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2014 DIGILAW 638 (MP)

Amod Kumar Saxena v. Prakash Khandelwal

2014-06-16

RAJENDRA MENON, SUSHIL KUMAR GUPTA

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ORDER 1. Challenging the order-dated 5.6.2014, passed by the MP State Cooperative Tribunal, Bhopal in Second Appeal No.123/2013, this petition has been filed under Article 227 of the Constitution. 2. Dispute in the writ petition pertains to election to the post of Directors of the Awas Rahat Grih Nirman Sahkari Sanstha Maryadit, Bhopal – a Cooperative Society, registered under the provisions of the MP Cooperative Societies Act. 3. Facts in nut-shell, go to show that on 15.9.2012, petitioners were elected as Directors of the said society. Aggrieved by the said election, respondent No.1 raised a dispute under section 64 of the MP Cooperative Societies Act, 1960 (hereinafter referred to as ‘Act’) before the Deputy Registrar, Cooperative Societies, Bhopal. Notices were issued and proceedings were held exparte against the petitioner, as it was reported that they did not appear in spite of service of notice. An exparte order was passed on 15.5.2013, after notice was tried to be served by publication. When this order was passed, petitioner No.1 moved an application under Order IX Rule 7 of the Code of Civil Procedure, seeking setting aside of the exparte proceedings held against them. It is the case of the petitioners that the application under Order IX Rule 7 was not taken note of and the respondent No.2 closed the case for orders on 3.7.2013 and orders were passed on 29.7.2013. A revision was filed before Joint Registrar, Cooperative Societies, Bhopal challenging this order-dated 29.7.2013 proceeding exparte in the matter, but in the meanwhile the case was taken up for hearing on 31.7.2013 and finally an order was passed by the Deputy Registrar and the election was declared as void. Petitioners preferred an appeal under section 78(1) of the Act before the Joint Registrar, Cooperative Societies, Bhopal and the matter proceeded before the Joint Registrar, where certain interlocutory orders were passed. Finally, on 30.8.2013, the revision filed by respondent No.1 was allowed by the Joint Registrar and in the meanwhile, at the interlocutory stage the matter came to this Court in Writ Petition No. 15693/2013. This writ petition was disposed of on 5.9.2013, and thereafter final orders were passed by the Joint Registrar on 25.10.2013, deciding the appeal. 4. The Joint Registrar found that in the election petition filed under section 64, the Deputy Registrar has not issued proper notice, infact it was the reader who had issued notices and initiated the proceedings. This writ petition was disposed of on 5.9.2013, and thereafter final orders were passed by the Joint Registrar on 25.10.2013, deciding the appeal. 4. The Joint Registrar found that in the election petition filed under section 64, the Deputy Registrar has not issued proper notice, infact it was the reader who had issued notices and initiated the proceedings. Initiation of the proceedings at the instance of the Reader was found to be unsustainable and as the exparte order was passed without proper notice, the matter was remanded back to the Deputy Registrar with a direction to decide the election petition afresh within a period of three months. 5. Challenging this order passed by the Joint Registrar, which was passed after taking note of the procedural infirmity in the matter, respondent No.1 preferred a second appeal before the MP State Cooperative Tribunal and by the impugned order the Tribunal has decided the appeal, has allowed the same on the ground that the Joint Registrar erred in deciding the appeal only on the question of exparte proceedings instead of deciding it on merits. The MP State Cooperative Tribunal has held that the dispute should have been decided on merits and having interfered with the same, this writ petition has been filed. 6. Even though various submissions have been made by learned counsel for the parties in support of their rival contentions, the facts that have come on record clearly shows that when the election petition was filed under section 64 before the Deputy Registrar, the proceedings for issuing notice in the matter, including an order for publication of notice in the newspaper was not issued by the Presiding Officer – namely the Deputy Registrar of the Election Tribunal, but by his Reader and, therefore, it was primarily on this consideration that the Joint Registrar found that the proceedings initiated and proceeded exparte is based on orders passed by the Reader of the Election Tribunal, which is not sustainable and has interfered into the matter and remanded back to the Election Tribunal for fresh proceeding as per law. 7. However, the Cooperative Tribunal found that notices were served by publication in the newspaper, the petitioners were aware of the proceedings and still they kept quiet and watched the proceedings from outside and taking note of all these factors interfered in the matter by holding that the exparte proceedings was vitiated. 8. 7. However, the Cooperative Tribunal found that notices were served by publication in the newspaper, the petitioners were aware of the proceedings and still they kept quiet and watched the proceedings from outside and taking note of all these factors interfered in the matter by holding that the exparte proceedings was vitiated. 8. Shri A.P. Shroti, learned counsel for the petitioners, emphasized that the reader having proceeded exparte in the matter, the entire proceedings in the Election Tribunal stands vitiated and, therefore, the Joint Registrar has not committed any error in remanding the matter. 9. Per contra, Shri Pushpendra Dubey and other counsel appearing for the respondents, submitted that after the Joint Registrar had issued notice and had ordered for exparte proceedings and paper publication, it was the Deputy Registrar who has affirmed the order and, therefore, the Cooperative Tribunal has not committed any error. 10. We have bestowed our anxious consideration and we find that after the election proceedings were initiated in the Election Tribunal, it was the reader of the Tribunal who initiated the proceedings by issuing notice and directed for paper publication etc, without any direction or order from the Election Tribunal – namely the Deputy Registrar. The reader of the Tribunal under law has no authority to direct for issuing notice or for paper publication in the matter and once it is clear from the records that certain proceedings which ultimately led into passing of the exparte order were initiated at the instance of the reader of the Tribunal, the entire proceedings before the Election Tribunal stands vitiated and no amount of rectification subsequently by the Deputy Registrar can cure this inherent defect in the proceedings. In fact the reader of the Tribunal has no authority to issue any notice or issue any direction for making paper publication based on which the exparte proceedings were drawn. Even an order passed for issuing notice or paper publication is a quasi judicial order, passed under the provisions of the MP Cooperative Societies Act, and it is only the statutory authority who can pass such an order. Even this power cannot be delegated and any order passed by the reader of the Tribunal in the matter of issuing notice or paper publication, which resulted in exparte proceedings being held, the same is void ab initio and nonest in the eyes of law and proceedings subsequently held becomes vitiated. 11. Even this power cannot be delegated and any order passed by the reader of the Tribunal in the matter of issuing notice or paper publication, which resulted in exparte proceedings being held, the same is void ab initio and nonest in the eyes of law and proceedings subsequently held becomes vitiated. 11. That being the legal position, the Joint Registrar has not committed any error in remanding the matter back and the MP State Cooperative Tribunal without taking note of the legal anomaly in the proceedings initiated, has interfered in the matter only on the ground that this is a technical error. Infact this is not a technical error, but this is an error which goes to the root of the matter and renders the entire proceedings non est. The Reader of the Court is not authorized under law to direct for issuing notice or paper publication and if based on these orders any exparte orders are issued, the same also stands vitiated as initiation of the proceedings by issuing notice and directing for paper publication itself is a void order on the directions of an unauthorized person, who has no authority under law to issue any such direction. 12. Keeping in view the aforesaid, we are of the considered view that the MP State Cooperative Tribunal has committed an error in interfering into the matter and a reasonable order of remand passed by the Joint Registrar has been unnecessarily interfered with without taking note of the legal consequences and legal infirmity in the proceedings held before the Election Tribunal. 13. In view of the above, we have no hesitation in allowing this petition, quashing the order passed by the Cooperative Tribunal and restoring the order passed by the Joint Registrar remanding the matter back to the Election Tribunal (Deputy Registrar) for proceeding in accordance with law. 14. Accordingly, we allow this writ petition. Order impugned dated 5.6.2014 passed by the MP State Cooperative Tribunal in Second Appeal No.123/2013 is quashed. The order passed by the Joint Registrar, remanding the matter back to the Deputy Registrar, Cooperative Societies, is upheld. 15. It is directed that parties shall appear before the Deputy Registrar, Cooperative Societies, with a certified copy of this order on 1.7.2014, and the Deputy Registrar, Cooperative Societies, shall conduct the proceedings under section 64 in accordance with law, and conclude it on or before 31.8.2014. 15. It is directed that parties shall appear before the Deputy Registrar, Cooperative Societies, with a certified copy of this order on 1.7.2014, and the Deputy Registrar, Cooperative Societies, shall conduct the proceedings under section 64 in accordance with law, and conclude it on or before 31.8.2014. In case, parties do not cooperate or delay the proceedings, the Deputy Registrar is free to proceed in the matter in accordance with law, but shall make an endeavour to conclude the proceedings by 31.8.2014, as directed hereinabove. 16. Till the matter is not decided by the Election Tribunal, as directed hereinabove, status quo with regard to functioning of the society as is existing today shall be maintained and the persons or person, who are managing the affairs of the Society as on date, shall be permitted to carry on with the affairs of the Society till a decision is taken by the Election Tribunal. 17. With the aforesaid, the writ petition stands allowed and disposed of.