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2022 DIGILAW 1220 (ALL)

Hariraj Singh Choudhary v. State of U. P.

2022-08-03

JAYANT BANERJI, SURYA PRAKASH KESARWANI

body2022
JUDGMENT : 1. Heard Shri Nirankar Singh, learned counsel for the petitioner, Shri Satyam Singh, learned Standing Counsel for the respondent nos. 1, 2, 3, Shri Bal Mukund Singh, learned counsel for the respondent no. 4 and Shri Nikhil Kumar, learned counsel for the respondent no. 4. 2. This writ petition has been filed praying for the following relief: “(I) Issue a writ, order or direction in the nature of certiorari quashing the notice/order dated 22.06.2022 issued by the opposite party no 2, in the interest of justice. (II) Issue a writ order or direction in the nature of mandamus commanding the opposite parties especially the opposite party nos. 3 and 4 herein not to give effect to the order dated 20.06.2022, issued by the opposite party no. 2 herein, in the interest of justice. (III) Issue a writ order or direction in the nature of mandamus commanding the opposite parties to strictly adhere to the provisions as contained in the UP Cooperative Societies Act 1965 and the UP Cooperative Societies Rules 1968, in the interest of justice. (IV) Issue any other order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case, in favour of the petitioner, in the interest of Justice.” 3. Briefly stated facts of the present case are that the petitioner was elected as Chairman of the Committee of Management of the District Cooperative Bank Limited, Ghaziabad in the election held on 10th-11th May, 2018. There are total 12 members of the Committee of Management. Learned counsel for the petitioner has stated that these 12 members have elected the petitioner as Chairman in the election held on 11th May, 2018. The respondent nos. 5 to 11 are elected members of the Committee of Management, who presented a notice for no confident motion in terms of Rule 455, 456 and 457 of the Uttar Pradesh Co-operative Societies Rules, 1968 (hereinafter referred to as the ‘Rules 1968’) on 17.6.2022. Pursuant to the aforesaid notice for no confidence motion, the respondent no. 2 fixed the date, time and place of meeting and nominated the Additional District Magistrate (City), Ghaziabad as Presiding Officer for the meeting. However, on the date fixed i.e. 20.7.2022 the meeting could not be held by the Presiding Officer for administrative reasons as reflected in his order dated 19.7.2022 adjourning the meeting for 3.8.2022. 4. 2 fixed the date, time and place of meeting and nominated the Additional District Magistrate (City), Ghaziabad as Presiding Officer for the meeting. However, on the date fixed i.e. 20.7.2022 the meeting could not be held by the Presiding Officer for administrative reasons as reflected in his order dated 19.7.2022 adjourning the meeting for 3.8.2022. 4. Today, Shri Nimai Das, learned Additional Chief Standing Counsel and Shri Satyam Singh, learned Standing Counsel representing the State-respondents have stated on instructions that today's meeting of no confidence motion cannot be held since the Presiding Officer has tested Corona positive and is in quarantine. They further informed that under the circumstances, a notice in terms of sub-rule (1) and sub-rule (2) of Rule 458 of the Rules, 1968 shall be issued by the District Magistrate, Ghaziabad within three days and on the date fixed the meeting shall be held. Submissions 5. Learned counsel for the petitioner submits as under: (i) Under Rule 457 of the Uttar Pradesh Co-operative Societies Rules, 1968, notice of no-confidence motion shall personally be presented by at least three members to the specified authority i.e. District Magistrate, whereas in the present case, the notice for no-confidence motion was not presented personally before the District Magistrate i.e. respondent no. 2. Since the notice for no-confidence motion itself is defective, therefore, the impugned notice for no-confidence motion dated 22.6.2022 is invalid. (ii) In the impugned notice of no-confidence motion dated 22.6.2022, there is no compliance of Sub-Rule (2) of Rule 458 and, therefore, the notice is defective. (iii) Since, 35 days period for meeting as provided in the first proviso to sub-rule (1) of Rule 458 has expired, therefore, the meeting for no confidence cannot be held by the respondent no. 2 i.e. District Magistrate. 6. Learned Standing Counsel and learned Counsel for the respondent no. 4 and 7 support the impugned order. Reasons and Findings 7. We have carefully considered the submission of the learned counsel for the parties. 8. The facts as aforementioned have not been disputed by the learned counsel for the petitioner and the learned counsel for the aforenoted respondents. We have confronted learned counsel for the petitioner with paragraph 15 of the counter affidavit with respect to the submissions as recorded in sub-rule (1). After perusal of paragraph 15 of the personal counter affidavit of the respondent no. We have confronted learned counsel for the petitioner with paragraph 15 of the counter affidavit with respect to the submissions as recorded in sub-rule (1). After perusal of paragraph 15 of the personal counter affidavit of the respondent no. 2 dated 28.7.2022, learned counsel for the petitioner has stated that the facts stated in paragraph 15 of the aforesaid personal affidavit with regard to the presentation of no confidence motion by the members mentioned therein, is not disputed. 9. In the aforesaid paragraph 15 of the personal affidavit, the respondent no. 2 has stated as under: “15. That the contents of paragraph no. 21 of the writ petition are incorrect as stated hence denied. It is further stated that on 17-06-2022 Sri Govind Tyagi, Sri Rajiv Lochan Sharma, Sri Kunwar Pal, Sri Rajiv Kumar, Smt. Chetna Yadav, Km. Chhavi Yadav and Sri Sitaram (Members of Committee of Management District Cooperative Bank Ltd. Ghaziabad) were personally present before respondent no. 2, i.e. District Magistrate Ghaziabad and submitted their application 17-06-2022 for no confidence motion against Hariraj Singh (Petitioner) (Chairman District Cooperative Bank Ltd. Ghazaiabad) and also submitted their affidavit which were 7 in number out of 12 members of committee of Management Ghaziabad District Cooperative Bank Ghaziabad and as such their application accepted in accordance with the provisions of Rule 456 and 457 of U.P. Cooperative Societies Rules 1968. It is further stated that the District Magistrate Ghaziabad nominated the Additional District Magistrate Nagar (Ghaziabad) as a Presiding officer of the meeting in which the resolution for no confidence shall be considered as provided under Rule 459(1) of U.P. Cooperative Societies Rules 1968 by the impugned order dated 22-06-2022. The Photocopy of order dated 22-06-2022 is being filed herewith and marked as Annexure no. 2 to this affidavit. From perusal of order dated 22-06-2022, it is clear that the District Magistrate (specified authority) nominated the Additional District Magistrate (City Ghaziabad) as a Presiding Officer of the meeting in which the resolution for no confidence shall be considered as provided in Rules 459(1) of Rules 1968. 2 to this affidavit. From perusal of order dated 22-06-2022, it is clear that the District Magistrate (specified authority) nominated the Additional District Magistrate (City Ghaziabad) as a Presiding Officer of the meeting in which the resolution for no confidence shall be considered as provided in Rules 459(1) of Rules 1968. It is further stated that the Additional District Magistrate (City Ghaziabad)/Presiding Officer issued notices to the entire members of Committee of Management of District Cooperative Bank Ltd. Ghaziabad through Secretary dated 25-06-2022, 19-07-2022, 22-07-2022 and 23-07-2022 for consideration of the proposal of no confidence motion, in accordance with the Rules 456, 457, 458 and 459 of U.P. Cooperative Societies Rules 1968. The photocopy of letter dated 25-06-2022, 19-07-2022, 22-07-2022 and 23-07-2022 are being filed herewith and marked as Annexure no. 3 to this affidavit. And as such there is no illegality or irregularity in the impugned order and the writ petition filed by the petitioner is based upon misrepresentation of facts, the same is liable to be dismissed.” 10. In view of the undisputed position as stated in the aforenoted highlighted portion of paragraph 15 of the personal affidavit of the respondent no. 2 dated 27/28.8.2022, the first submission deserves to be rejected and we hold that the notice for no confidence motion has been presented by the respondent nos. 5 to 11 in accordance with rules. To consider the aforenoted submissions (ii) and (iii) of the learned counsel for the petitioner, it would be appropriate to first refer to provisions of Rule 458, 459, 464 and 465 of the Rules, 1968, as under: “458. (1) On receipt of the notice of no confidence as provided in Rules 456 and 457, the specified authority shall fix such-time, date and place as, he may consider suitable for holding a meeting for the purpose of consideration of the proposed no confidence motion: Provided that such meeting shall be held within thirty-five days of the receipt of the notice of no confidence: Provided further that at least twenty-one day's notice shall be given for holding such meeting. (2) The notice for meeting under sub-rule (1), shall also provide that in the event of the no confidence motion being duly carried, election of the new Chairman or Vice-Chairman, as the case may be, shall also be held in the same meeting. 459. (2) The notice for meeting under sub-rule (1), shall also provide that in the event of the no confidence motion being duly carried, election of the new Chairman or Vice-Chairman, as the case may be, shall also be held in the same meeting. 459. (1) The specified authority shall also nominate any Gazetted Government servant (other than an Officer of Department which is concerned with the supervision and administration of the Society concerned) to act as a Presiding Officer of the meeting in which the resolution for no confidence shall be considered. (2) The quorum for such a meeting of the Committee of Management shall be [more than] half of the total number of members of the Committee. 464. If the motion for no confidence fails for want of quorum or lack of requisite majority at the meeting, no subsequent meeting for considering the motion of no confidence shall be held within six months of the date of the previous meeting. 465. The specified authority referred to in the rules of this part shall be District Magistrate of the district where the headquarters of the society is situated.” 11. In the present writ petition only the order dated 22.6.2022 has been prayed to be quashed. We have perused the order dated 22.6.2022 issued by the respondent no. 2 i.e. District Magistrate, Ghaziabad and we find that it is an order fixing date, time and place of the meeting for no confidence in terms of Rule 458(1) of the Rules and nomination of a Gazetted Officer as Presiding Officer in terms of Rule 459(1) and 465 of the Rules, 1968. Thereafter, notice was required to be issued, which has been issued to the members by the Presiding Officer and not by the respondent no. 2. 12. Therefore, under the circumstance, neither the notice of no confidence nor the impugned order under Rule 458(1) of the Rules, 1968 can be said to suffer from any legal infirmity. 13. The first proviso to sub-rule (1) of Rule 458 provides that meeting shall be held within 35 days from the receipt of the notice of no confidence motion and there must at least 21 days notice. The first proviso providing the meeting to be held within 35 days, in our considered view, was enacted with the object of holding the meeting for the purpose of consideration of the proposed no confidence motion expeditiously. The first proviso providing the meeting to be held within 35 days, in our considered view, was enacted with the object of holding the meeting for the purpose of consideration of the proposed no confidence motion expeditiously. However, where the notice for no confidence motion as moved by the members for convening the meeting does not suffer from any infirmity then any lapse on the part of the authority in convening the meeting to consider no confidence motion, cannot render the notice for no confidence infructuous. If the first proviso to sub-rule (1) of Rule 458 is interpreted strictly, in the manner as suggested by the learned counsel for the petitioner, the result would be that notice of no confidence motion moved by the members, without being tested at the floor of the house, can be easily defeated by collusion, negligence/lapses. Thus, such strict interpretation would be against the basic principles of democracy and would affect the survival of democratic institutions. Therefore, the first proviso to sub-rule (1) of Rule 458, in our considered view, is directory, and it means that normally the meeting shall be held within 35 days of the receipt of notice of no confidence. But in extenuating circumstances, this limitation of 35 days would be viewed as directory. In the present set of facts, as already noticed above, the meeting has been adjourned, not because of any circumstances created or because of any fault on the part of the members who moved the notice for no confidence motion, instead the meeting was adjourned by the Presiding Officer on the first occasion for administrative reasons and on the second event, i.e. today, on account of his being tested Corona positive and therefore, it is not possible for the Presiding Officer to hold the meeting. However, considering the second proviso to sub-rule (1) of Rule 458 that provides for at least 21 days notice to be given for holding a meeting for the purpose of consideration of the proposed no confidence motion, it stands to reason that adequate time ought to be afforded to the members of Cooperative Bank to attend that meeting. Giving of adequate time as provided in the second proviso aforesaid is necessary because the members of the Cooperative Society/Bank can make due arrangements for attending the meeting. Therefore, the second proviso aforesaid is required to be compulsorily followed. 14. Giving of adequate time as provided in the second proviso aforesaid is necessary because the members of the Cooperative Society/Bank can make due arrangements for attending the meeting. Therefore, the second proviso aforesaid is required to be compulsorily followed. 14. For all the reasons aforestated, we do not find any merit in this writ petition, the writ petition is dismissed with the following directions: (i) The respondent no. 2 shall himself give at least 21 days clear notice of the meeting to all the members within a week from today. The notice shall strictly comply with the provisions of sub-rule (1) and sub-rule (2) of Rule 458 of the Rules, 1968. (ii) On the date fixed, the meeting shall be certainly held either by the respondent no. 2 i.e. District Magistrate or by his nominee nominated under Rule 459 of the Rules, 1968. 15. Learned Additional Chief Standing counsel shall inform this order in writing to the respondent no. 2 i.e. District Magistrate, Ghaziabad within 48 hours for strict compliance.