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2013 DIGILAW 806 (HP)

JAGDISH CHAND v. STATE OF H. P.

2013-09-11

A.M.KHANWILKAR, KULDIP SINGH

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JUDGEMENT A.M.KHANWILKAR, J. - 1. HEARD counsel for the parties. Admit. Respondents waive notice for final disposal. 2. AS short question is involved, the petition is taken up for final disposal forthwith, by consent. This writ petition, under Article 226 of the Constitution of India, principally takes exception to Annexure P-6 dated 19th March, 2013, whereby the petitioners were sought to be removed from the Managing Committee. The petitioners have also challenged the validity of the Himachal Pradesh Cooperative Societies (Amendment) Act, 2012. However, the latter relief is not pressed in the present petition as the petitioners submit that even if the provisions, as applicable and amended from time to time, were to be applied to the case on hand, the impugned action cannot be sustained in law. 3. ACCORDING to the petitioners, the proposal to remove the petitioners from the Managing Committee is not in accordance with law and no opportunity whatsoever has been offered to the petitioners. In that, the notice of the meeting, in which such removal action was proposed to be considered, was not given to the petitioners as per the provisions of Section 101 of the Act of 1968 and Rule 44 framed there-under. Section 101 of the Act postulates that the notice should be either served personally on the person concerned or by registered post. Rule 44 of the Rules, inter-alia, mandates that the notice should be served not less than three clear days before the date of meeting. 4. IN the present case, the respondents, on affidavit, have admitted that as regards petitioner No.1, notice was issued on 16th March, 2013 which was attempted to be served on his son as the said petitioner was not available at home but his son refused to accept the same. This factual statement clearly indicates that the notice was not served on the petitioner personally and that it was attempted to be served on the son of the petitioner No.1 on 16th March, 2013 even though the meeting was to be convened on 18th March, 2013. Taking any view of the matter, the notice, sought to be served on petitioner No.1, was invalid and not in accordance with the provisions of . Section 101 or for that matter Rule 44 of the Rules. As regards petitioner No.2, it is stated that petitioner No.2 refused to accept the notice. That refusal is of 16th March, 2013. Taking any view of the matter, the notice, sought to be served on petitioner No.1, was invalid and not in accordance with the provisions of . Section 101 or for that matter Rule 44 of the Rules. As regards petitioner No.2, it is stated that petitioner No.2 refused to accept the notice. That refusal is of 16th March, 2013. Once again that service falls short of mandatory requirement of Rule 44 of the Rules. As a result, the same is invalid and cannot be taken forward. 5. AS regards petitioners No.3 and 4, it is admitted by the private respondents, on affidavit, that the notice was sought to be served on the said petitioners on 17th March, 2013 notwithstanding the fact that the meeting was convened on 18th March, 2013. Even this service of notice cannot be countenanced being contrary to the mandate of Rule 44 of the Rules. 6. A priori, the only option for us, is to declare that all consequential steps taken on the basis of notice attempted to be served on the concerned petitioners cannot be sustained and will have to be treated as effaced from the record. It will, however, be open to the respondents to take the requisition for removal of the petitioners forward only after complying with all the mandatory requirements concerning the notice and giving opportunity to the concerned petitioners. In the circumstances, this petition is allowed. The impugned action, Annexure P-6 dated 19th March, 2013, is quashed and set aside. The resolution, passed in the purported meeting, convened on 18th March, 2013, is also declared null . and void and non-est in law. However, that will not preclude the respondents to continue with the action of removal on the basis of subject requisition, by issuing and serving proper and valid notice on the concerned petitioners, if so advised. We are not expressing any opinion on the correctness of that option available to the respondents in this matter. 7. PETITION is disposed of on the above terms.