Rajasthan High Court - Jodhpur
Kamlesh Purohit vs Additional Registrar ... on 10 August, 2023
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2023:RJ-JD:25417] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3785/2023 Kamlesh Purohit S/o Shri Amrit Lal Ji Purohit, Aged About 46 Years, R/o Chittorgarh, Tehsil And Dist. Chittorgarh.
----Petitioner Versus
1. Additional Registrar, Cooperative Societies, Udaipur Division, Udaipur
2. Deputy Registrar, Cooperative Societies, Chittorgarh.
3. Chittorgarh Sahakari Bhumi Vikas Bank Ltd., Through Its Secretary, Chittorgarh.
----Respondents
For Petitioner(s) : Mr. Suresh Charan
For Respondent(s) : Mr. Mrigraj Singh Rathore
Ms. Pratishtha Dave
JUSTICE DINESH MEHTA
Order
10/08/2023
1. By way of the instant writ petition, the petitioner has called in question the legality, properiety and correctness of the order dated 14.03.2023 passed by the respondent no.1 - Additional Registrar, Co-operative Societies, whereby he has been declared disqualified to continue as a Member of the Board of Directors of the Chittorgarh Primary Land Development Bank (hereinafter referred to as 'the Bank').
2. Mr. Charan, learned counsel for the petitioner invited Court's attention towards the fundamental facts and submitted that the petitioner was elected as Chairman of the Bank. He submitted that incidently the petitioner is also Chairman of 'Veer Bhumi Education (Downloaded on 12/11/2023 at 04:10:01 AM) [2023:RJ-JD:25417] (2 of 6) [CW-3785/2023] Society', a society registered under the Rajasthan Societies Registration Act, 1958 (hereinafter referred to as the Act of 1958').
3. The said society namely Veer Bhumi Education Society having taken a loan from the Bank (Chittorgarh Primary Land Development Bank) could not repay the same in time, for which a notice dated 22.02.2023 was issued to the petitioner, inter-alia, observing that the petitioner is a defaulter in relation to the loan given to the society which is overdue and hence, he has lost his eligibility as provided under Section 28(3) of the Rajasthan Co- operative Societies Act, 2001 (hereinafter referred to as 'the Act of 2001') and Clause 26(B)(6) of the Bye-Laws of the Bank.
4. A reply to the notice was filed by the petitioner, in which it was inter-alia contended that neither the petitioner (in his individual capacity) has taken loan from any Co-operative Society nor has any Society, in which he is Chairman has taken loan from the Co-operative Society or Co-operative Bank.
5. Petitioner's such stand did not appeal to the respondent no.1 and resultantly, while invoking powers under Section 30(2) of the Act of 2001, by way of order impugned dated 14.03.2023, he has been declared disqualified and removed from the post of Chairman/Director of the Bank.
6. It was argued by Mr. Charan, learned counsel for the petitioner that a perusal of Section 28(3) of the Act of 2001 clearly suggests that the loan should either be taken by a person in his individual capacity from a co-operative society or he should be a Chairman of the co-operative society, which has taken loan from (Downloaded on 12/11/2023 at 04:10:01 AM) [2023:RJ-JD:25417] (3 of 6) [CW-3785/2023] another co-operative Society or Co-operative Bank and such loan should become overdue.
7. Moving on to the facts of the case in hands, learned counsel argued that since the Veer Bhumi Education Society is a Society registered under the Act of 1958 and not a society registered under the Act of 2001, the provisions of Section 28(3) of the Act of 2001 are not attracted and thus, the order impugned deserves to be quashed and set aside on this count alone.
8. Mr. Rathore, learned counsel for the respondent-State submitted that as a matter fact, the petition has been rendered infructuous, inasmuch as, the petitioner was elected in the year 2017 as a Member of the Co-operative Society and not only his term of five years is over, even subsequent elections of the society has also taken place and therefore, no relief can be granted to the petitioner, even if any substance is found in petitioner's contentions.
9. Learned counsel could not, however, satisfy the Court as to how the petitioner can be said to be a defaulter within the meaning of Section 28(3) of the Act of 2001, when the borrower is admittedly a Society under the Act of 1958. He though submitted that the word 'Society' mentioned in Section 28(3) of the Act of 2001 is a generic word and it should include all the societies including a society registered under the Act of 1958.
10. In rejoinder, Mr. Charan invited Court's attention towards Section 28(6) of the Act of 2001 and submitted that if interference is not made and the order impugned dated 14.03.2023 is allowed to remain, it would have serious repercussion upon petitioner's right to contest election of any society, as Section 28(6) of the Act (Downloaded on 12/11/2023 at 04:10:01 AM) [2023:RJ-JD:25417] (4 of 6) [CW-3785/2023] of 2001 provides that if a person has been removed in exercise of powers under Section 30 of the Act of 2001, shall be barred from contesting election of any society for five years.
11. Heard learned counsel for the parties and perused the relevant material and law.
12. It would be apt to reproduce relevant Sections 28(3) and 30(2) of the Act of 2001, as under:
"28. Disqualification of membership etc. of committees.-
(3) No person shall be eligible for being elected, co-
opted or nominated as a member of a committee or for continuing as member on the committee if he is in default to the society or to any other society, in respect of any loan or loans taken by him for such period as is specified in the bye-laws of the society concerned or in any case for a period exceeding three months: Provided that this disqualification shall not apply on a member society. "
(6) No member of a committee, who has been removed under section 30, shall be eligible for election, co-option or nomination as a member of any committee for a period of five years from the date of such removal.
30. Removal of Committee or Member thereof.- (2) If any member of the committee persistently makes default or is negligent in the performance of his duties imposed by this Act or the rules or the bye-laws made thereunder or commits any act prejudicial to the interest of the society or its members, the Zoanl Registrar, in case of primary society, the Registrar, Co-operative Societies, Rajasthan, in case of a central society and the State Government in case of an apex society may, after giving a reasonable opportunity of being heard, remove such member by order in writing (Downloaded on 12/11/2023 at 04:10:01 AM) [2023:RJ-JD:25417] (5 of 6) [CW-3785/2023]
13. A perusal of Section 28(6) of the Act of 2001 reveals that it has serious repercussion and if the order is allowed to remain, the petitioner would be debarred from contesting the election for five years from the date of the order impugned. Hence, the writ petition cannot be consigned to record as having become infructuous, simply because fresh elections have been held.
14. The matter is, therefore required to be examined on its merit in light of the contentions raised by rival parties.
15. In order to decipher as to what is intended by the Legislature by the term 'Society', one would have to resort to Section 2(i) of the Act of 2001 providing definition of 'Co-operative Society' or 'Society', which is reproduced thus:
"Co-operative Society" or "Society" means society registered or deemed to be registered under this Act;
16. It is, therefore, clear that in the Act of 2001, wherever the expression 'Society' has been used, it would mean a society registered under the Co-operative Societies Act, 2001.
17. Concededly, the petitioner is Chairman of 'Veer Bhumi Education Society', a Society under the Societies Registration Act, 1958 and not a Society, registered under the Act of 2001. Such being the position, even if the Society in which the petitioner is a Chairman is a defaulter, petitioner cannot be held disqualified as per Section 28(3) of the Act of 2001 and hence, the proceedings initiated against him under Section 30 of the Act of 2001 are fundamentally void and without jurisdiction. (Downloaded on 12/11/2023 at 04:10:01 AM)
[2023:RJ-JD:25417] (6 of 6) [CW-3785/2023]
18. It is a matter of concern that inspite of specific objection taken by the petitioner, no discussion has been made by the respondent no.1 in his order.
19. The order impugned dated 14.03.2023 being void and without jurisdiction is hereby, quashed.
20. The writ petition is allowed. Consequence to follow.
21. Stay application also stands disposed of.
(DINESH MEHTA),J 315-Mak/-
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