Dismissed

Braham Deo Singh v. the State of Jharkhand through the Secretary Department of Co. Operative

Jharkhand HC9 Feb 2021WPC/4321/2020

Case brief

AI extract

What is this about?

The High Court discharged a writ petition seeking directions to implement an order regarding the rectification of voter lists in a co-operative society. The Court held that the cooperative societies Act provides specific statutory remedies for enforcing Registrar orders.

What did the court decide?

Petition dismissed with liberty to avail the statutory remedy under the Act, 1935 for enforcement/execution of the order.

Braham Deo Singh Vs the State of Jharkhand through… — Cooperative Societies | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4321 of 2020

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Braham Deo Singh ..... … Petitioner

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Versus

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The State of Jharkhand through the Secretary, Department of Cooperative, Near Gol Chakkar, Dhurwa, Ranchi.

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The Assistant Registrar, Co-operative Societies, Chas Circle, Bokaro.

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The Secretary, Udyami Awasiya Sahkari Lohanchal Complex Samiti Ltd., Lohanchal, Bokaro.

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The Registrar, Co-operative Societies, Jharkhand, Pashupalan Bhawan, Khunti Road, Hesag, Hatia, Ranchi.

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The District Co-operative Officer, Bokaro. …. …. Respondents

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CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR

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-----For the Petitioner : Mr. Baibhaw Gahlaut, Advocate For the Respondents : Mr. Varun Prabhakar, A.C. to G.P. III --------

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03/09.02.2021 The present writ petition is taken up today through Video conferencing.

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2. The present writ petition has been filed for issuance of direction upon the respondents, particularly the Assistant Registrar, Co-operative Societies, Chas Circle, Bokaro-respondent no.2 and the Secretary, Udyami Awasiya Sahkari Lohanchal Complex Samiti Ltd., Lohanchal, Bokaro-respondent no.3 to implement the order dated 23^rd November, 2017 passed by the Court of the Registrar, Co-operative Societies, Jharkhand, Ranchi-respondent no.4 in Election Dispute Case No. 12 of 2011 and 09 of 2011.

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3. Learned counsel for the petitioner submits that the petitioner is a member of Udyami Awasiya Sahkari Lohanchal Complex Samiti Ltd., Bokaro Steel City (hereinafter to be referred as the ‘said samiti’) and in the year 2011 he filed a case before the respondent no.4 seeking correction of the voter list/membership of the said samiti, pursuant to which a three members committee was constituted comprising of Joint Registrar, Cooperative Societies, North Chhotanagpur Division, Hazaribagh, District Cooperative Officer, Bokaro and the Assistant Registrar, Co-operative Societies, Chas Circle, Bokaro to inquire into the membership issue of the said Samiti. The enquiry report was submitted by the respondent no.2, identifying 52 members, whose memberships were found doubtful keeping in view the relevant provisions of the bye-laws of the said samiti. As per the enquiry report, the said list of doubtful members was further forwarded to Bokaro Industrial Area Development Authority (BIADA) for verification. Subsequently, the respondent no.4 passed the order dated 23^rd November,

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2017 in amalgamated cases i.e., Election Dispute Case Nos. 12 of 2011 and 09 of 2011 and directed the respondent no.2 to take prompt corrective measures in accordance with Act, rules and bye-laws regarding membership of the society after getting the verification report from BIADA. The respondent no.2 was further directed to peruse the registers and documents which were not made available to the enquiry team earlier. The office bearers of the society were ordered to extend their co-operation to the respondent no.2. The respondent no.5 was also directed to monitor the entire exercise and to get it concluded within a reasonable time frame so that next election would be held on the basis of rectified voter list. Thereafter, the petitioner wrote a letter to the respondent no.2 to implement the order passed by the respondent no.4 and in pursuance of which the respondent no.2 wrote a letter to the Secretary/Chairman of the said Samiti, wherein he provided a list of 45 such members whose memberships were in violation of Clause 4(2) Cha, Clause 5 and Clause 8 of the bye-laws of the said Samiti. The respondent no.2 further requested the Secretary to correct the membership list and provide a copy of the same for implementation of the order dated 23^rd November, 2017 passed by the respondent no.4. However, till date the order of the respondent no.4 has not been implemented in spite of repeated request of the petitioner made to the respondent nos.2 and 4. It is further submitted that the Registrar of the co-operative societies is a statutory authority which has also been conferred quasi judicial power and such its decision has the binding force for the concerned parties.

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4. The learned counsel for the petitioner, in support of his argument puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Cooperative Bank Ltd. and Another reported in (1967) 3 SCR 163 .

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5. Heard the learned counsel for the parties and perused the materials available on record. To appreciate the contention of the learned counsel for the petitioner, it would be relevant to refer some of the provisions of the Jharkhand Co-operative Societies Act, 1935 (hereinafter to be referred as the Act, 1935);

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“48. Disputes. - (1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises-

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(a) amongst members, past members, persons claiming through members, past members or deceased members,

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and sureties of members, past members or deceased members, whether such sureties are members or non- members; or

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(b) between a member, past member, persons claiming through a member, past member or deceased member, or sureties of members, past members or deceased member, whether such sureties are members or non-members and the society, its managing committee or any officer, agent or servant of the society; or

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(c) between the society or its managing committee and any past or present officer, agent or servant of the society; or

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(d) between the society and any other registered society; [or]

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(e) between a financing bank authorised under the provisions of subsection (1) of section 16 and a person who is not a member of a registered society;

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such dispute shall be referred to the Registrar:

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Provided that no claim against a past member or the estate of a deceased member shall be treated as a dispute if the liability of the past member or of the estate of the deceased member has been extinguished by virtue of section 32 or section 63. Explanation. - (1) A claim by a registered society for any debt or demand due to it from a member, non-member, past member or the nominee, heir or legal representative of a deceased member or non-member or from sureties or members, past members or deceased members, whether such sureties are members or non-members, shall be a dispute touching the business of the society within the meaning of this sub-section even in case such debt or demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment. Explanation. - (1) The question whether a person is or was a member of a registered society or not shall be a dispute within the meaning of this sub-section. (2) The Registrar may on receipt of such reference. -

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(a) decide the dispute himself; or ,

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(b) transfer it for disposal to any person exercising the powers of a Registrar in this behalf; or

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(c) subject to any rules refer it for disposal to an arbitrator or arbitrators.

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(3) Subject to any rules, the Registrar may withdraw any reference transferred under clause (b) of sub-section (2) or referred under clause (c) of the said subsection and deal with it in the manner provided in the said sub-section.

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(4) The appointment of an arbitrator or arbitrators and the procedure to be followed in proceedings before the Registrar or such arbitrators shall be regulated by rule. (5) In the case of dispute involving property which is given as collateral security, it shall be competent to the person deciding such dispute to issue mortgage award which shall have the same force as a mortgage decree of a competent Civil Court.

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(6) Any person aggrieved by any decision given in dispute transferred or referred under clause (b) or (c) of sub-section (2) may, within three months from the date of such decision, appeal to the Registrar.

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(7) The Registrar, in the case of dispute under this section, shall have the power of review vested in a Civil Court under Section 144 and under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, and shall also have the inherent jurisdiction specified in section 151 of the said Code. (8)The Registrar may where it appears to him advisable, either on application or of his own motion, state a case and

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refer it to the District Judge for decision, and the decision of the District Judge shall be final.

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(9) Save as expressly provided in this section, a decision of the Registrar under this section, and subject to the orders of the Registrar on appeal or review, a decision given in a dispute transferred or referred under clause (b) or (c) of subsection (2) shall be final.

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49. Registrar, liquidators and arbitrators to have certain powers of Civil Court. - Subject to any rules, the Registrar, any person authorised to hold an inquiry under Section 35 or an inspection under Section 36, any liquidator, any person exercising the powers of a Registrar, or any arbitrator or arbitrators appointed under Section 48, shall in so far as such powers are necessary for carrying out any of the purposes of this Act, have power to summon and enforce the attendance of witnesses and parties concerned and to examine them upon oath and to compel the production of any books, accounts, documents or property by the same means and, so far as may be, in the same manner as if provided in the case of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908).

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51. Enforcement of orders. - Orders passed under Sections 44, 48 and 50 shall in addition to any other method of enforcement provided under this Act, on application be enforced as follows:-

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(a) when passed by the Registrar, a liquidator or by an arbitrator or arbitrators, by any Civil Court having local jurisdiction in the same manner as a decree of such Court:

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(b) when passed by the District Judge, in the same manner as a decree of the District Judge made in the suit pending before him.”

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6. Thus, if any dispute with respect to the business of a registered society arises, the same is to be referred to the Registrar, Co-operative Societies and the question as to whether a person is or was a member of a registered society or not, would be called a dispute within the meaning of sub-section (1) of Section 48. The Registrar, on receipt of such reference shall either decide the dispute himself; or transfer it for disposal to any person exercising the powers of a Registrar in this behalf; or refer the dispute for disposal to an arbitrator or arbitrators. Section 49 of the Act, 1935 empowers the Registrar or any person exercising the power of a Registrar to summon and enforce the attendance of witnesses and parties concerned and to compel the production of any books, accounts, documents by them and while doing so he will exercise the power in the same manner as provided in the case of a civil court under the Code of Civil Procedure, 1908. Further, Section 51 of the Act, 1935 provides that the order passed under Sections 44, 48 and 50 by the Registrar, a liquidator or by an arbitrator or arbitrators will be enforced by any Civil Court having local jurisdiction in the same manner as a decree of such court.

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7. In the present case, an election dispute case was filed before the respondent no.4 alleging that some ineligible persons were included as

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members of the said samiti. The respondent no.4 called for a report from a three members’ committee and thereafter an enquiry report was submitted by the respondent no.2 identifying 52 such members whose memberships were doubtful in view of Clause 4(2) Cha., 5 and 8 of the bye-laws of the said samiti. Subsequently vide order dated 23^rd November, 2017, the respondent no.4 directed the respondent no.2 to take prompt corrective measures after getting the verification report from BIADA. The contention of the petitioner is that the respondent no.2, vide letter no.339 dated 03^rd July, 2018 had provided the list of 45 voters to the respondent no.3 with a direction to correct the membership list, however, the same has not yet been corrected. If the said contention of the petitioner is taken as true, he has the right to make an application to the concerned Civil Court for execution of the order of the respondent no. 4 in view of Section 51 of the Act, 1935. Since the alternative efficacious remedy for execution of the order of the respondent no.4 has been provided under the Act itself, I do not find any reason to entertain the present writ petition.

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8. So far as the judgment of Thakur Jugal Kishore Sinha (supra) is concerned, the same is not applicable in the facts and circumstances of the present case since in the said case, the issue was as to whether the Assistant Registrar of Cooperative Societies is a court within the meaning of the Contempt of Courts Act, 1952. The petitioner, however, in the present case, has not sought initiation of contempt proceeding for non-compliance of the Registrar, Co-operative Societies, Jharkhand, rather he has sought necessary directions for enforcement of the order of the Registrar. Nonetheless, since specific procedure has been prescribed for enforcement of the order passed by the Registrar, Co-operative Societies in the Act, 1935 itself, the petitioner should avail the said remedy.

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9. In view of the aforesaid facts and circumstances, the present writ petition is disposed of with a liberty to the petitioner to avail the remedy available under the Act, 1935 for enforcement/execution of the order passed by the respondent no.4.

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(Rajesh Shankar, J.)

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Rohit

Braham Deo Singh v. the State of Jharkhand through the Secretary Department of Co. Operative

Case brief

What is this about?

What did the court decide?

Braham Deo Singh v. the State of Jharkhand through the Secretary Department of Co. Operative

Case brief

What is this about?

What did the court decide?

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