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2018 DIGILAW 1556 (HP)

Ramesh Chand v. State of Himachal Pradesh

2018-08-27

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. Heard. 2. This writ petition has been filed with the following prayer: “The impugned letter dated 21st August, 2018 (Annexure P-3) issued by respondent No. 4 may very kindly be quashed and set aside in view of the law laid down by the Hon’ble Apex Court in (2015) 8 SCC 1 titled “Vipulbhai M. Chaudhary vs. Gujarat Coop. Milk Mktg. Federation Ltd.” Or that the respondents No. 2 and 3 may kindly be directed to adjudicate upon reference of dispute under Section 72 of the Himachal Pradesh Cooperative Societies Act, 1968 in a time bound manner, without prejudice to the rights of the petitioner.” 3. True it is that Ramesh Chand, the petitioner herein, has been elected as Pradhan (President) of the Truck Operators Co-operative Society Limited, Barmana, Tehsil Sadar, District Bilaspur by its Managing Committee in its meeting held on 31.3.2017 along with other office bearers and also the members of Executive Committee. The petitioner is going to complete the period of one year and five months as President of the Committee by the end of this month. However, among the members of the Executive Committee of the Society, nine have lodged a complaint against the functioning of the committee headed by the petitioner and certain irregularities they allegedly observed with regard to the conduct of the business of the Society highlighted therein. Therefore, vide Annexure P-2 they have requested the 4th respondent i.e. the Assistant Registrar, Co-operative Society, Bilaspur, District Bilaspur to convene special meeting of the Managing Committee for removal of president, vice president or other office bearer of the Executive Committee of the Society so that fresh election of its office bearers is conducted. 4. Consequently, the 4th respondent has conveyed to the Secretary of the Bilaspur District Truck Operators Co-operative Society Limited, Barmana Tehsil Sadar, District Bilaspur to convene the meeting of the Executive Committee of the Society within one week vide letter Annexure P-3 dated 21.8.2018 and also inform all the office bearers of the Managing Committee of the Society so that the matter can be discussed in the presence of official representatives to be deputed by his office. Nothing, however, has been brought on record as to whether consequent upon the communication Annexure P-3 the Secretary of the Society has fixed the meeting of the Society or not. Nothing, however, has been brought on record as to whether consequent upon the communication Annexure P-3 the Secretary of the Society has fixed the meeting of the Society or not. However, the petitioner aggrieved by the proposed action has filed the present writ petition in this Court. 5. Mr. Anshul Bansal, learned Counsel representing the petitioner while agitating the proposed action of the respondents has contended that office bearers of the Society cannot be removed from their office at least till two years from the date of their election. Learned Counsel has based the submissions so made on the judgment of the Apex Court in Vipulbhai M. Chaudhary versus Gujarat Cooperative Milk Marketing Federation Limited and others, (2015) 8 Supreme Court Cases. True it is that Hon’ble Apex Court has held so in the guidelines i.e. para 52.2 of this judgment, however, to our mind framed for those states where the statutes required changes in terms of the constitutional mandate i.e. 97th amendment in the Constitution of India have not been carried out. 6. This case, however, is distinguishable on facts, firstly in our State we have Rules framed by the State of Himachal Pradesh known as “The Himachal Pradesh Co-Operative Societies Rules, 1971” having provisions of removal of the office bearers of Co-operative Society in a constitutional and democratic manner. The special meeting of the Executive Committee of a Society can be convened in terms of Rule 48 and the removal of office bearers will be subject to compliance of the procedure prescribed under Rules 43 and 45 of the rules ibid. Therefore, in the State of Himachal Pradesh the statute take care of a situation of this nature. 7. Above all, the 97th amendment in the Constitution perhaps has been quashed by the High Court of Gujarat which fact has been taken note of by Delhi High Court in Mukund L. Abhyankar v. Chief Executive Officer, 2017 SCC OnLine Del 8616: (2017)241 DLT 358 . It is noted in para-43 of this judgment that 97th amendment has been struck down by the Gujarat High Court in Rajendra N. Shah v. Union of India: 2013 SCC OnLine Guj, 2242. It has further been observed by Delhi High Court in the judgment supra that due to the 97th amendment ceased to exist the fundamental basis of the decision in Vipulbhai’s case supra stand eroded. 8. It has further been observed by Delhi High Court in the judgment supra that due to the 97th amendment ceased to exist the fundamental basis of the decision in Vipulbhai’s case supra stand eroded. 8. It is further observed that though the appeal preferred against the judgment of Gujarat High Court in Rajendra N. Shah’s case supra is pending adjudication in the Hon’ble Apex Court, however, the operation of the same has not been stayed. Therefore, the point in issue in this writ petition is not covered by the ratio of the judgment in Vipulbhai’s case cited supra and rather the statutory rules in-existence in the State of Himachal Pradesh, in a specially convened meeting of the Committee the matter qua removal of the office bearer of the Society can be discussed and to be removed of course by resorting to constitutional and democratic mechanism. 9. Above all, at this stage only meeting of the Society has been sought to be convened to discuss the contents of the complaint Annexure P-2 to the writ petition. The writ petition, as such, is pre-mature. As a mater of fact, the petitioner should have wait for the outcome of such discussion and in case the removal of the office bearers of the Society in violation of the statutory rules and for that matter the democratic mechanism, he should have approach this Court at an appropriate stage. 10. We, therefore, dispose of the writ petition in limine with the observation that the respondents shall proceed in the complaint Annexure P-2 strictly in accordance with the statutory provisions applicable in the given situation of course with liberty reserved to the petitioner to approach this court again if he feel aggrieved and dis-satisfied by the procedure so followed or the action contrary to the Rules taken in the matter. 11. Pending applications, if any, shall also stand disposed of.