Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 385 (PAT)

Ravindra Sahani v. State Of Bihar

2013-03-19

JAYANANDAN SINGH

body2013
ORDER 1. Petitioner has filed this writ application challenging the order dated 27.11.2012/ 30.11.2012 of the learned Registrar, Cooperative Societies, as contained in Annexure-4, by which the Registrar has decided Election Dispute Case No.138 of 2012 against the petitioner and has held him disqualified for Secretary of the Managing Committee of the concerned Fishermen Cooperative Society and has cancelled his election held on 30.06.2012 on the ground that, on the date of nomination, he was ineligible to be elected by virtue of the provisions of Rule 23 (1) (f) of the Bihar Cooperative Societies Rules, 1959 (herein after to be referred to as the Rules). 2. Facts of the case are short and admitted. Earlier in Bandra Block of the district of Muzaffarpur three registered Cooperative Societies, with the names (1) Hatha Matasyajeevi Sahayog Samiti Ltd; (2) Bandra Prakhand Matsayajeevi Swablambi Sahakari Samiti Ltd. Hatha and (3) Bandra Prakhand Matasyajivi Sahyog Samit Ltd., Patsara, were operating. The respondent no.6 was the Secretary of the 1st Society; his son was Chief Executive of the 2nd Society and petitioner was the Secretary of the 3rd Society. However, by the Bihar Cooperative Societies (Amendment) Act, 2010 and the Bihar Self-Supporting Cooperative Societies (Amendment) Act, 2010, amendments were introduced in the parent acts by which it was laid down that in one Block only one Fishermen Cooperative Society was to be registered and allowed to operate. It was also laid down that all the Fishermen Cooperative Societies of a Block were to merge in one Society which was to be registered as a new Cooperative Society under the Bihar Cooperative Societies Act, 1935 and the members of erstwhile Cooperative Societies of the Block were, by operation of law, to become the members of the new Cooperative Society of the Block. It was also laid down that for an interregnum period of one year the Registrar or the government was to constitute an ad-hoc Managing Committee, within which period the State Election authority was required to get the election held of the Managing Committee of the newly registered Cooperative Society. Accordingly, all the three Fishermen Cooperative Societies of the Block merged into one Society which was registered as Bandra Prakhand Matasyajivi Sahyog Samiti Ltd., Muzaffarpur under the 1935 Act. Thereafter, Adhoc Committee was constituted and steps were initiated by the State Election Authority by notifying the schedule of election of the Society. Accordingly, all the three Fishermen Cooperative Societies of the Block merged into one Society which was registered as Bandra Prakhand Matasyajivi Sahyog Samiti Ltd., Muzaffarpur under the 1935 Act. Thereafter, Adhoc Committee was constituted and steps were initiated by the State Election Authority by notifying the schedule of election of the Society. As per the schedule, election of the Managing Committee was held and the result was announced in which petitioner was declared successful as a member. Thereafter, election for the Secretary of the Managing Committee was held on 30.06.2012 in which petitioner secured highest votes, whereas respondent no.6 secured 2nd highest votes. Earlier to this, when the petitioner had filed his nomination for the post of Secretary on 23.05.2012, respondent no.6 had filed his objection on 24.05.2012 before the Election Officer, stating that, since a criminal case was instituted earlier against the petitioner under Section 447/379/34 of the I.P.C., in which cognizance had been taken by the court and trial was pending, petitioner had incurred disqualification in terms of Sub-Rule (Kha to Cha) of Rule 23 (1) of the Rules. This objection was put up before the B.D.O.-cum-Election Officer, with a note on the objection petition itself that since the charge against the petitioner in the criminal case was not in respect of any transaction of registered society, the objection could be rejected and petitioner?s nomination could be accepted. The B.D.O.-cum-Election Officer approved the note on the same date, vide his endorsement on the petition itself. After the petitioner was elected, the respondent no.6 preferred an election dispute before the Registrar, Cooperative Societies which was registered as Election Dispute Case No.138 of 2012. The issue which the respondent specifically raised in the election dispute was that the Election Officer had not followed the provisions of Rule 21-J of the Rules and the petitioner stood disqualified to contest election on the date of his nomination as a criminal case was pending against him at the trial stage and he had remained in jail for six months in connection with it, which fact was suppressed by the petitioner at the time of his nomination. The matter was heard by the Registrar, Cooperative Societies and, finally by the said impugned order, as contained in Annexure-4, he disposed of the election dispute holding that, on account of pending criminal case against him in which cognizance had been taken, petitioner had become ineligible for election as a Secretary of the Society and hence he set aside his election. This order of the Registrar, Cooperative Societies is under challenge in this writ application. 3. Learned counsel for the petitioner submitted that the charge in the FIR against the petitioner, a copy whereof is annexed with writ application as Annexure-3, was that he, along with others, had committed offence of theft by surreptitiously fishing from four ponds (Pokhra) and, in spite of being forbidden, he was not abstaining from committing the illegal act. He submitted that this act of surreptitiously fishing from the ponds was not an illegal act by the petitioner as the said ponds had been earlier settled with the earlier society of which petitioner was admittedly the Secretary. He submitted that during the alleged occurrence, as mentioned in the FIR, petitioner continued as Secretary of the Society and his appointment as Secretary had not been cancelled till that time. Hence, even if the allegation of fishing is held to be true, petitioner had acted bonafide. He submitted that respondent no.6, on account of enmity and on the basis of some orders of this Court, had claimed that petitioner was no longer Secretary of the earlier Society and, hence, he was illegally fishing in the ponds. He further submitted that, even if the allegations made in the FIR are accepted as correct, the same could not held as related to any transaction of a registered society and could at best be held a purely criminal act. Hence, petitioner was not disqualified on the date of nomination from filing nomination in terms of any of the clauses of the Rule 23 (1) of the Rules and in particular clause (f) thereof. He submitted that the expression used in the said clause (f) clearly shows that pending criminal proceeding must be “relating to any transaction of a registered society” and no less. He submitted that the expression used in the said clause (f) clearly shows that pending criminal proceeding must be “relating to any transaction of a registered society” and no less. He submitted that the expression „transaction?, as per Stroud?s Judicial Dictionary, denotes a piece of business like buying or selling something, sale, contract for sale, conditional contract, acquisition of leases of property, redemption of debentures, payment of dividend, liquidation contract etc., necessarily related to some commercial business. He submitted that it was false on the part of the respondent to allege that the petitioner was in judicial custody for six months. In fact, he had not remained in custody even for one night. He submitted that this objection was taken by the respondent no. 6 at the time of nomination itself, which was rejected by the Election Officer, against which, the respondent had not raised any grievance before any higher authority. In the circumstances, he submitted that the Registrar, Cooperative Societies has illegally held the petitioner as ineligible for election on the date of submission of his nomination and has therefore illegally cancelled his election. 4. Respondent no.6 has appeared and has filed his counter affidavit. Mr.Giri appearing on his behalf submitted that earlier the respondent had filed a writ application in this Court challenging the settlement of some ponds in favour of respondent nos.4 and 5 of the writ application, which included the present writ petitioner also. In the said writ application, the Deputy Director, Fisheries, Muzaffarpur had filed a counter affidavit accepting that the settlements in question were wrongly made in favour of the respondent nos.4 and 5 as were in violation of relevant government circulars and the orders of the Court. It was therefore, stated in the said counter affidavit that the grievance of the petitioner (respondent no.6 herein) was justified and was fit to be allowed. Hence, this Court, by order dated 09.05.2006, as contained in Annexure-C with the counter affidavit, had disposed of the writ application directing the State Government to “proceed to cancel the settlement in favour of respondent nos.4 and 5 and grant full relief to the petitioner as if the settlements in favour of respondent nos.4 and 5 had never been made.” As such, the settlement of ponds in favour of the present petitioner stood cancelled and he had no legal authority to indulge into fishing in the said ponds. He submitted that when the petitioner continued fishing in the ponds, in spite of the orders of this Court, the respondent had complained to the District Fisheries Officer through letter dated 29.08.2006, as contained in Annexure-D, copy of which was also sent to the Deputy Director, Fisheries. On the same day, on that complaint of the respondent no.6, the District Fisheries Officer had issued orders canceling the settlement of the ponds settled with the writ petitioner and, enclosing list thereof, had informed the officer in-charge of the concerned police station, vide Annexure-E, to stop illegal fishing from the said ponds. Thereafter, as the petitioner still continued fishing in the ponds surreptitiously, the respondent also filed a complaint on 19.11.2006 with the officer in-charge, which was registered as an FIR, in which finally cognizance was taken and the matter was sent for trial. He submitted that the orders of the court below, as contained in Annexure-B, by which accused were allowed bail, shows that they had claimed settlement of the ponds with the writ petitioner. He submitted that fishes of the pond were property of the Society. Hence, theft of the fish or illegal fishing was definitely in relation to transaction of the Society and covered under clause (f) of the Rule 23(1) of the Rules. Learned counsel for the respondent no.6 also produced an order dated 07.01.2013 passed by a Bench of this Court in CWJC No.155 of 2013 and submitted that the respondent had moved this Court against non-consideration of Section 13 of the Bihar State Election Authority Act, 2008 by the Registrar, Cooperative Societies, while disposing of the election case by the impugned order dated 27.11.2012/30.11.2012. He pointed out that this Court found that the 2nd prayer of the respondent, made in the election case for declaring him as successful in the election as Secretary of the Society, had not been considered by the Registrar of the Cooperative Societies. Hence, the writ application was disposed of directing the Registrar, Cooperative Societies to pass further appropriate orders under the said Section 13 of the said Act in respect of consequential claim of the petitioner (respondent no.6 herein) within the maximum period of one month. Hence, he submitted that the order of the Registrar, Cooperative Societies has already been given a seal of approval by a coordinate Bench of this Court. 5. Hence, he submitted that the order of the Registrar, Cooperative Societies has already been given a seal of approval by a coordinate Bench of this Court. 5. Learned counsel for the petitioner, in reply, submitted that the said order of the District Fisheries Officer, as contained in Annexure-E, was never served on the writ petitioner. He submitted that the letter itself shows that it was simply addressed to the officer in-charge and none else. He further submitted that the settlement of the ponds with the Society of the writ petitioner did not stand cancelled by virtue of the orders of this Court in the writ application of respondent no.6. He submitted that this Court had simply directed the respondents to proceed to cancel the settlement. Therefore, till a valid order of cancellation of settlement was not issued by the competent authority and was not served on the writ petitioner, or in the office of the registered society, the settlement of the ponds continued with the petitioners society. He reiterated that the alleged act of fishing by the petitioner from the ponds was not related to any transaction of the society and hence was not covered under the said clause (f) of the said Rule 23 (1) of the Rules. 6. The respondent State authorities have not filed their counter affidavits in the case and have not made their stand clear in spite of service of two copies of the writ application in the office of learned Advocate General, well in time. 7. Before entering into the issue of validity of the impugned order of the Registrar, Cooperative Societies, on merits, this Court will like to make a few things clear. The earlier orders of this Court, as contained in Annexure-C with the counter affidavit of the private respondent, shows that (i) the same was passed solely on the stand of the Deputy Director, Fisheries in his counter affidavit and there was no independent application of mind in respect of the so-called illegality in settlement of the ponds with respondent nos.4 and 5 of the case and (ii) the settlement was not quashed by the Court. The writ application was disposed of only with a direction to the State Government to „proceed to cancel the settlement in favour of respondent nos.4 and 5. The writ application was disposed of only with a direction to the State Government to „proceed to cancel the settlement in favour of respondent nos.4 and 5. The respondents have not produced any material on record to show that, prior to the letter of the District Fisheries Officer dated 29.08.2006, addressed to the officer in-charge, any order was passed by any competent authority canceling the settlement of ponds with the cooperative society of the petitioner. The respondents have also not produced any material on record that the said order of the District Fisheries Officer was served on the petitioner or in the office of the cooperative society of the petitioner at any point of time prior to the filing of the complaint by the respondent no.6 with the police resulting into drawing up of the FIR, or even after. Secondly, from the said order dated 07.01.2013 passed by the Bench in CWJC No.155 of 2013, it is clear that, before the writ application of respondent no.6 was disposed of by this Court, the present writ petitioner, who was respondent no.6 in the case, was not given any opportunity to be heard by the Bench, as the said order dated 07.01.2013 is order no.2. Thus, it is clear that on the first date when the writ application was listed, the writ application was disposed of with the said order dated 07.01.2013, without even noticing the present petitioner who was respondent no.6 in the said writ application. 8. Be that as it may, from the said order of the Court dated 09.05.2006, as contained in Annexure-C, it appears that the respondent nos.4 and 5 (which included the present writ petitioner) were represented by a learned counsel and he was present on the date the order was passed. Hence, it has to be presumed that the writ petitioner had the knowledge of the said order after the same was passed by this Court. Though the respondent had wrongly represented before the Fisheries Officer that the settlement in favour of the petitioner had been cancelled by this Court, but in any case, in the light of the said order, the District Fisheries Officer had stayed any fishing by the petitioner from the said ponds, settled with his cooperative society earlier, at least by his order dated 29.08.2006, vide Annexure-E, which was communicated to the officer in-charge. The complaint of the respondent to the officer in-charge, which was made the basis for drawing up of the FIR, as contained in Annexure-3 to the writ application, is dated 19.11.2006, i.e., more than two months after the order was passed by the District Fisheries Officer on 29.08.2006. In the said complaint dated 19.11.2006, the respondent had not given the specific dates and details of fishing by the petitioner and others from the said ponds surreptitiously. It is said in the complaint that when the petitioner was asked to stop from fishing he commented that he does not accept the orders of the Court. Although there is no specific date mentioned in his complaint, but since it was filed more than two months after a ban was imposed by the District Fisheries Officer upon the writ petitioner from fishing, it can be assumed that in spite of the ban by the District Fisheries Officer, the petitioner continued fishing from the said ponds. Nothing has come on record from the side of the petitioner to show that either he had filed any appeal before a Division Bench of this Court against the said order dated 09.05.2006 passed by a learned Single Judge, or that he challenged the said order of the District Fisheries Officer before any higher authority or in any court of law. Although the order of the District Fisheries Officer, as contained in Annexure-E, does not show that the copy of the same was sent to the petitioner or his cooperative society, but it is difficult to assume that during all this period, the petitioner did not come to know about the said ban or about the order of the High Court, especially when his learned counsel was present in Court when the order was passed. On the basis of the FIR charge-sheet was submitted and cognizance has been taken and the matter is pending at the trial level. Hence, it will not be proper for this Court to make any comments on the correctness or otherwise of the case against the petitioner. But, as the cognizance has been taken, this Court, at this stage, has to take the allegations made up in the FIR, on the complaint of the respondent no.6 on which the criminal action has been initiated, at its face value. 9. But, as the cognizance has been taken, this Court, at this stage, has to take the allegations made up in the FIR, on the complaint of the respondent no.6 on which the criminal action has been initiated, at its face value. 9. Now coming to the question arises whether the act of the petitioner, as alleged in the complaint of respondent no.6, which led to institution of the criminal case, cognizance order and the initiation of trial, comes within the purview of clause (f) of Rule 23 (1) of the Rules, or not. Leaving aside the other clauses of Sub-Rule 1 of Rule 23, the said Sub-Rule (f) reads as follows:- “Section 23 (1) – No person shall be eligible for election to the Managing Committee, if (a) ………………………. (b) ……………………….. (c) ………………………. (d) ………………………. (e) ………………………. (f) A criminal proceeding relating to any transaction of a registered society is pending against him in which cognizance has been taken.” 10. Admittedly, a criminal proceeding against the petitioner was pending, on the date he filed his nomination, in which cognizance had been taken. The question is whether the proceeding was relating to any transaction of a registered society or not. It may be noticed that the expression used by the legislature in the said clause (f) is „a registered society and not „the registered society. This makes it clear that the criminal proceeding could be in respect of transactions of any cooperative society and not necessarily in respect of transactions of the society for election of the managing committee of which a person intended to file his nomination (the reproduction of the said clause by the petitioner in paragraph 16 does not appear to be correct). Secondly, it has to be noticed that the expression used by the legislature in the clause is relating to any transaction. Petitioner has dealt with the meaning of word transaction in paragraph 17 of the writ application as appearing in Collins Dictionary Strouds Judicial Dictionary and Illustrated Oxford Dictionary which shows that the transaction has necessarily to relate to sale, purchase and other transactions in respect of properties and other activities in relation to commercial business. Petitioner has dealt with the meaning of word transaction in paragraph 17 of the writ application as appearing in Collins Dictionary Strouds Judicial Dictionary and Illustrated Oxford Dictionary which shows that the transaction has necessarily to relate to sale, purchase and other transactions in respect of properties and other activities in relation to commercial business. Relying upon the said meanings in the said dictionaries of the word transaction learned counsel for the petitioner tried to impress upon this Court that the act alleged against the petitioner and others in the pending criminal proceeding was simply a criminal offence and not related to any transaction of a registered society. 11. A registered fishermen cooperative society is formed of members who are generally fishermen. Ponds are settled with such a society for a fixed period for the purposes of fishing by its members and sale of their catch and distribution of the proceeds amongst the members of the society. During the period of settlement, the fish of the pond are properties of the society. Hence, fishing and sale of fishes from the ponds are necessarily to be held as transactions relating to the properties of the society. The obvious intent of the legislature, while inserting the said clause (f) in Rule 23 (1), which prescribes ineligibility of a person for election to a managing committee, is that, a person, acting contrary to the spirit of the cooperative movement and contrary to the interest of the members of the society, should not be allowed to become a member of the managing committee of a cooperative society. Hence, ineligibility of a person to become member of the managing committee has been prescribed, against whom a charge relating to any transaction of a society is pending for final adjudication in a court of law. As pointed out earlier, it cannot be assumed that petitioner was not aware of the earlier orders of this Court or the order of the District Fisheries Officer. Petitioner has not made any efforts to establish before this Court that the alleged act by him and others, complained of and pending adjudication at the trial stage, was in furtherance of his functioning as the Secretary of the said Cooperative Society and in the interest of the members of the Society and perfectly within the scope of his duties and responsibilities as Secretary of the Society. The expression transactionused by the legislature in the said clause (f) is qualified by the expression relating to. This expands the meaning of transaction and covers any act of any person if, even remotely, it touches any transaction by a registered society. Even if the case of the petitioner is put to the highest pedestal and it is accepted that, in spite of orders of this Court, the ponds remained settled with his society and no orders of cancellation of the settlement or suspending right of fishing in the ponds was issued by the competent authority, at least before the said letter of the District Fisheries Officer dated 29.08.2006, still there is nothing on record to show that the petitioner had acted in the manner, as alleged in the criminal proceeding, in furtherance of interest of the members of the society only, and not in conflict with the same. As pointed out earlier, the very function of the society, with which ponds are settled, is to collect fishes from the ponds, sell the same and distribute the proceeds amongst its members. Therefore, the alleged act of theft of the fishes from the ponds by the petitioner and others can surely be treated as covered by the expression „relating to any transaction of a registered society. Petitioner has not asserted that, at the time of his nomination, he had disclosed before the election officer about the pendency of the criminal proceeding against him in any manner whatsoever. The rejection of the objection of respondent no.6 by the election officer, as appearing from the notings (Annexure-5), shows that a note was put before him, proposing for rejection of the objection, which was simply endorsed by him. It appears that the election officer did not apply his mind as to whether this fact has been disclosed by the petitioner in his nomination or not and as to what were the details of the criminal proceeding pending against him and whether this incurred disqualification on him. 12. The Registrar, Cooperative Societies has disposed of the election dispute by the impugned order holding that, in the criminal proceeding cognizance had been taken against the petitioner and the same was pending on the date of nomination and, from the records it was clear that, the proceeding was covered by the expression transaction of a registered society. 12. The Registrar, Cooperative Societies has disposed of the election dispute by the impugned order holding that, in the criminal proceeding cognizance had been taken against the petitioner and the same was pending on the date of nomination and, from the records it was clear that, the proceeding was covered by the expression transaction of a registered society. Hence he has held that the petitioner had become ineligible from being elected as Secretary of the Managing Committee on the date of filing of his nomination and has therefore set aside his election. 13. This Court does not find any satisfactory grounds made out by the petitioner to enable this Court to differ with the conclusions of the Registrar, Cooperative Societies. Hence, this Court does not find any merit in the writ application. The same is dismissed.