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2005 DIGILAW 27 (PAT)

Yogeshwar Prasad v. State Of Bihar

2005-01-11

R.S.GARG

body2005
Judgment R.S.Garg, J. 1. Heard Ms. Anupama Sharma, learned counsel for the petitioners, Mr. Indeshwari Prasad Mandal for the State, Shri Binod Kumar Kanth, Senior counsel for the then Registrar, Cooperative Societies Mr. Rajesh Agrawal, and Mr. Basant Kumar Choudhary, learned counsel for respondent No. 10 and some of the intervenors. None for the other parties. 2. The petitioners being aggrieved by the order dated 18.4.2001, passed in Revision case No. 184 of 2000, by the Registrar, Co-operative Societies, Bihar, Patna, and before this court. The revision came to be filed before the Registrar, Co-operative Societies as the present petitioners were aggrieved by the orders passed by the District Co-operative Officer, Patna in Misc. Case No. 3 of 2000 on 23.6.2000 under which the District Co-operative Officer, Patna superseded the managing committee of Alaknanda Co-operative Housing Construction Society Ltd., u/s. 41(1) of the Bihar Co-operative Societies Act, 1935 . 3. A detailed order running in as many as 12 pages came to be passed by the said Registrar. He had discussed the legal position and also detailed the factual aspect. He recorded that there was no smoke screen doubt that the present managing committee of the said society is disobeying the orders of the Registrar Co-operative Societies (RCS) and the other Officers. He refused to interfere with the order passed by the District Co-operative Officer, Patna. 4. On 28.1.2002 when the matter came up for consideration before this Court it appeared that serious allegations were made in the petition. The allegations were to the extent that after his transfer from the said office, the Registrar made certain antedated orders against the interest of the petitioner. The Court taking serious note of the matter, directed that a notice be issued to respondent No. 3 to appear in person and file his personal counter in the matter. 5. Respondent No. 3 accordingly appeared in person and filed his counter. On 14.2.2002, a detailed proceeding was recorded by this Court. I would simply observe the salient features of the said order but at the same time, would also observe that the order dated 14.2.2002 should be read as supplement to this final order. 5. Respondent No. 3 accordingly appeared in person and filed his counter. On 14.2.2002, a detailed proceeding was recorded by this Court. I would simply observe the salient features of the said order but at the same time, would also observe that the order dated 14.2.2002 should be read as supplement to this final order. In paragraph 12 of the counter affidavit, the Registrar, respondent No. 3, had stated as under :- "......Even assuming for argument sake that the impugned order dated 18.4.2001 has been passed on later date, it does not harm the writ petitioners as the Deputy Director has been directed by the impugned order to take over the charge as Administrator of the Society within seven days from the date of receipt of the order, which order has been communicated on 18.6.2001. ......". 6. The rest of the pleadings raised by the respondent No. 3 were that the order was passed on 18.4.2001 and was communicated to the petitioner on 18.6.2001. This court observed that the entire counter affidavit did not say that for what particular reason the order could not be communicated for two months. This Court also observed that some of the arguments, which were submitted in writing after 18.4.2001 were finding place in the final order dated 18.4.2001. This court also observed that number of the arguments which find place in the written argument dated 27.4.2001 are to be found in the order alleged to have been passed on 18.4.2001. This Court required the respondent No. 3 to unfold the mystery by filing an additional counter affidavit as to how the arguments which were submitted in writing on 27.4.2001 would find place in his impugned order dated 18.4.2001. The respondent No. 3 and the Bench clerk were directed to remain in attendance on 5.3.2002 in court to answer the queries which may be made by this Court. 7. On 5.3.2002 Mr. Agrawal, the then Registrar, Co-operative Societies appeared and filed his counter affidavit. Learned counsel for the State also filed affidavit of the Bench Clerk in accordance with the earlier direction of this court. Though the Court wanted to dispose of the matter immediately but finding that the private respondents were not served, this Court directed that notices be issued to them. The matter could not be heard for one reason or the other. Though the Court wanted to dispose of the matter immediately but finding that the private respondents were not served, this Court directed that notices be issued to them. The matter could not be heard for one reason or the other. It was partly heard on 10.1.2005 and the hearing concluded today on 11.1.2005 itself. 8. Before coming to the merits of the order dated 18.4.2001 (contained in Annexure 2) I must refer to the counter affidavit and supplementary counter affidavit filed by the then Registrar, Co-operative Societies. 9. It is submitted by him that he is an IAS officer of 1994 batch and he was allotted the cadre of Manipur, Tripura and it was only in May, 1999 that he joined the erstwhile State of Bihar on deputation. He started functioning as Registrar, Co-operative Societies in the month of January, 2001 and before that he had very little knowledge of the Co-operative laws nor he had good experience to deal with the intricacies of the disputes brought before him. It is submitted by him that in appreciating the affairs of the Co-operative Societies in the State of Bihar and the allied laws, he had in his wisdom to take the assistance of the Deputy Registrar (Legal), namely Shri Y.H. Khan, who was subsequently promoted as Joint Registrar and also held most of the powers of the Registrar under the Act. It is further stated that respondent No. 3 remained the Registrar for the period between December, 2000 to July 2001. 10. Respondent No. 3 submits that to understand the things properly, assistance of Joint Registrar could be taken so he started taking assistance of the Joint Registrar during the course of hearing of the case. He has also submitted that from the records of his court it appeared to him that if the argument concluded on a particular date then relying on the notes of the argument taken by the Presiding Officer, he used to dictate the orders and after the draft was presented before him, he used to correct them and then used to sign the orders of the date when the argument concluded. He has submitted that resultantly orders used to be communicated sometime after 15 days, one month or more. 11. He has submitted that resultantly orders used to be communicated sometime after 15 days, one month or more. 11. In paragraph 17 of the counter affidavit, he has submitted that respondent No. 3 could locate at least two cases disposed of by his predecessor bearing case No. 36 of 1997 in which arguments were concluded on 7.5.2000 hut the order was communicated on 19.5.2000 and case no. 75 of 1997 wherein arguments were concluded on 16.11.1999 but the order was communicated on 7.12.1999. According to him in all these cases, dates of judgments have been the date on which the arguments were concluded. 12. In paragraph 18 of the counter affidavit it is submitted by him that he had adopted a number of practices for hearing the matters which are as follows :- "(a) During the entire course of argument, the Joint Registrar Shri Y.K. Khan was allowed to set(sit) by his side. The answering respondent used to take the notice of the argument advanced by the contesting parties. Even the Joint Registrar also used to take notice of the argument advanced by the contesting parties. (b) After argument were concluded, say in one date or two or three dates, the Joint Registrar used to set (sit) by the side of this answering respondent taking the notice. (c) As soon as the arguments were concluded and the parties left the places this answering respondents used to discuss the arguments advanced by the contesting parties with the Joint Registrar and then used to give his mind with respect to the result of the case and then used to ask the Joint Registrar to prepare a draft taking into considerations all the relevant points raised by the parties with assistance of the documents so filed by them. The Joint Registrar generally used to take some time in preparing the draft due to the heavy work load. (d) The Joint Registrar used to give the dictation to the stenographer namely, Sri Ram Prakash Jha and when the draft was ready it used to be presented before this answering respondent and the answering respondent after relying upon his notes taken during the course of arguments and looking into the draft used to correct them and after proper application of mind, used to direct the stenographer to finally type the so corrected drafts and then put it on order sheet. (e) After the draft was duly corrected by the answering respondent applying his judicial mind to the facts and circumstances of each case, when the final typed order, typed on the order sheet used to come before him, he, relying on the past practices, used to put his signature and the orders are deemed to have been passed on the dates when the arguments were concluded. 13. In paragraph 19 it is further submitted by him that he could gather from the records of the Co-operative Department that during his tenure of six months, he adopted this practice in at least 40 cases. The details of such cases have also been given. 14. In paragraph 20, he submitted that the present was not only the case wherein the procedures adopted by him were followed but he was following the very same procedure in a number of cases. It is further submitted by him that the respondent No. 3 and the Joint Registrar took notes of the arguments advanced by the contesting parties and after arguments were concluded on 18.4.2001, the respondent No. 3 conferred with the Joint Registrar and gave his judicial mind with respect to the result of the case and directed him to prepare a draft with respect to the arguments advanced by the parties with a view to give a judicial conclusion for the ends of justice. According to him, the Joint Registrar gave the dictation with respect to the arguments advanced by the contesting parties in order to prepare a draft on 11.5.2001 and 14.6.2001. The matter was typed by the Stenographer and the draft was presented before the respondent No. 3. The respondent No. 3 after looking into the draft and applying his judicial mind to the arguments, advanced by the contesting parties, directed the Stenographer to type the order in the order sheet which was done by him. It is further submitted that following the practice adopted by his predecessor in office, he treated the date of order as the date on which the arguments were finally concluded. He has further submitted, that there was no mala fide involved in the matter. S far as respondent No. 3 is concerned, he delivered the judgments without fear or favour to none. The order passed by him is absolutely bona fide and is in accordance with the wisdom. He has further submitted, that there was no mala fide involved in the matter. S far as respondent No. 3 is concerned, he delivered the judgments without fear or favour to none. The order passed by him is absolutely bona fide and is in accordance with the wisdom. He has also tried to explain his action In paragraph 26 he has submitted that respondent No. 3 after the arguments were concluded on 18.4.2001 he directed his Joint Registrar to prepare the draft on the basis of the argument advanced by the contesting parties and records. Subsequently when the draft order was presented before him on a later date as has been detailed in the counter affidavit, the respondent No. 3 did not rely on any of the written arguments submitted by the various parties. 15. After concluding the argument, the Registrar required the Joint Registrar to sit with him and take complete notes of the record and required him to prepare a draft order and thereafter required the typists to type the final order. I asked the learned counsel for the contesting private respondents as to why the order should not be set aside and the matter be not remitted back to the Registrar for reconsideration. To this, Shri Basant Kumar Choudhary, learned counsel for the private respondents submitted that the practice adopted by the Registrar was not absolutely uncalled for. He submitted that looking to the studious work and as the Registrar says that he was new to law, if he had taken assistance of the Joint Registrar while hearing the appeal and required the Joint Registrar to prepare a draft order, then everything was correct and O.K. He submitted that this may be an act of stupidity on the part of the Registrar but no malice or favour can be found in the said order. He submitted that the order does not call for any interference in view of his submission and especially because the term of the managing committee had come to an end. It is further submitted by Mr. Choudhary that if the Registrar had developed a system and he was following the system in relation to every case, then nothing wrong can be found in his conduct. What he means to say is that following a wrong system if he has delivered the order then misconduct cannot be found on the part of the Registrar. Choudhary that if the Registrar had developed a system and he was following the system in relation to every case, then nothing wrong can be found in his conduct. What he means to say is that following a wrong system if he has delivered the order then misconduct cannot be found on the part of the Registrar. When this court had put in certain queries, he submitted that looking to the burden of the work even if this Court or the Presiding Judge of this Court gives a piece of mind and direct the stenographer to prepare a draft order or prepare a draft for approval by the Judge than too there would be no wrong in it. Even at this stage I must observe that the submission made by Mr. Choudhary is revolutionary. 16. When I asked Mr. Kanth Senior counsel appearing for the Registrar that how can the conduct of the Registrar and the manner in which he delivered the order be saved, he submitted that the Registrar being a new appointee and being new to the Co-operative law if had taken the assistance of the Joint Registrar while taking notes and getting draft prepared there was nothing wrong in his conduct. It was submitted that the respondent Registrar did not ask any body to prepare a draft order but in fact he asked the Joint Registrar to prepare a draft to facilitate him in delivering the judgment. 17. I have heard the parties. 18. Our judicial system is based on certain principles. The first of them is observing principles of natural justice. The second principle is that justice should not only be done but should appear to have been done. The system requires that if any authority, judicial authority or quasi judicial authority is required to pass an order then it must prepare the order and deliver the same under its own signature. The moment the judicial authority or quasi judicial authority requires some one to prepare a draft or prepare a draft for correction and such system is approved by the Court then that would lead to a chaotic condition. The language of a Judge is at his command. The Judge cannot require his stenographer, Personal Secretary, or clerk to lend or give on loan his language to the Judge or his own wisdom in form of draft order. The language of a Judge is at his command. The Judge cannot require his stenographer, Personal Secretary, or clerk to lend or give on loan his language to the Judge or his own wisdom in form of draft order. Lawyers can provide facts but they cannot provide wisdom to a Judge to prepare a judgment. If the lawyer who is an officer of the Court cannot provide wisdom to a Judge to write a judgment then any quasi judicial authority cannot borrow wisdom from his colleague, subordinate or his Stenographer. It would be apt to say that when the authority is required to pass an order in accordance with law then the order is to be passed in accordance with law or not at all. 19. In the present matter, during course of argument, Mr. Kanth very vehemently submitted that respondent No. 3 did not require the Joint Registrar to prepare a draft judgment but in fact he required the Joint Registrar, who also happened to be senior officer and may also hear the appeal, to simply provide a draft so that the Registrar could pass a final order. 20. The submission made by the learned counsel for the Registrar in fact runs contrary to the pleadings. In paragraph 18(c) of the counter affidavit of the Registrar, it is clearly stated that after the arguments were concluded, the Registrar would give a piece of mind to the Joint Registrar in respect of the result of the case and thereafter the Joint Registrar used to prepare a draft taking into consideration all the relevant points raised by the parties with assistance of the documents so filed by them. 21. In paragraph 18(d) it has been submitted that when the draft was ready it used to be presented before respondent No. 3 and respondent No. 3 after relying upon his note taken during course of argument and looking into the draft used to correct them and after proper application of mind used to direct the Stenographer to finally type the so corrected draft and then put it on the order sheet. A fair understanding of paragraphs (a) of paragraph 18 of the counter affidavit would make it clear that simple draft was not to be prepared by the Joint Registrar but a draft judgment had to be prepared by him. A fair understanding of paragraphs (a) of paragraph 18 of the counter affidavit would make it clear that simple draft was not to be prepared by the Joint Registrar but a draft judgment had to be prepared by him. The draft was presented before the Registrar who after proper application of mind used to correct the said draft and give the corrected draft to the stenographer for typing. I find nothing in paragraph 18 of the counter affidavit which says that simply facts and arguments raised by the parties were to be chronologically narrated in form of the draft. It is further to be seen from paragraph 26 that he has categorically admitted that the arguments were concluded on 18.4.2001. He directed his Joint Registrar to prepare the draft on the basis of the arguments advanced by the contesting parties and records, subsequently when the draft order was presented before him on a later date. As has been detailed in the earlier paragraphs, respondent No. 3 did not rely on any of the written arguments submitted by the various parties. The answering respondent based his order relying on the arguments advanced on 12.4.2001 and 18.4.2001 of which he had taken notes and the draft was prepared by the Joint Registrar. 22. The statement made in paragraph 26 are contrary to the other pleadings raised by respondent No. 3. It appears that he has tried to take the Court for ride or he has tried to play a fraud with this Court to suit his convenience. At one point of time in his counter, he has submitted that the order was passed on 18.4.2001. When this Court asked him to give reasons why orders could not be communicated for next two months, he came out with a different pleading that draft was prepared and written argument submitted after 18.4.2001 were not taken into consideration by the Registrar and he passed the order on the basis of the argument advanced before him on 12.4.2001 and 18.4.2001 and also on the basis of the draft prepared by the Joint Registrar. In the earlier paragraphs of this order I have already observed that certain details of the written argument which were submitted before the Registrar on 19.4.2001 and subsequent thereto did find place in the order dated 18.4.2001. In the earlier paragraphs of this order I have already observed that certain details of the written argument which were submitted before the Registrar on 19.4.2001 and subsequent thereto did find place in the order dated 18.4.2001. I am unable to solve the riddle on one side the Registrar says that he did not consider the written argument submitted before him subsequent to 18.4.2001 and at the same time, argument submitted in writing subsequent to 18.4.2001 are to find place in the written order. It appears that the draft order was prepared by the Joint Registrar and the Registrar without looking into the draft or without application of his mind had signed the same, antedating it as delivered on 18.4.2001 but in fact delivered the judgment on 18.6.2001. I am making this observation because if the Registrar had gone through his own order before affixing his signature, he could have found that certain arguments which were raised after 18.4.2001 did find place in the impugned order dated 18.4.2001. 23. It is further to be seen that the Joint Registrar was not required to prepare the draft simpliciter. It is to be seen that the final order was prepared by the Joint Registrar and the Registrar had affixed his signature on the said order. It would be too much to say that as a particular procedure was adopted and followed in 40 cases, therefore, the Registrar was entitled to follow the procedure. One thousand wrong would not make one right. If in 40 cases he had adopted a wrong procedure or had followed a wrong system. He cannot be allowed to say that as no body objected to what he was doing, therefore, he would be deemed justified in following a wrong procedure and practice. 24. The submission of Mr. Kanth, Senior Counsel is that the Registrar being a new entrant in the matters of co-operative society was not wrong in taking some assistance from the Joint Registrar who in his capacity could hear the appeal and exercise various powers vested in the Registrar himself. 24. The submission of Mr. Kanth, Senior Counsel is that the Registrar being a new entrant in the matters of co-operative society was not wrong in taking some assistance from the Joint Registrar who in his capacity could hear the appeal and exercise various powers vested in the Registrar himself. So far as the Judicial/ administrative authority of the Joint Registrar is concerned, I will not dispute that but it would be height of the things to say that a judicial officer or an officer discharging quasi judicial functions could allow the Joint Registrar to sit by his side, take notes in the matter, prepare draft judgment and place the same for approval before the authority which has to finally deliver the judgment. Not only the Registrar but even the Joint Registrar committed misconduct in providing a new procedure. No judicial officer is entitled to prepare a draft for another officer except in cases where the matter is heard by a Division Bench or a Bench consisting of more than two Judges. Even in such cases the judgments are delivered by the Bench though it is prepared by one Judge. In the present matter it was just like that Mr. X was to hear the matter all alone as appellate authority, Mr. X and Y heard the matter X asked Y to prepare judgment thereafter Y without authority prepared the Judgment and then X delivered the judgment. The manner in which the matter was dealt with and the order was antedated shows absolute high handedness on the part of the Registrar. The present is not a case where small wrong has been committed by the Registrar. The present is a case where he has brought down the institution to the lowest level. If a person who has been given the powers to act as quasi judicial authority is unable to hear, understand and decide the matter then he must ask the master that he is unable to understand the law and deliver judgment, therefore, he be removed from office and be given some work where he can work as kingpin. Simply because somebody does not understand or know law, he cannot be allowed to say that he would take assistance or ask any body to prepare judgment for him and thereafter deliver the same antedating it. 25. Simply because somebody does not understand or know law, he cannot be allowed to say that he would take assistance or ask any body to prepare judgment for him and thereafter deliver the same antedating it. 25. So far as the statements made in paragraph 17 of the counter affidavit of the Registrar are concerned, it is to be seen that in case No. 36 of 1997, the arguments were concluded on 7.5.2000 but the order was communicated on 19.5.2000. Similarly, in case No. 75 of 1997, the arguments were concluded on 16.11.1999 and the order was communicated on 7.12.1999. Beyond this, nothing further has been said by the respondent No. 3 (Registrar). It is no bodys case that the person, who was holding the office earlier has said that the arguments concluded on 7.5.2000 he delivered the order on some future date antedating the same and asked his subordinate to communicate the order on 19.5.2000 or on 7.12.1999. The pleadings raised in paragraph 17 would simply indicate that in some cases certain orders were passed on particular date/dates but the orders were sent for service on a later date. From paragraph 17 it would not appear that the orders were passed on the date they were communicated to the other side. In the present case, the admitted position is that the hearing was concluded on 18.4.2001 but the order was not prepared nor was ready nor was delivered on 18.4.2001. The draft order was prepared much after probably somewhere in June. Thereafter, the draft was brought before the Registrar who finalized the same and delivered the judgment some where on 18.6.2001 or on a day or two before it. Undisputedly, the order bears the date as 18.4.2001 though in fact the order was not passed on 18.4.2001 26. The question of bona fide and propriety of the order would lose its importance in a case like present where admittedly the order has been antedated and has been prepared by a person who himself was not the appellate authority. I cannot subscribe to the arguments of the learned counsel appearing for the private respondents or the arguments raised by the learned counsel for respondent No. 3. The order dated 18.4.2001 deserves to and is accordingly quashed. I cannot subscribe to the arguments of the learned counsel appearing for the private respondents or the arguments raised by the learned counsel for respondent No. 3. The order dated 18.4.2001 deserves to and is accordingly quashed. The matter is remitted to the Registrar with a direction to put the matter on his board, give a fixed date of hearing notice to the parties and decide the matter in accordance with law. It is immaterial that the term of the managing committee has come to an end or not. The managing committee is entitled to know the outcome of the revision petition because they are aggrieved by the action taken by the District Co-operative Officer who in the opinion of the petitioners acted mala fide and at the behest of some others. 27. So far as the Registrar is concerned, Mr. Kanth repeatedly submitted that he be exonerated as he being a new entrant, could not understand as to what he was doing and acting bona fidely he passed the order. 28. In the opinion of this Court, if the Registrar is exempted absolutely or is allowed to go scot free then it may persuade others to act in an uncalled and unwarranted manner and pass such illegal orders. If such a procedure is accepted by the High Court to a be valid procedure and wrong doer is allowed to go home and take rest, then no wrong doer would be taken to rule. I hereby direct the Government to start a departmental inquiry against the Registrar Mr. Rajesh Agrawal for the misdeeds and misconduct committed by him. Government of Bihar shall also be entitled to take all other actions against him. I am told that he has been repatriated to his original cadre at Tripura. Let a copy of this order be also sent to His Excellency the Governor of Tripura to bring to his notice that in what mariner the man working there had conducted himself. 29. The Registrar who is still justifying the order shall pay a cost of Rs. 5000.00 (five thousand) to the petitioner. Similarly the contesting respondent as one set shall pay Rs. 5000.00 (five thousand) as cost to the petitioner. The amount of cost shall be paid by them within four weeks from today. The amount of cost if received by the petitioners counsel, shall be given to the petitioners. 30. 5000.00 (five thousand) to the petitioner. Similarly the contesting respondent as one set shall pay Rs. 5000.00 (five thousand) as cost to the petitioner. The amount of cost shall be paid by them within four weeks from today. The amount of cost if received by the petitioners counsel, shall be given to the petitioners. 30. Learned counsel for respondent No. 10 submits that an application under section 340 of the Code of Criminal Procedure has been filed for taking action against the petitioners for forging, manufacturing or concocting signatures of some for the petitioners. From the records it appears that copy of the said application was never supplied to the counsel of the petitioner enabling them to give a reply to the allegations made in the application. 31. As a copy of the application was not supplied to the counsel for the petitioners, I do not propose to pass any order on the said application in these proceedings. If the law permits, the respondents would be free to file an application u/s. 340, CrPC for taking proper steps or action against petitioner Nos. 1 to 4 and 9 to 11. 32. This application is accordingly allowed with costs.