Himachal Pradesh High Court
Solan Vyapar Mandal vs State Of Himachal Pradesh And Others on 2 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4774 of 2020.
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Reserved on: 27.07.2021.
Date of decision: 2.08.2021.
Solan Vyapar Mandal .....Petitioner.
Versus
State of Himachal Pradesh and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Ajay Sharma, Senior Advocate with Mr. Amit Jamwal, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate General with Mr. Rajinder Dogra, Senior Additional Advocate General, Mr. Vinod Thakur, Mr. Hemanshu Misra, Mr. Shiv Pal Manhans, Additional Advocate Generals and Mr. Bhupinder Thakur, Deputy Advocate General, for respondents No. 1 and 2/State.
Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate, for respondent No.4.
(Through Video Conferencing) 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 2 Tarlok Singh Chauhan, Judge .
The instant writ petition has been filed for grant of the following reliefs:-
"i) That the impugned notice dated 12.10.2020, Annexure P-11, may very kindly be quashed and set aside;
ii) That directions may kindly be issued to respondent No.1 or in the alternative, to learned Chief Secretary of the State of H.P. to hold inquiry or get it conducted against respondent No.3 with respect to the facts of the present case as impugned acts of respondent No.3 come under the definition of misconduct as per provisions of the service jurisprudence and to take action against him in accordance with law and Action Taken Report may very kindly be ordered to be placed on the records of this case as the same will be an eye-opener for others not to overstep the jurisdiction vested in them."
2. The petitioner-Society was registered on 23.05.2016 under the provisions of the Himachal Pradesh Societies Registration Act, 2006 (for short 'Act'). It is averred by the petitioner that vide resolution passed in the meeting of the Society held on 27.06.2020, it was resolved that the term of three years of the Managing Committee ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 3 was already over and, therefore, elections are required to be conducted and as such Shri Sanjeev Sharma was .
nominated as Returning Officer and Shri Pankaj Verma was authorized to communicate with the Deputy Registrar Societies, Solan (3rd respondent) for taking steps for conducting elections of the Managing Committee. On the said date, it was also decided that the elections of the Society will be held on 29.08.2020 and for this purpose an information will be sent to the members of the Society, so that whosoever is interested in the elections may submit his name on or before 27.07.2020 before the Returning Officer and the last date for withdrawing the names was fixed as 03.08.2020.
3. On 20.08.2020, a letter was issued by 3 rd respondent to the petitioner-Society vide which reference was made to the letter dated 01.08.2020 and directions were issued that the Society may fix the term of the Governing Body to three years in sequel to the provisions of the Act and get fresh elections conducted by calling a General House of the members of the Society in accordance with law.
::: Downloaded on - 31/01/2022 22:47:49 :::CIS 44. It is then averred that the meeting of the Society was held on 29.08.2020 and vide resolution No.1, the term .
of the Managing Committee was fixed to three years and vide resolution No.2, the elections were conducted and held unanimously in the presence of 872 members as recorded in Annexure P-10. An information regarding conducting of elections and office bearers was submitted by the Returning Officer to 3rd respondent vide communication dated 31.08.2020. On 02.09.2020, a communication was issued by 3rd respondent to the General Secretary of the petitioner-Society informing him that certain complaints regarding elections of new body held on 31.08.2020 have been received in his office which were duly replied to by the petitioner.
5. Thereafter, 3rd respondent appointed the District Inspector Cooperative Societies, Solan, to look into the complaints against the petitioner-Society, who submitted his inquiry report on 16.09.2020.
6. It is further averred that on 11.10.2020, 3 rd respondent came in his official vehicle using hooter and misbehaved with the businessmen in the Ganj Bazaar, Solan. On this, a complaint came to be filed with the ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 5 Superintendent of Police, Solan, for registering an FIR against 3rd respondent as per the provisions of the Indian .
Penal Code as also the provisions of the Code of Criminal Procedure. It is then averred that respondent No.3 by that time had now become inimical against the petitioner-
Society and its members and vide order dated 12.10.2020 declared the elections conducted on 29.08.2020 as null and void under Section 39 of the Act. This led to the filing of the instant petition.
7. The respondents have contested the petition by filing reply wherein it is averred that a general meeting of the petitioner-Society was held on 29.08.2020 and thereafter a letter dated 02.09.2020 was received in the office of 3rd respondent from one Pankaj Verma, who claimed himself to be the General Secretary of the petitioner-Society informing therein that a new governing body was elected on 29.08.2020. In the meantime, the office of 3rd respondent received many complaints and applications from the members of the petitioner-Society alleging therein that some miscreant members of the petitioner-Society have illegally conducted the elections on 29.08.2020 in violation of the provisions of the Act, ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 6 Rules and Bye-laws. It was then that 3 rd respondent after taking cognizance of these complaints ordered an inquiry .
under Section 39 of the Act and appointed the District Inspector Cooperative Societies as an Inquiry Officer, who submitted his report on 16.09.2020 (Annexure P-10).
Respondent No.3 considered the inquiry report and found that the elections of the government body of the petitioner-
society was conducted in haste by bypassing the bye-laws and showing utmost disregard to the provisions of the Act and Rules made thereunder. Accordingly, 3 rd respondent passed the impugned order dated 12.10.2020 and declared the elections as null and void under Section 39 of the Act.
8. At this stage, it will be worthwhile to mention here that during the pendency of this petition, an application came to be filed by one Mukesh Gupta, who claimed himself still to be President of the Solan Vyapar Mandal on the ground that the elections held on 29.08.2020 were not in accordance with law. The application was allowed and he was impleaded as respondent No.4.
9. In the reply filed by respondent No.4, a number of preliminary objections regarding maintainability, estoppel and locus-standi have been raised. It is then ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 7 averred that the replying respondent has been elected as per Rules, Law and Bye-laws of the Solan Vyapar Mandal for .
a period of five years i.e. upto the year 2022 as Bye-laws No.10 of the Society clearly provides for the term of the Governing Body to be five years because Bye-laws of the Society have not been amended till date. As such, fresh elections cannot be conducted without amending the Bye-
laws and, therefore, the claim of the petitioner to be elected as President of the Solan Vyapar Mandal is legally invalid and false. It is further averred that an equally efficacious remedy of appeal under Section 51 of the Act was available to the petitioner which has not been availed by it and moreover Section 42 of the Act provides to refer the dispute regarding Management to the Registrar. In reply on merits, these objections have been reiterated.
10. We have heard the learned counsel for the parties and gone through the material placed on record.
11. At the outset, it needs to be noticed that we are at a complete loss to understand how respondent No.4 can claim himself to still be the President of the Society that too on the basis of the Bye-laws No.10 which provision is contrary to Section 15(2) of the Act which clearly provides ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 8 for the term of the Governing Body or its members so elected to be as may be specified in the regulations, but .
not exceeding three years. Here, it shall be apt to refer to Section 15(2) of the Act which reads as under:-
"(2) the term of the Governing Body or of its members so elected shall be as may be specified in the regulations but not exceeding three years:
Provided that a member of the Governing Body of a Society shall be eligible for re-election as such, if the bye-laws so permit:
Provided further that a member of the Governing Body may be removed by the General body in a meeting specially convened for such purpose by simple majority of votes of the members present after affording such member an opportunity of being heard."
12. It is settled law that an Act will prevail over the Rules, Bye-laws and Regulations.
13. According to the "pure theory of law" of the eminent jurist Kelsen, in every legal system there is a hierarchy of laws, and the general principle is that if there is a conflict between a norm in a higher layer of the hierarchy and a norm in a lower level of the hierarchy, then the norm in the higher level prevails, and the norm in the lower layer becomes ultra vires.
::: Downloaded on - 31/01/2022 22:47:49 :::CIS 914. In our Country this hierarchy is as follows:-
(1) The Constitution of India.
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(2) Statutory law, which may be either law made by the Parliament or law made by the State Legislature.
(3)Delegated legislation which may be in the form of rules, regulations etc. made under the Act.
(4) Administrative instructions which may be in the form of GOs, Circulars etc.
15. It is rather unfortunate that the official respondents have tried to behave like private litigants and took no steps to get the elections conducted despite the term of the Governing Body having expired on 07.05.2020.
No doubt, because of Covid-19, the successive meetings were adjourned, but then as per the admitted case of the parties the elections did take place on 31.08.2020. If anyone was aggrieved by holding of such elections, then it was open to the aggrieved person(s) to have filed an election petition as normally a complaint under Section 39 of the Act in such circumstances would ordinarily be not maintainable. If at all the authority, more particularly, 3 rd respondent was to act on the basis of the complaint, then ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 10 the said respondent ought to have atleast followed the basic principles of natural justice and fair play.
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16. The fundamental principle of natural justice is "audi alteram partem", meaning "listen to the other side"
"let the other-side be heard as well". It is a principle that no person should be judged without a fair hearing in which each party is given an opportunity to respond to the evidence against him.
17. "Audi alteram partem" is considered to be a principle of fundamental justice or equity or the principle of natural justice. This maxim includes two elements; (1) notice, (2) hearing. Any order passed without giving notice would be against the principles of natural justice and may be declared void ab-initio. In such cases if the order is passed by authority without providing reasonable opportunity of being heard to the person effected adversely by it, it will be invalid and would be set aside.
18. A reasonable opportunity of hearing which is well known as fair hearing is an important ingredient of the "audi alteram partem" rule. This condition may be complied by the authority while conducting written or oral hearing depending on the circumstances of the each case. Unless ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 11 the Statute under which the action is being taken by the authority provides otherwise, it is the duty of the authority .
to ensure that the affected party may get an opportunity of hearing.
19. A general duty is cast on the competent authority to act judicially and it is bound to follow the aforesaid principles. As regards the instant case, this was mandatory for the reasons that an established institution under the Act has indirectly been ordered to be superseded by resorting to Section 39 of the Act.
20. It is more than settled that when action of quasi judicial authority results in an adverse civil consequences against a person or body, then unless the Statute by either expressly or by necessary implication excludes the principle of natural justice, hearing must be given to those person (s) or bodies before passing such orders.
21. Since the society has been visited by even civil consequences, therefore, it was mandatory for the 3 rd respondent to have afforded an opportunity of fair hearing to the affected party(ies) before taking such harsh and far-reaching decision. To say the least, decision taken in ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 12 this case is in haste, that too, by showing scant regard and respect to the society.
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22. Here, it shall be apposite to refer to the celebrated decision of the Hon'ble Supreme Court in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, wherein the Hon'ble Supreme Court observed as under: r "75. Fair hearing is thus a postulate of decision-
making cancelling a poll, although fair abridgment of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law.
76. We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequatur. The silence of statue has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation."
::: Downloaded on - 31/01/2022 22:47:49 :::CIS 1323. It cannot be denied that the instant order has resulted in adverse consequences and therefore, could not .
have been passed without adherence to the minimum requirements of the principal of natural justice, more particularly, the rule of "audi alteram partem".
24. The State is the largest litigant and stands in a category apart having a solemn and constitutional duty to assist the Court in dispensation of justice. The State cannot behave like a private respondent and cannot betray the trust reposed on it.
25. This Court is absolutely clear that it is the State and its Officers that are responsible for the entire mess that has been created in the instant case. As observed by the Hon'ble Supreme Court in M/s Granules India Ltd. vs. Union of India and others, AIR 2020 SC 594, the State cannot behave like a private litigant. The State acts through its Officers, who are given powers in trust and if that be so, then that trust cannot be betrayed either by casualness or negligence.
26. In view of the aforesaid discussion, we find merit in this writ petition and the same is accordingly allowed.
The impugned order/notice dated 12.10.2020 (Annexure ::: Downloaded on - 31/01/2022 22:47:49 :::CIS 14 P-11) is set aside. However, that does not mean that we have in any manner upheld or given our approval or .
recognition to the so-called elections held on 31.08.2020 which question shall, if necessary, be decided by the competent authority in appropriate proceedings if at all brought before it.
27. The writ petition stands disposed of in the aforesaid terms, leaving the parties to bear their own costs.
Pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 2nd August 2021.
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