present petitioner within a period of two months from the date of passing this order. Needless to say that authority concerned shall afford an opportunity of being heard to both the parties before deciding the revision petition. However, it is made clear that authority while deciding the revision petition will not be influenced by any observation made in the present case and shall decide the matter in accordance with law within the stipulated time. Record, if any, be sent back forthwith to ::: Downloaded on - 15/04/2017 20:52:44 :::HCHP -8- the concerned authority for taking necessary action in terms of this order.
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July 25, 2016 (Sandeep Sharma),
manjit Judge.
of
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