Madhya Pradesh High Court
The Board Of Directors. Vidyut Shramik ... vs The Dy. Registrar / Dy. Commissioner ... on 29 October, 2015
WP-3840-2014
(THE BOARD OF DIRECTORS. VIDYUT SHRAMIK GRIH NIRMAN SAHAKARI SAMITI LTD. Vs THE DY.
REGISTRAR / DY. COMMISSIONER COOPERATIVE SOCIETIES)
29-10-2015
Shri RD. Hundikar, learned counsel for the petitioners.
Shri Siddharth Gulatee, learned counsel for respondent Nos.
1 to 4.
Smt. Divyakirti Bohre, learned G.A. for the respondent No.5- State.
Heard learned counsel for the parties on IA.No.1862/2015 filed by the respondent No.2 & 3 for dismissal of the petition. The grievance of the petitioner is that the respondent No.3 has obtained the order dated 17/07/12 in Writ Petition No.2988/2012 by suppressing material fact that the whole body was already defunct and the Board had resigned before the order of supersession. In the circumstances a prayer has been made to direct the Deputy Registrar to appoint the Officer-in-charge to takeover the charge of books and property of society from respondent Nos. 2 & 3 and to allow the petitioner and other members who have been elected and entered in the Office on 11/05/2011.
Briefly stated the third respondent had filed WP.No.2988/2012 challenging the order dated 14/02/2012 passed by Madhya Pradesh State Co-operative Tribunal, Bhopal. The said writ petition was duly contested by the petitioner herein. A Division Bench of this Court after hearing the parties on 17/07/12 allowed the petition by passing the following order:-
âShri Siddharth Gulatee, Advocate, for the petitioner. None for respondent No.1.
Shri Ashok Tiwari, Advocate, for respondent nos. 2 to 11. This petition, under Article 226 of the Constitution, is directed against the order dated 14.2.2012, Annexure P11, passed in Miscellaneous Case No.31/2011 by the Madhya Pradesh State Co-operative Tribunal, Bhopal (in short, âthe Tribunalâ) whereby in a contempt application it has held that earlier Board of Directors was not reinstated and permitted respondent nos.2 to 10 to function as new Board of Directors.
Respondent no.11 Vidyut Sharmik Griha Nirman Sahakari Samiti Limited is a Co-operative Society. On 26.8.2007 the petitioner was elected as member of the Board of Directors of the Society. Under sub-section (7-A)(i) of section 49 of the Madhya Pradesh Co-operative Societies Act, 1960 (in short, âthe Actâ) the term of Board of Directors is of five years from the date on which first meeting of the Board of Directors is held. Respondent no.1 Deputy Registrar, Co-operative Society, however by exercising powers under section 53(1) vide order dated 15.2.2010 superseded the functioning of the Board of Directors for a period of two yearsand appointed one Mr. P. S. Thakur to manage the affairs of the Society. The petitioner challenged the order of supersession in Appeal No.78(1)11/2010 before the Joint Registrar, Co-operative Society, but it was dismissed vide order dated 29.1.2011.
Undeterred, the petitioner filed Second Appeal No.18/2011 before the Tribunal which was allowed vide order dated 30.6.2011 and the order dated 15.2.2010 of supersession was set aside.
During the pendency of second appeal the person appointed to manage the affairs of Society made an arrangement for the constitution of a new Board of Directors as provided under section 53(6) of the Act. The arrangement was by an election held on 4.5.2011 in which respondent nos.2 to 10 were elected as members of the new Board of Directors. And because of the disqualification under section 53(12) none of the members of the superseded Board of Directors, including the petitioner, were eligible to contest that election. As already mentioned above, sub-section (7-A)(i) of section 49 of the Act provides that the term of Board of Directors shall be five years. The proviso to this sub-section clearly mandates that where a Board of Directors superseded is reinstated, as a result of any order of any court or authority, the period during which the Board of Directors remained under supersession shall be excluded in computing the period of five year term. Thus, setting aside of the supersession order dated 15.2.2010 by the Tribunal resulted in the restoration of the position of petitioner and other members of the Board of Directors as it stood on the date when the order of supersession was passed. But respondent nos.2 to 10 refused to step down gracefully. Instead, they started creating hurdles in the reinstatement of the earlier Board of Directors. The petitioner, therefore, made a representation Annexure P5 to the Deputy Registrar who, by order dated 15.9.2011,held that after passing of the order dated 30.6.2011 by the Tribunal, the earlier Board of Directors stood reinstated. But again despite this order, respondent nos.2 to 11 continued to defy the mandate of law. Not only this, they even filed a contempt petition before the Tribunal under section 10 read with section 12 of the Contempt of Courts Act against the petitioner. The Tribunal also surprisingly by the impugned order dated 14.2.2012 has held that the earlier Board of Directors did not come into existence despite setting aside of the order of its supersession. Having regard to the fact situation of the case, we are firmly of the view that order dated 14.2.2012 passed by the Tribunal cannot be sustained. It is a well-settled principle of law that setting aside of an order results in the restoration of the position as it stood on the date of passing of the order which has been set aside (See M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras AIR 1992 SC 1439 para 10). Therefore, the earlier Boardof Directors which was superseded is deemed to be reinstated after the setting aside of the order of its supersession. And the period during which the Board of Directors remained under suspension is also to be excluded in computing the period of five year term as clearly provided in sub-section (7-A)(i) of section 49 of the Act. The Tribunal apparently lost sight of the fact that a new Board of Directors of which respondent nos.2 to 11 are members was constituted only by way of arrangement during the period of supersession of earlier Board of Directors. Therefore, once the order of supersession of earlier Board of Directors was set aside, it is restored to the position as it stood on the date of the order of supersession. Moreover, in a contempt petition filed by respondent nos.2 to 11 the Tribunal had no jurisdiction to hold that the earlier Board of Directors was not reinstated. For these reasons we have no hesitation in quashing the order dated 14.2.2012. We accordingly quash the order and direct respondent nos.2 to 11 not to interfere in the functioning of earlier Board of Directors.
The petition is allowed with costs of Rs.1,000/- payable by respondent nos.2 to 11 to the petitioner.â Feeling aggrieved by the said order the petitioner herein filed a Review Petition stating the entire facts which are stated in this petition in detail including facts referred to in Para-10 and grounds referred to in para 14 & 15 of the Review Petition, which are reproduced hereinunder :-
10. That, the petitioners herein further submits that the members of the outgoing board of directors tendered their resignation letter dated 06/02/2010 (Annexure R2-1) in which the name and signature st of the 1 respondent is also reflected. After tendering the resignation aforesaid, the order of supersession was passed taking note thereof and new board of directors was constituted in view of provisions contained in sub-section (6) of Section 53 of the Act. Therefore, the petition for restoration of the members of the outgoing board of directors pursuant to proviso contained in sub-
section (7-A) of section 49 of the Act is not maintainable. As the newly constituted board of directors is already functioning.
14. The petitioners most respectfully submit that the members of the outgoing Board of Directorsa have tendered their resignation letter dated 06/02/2010 (Annexure R-1/1). After tendering the resignations above said, none of the outgoing members of the Board of Directors except the petitioner therein the writ petition who was not even member of the society on the date of filing the writ petition, had chosen to file the writ petition before the Hon'ble Court. It is a st matter of fact that the writ petition filed by the 1 respondent was not in the representative capacity. As such, it should have been dismissed as not maintainable.
15. The petitioners most respectfully submit that the benefit of relegating the outgoing members of the Board of Directors after setting aside the order of supersession would be available if no elections were held. In the instant case, the new Board of Directors was constituted in accordance with the law and as such this new Board of Directors could not be turned as an interim arrangement during the period of suppression. The petitioners further submit that the restoration of outgoing members of Board of Directors in view of proviso to sub-section (7-A) of the Act is a procedural matter which cannot replace the substantive provision of sub-section (6) of Section 53 of the Act.
However the said Review Petition No.608/2012 was dismissed by the Division Bench of this Court vide order dated 17/08/2012. Against the original order passed in the writ petition, as also the order passed in the review petition the present petitioner filed Special Leave to Appeal before the Supreme Court, which suffered dismissal vide order dated 07/01/13.
When the matter stood thus, the petitioner has filed this petition alleging the same grounds, which were raised earlier and not accepted by the Division Bench in the writ petition and in the review petition.
In the aforesaid circumstances in my considered view the grievance raised by the petitioner having attained finality by the order of Division Bench in writ petition, then in review petition and thereafter by the Supreme Court, it is not open for the petitioner to file a fresh petition raising the same issue which has finally concluded against him. Moreover, it is also seen that when the order passed by the Writ Court was not complied with, the writ petitioner of WP.No.2988/12 had filed a Contempt Petition No.1757/12, in which on 11/12/13 a Division Bench of this Court had passed the following order:-
âShri S. Gulatee, learned counsel for the petitioner. Shri R.D. Hundikar, learned counsel for the respondents. Having heard the learned counsel for the parties, we direct that Deputy Registrar, Cooperative Society, Jabalpur to ensure that the charge of the cooperative society is handed over to the petitioner and the body functioning with him as already directed by the Division Bench of this Court in WP.No.2988/2012 on 17.07.2012 and submit a report before this court with regard to the handing over of the charge to the body which was restored to its office by virtue of order dated 17.7.2012.
That apart, the Registrar shall conduct an enquiry and submit a report indication as to whether the respondent nos. 2 ato 10 continued to hold the charge of the society in question inspite of order passed by the Division Bench of this Court on 17.7.2012 in WP.No.2988/2012 which has been affirmed even by the Supreme Court after dismissal of S.L.P. Filed by the respondents. Let the charge be handed over to the body functioning under the petitioner within a week and enquiry report be submitted, as directed above th on or before 30 of October, 2013.
st List for further order on 31 October, 2013.â Thereafter when the order was reported to be complied with the contempt proceeding was dismissed. In the circumstances the petitioner herein cannot reagitate the issue on the same grounds when it has finally been adjudicated.
Therefore, the petition fails and is hereby dismissed.
(SHANTANU KEMKAR) JUDGE