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2017 DIGILAW 676 (MP)

Brij Kumar Chanpuriya v. State of M. P.

2017-05-15

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2017
ORDER 1. Challenge in the present writ petition is to an order dated 21.4.2017 whereby an appeal filed by the private respondents herein was allowed directed against an order passed by the M.P. State Cooperative Tribunal, Bhopal and the order of Joint Registrar Cooperative Societies, Sagar dated 13.1.2016, was set aside. 2. The Primary Agricultural Credit Cooperative Society, Ltd. Barshobha was served with the show cause notice on 24.12.2014, inter alia for the reasons that three Directors such as Shri Vikram Singh, Shri Param Lal and Shri Pushpendra Singh of the said cooperative society have not repaid the loan amount within 12 months and, therefore, appropriate action be taken against such Directors. After such show cause notice was served, the Assistant Registrar Cooperative Society, Panna passed an order on 22.9.2015 holding that Shri Pushpendra Singh, Shri Sarendra Singh, Shri Rajev, Lakhan Lal, Param Lal and Vikram Singh cannot continue to be Director of the Cooperative Society for the reasons that they defaulted in the payment of loan for a period of more than 12 months. It may be noticed that a show cause notice was given in respect of Shri Vikram Singh, Param Lal and Pushpendra Singh whereas the order of disqualification was passed in respect of Shri Pushpendra Singh, Shri Sarendra Singh, Shri Rajev, Lakhan Lal, Param Lal and Vikram Singh. An appeal was preferred against such order by the candidates, who were declared to be removed as Directors of the Cooperative Society. But such appeal was dismissed on 29.12.2015. Further appeal before the Joint Registrar remained unsuccessful vide order dated 13.1.2016. It is thereafter, in further appeal before the M.P. State Cooperative Tribunal, Bhopal the orders passed by the Assistant Registrar and the Joint Registrar were found to be illegal, as no notice was served upon such Directors, as required under section 48-AA of the Madhya Pradesh Cooperative Societies Act, 1960 (for short the 'Act'), therefore, the entire action taken against the Directors of the Society is illegal. 3. Learned counsel for the petitioner before this Court argued that in terms of section 50-A of the Act, the default by the Directors in not paying the loan amount leads to deemed vacation of office and that no opportunity of hearing was required to be given to such Directors when the notice was served upon to the society to take action against the defaulters. Reliance is placed upon a Division Bench judgment of this Court, reported as 2012 RN 272 = 2012(2) MPHT 352 [Rajiv Kumar Jain v. Elected Representative, Veerendra Narain Mishra and others]. 4. We have heard learned counsel for the petitioner and find no merits in the present petition. Section 50-A of the Act deals with the disqualification for the candidates for election as Members of the Board of Directors, whereas section 48-AA of the Act deals with disqualification for membership of the Board of Directors. The relevant provisions reads as under : 50-A. Disqualification for being candidate or voter for election to Board of Director of representative or delegate of society.- (1) No person shall be qualified to be a candidate for election as member of the Board of Directors, representative or delegate of the society, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him. “(2) A person elected to an office of a society shall cease to hold such office, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him, and the Registrar shall declare his seat vacant : Provided that a person elected to an office of a co-operative bank from a society other than co-operative credit structure, shall cease to hold such office, if such society commits default for any loan or advance for a period exceeding three months, and the Registrar shall declare his seat vacant. (3) No person shall be entitled to vote at any election of the Board of Directors, representative or delegate of the society, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him. “48-AA. Disqualification for membership of Board of Directors and for representation. (3) No person shall be entitled to vote at any election of the Board of Directors, representative or delegate of the society, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him. “48-AA. Disqualification for membership of Board of Directors and for representation. - No person shall be eligible for election as a member of the Board of Directors of a society, and shall cease to hold his office as such, if he suffers from such disqualification as may be prescribed, and no society shall elect any member as its representative to the Board of Directors of any other society or to represent the society in other society, if he suffers from such disqualification as may be prescribed : Provided that, if a member suffers from any of the disqualifications prescribed under this section, - (i) it shall be lawful for the Board of Directors of the society to disqualify such member where he is elected as a Director, being a member of that society, after giving him a reasonable opportunity of being heard, within two months from the date of coming to the notice of the society, from holding the post. (ii) if, the member incurs a disqualification in the higher level society, for his actions as a representative, such higher level society shall take action to disqualify him for holding the post in the higher level society, and if the society fails to take action, the Registrar shall disqualify such member from holding such post by an order in writing, after giving him reasonable opportunity of being heard. Explanation. - For the purpose of this section, the expression “disqualification” shall not include the disqualification specified in section 50-A for election as a member of the Board of Directors or a representative of a society. 5. Section 50-A of the Act is the provision applicable before the conduct of election. It contemplates disqualification for the candidates to contest the election but having declares elected, the disqualification as contemplated under section 48-AA of the Act would be applicable as no disqualification of elected candidates can be ordered without giving notice in terms of second proviso to the said section. We find that the argument raised by the petitioner is wholly untenable and cannot be said to be justified. 6. We find that the argument raised by the petitioner is wholly untenable and cannot be said to be justified. 6. The judgment of this Court in Rajeev Kumar Jain's case is a case where the notice was in fact issued to elected candidates, as mentioned in para 3 of the order. It is not a case of disqualifying of elected representative without issuing notice. 7. That apart, an elected Director cannot be declared to vacate his office by virtue of deemed provisions without giving any opportunity of hearing. It is against the basic principles of natural justice that nobody should be condemned without granting opportunity of hearing. 8. Consequently, we do not find any merit in the present petition, the petition is dismissed.