Sarkari Padadhikari Sahkari Grih Nirman Samiti Ltd. , Jharkhand v. State Of Jharkhand
2018-04-04
SHREE CHANDRASHEKHAR
body2018
DigiLaw.ai
JUDGMENT Shree Chandrashekhar, J. - The petitioner-Samiti is aggrieved of order dated 23.03.2010 passed in Revision Case No. 23 of 2007, whereby order dated 27.09.2006 passed by the Deputy Registrar, Co-operative Societies has been set aside. 2. Briefly stated, Sarkari Padadhikari Sahkari Grih Nirman Samiti Ltd., Bokaro is a society registered under Bihar/Jharkhand Co-operative Societies Act, 1935. The petitioner-Samiti was allotted 5 acres of land for the benefit of its members; a list of 51 registered members was contained in letter dated 21.02.1986. In a special general meeting of the society held on 22.03.1986 it was resolved that the members shall deposit Rs. 10,000/- on or before 30.04.1986 whereupon they shall be considered for allotment of residential plots for them. Out of 5 acres land allotted by the Bokaro Industrial Area Development Authority (BIADA), 40 members were allotted plots on deposit of the requisite amount. It is pleaded that a map was signed by 3 members of the managing committee on 21.07.1988; in this map area adjacent to plot No. 36 was shown as vacant land. The respondent No. 6 who was posted as Deputy Inspector General of Police, CISF, Bokaro was allotted plot No. 47 by the Administrator, who was appointed on 01.02.1991 on supercession of the society, and this allotment was ratified by the society on 23.08.2000. A complaint was filed by one J.P. Shrivastav, allottee of plot No. 36 in the Cooperative Colony, Bokaro alleging illegal allotment of plot No. 47 to respondent No. 6. By an order dated 26.09.2000, the Assistant Registrar, Co-operative Societies held allotment of plot to respondent No. 6 illegal. Against this order the respondent No. 6 preferred Award Appeal Case No. 01 of 2001. The appellate authority holding that allotment of a plot from the vacant land to respondent No. 6, adjacent to plot No. 36 which was allotted to the complainant J. P. Srivastava was illegal, by an order dated 27.09.2006 dismissed the appeal preferred by respondent No. 6. The revisional authority, however, on consideration of the materials on record finding serious dispute on facts, setaside the appellate order and permitted the parties to approach the civil court/competent court. Aggrieved, the petitioner-Samiti has preferred this writ petition. 3.
The revisional authority, however, on consideration of the materials on record finding serious dispute on facts, setaside the appellate order and permitted the parties to approach the civil court/competent court. Aggrieved, the petitioner-Samiti has preferred this writ petition. 3. Section 48 of Bihar Co-operative Societies Act, 1935 provides that if any dispute touching the business of the registered society falls under clauses (a) to (e), such dispute shall be referred to the Registrar. Explanation 1 to section 48 clarifies that question whether a person is or was a member of a registered society or not shall be a dispute within the meaning of sub-section (1) to section 48. The respondent No. 6 has pleaded that the allottee-J. P. Shrivastav was encroaching upon his land and that was the reason he made a frivolous complaint before the Assistant Registrar which was registered as Case No. 01 of 2000. The expression "business" of a registered society occurring in section 48 means conduct of business of a registered society. It is only when there is dispute on conduct of business of the society amongst the members, past or present, or between society or its managing committee, or between the society and other registered society, or between the financing bank authorised under provision of sub-section (1) of section 16 and the person who is not a member of registered society, the dispute under section 48 shall be referred to the Registrar for adjudication. Interestingly, the Assistant Registrar, Co-operative Societies, Chas respondent No. 2 has filed counter-affidavit stating that; "the writ application is not maintainable either in law or on facts and as such liable to be dismissed in limine by this Court." 4. Prima facie, the grievance raised by the complainant J. P. Shrivastav does not constitute a dispute under section 48. Besides the above, order dated 26.09.2000 passed on the complaint of J.P. Shrivastav does not reflect the stand of respondent No. 6. This order not even refers to the dispute which now sought to have been raised on membership of the respondent No. 6 in the society, the nature of dispute and the stand taken by the parties. Merely observing that ^^oLrqfLFkfr dh Nkuchu ds mijkUr** the Assistant Registrar in its order dated 26.09.2000 has held allotment of plot to respondent No. 6 illegal. The appellate order dated 27.09.2006 is equally bereft of reasons.
Merely observing that ^^oLrqfLFkfr dh Nkuchu ds mijkUr** the Assistant Registrar in its order dated 26.09.2000 has held allotment of plot to respondent No. 6 illegal. The appellate order dated 27.09.2006 is equally bereft of reasons. An appellate authority which exercises statutory powers is under a duty to record brief facts of the case, contentions raised by the parties and its own independent findings. Reason is the soul of an order, administrative as well as judicial. An order sans reasons is passed in breach of the rules of natural justice. A bare glance at the appellate order dated 27.09.2006 would disclose that the appellate authority in complete abdication of its statutory duty has affirmed the original order passed by the Assistant Registrar. The appellate authority has failed to consider the scope of section 48 of Bihar Cooperative Societies Act, 1935. In " Mahabir Prasad Santosh Kumar v. State of U.P , (1970) 1 SCC 764 " : ( AIR 1970 SC 1302 ), the Supreme Court has observed, thus : "The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law." 5. In the proceeding before the Assistant Registrar in Case No. 1 of 2000, the ex-Secretary of the Samiti namely, Sri S.T. Prasad had represented the society. The society, the Administrator and the respondent No. 6 were opposite parties in Case No. 01 of 2000. When the Assistant Registrar cancelled the allotment to respondent No. 6 which was affirmed by a cryptic order by the appellate authority, there was no application by the Samiti objecting to allotment to the respondent No. 6. Plot No. 47 in Cooperative Colony, Bokaro has been allotted to the respondent No. 6 through a perpetual lease for 99 years. This is a registered document which cannot be cancelled by the Registrar acting in any of its capacity. Only by filing a civil suit a registered document can be get cancelled. The stand taken by the petitioner-Samiti on the powers of the Administrator, allotment of plot to respondent No. 6, validity of map, resolution of the Samiti etc., apparently involves disputed questions of fact. The revisional authority in the above facts has, in my opinion, rightly interfered with the appellate order, while granting liberty to the parties to approach the civil court. 6.
The revisional authority in the above facts has, in my opinion, rightly interfered with the appellate order, while granting liberty to the parties to approach the civil court. 6. Respondent No. 6 has pleaded that when the members below him were allotted plots by the society he made representations and sent legal notice to the Administrator, who allotted plot No. 47 to him. Respondent No. 6 was the Deputy Inspector General of Police, CISF at Bokaro and he was eligible to be inducted as a member of the society. He has deposited Rs. 10,000/which was required under the resolution of the managing committee of the society, and he was inducted as a member of the society on 14.01.1987. He has produced a list of members which contains name of 62 members. The list of members produced by the petitioner vide Annexure1 to the writ petition has been challenged by the respondent No. 6 as incomplete and it is alleged that the petitioner-Samiti has suppressed the correct list of members. A perusal of Annexure1 to the writ petition would reflect that it was a letter written to 51 members on 21.02.1986, requiring them to deposit Rs. 10,000/approximately on an assumption that the society is required to deposit Rs. 5,00,000/- towards the basic cost of the land. In the revised list which has been produced by respondent No. 6, his name appears at sl. No. 43. This list was revised in the year 1987, and the Administrator was appointed on 01.02.1991. 7. It is also pertinent to mention that the respondent No. 6 is in possession of the plot allotted to him for the last 20 years and the application for stay filed by the petitioner vide I.A. No. 3069 of 2010 for a direction to the respondent No. 6 not to raise construction over the plot was dismissed by a coordinate Bench of this Court vide order dated 16.05.2012. This is an admitted position that this order was not challenged by the petitioner and it has attained finality. And, now it is also an admitted position that the allottee J. P. Shrivastav, a founder member of the Samiti, has sold his plot to Sagar Prasad. 8.
This is an admitted position that this order was not challenged by the petitioner and it has attained finality. And, now it is also an admitted position that the allottee J. P. Shrivastav, a founder member of the Samiti, has sold his plot to Sagar Prasad. 8. A plea has been taken by the petitioner Samiti that only 40 members were allotted plot out of 5 acres land allotted to the society and in the map sanctioned by the managing committee vacant land for common use was left, which could not have been allotted to any other person. This map has been challenged by the respondent No. 6 on the ground that it was not approved by the members of the society. It is not the case pleaded by the petitioner that all other members from sl. Nos. 41 to 62 whose name appears in the list of members of Sarkari Padadhikari Sahkari Grih Nirman Samiti Ltd. were illegally inducted by the Administrator. Section 25 of the Co-operative Society Act, 1912 provides that any register or list of members or shares kept by any registered society shall be prima facie evidence of the date at which the name of any person was entered in such register or list as a member. List of members furnished by respondent No. 6 bears signature of office bearers. In the rejoinder affidavit filed by the petitioner-Samiti, it is not pleaded that this list vide AnnexureA to the counter-affidavit of respondent No. 6 is a forged, fabricated and concocted list of the members. It is not denied by the petitioner Samiti that the members below respondent No. 6 in the list were allotted plots and by the order of the Deputy-Commissioner, Bokaro six members were allotted residential plots from the land allotted by BIADA, still, respondent No. 6 was not considered for allotment of a plot in the society. 9. Contention raised on behalf of the petitioner that the Administrator had no jurisdiction to allot a plot to respondent No. 6 is misconceived. Section 41 of the Bihar Co-operative Society Act, 1935 deals with dissolution of managing committee.
9. Contention raised on behalf of the petitioner that the Administrator had no jurisdiction to allot a plot to respondent No. 6 is misconceived. Section 41 of the Bihar Co-operative Society Act, 1935 deals with dissolution of managing committee. Sub-section (3) provides that when the managing committee is superseded under sub-section (2), the Registrar shall appoint an Administrator, which shall exercise all the powers and perform all the duties under the Act, the Rules and the Byelaws exercised or performed by the managing committee or any officer of the registered society. The expression "Act as well as Rules and the Bye-laws" in sub-section (3) is relevant. Section 41(3) confers all powers upon the Administrator which are exercised by the managing committee. The learned counsel for the petitioner has referred to Memo dated 02.02.1991, by which the Administrator for the petitioner Samiti was appointed, to advance an argument that the Administrator was appointed only for conduct of election and, that too, within six months and while so, he had no power to allot a plot to respondent No. 6. Memo dated 02.02.1991 reads ^^Á'kkld dks ÁcU/k lfefr dh lkjh 'kfDr;ka ÁnRr jgsxhA** Once Memo dated 02.02.1991 is read in the context of section 41(3), it becomes apparent that the Administrator had all the powers which the managing committee exercises under the Act, the Rules and the Bye-laws. 10. In the above facts, finding no infirmity in the revisional order dated 23.03.2010, the writ petition is dismissed.