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2011 DIGILAW 19 (RAJ)

Abdul Rehman Qureshi v. Rajesh Kumar Bhojnagarwala

2011-01-04

ARUN MISHRA, MAHESH BHAGWATI

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JUDGMENT Hon'ble BHAGWATI, J.—The intra-Court appeal has been preferred assailing the legality of the order dated 27.7.2010 passed by the Single Bench of this Court in Civil Writ Petition No. 11955 of 2008 thereby allowing the writ petition quashing the order passed by the State Government. 2. It is not in dispute that a Liquidator was appointed in order to liquidate Jawahar Puri Bhawan Nirman Sahakari Samiti This fact is also not in dispute that Rajesh Kumar Bhojnagarwala and Smt. Saroj Devi were granted patta by the said Society which came under liquidation. The fact is also not in dispute that the Liquidator has cancelled the patta which was granted by the Society in favour of Rajesh Kumar Bhojnagarwala and Smt. Saroj Devi on the strength of an agreement dated 28.6.1995 which is allged to be forged by Rajesh Kumar and Smt. Saroj. On the strength of the said agreement, Liquidator had cancelled the patta granted in favour of Rajesh Kumar and Smt. Saroj and ordered allotment of certain plots in favour of Abdul Rehman Qureshi, the appellant. The Registrar of the Cooperative Societies ordered an inquiry in the matter. The Joint Registrar, Cooperative Societies filed report on 13.4.2007 in which it was found that the Liquidator had no jurisdiction to cancel the Pata in favour of Rajesh Kumar and Smt. Saroj and to order allotment in favour of the appellant. Besides this it was also found that the agreement set up by the appellant was forged. After receipt of the report by the Registrar, a representation was submitted by the appellant Abdul Rehman Qureshi contending that the inquiry could not have been ordered into the matter. The Registrar ultimately passed an order on 1.9.2007 holding that the Liquidator had no right to transfer the patta in favour of Abdul Rehman Qureshi, the appellant, and to cancel the patta in favour of Rajesh Kumar Bhojnagarwala and Smt. Saroj Devi. It was also found by the Registrar that transfer of patta was obtained by Abdul Rehman Qureshi on the basis of forged agreement. The Deputy Registrar, Cooperative Department complied with the order on 7.2.2008 and cancelled the patta granted by the Liquidator in favour of Abdul Rehman Qureshi. Against the order of Registrar, Abdul Rehman Qureshi preferred revision before the State Government. The revision was decided vide order dated 4.9.2008 passed by the Minister, Cooperative Department. The Deputy Registrar, Cooperative Department complied with the order on 7.2.2008 and cancelled the patta granted by the Liquidator in favour of Abdul Rehman Qureshi. Against the order of Registrar, Abdul Rehman Qureshi preferred revision before the State Government. The revision was decided vide order dated 4.9.2008 passed by the Minister, Cooperative Department. The Minister set aside the order of the Registrar on the ground that opportunity of hearing was not afforded to Abdul Rehman Qureshi. It was not appropriate to direct inquiry under Section 55 of the Rajasthan Cooperative Societies Act, 2001. Aggrieved by the order of the Minister, Rajesh Kumar Bhojnagarwala and Smt. Saroj Devi and Riddhi Siddhi Infra Project Pvt. Ltd. preferred writ petition before the Single Bench of this Court bearing SB Civil Writ Petition No. 11955/2008. The same has been allowed by the impugned order dated 27.7.2010. The Single Bench has held hat the inquiry could have been ordered within the ken of Section 55 of the Act of 2001 by the Registrar. It was not necessary to have recourse to the provisions of Section 58 of the ct of 2001. The order passed by the State Government was quashed by the Single Bench. Aggrieved by the order dated 27.7.2010, the intra-Court appeal has been preferred. 3. Shri Ajeet Kumar Sharma, learned counsel appearing on behalf of the appellant, submitted that it was necessary to afford opportunity of hearing to the appellant before holding the agreement to be forged by the Registrar, the opportunity granted during the course of inquiry conducted by the Joint Registrar could not have been substitute for it. He has further submitted that the Liquidator had the power to revise the allotment on the strength of the agreement which was executed in favour of the appellant Abdul Rehman Qureshi to that he has relied upon Section 64(1) of the Act of 2001. He has submitted that there is vesting of the property in the Liquidator and consequently, he could have exercised aforesaid power on the strength of Section 64(1) though such power not specifically conferred under Section 64(2) of the Act. Counsel has further submitted that as per Rule 75(6) of the Rajasthan Cooperative Societies Rules, 2003, it was necessary to grant opportunity of hearing before acting upon the findings of the inquiry officer by the Registrar, which was not afforded. Counsel has further submitted that as per Rule 75(6) of the Rajasthan Cooperative Societies Rules, 2003, it was necessary to grant opportunity of hearing before acting upon the findings of the inquiry officer by the Registrar, which was not afforded. Consequently, the order was rightly set aside by the State Government. The Single Bench has erred in setting aside the order passed by the State Government. 4. Shri N.K. Maloo, learned counsel appearing on behalf of the respondent No.3, has submitted that Abdul Rehman Qureshi, the appellant, filed representation before the Registrar thus, he was heard by the Registrar before passing of the final order. Thus, there was due compliance of Rule 75(6) of the Rules. The Liquidator had no jurisdiction to cancel allotment which was made in favour of Rajesh Kumar Bhojnagarwala and Smt. Saroj Devi and to revise allotment in favour of Abdul Rehman Qureshi, the appellant. He had no power to cancel the allotment and to allot the land under Section 64(2) or under Section 64(1) of the Act of 2001. Besides this, the agreement was itself forged. No case for interference is made out. 5. Coming to the first submission raised by Shri Ajeet Kumar Sharma, learned counsel appearing on behalf of the appellant, as to the power of Liquidator to cancel the allotment and to pass fresh order of allotment. Section 64 of the Act of 2001 has been relied upon by the counsel. Section 64 is quoted below :- "64. Powers of Liquidator.—(1) Subject to any rules made in this behalf, the whole of the assets of a co-operative society in respect of which an order for winding up has been made shall vest in the Liquidator appointed under Section 63 from the date on which the order takes effect and the Liquidator shall have power to realize such assets by sale or otherwise. (2) Such Liquidator shall also have power, subject to control of Registrar,- (a) to institute and defend suits and other legal proceedings on behalf of the co-operative society by the name of his office; (b) to determine from time to time the contribution (including debts due) to be made or remaining to be made by the members or past members or by the estates or nominees, heirs or legal representatives of deceased members or by any officers or former officers, to the assets of the society; (c) to investigate claims against the co-operative society and subject to the provisions of this Act, to decide questions of priority arising between claimants in accordance with the rules; (d) to pay claims against the co-operative society including interest upto the date of winding up according to their respective priorities, if any, in full rateably, as the assets of the society may permit; the surplus, if any, remaining after payment of the claims being applied in payment of interest from the date of such order of winding up at a rate fixed by him but not exceeding the contract rate in any case; (e) to determine by what persons and in what proportions the costs of the liquidation are to be borne; (f) to determine whether any person is a member, past member or nominee of a deceased member; (g) to give such direction in regard to the collection and distribution of the assets of the society as may appear to him to be necessary for winding up the affairs of the society; (h) to carry on the business of the society so far as may be necessary for the beneficial winding up of the same; (i) to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging to have nay claim, present or future, whereby the society may be rendered liable; (j) to compromise all calls or liabilities to calls and debts and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, subsisting or supposed to subsist, between the society and a contributory or alleged contributory or other debtor or person apprehending liability to the co-operative society and all questions in any way relating to or affecting the assets or the winding up of the society on such terms as may be agreed and to take any security for the discharge of any such call, liability, debt or claim and give a complete discharge in respect thereof; (k) to fix the time or times within which creditors shall prove their debts and claims to be included for the benefit of any distribution made before those debts or claims are proved: Provided that no Liquidator shall determine the contribution, debt or dues to be recovered from a member, past member, or a nominee, heir or representative of a deceased member unless opportunity has been given to such member, past member or nominee, heir or representative of the deceased member of being heard. (3) When the affairs of a co-operative society have been wound up, the Liquidator shall make a report to the Registrar and deposit the records of the society in such place as the Registrar may direct." 6. It is apparent from Section 64(1) that there is vesting of the assets of the cooperative societies in he Liquidator from the date on which the order takes effect and the Liquidator shall have power to realize such assets by sale or otherwise. Section 64(2) specifically deals with the power of the Liquidator. However, exercise of such power is subject to control of the Registrar. In Section 64(2), the case is not covered of making allotment or for revising order of allotment. There is no power with the Liquidator to cancel the existing Patta and to grant it in favour of some other person. Section 64(1) cannot be read in such a manner to give authority to the Liquidator to cancel the order of allotment made by the society on the strength of such an agreement which was set up by Abdul Rehman Qureshi, the appellant. He had no power to revise the allotment and to order allotment in favour of Abdul Rehman Qureshi. This adjudicatory power to decide genuineness of the agreement was not available to Liquidator within the ken of Section 64(1) or Section 64(2) of the Act of 2001. This, the act of the Liquidator was totally without jurisdiction. The order passed by him lack jurisdictional competent, thus, the order was a nullity. The petitioner was heard by Registrar as he had himself submitted representation before the Registrar which fact is not in dispute, filing of representation is also opportunity of hearing. It is also not in dispute that before the Joint Registrar, Abdul Rehman Qureshi had participated in inquiry and adduced evidence also. Thus, he was fully associated in the inquiry held by the Joint Registrar and thereafter, the finding had been recorded on the legal question that the Liquidator had no power to cancel the allotment made by the Society in favour of Rajesh Kumar Bhojnagarwala and Smt. Saroj Devi and to revise the allotment in favour of Abdul Rehman Qureshi and to adjudicate on the validity of the agreement. The submission that after submission of the report, the Registrar ought to have granted opportunity of hearing is baseless. The submission that after submission of the report, the Registrar ought to have granted opportunity of hearing is baseless. As the appellant had submitted representation, that was adequate opportunity of hearing granted by the Registrar, no fresh notice was necessary. The appellant had filed representation before the Registrar has not been disputed at bar. Such an inquiry could have been conducted under Section 55 of the Act of 2001 has also not been disputed. 7. Thus, the order passed by the State Government has rightly been set aside by the Single Bench. We find no ground to interfere in the intra-Court appeal. It is hereby dismissed being devoid of merits. Stay application also stands dismissed.