Patna High Court - Orders
Katra Prakahnd Matasyajivi Sahyog ... vs The State Of Bihar & Ors on 5 September, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7358 of 2014
With
Interlocutory Application No.4921 of 2014
With
Interlocutory Application No.4539 of 2014
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1. Katra Prakahnd Matasyajivi Sahyog Samiti Ltd. through the then
Secretary Subansh Sahni S/o Late Ram Saran Sahni R/o Vill - Bhorha, P.S.
- Katra, Dist - Muzaffarpur.
2. Bhogindar Sahni S/o Jageshwar Sahni R/o Vill - Sahnauri, P.S. - Katra,
Dist - Muzaffarpur.
3. Ram Binod Sahni S/o Late Ram Lakhan Sahni R/o Vill - Siswara, P.S. -
Katra, Dist - Muzaffarpur.
4. Bharat Sahni S/o Shivji Sahni R/o Vill - Lakhan Pur, P.S. - Katra, Dist -
Muzaffarpur.
5. Dinesh Sahni S/o Babu Ji Sahni R/o Vill - Bhorha, P.S. - Katra, Dist -
Muzaffarpur.
6. Ram Preet Sahni S/o Khomari Sahni R/o Vill - Shiv Das Pur, P.S. -
Katra, Dist - Muzaffarpur.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Registrar Cooperative Society Bihar, Patna.
3. The Collector, Muzaffarpur.
4. The Assistant Registrar Cooperative Society, Katra.
5. The Cooperative Extension Officer, Katra through Indrajeet Singh.
6. Rajju Sahni so called acting Secretary Katra Prakhand Matasyajivi
Sahyog Samiti Ltd, Gram - Thewara, P.S. - Katra, Dist - Muzaffarpur.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr.Adv.
Mr. Pashupati Prasad Sinha, Adv.
Mr. Mazharol Hassan, Adv.
Mr. Manoj Kumar, Adv.
For the State : Mr. Vinay Kumar Pandey, A.C. to G.A. 3
For the Respondent/s : Mr. Y.V. Giri, Sr. Adv.
Ms. Mahashweta Chatterjee, Adv.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
4 05-09-2014The petitioner No.1 is a registered Cooperative Society under the Bihar Cooperative Societies Act, 1935 (hereinafter referred to as „the Act‟) and the Rules framed thereunder and has 2 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P2 / 18 moved this Court through its Secretary along with the Chairman and four members of the Managing Committee praying for the following reliefs:
"1. That this application is for quashing the order, dated 12.3.14/28.3.14 passed in Misc. Disp Case No.243 of 2012 passed by the Registrar Cooperative Society Bihar, Patna contained in Annexure-1 issued vide Memo No:-247/RL, Dt:-28.3.14 by which the learned Registrar declared the General Body meeting dt:-21.8.12 of Katra Prakhand Matasyajivi Sahyog Samiti Ltd. illegal convined at the instance of petitioner no:-1 & 2 who have been removed from the primary member of the society under the provision of 9(1) & (2) of the bye-laws of the society and hence the chairman and the secretary are not entitled to convine the meeting of general body dt:21.7.2012 but the learned registrar has failed to consider that the petitioner no:-1 & 2 were removed from the primary member of the society without initiating any proceeding or without taking any evidence as provided under the aforesaid provision of bye-laws and this action of the learned registrar is contrary to the provision of constitution (97th Amendment Act-2011) & the learned registrar has failed to consider that the appointment of Rajju Sahni as, acting secretary Respondent No:-6 acting secretary is also contrary to the provision of Act Rules of the Bihar Cooperative Societies Act-1935 constitution of India as well as the order dt:-4.12.12 passed in Rev. Case No:-84 of 2012 by R.No:-2, contained in Annexure-1/A by which the Respondent No:-2 has set- a - side the memo no:-274, dt:-26.7.12 and memo no:-278, dt:-1.8.12 passed by R.No:-2 without giving any reason and without assigning any cogent reason. Such action of Learned Registrar is wholly illegal contrary to the provision of law and fit to be quashed."
It is considering the nature of contest advanced before this Court and the matter in issue in the two impugned orders, which has necessitated the reproduction of the relief and would also require a brief enumeration of the sequence of events. 3 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014
P3 / 18 Vide Notification bearing No. 4358 dated 24.4.2012 as contained in Annexure-12 of the Bihar State Election Commission, 334 Fishermen, Cooperative Societies were put to election including the petitioner- society for electing one Chairman, one Secretary/Treasurer and 11 members who would form the Managing Committee of the respective society. The election to the petitioner-society was held on 3.6.2012 and in which, whereas the petitioner No.2 was elected Chairman, the petitioner Subansh Sahni was elected Secretary along with 11 other members of whom four are petitioners before this Court and of the seven remaining, one has been impleaded as respondent No.6 to the present proceedings. The certificate of election of these petitioners have been placed at Annexure13 series.
Following the constitution of the Managing Committee of the petitioner-society, the first of the Managing Committee meeting took place on 9.6.2012 and which was attended by the six petitioners herein. The proceedings have been placed at Annexure- 2 series at page 24 and since the quorum was not complete hence it was adjourned to 24.6.2012. The minutes of the meeting contains the names of the seven remaining members of the Managing Committee whose note of dissent on the Chairman and Secretary has been taken note of and who are stated to have declined to sign on the proceeding register. On the same day a 4 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P4 / 18 notice was issued by the Secretary of the Society fixing the date of meeting of the Managing Committee on 24.6.2012 and which notice has been signed by 9 of the 11 members of the Managing Committee including the members whose dissent had been taken note of in the proceeding register.
The meeting held on 24.6.2012 of the Managing Committee again was attended only by the petitioners while the respondent No.6 and 6 others did not choose to attend. The Minutes of the proceedings placed at Annexure-3 again takes note of the dissent shown by the remaining seven members of the committee including the respondent no.6 and again since the quorum was incomplete hence it was adjourned for the next date.
According to the petitioners right since after the election it was the sole motive of the private respondent to oust the Chairman and the Secretary from their elected post by adopting circuitous method and which agenda came on the surface in the very first meeting of the Managing Committee held on 9.6.2012 when these seven members though present, did not choose to sign on the proceeding register expressing no confidence in the elected Chairman and the Secretary but did sign on the notice dated 9.6.2012 fixing the next date of meeting on 24.6.2012. It is thus the stand of the petitioners that the respondent No.6 and the other six members cannot feign ignorance of the date of meeting fixed 5 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P5 / 18 on 24.6.2012 and their non attendance on the said date was a clear reflection of their hidden agenda.
Now whereas it is the case of the petitioners that the remaining seven members of the Managing Committee under the leadership of the private respondent boycotted the meeting, it is the case of the private respondent that the matter is otherwise and it is the Chairman and the Secretary of the society themselves along with the four members who are the petitioners before this Court, who did not choose to attend the meeting which took place on 24.6.2012 and was attended by the seven remaining members, a copy whereof is placed at Annexure-4 series at page 33. The seven members taking note of the absence of the Chairman and the Secretary in the meeting nominated one amongst themselves namely, Ram Shiv Sahni to preside as the Chairman in the meeting in which while expressing resentment on the non participation of these petitioners, a show cause was issued requiring them to respond and the next date of meeting was fixed on 1.7.2012. A decision was also taken to hold the Aam Sabha on 8.7.2012 for taking a decision on Jalkar settlement.
In continuation, the meeting took place on 1.7.2012 which was attended by the remaining seven members including the private respondent and taking note of the absence of the elected Chairman and the Secretary, one Siya Sharan Sahni was 6 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P6 / 18 nominated to preside as Chairman. The committee expressed resentment on the non participation of these petitioners and since no reply to the show cause had been filed by the Chairman and the Secretary, it was decided to apprise the statutory authorities of such development and while fixing the date of next meeting on 7.7.2012, it was also decided to postpone the Aam Sabha fixed on 8.7.2012 to 22.7.2012. The copy of the proceedings is placed at Annexure-4 series at page 37.
The proceeding of the meeting fixed on 7.7.2012 is placed at Annexure-C to the counter affidavit filed on behalf of the private respondent and which again was attended by the seven remaining members other than the petitioners including the private respondent and at Agenda No. 3, it was decided to hold the next meeting on 21.7.2012 and the Aam Sabha on 22.7.2012.
It is at this stage that the petitioner -Secretary vide letter dated 16.7.2012 addressed to the Joint Registrar, Cooperative Societies, Tirhut Division, Muzaffarpur registered complaint regarding the show cause issued by the seven members of the Managing Committee as also against their illegal actions,a copy of the letter is placed at Annexure-16 of the interlocutory application bearing I.A. No. 4921 of 2014. The District Cooperative Officer vide letter bearing Memo No. 1475 dated 16.7.2012 directed the petitioner-Secretary to hold the meeting of the Managing 7 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P7 / 18 Committee at the head quarters of the Society and give intimation thereof to all concerned. The copy of the letter is placed at Annexure-14. It is the case of the petitioner that following the directives a meeting was held on 25.7.2012 but which again was attended only by six petitioners herein and thus was adjourned for want of quorum. The copy of the proceeding is placed at Annexure-15 series at page 115. On the same date another meeting took place which was attended by 7 other members including the private respondent and which takes notice of the decision taken in the Aam Sabha held on 22.7.2012 whereunder the Chairman and the Secretary of the Society had been suspended from their primary membership. At Agenda No.2 of the meeting, the committee taking note of the provisions underlying Rule 24(1) of the Bihar Cooperative Societies Rules, 1959 (hereinafter referred to as „the Rules‟) held that since the Secretary and Chairman have been suspended from the primary membership hence as a consequence they would stand removed from their respective positions in the Managing Committee. A copy of the proceeding dated 25.7.2012 are placed at Annexure-15 series at page 118. The petitioners being aggrieved by the decision taken in the meeting dated 25.7.2012 in the light of a resolution taken in the general body meeting held on 22.7.2012, moved the Assistant Registrar, Cooperative Societies, East Circle, Muzaffarpur, 8 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P8 / 18 although a copy of such application is not on the records of the proceedings. The Assistant Registrar vide order bearing Memo No. 278 dated 1.8.2012 directed the private respondent and two other members to abide by their obligations as cast upon them under the provisions of the Act, the Rules framed thereunder and the byelaws of the society and while opining as such the Assistant Registrar held the General Body meeting held on 22.7.2012 as being in contravention of Clause 30(24) of the byelaws of the Society. The Assistant Registrar, Cooperative Societies, East Circle, Muzaffarpur while reminding the committee members of their legal obligations, held the meetings convened by the remaining seven members of the Committee by nominating their own Chairman, as illegal and the decisions taken in these meetings along with the resolution passed in the Aam Sabha were declared illegal and without jurisdiction. Copy of the order dated 1.8.2012 is placed at Annexure-9 to the writ petition.
The private respondent being aggrieved by the order passed by the Assistant Registrar as contained in Annexure-9 moved in the revisional jurisdiction of the Registrar vested under Section 56 of the Act giving rise to Revision Case No. 84 of 2012 and vide order passed on 6.8.2012 in the revisional proceeding, the operation of the order passed by the Assistant Registrar on 1.8.2012 was stayed and notices were issued to the petitioners who 9 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P9 / 18 appeared in the matter pursuant to the notice served and were heard. The Registrar, Cooperative Societies vide order bearing Memo No. 1271 dated 19.12.2012 held the order passed by the Assistant Registrar as illegal on grounds of having been passed in contravention of the statutory provisions. While cautioning the Assistant Registrar to discharge her statutory duties within the frame work of law, the Joint Registrar, Tirhut Division was directed to supervise the quasi judicial functions discharged by the Assistant Registrar.
Though this order was passed on 19.12.2012 it was never questioned by the petitioners before any Court of law. The consequence of the order passed by the Registrar as contained in Annexure 1A are far reaching. Since the order passed by the Assistant Registrar on 1.8.2012 was set aside, the decisions taken in the Aam Sabha on 22.7.2012 and in the meeting held by the remaining seven members along with the private respondent on 25.7.2012 stood revived. Meaning thereby that these decisions/resolutions whereby the Chairman and Secretary were removed from the primary membership of the Society and consequently from their respective posts, were restored to its original position.
Since despite the order passed by the Registrar on 6.8.2012 in Revision Case No. 84 of 2012 staying the operation of the order 10 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P10 / 18 dated 1.8.2012 whereunder the decision/resolution taken in the Aam Sabha on the ouster of the Chairman and Secretary of the Society was stayed and yet the petitioners proceeded to convene an Aam Sabha on 21.8.2012 that the resolution so passed in the Aam Sabha was questioned by the private respondent in Revision Case No. 243 of 2012 and the Registrar vide order impugned dated 12.3.2014/28.3.2014 after hearing the parties and perusing the materials on record, allowed the revision case taking note of the order passed by him in Misc. Case No. 84 of 2012 whereby the order of the Assistant Registrar passed on 1.8.2012 was set aside. The Registrar held that since under the resolution passed on 22.7.2012 by the Aam Sabha the petitioners were removed from their primary membership of the society, they automatically lost their respective post in the Managing Committee and in which circumstance, the convening of the Aam Sabha by the petitioners on 21.8.2012 was illegal and without jurisdiction in view of the order passed on 6.8.2012 staying the operation of the order passed by the Assistant Registrar dated 1.8.2012 and which was ultimately set aside on 19.12.2012 vide Annexure-1A.
Although extensive arguments have been advanced by Mr. Rajendra Narain, learned Senior counsel appearing on behalf of the petitioners, Mr. Vinay Kumar Pandey, A.C. to G.A. 3 for the State who has also produced the records of the proceedings in the 11 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P11 / 18 two revisional cases and Mr. Y.V. Giri learned Senior counsel for the private respondent but in the opinion of the Court it would not require this Court to go into the deep intricacies of the matter considering the nature of the dispute that has surfaced in the backdrop of the sequence of events and the foundation of the orders impugned in this application.
The election of the petitioners and the other member to the Managing Committee of the Society pursuant to the election notified on 24.4.2012 is not in dispute. It is also not in dispute that the petitioner No.1 and the petitioner No.2 were elected Secretary and Chairman respectively to the Managing Committee of the Society. It is also not in dispute that the first of the meeting of the Managing Committee held on 9.6.2012 was attended by 10 of the 13 members including the Chairman and the Secretary and thus the quorum was complete. The dispute between two factions in the Managing Committee though has reflections in the 1st meeting held on 9.6.2012 but has surfaced after the second meeting convened on 24.6.2012 and has continued thereafter. The records of the writ proceedings manifest that two parallel meetings were taking place on the same dates, one attended by six members inclusive of the Chairman and the Secretary and the other by the remaining seven members of the Managing Committee and each of the two factions have accused the other of non attendance. It is 12 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P12 / 18 but obvious that since the meeting convened by the Secretary and Chairman did not fulfill the quorum, it continued to be adjourned while the meeting convened by the remaining seven members, proceeded in the light of Clause 29 of the byelaws of the Society, a copy whereof is placed at Annexure-7 and which provides for a quorum of seven members for validation of any meeting of the Managing Committee. The said Clause also empowers the members to nominate a Chairman in absence of the elected Chairman and the proceedings have to be entered in a proceeding book maintained for the purpose by the Secretary. Each of the two factions continued to hold their respective meeting and the faction led by the private respondent ultimately held an Aam Sabha on 22.7.2012 in which a resolution was passed ousting the petitioners from the Primary Membership of the Society and which was endorsed in the meeting of the Committee held on 25.7.2012 placed at Annexure-15 series at page 118. The decision taken in the committee meeting held on 25.7.2012 was questioned by the petitioner Secretary of the Society before the Assistant Registrar, Cooperative Society and who by order passed on 1.8.2012 as contained in Annexure-9 declared the resolutions dated 22.7.2012 and the decisions taken in the meeting on 25.7.2012 as illegal and set it aside. This order of the Registrar was questioned by the private respondent in Revision Case No. 84 of 2012 and its 13 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P13 / 18 operation was stayed by the Registrar vide order passed on 6.8.2012 and notices were issued to the petitioners. After return of the notice and hearing the parties, the order passed by the Assistant Registrar was held illegal without jurisdiction and in contravention of the statutory provisions.
The consequence of this order was that the ouster of the petitioners from the primary membership of the Society in view of the resolution dated 22.7.2012 and the decision taken in the meeting held on 25.7.2012 stood restored and thus they stood removed from the primary membership of the society. This order of the Registrar passed on 19.12.2012 was never questioned before any forum.
Since despite the petitioners having been removed from their primary membership and consequently from their elected positions yet they convened a general body meeting on 21.8.2012 that the decision taken thereunder was questioned by the private respondent in Revision Case No. 243 of 2012 and the Registrar taking note of the fact that as a consequence of the setting aside of the order passed by the Assistant Registrar on 1.8.2012, the resolution taken in the Aam Sabha held on 22.7.2012 continued to be operative against the petitioners, and which had not yet been challenged before any appropriate forum that it was held that the Chairman and the Secretary had no jurisdiction to convene a Aam 14 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P14 / 18 Sabha on 21.8.2012 and which was held illegal. It is thereafter that the petitioners while questioning the order passed by the Registrar in Revision Case No. 243 of 2012 on 12.3.2014/28.3.2014, have chosen to also question the order dated 19.12.2012 passed in Revision Case No. 84 of 2012 for the simple reason that the order passed in Revision Case No. 243 of 2012 is only a consequence of the order passed in Revision Case No. 84 of 2012.
I have heard learned counsel for the parties and I have perused the materials on record.
Although the order passed by the Registrar in Revision Case No. 84 of 2012 is sought to be questioned by the petitioners along with the order passed in Revision Case No. 243 of 2012 after a gross unexplained delay of more than a year and a quarter but considering that the foundation for maintaining this writ petition rests on the said order, this Court even in absence of any pleadings in the writ petition for questioning such order on its own merits, has proceeded to examine the same.
It is a matter of record that the petitioners stand removed from the primary membership of the society by virtue of the resolution passed in the Aam Sabha on 22.7.2012 and the decision taken in the meeting held on 25.7.2012 placed at Annexure-15 series at page 118. The petitioners questioned this order before the Assistant Registrar and who proceeded to decide in their favour. 15 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014
P15 / 18 The order of the Assistant Registrar was the subject matter of the Revision Case No. 84 of 2012 filed by the private respondent and the Registrar held the order passed by the Assistant Registrar on 1.8.2012 as being contrary to the statutory provisions. The question is whether there is any infirmity in the opinion of the Registrar in holding the order dated 1.8.2012 passed by the Assistant Registrar as being contrary to statutory provision. The answer is plain and simple in the negative.
Section 6(1) of the Act defines „Registrar‟ and includes all such persons who are duly authorized in this regard by the State under a notification published in this regard. Section 48 of the Act which empowers the Registrar to adjudicate on any dispute touching the business of a registered society on a reference made in this regard also confers power of delegation on the Registrar to any such authority exercising powers of a Registrar as notified by the State Government under Section 6(1) of the Act. It is not in dispute that the Assistant Registrar has been notified by the State Government to exercise power of Registrar under Section 6(1) of the Act. The legal position is very clear on this issue but the question which yet remains is whether the Assistant Registrar suo motu could have exercised such power on an application made to him directly by an aggrieved member of a society. The answer is again in the negative for the Assistant Registrar though exercises 16 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P16 / 18 power of the Registrar but such power could only be exercised upon transfer of such matter by the Registrar under Section 48(2) of the Act and in no other circumstance. The principle that where a statute prescribes a mode and manner of performing any act, it has to be done in that manner alone and all other modes are strictly forbidden, though oft repeated but is more often flouted and the Assistant Registrar while passing the order on the complaint of the petitioner Secretary on 1.8.2012 as contained in Annexure-9 has committed the same illegality and a jurisdictional blunder.
Section 48 of the Act prescribes the mode and manner in which an Assistant Registrar can discharge the duties of a Registrar and thus unless a matter was transfered to him by the Registrar under Section 48(2) of the Act he could not have usurped this jurisdiction on a mere application filed by the petitioners. The action of the Assistant Registrar in proceeding with the matter is in complete ignorance of the statutory preconditions underlying Section 48(1) of the Act which exclusively vests power in a Registrar to receive any such application and also empowers him to transfer the same under Section 48(2) of the Act to any other authority notified under Section 6(1) of the Act to discharge the duties of the Registrar. In the circumstances the order passed by the Assistant Registrar on 1.8.2012 was patently illegal and suffered from vice of quorum 17 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P17 / 18 non judice because until such time that the matter would have been received by the Assistant Registrar on transfer by the Registrar, he had no jurisdiction to proceed with the same and this is exactly the import of the opinion expressed by the Registrar in his order dated 19.12.2012 passed in Revision Case No. 84 of 2012 while setting aside the order passed by the Assistant Registrar on 1.8.2012. Neither the petitioners chose to question this order of the Registrar before this Court nor did they choose to question the resolution taken in the Aam Sabha on 22.7.2012 and the decision taken in the meeting held by the seven remaining members including private respondent on 25.7.2012 before an appropriate forum since after their revival as a consequence of the orders dated 6.8.2012 and 19.12.2012 passed in Rev. Case No. 84 of 2012 and which have since attained a finality.
Since the order of the Assistant Registrar passed on 1.8.2012 was set aside by the Registrar in Revision Case No. 84 of 2012 exclusively on the grounds of exercise of jurisdiction contrary to the statutory stipulation underlying Section 48(2) of the Act and there being no challenge by the petitioners to the resolution dated 22.7.2012 and the decision of the Committee taken on 25.7.2012 as contained at Annexure-15 series at page 118 whereby they have been removed from the primary membership of the Society before a competent forum as per the provisions of the 18 Patna High Court CWJC No.7358 of 2014 (4) dt.05-09-2014 P18 / 18 Act and the Rules framed thereunder, they had no jurisdiction to convene Aam Sabha on 21.8.2012 as rightly held by the Registrar in the impugned order dated 12.3.2014/28.3.2014 passed in Revision Case No. 243 of 2012 and which order again suffers from no legal infirmity nor warrants any interference.
In result, the writ petition is dismissed. The interlocutory applications stand disposed of.
(Jyoti Saran, J) Bibhash/-
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