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2022 DIGILAW 218 (HP)

Balak Ram Sharma Son Of Shri Kirpa Ram Sharma v. Ram Krishan Sharma, S/o Late Shri K. R. Sharma

2022-05-06

MOHAMMAD RAFIQ, SANDEEP SHARMA

body2022
ORDER : Since both the petitions were being heard together as same and similar questions of facts are involved therein, the same are being disposed of vide this common order. 2. Being aggrieved and dissatisfied with the order dated 22.12.2021 passed by the Deputy Secretary (Cooperation) to the Government of Himachal Pradesh, whereby revision petitions bearing No.11 and 12 of 2019 having been filed by the petitioner(s) herein under Section 94 of the Himachal Pradesh Cooperative Societies Act, 1968 came to be dismissed/rejected on the ground of maintainability, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for the following main relief(s):- “i) That a writ in the nature of certiorari may kindly be issued for quashing the impugned orders dated 12.04.2019 and 22.12.2021 passed by respondents No.14 and 15 respectively and further the order dated 29.12.2018 passed by respondent No.13 to debar the members of the Managing Committee of respondent No.12- society to contest its election for three years from the date of passing the order may kindly be modified to the extent that the period of disqualification of respondents No.1 to 11 of Ex-Managing Committee of respondent No.12-society shall commence from the expiry of the term of the committee which will be w.e.f. 22.12.2019 and justice be done; (ii) That a writ in the nature of mandamus may kindly be issued directing respondent No.15 and other authorities of the State Government to entertain the revision petitions instituted after the decision in the appeals either given by Registrar Cooperative Societies, H.P. or officers subordinate to him and justice be done.” 3. For having bird’s eye view certain undisputed facts which may be relevant for adjudication of the case at hand are that on the basis of complaint made by the petitioner and few other members of respondent No.12-society against Ex-Managing Committee of Baghal Land Loosers Transport Cooperative Society Limited, Darlaghat, Tehsil Arki, District Solan, H.P. for their having mismanaged the affairs of society, an inquiry was conducted by Additional Registrar (Monitoring) Cooperative Societies, Himachal Pradesh. Aforesaid officer after having heard parties and considered documents submitted his report to the Registrar Cooperative Societies, who forwarded the same to the Assistant Registrar Cooperative Societies, District Solan for taking appropriate action in the matter. 4. Aforesaid officer after having heard parties and considered documents submitted his report to the Registrar Cooperative Societies, who forwarded the same to the Assistant Registrar Cooperative Societies, District Solan for taking appropriate action in the matter. 4. On 06.04.2018 respondent No.13 i.e. Assistant Registrar, Cooperative Societies, Solan, H.P. issued/served a show cause notice upon the Managing Committee of respondent No.12- society, which at that relevant time was manned by respondents No. 1 to 11, to explain their position. After having taken note of reply filed by respondents No.1 to 11, aforesaid authority vide order dated 29.12.2018 debarred respondents No.1 to 11 to participate in the election of respondent No.12-Society for three years w.e.f. 28.04.2018 in terms of provisions contained under Section 37(6) of the Himachal Pradesh Cooperative Societies Act, 1968 (hereinafter referred to as the ‘Act’). 5. Being aggrieved and dissatisfied with the aforesaid order dated 29.12.2018, passed by respondent No.13, the above referred respondents preferred an appeal before Registrar Cooperative Societies, Himachal Pradesh, who further assigned the matter for adjudication to respondent No.14 i.e. Additional Registrar (Monitoring/Marketing) Registrar Office, Shimla. 6. Since respondent No.13 had ordered to debar the members of the Ex-Managing Committee from anterior date i.e. 28.04.2018, by passing order of suspension, the petitioners herein being aggrieved by order dated 29.12.2018, passed by respondent No.13, preferred an appeal before Registrar Cooperative Societies, Himachal Pradesh, praying therein for modification of the order to the extent that period of three years to debar the members of the Ex-Managing Committee be counted from the date of passing of the order Annexure P-2. Both the appeals, as detailed above, were heard together by respondent No.14 and the appeal filed by the petitioner was dismissed, whereas appeal filed by respondents No.1 to 5 and 8 to 10 was allowed vide a common order dated 12.04.2019. 7. Petitioner, being not satisfied with the aforesaid order passed in appeals preferred by him as well as other respondents No.1 to 5 and 8 to 10, preferred two revision petitions before the Principal Secretary (Cooperation) to the Government of Himachal Pradesh, who assigned the same to respondent No.15 for decision on merit. Respondent No.15 vide order dated 22.12.2021 dismissed the revision petition having been filed by the petitioner on the ground of maintainability. In the aforesaid background, petitioner has approached this Court in the instant proceedings for the relief(s) as have been reproduced hereinabove. 8. Respondent No.15 vide order dated 22.12.2021 dismissed the revision petition having been filed by the petitioner on the ground of maintainability. In the aforesaid background, petitioner has approached this Court in the instant proceedings for the relief(s) as have been reproduced hereinabove. 8. We have heard learned counsel for the parties and have gone through the record of the case. 9. Precisely the grouse of the petitioner, as has been highlighted in the petition and as has been further canvassed by Mr. Jia Lal Bhardwaj, learned counsel appearing for the petitioner, is that Deputy Secretary, (Cooperation) to the Government of Himachal Pradesh, while disposing of revisions having been filed by the petitioner, failed to take note of detailed submissions/grounds taken by the petitioners in the revision as well as law on the point. Mr.Bhardwaj argued that authority concerned failed to take note of the fact that Division Bench of this Court in CWP No.9391 of 2012, titled as: Daulat Ram vs. State of H.P. & Others has specifically held that second revision is maintainable. He also argued that since Division Bench of this Court, while delivering judgment dated 28.12.2020 passed in LPA No.67 of 2020, titled as: Veerta Devi and Another vs. State of H.P. and Others, failed to take note of its earlier judgment passed in CWPs No.64 of 1993 and 271 of 1994, titled as: The Radiant Wood Workers Production-cum-Sale Cooperative Industrial Society Ltd., Kullu vs. The Kangra Central Cooperative Bank Ltd., Dharamshala & Others, decided on 24.03.1995, law laid down in Veerta Devi’s case supra could not be taken into consideration by the authority being per incuriam. 10. Mr.Bhardwaj also placed reliance upon the judgments of Hon’ble Apex Court in State of Tripura vs. Tripura Bar Association and Others, (1998) 5 SCC 637 , Sub-Inspector Rooplal and Another vs. Lt.Governor through Chief Secretary, Delhi and Others, (2000) 1 SCC 644 , Rajasthan Public Service Commission and Another vs. Harish Kumar Purohit and Others, (2003) 5 SCC 480 , Jayaswals Neco Limited vs. Commissioner of Central Excise Nagpur, (2007) 13 SCC 807 , Official Liquidator vs. Dayanand and Others, (2008) 10 SCC 1 and P.Suseela and Others vs. University Grants Commission and Others, (2015) 8 SCC 129 , however these judgments are not applicable to the facts of the present case. 11. 11. While making this Court to peruse provisions contained under Section 94 of the Act, Mr.Bhardwaj made a serious effort to persuade this Court to agree with his contention that bare reading of provision itself suggest that revision is maintainable after disposal of appeal, if any, filed under Section 93 of the Act per incuriam. 12. Ms.Rita Goswami, learned Additional Advocate General representing the respondents-State, supported the order impugned in the instant proceedings. She argued that judgment passed by Division of this Court in Veerta Devi’s case supra has been rightly considered by the authority concerned because same is based upon correct appreciation of law as well as provisions contained under the Act occupying the field. 13. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by respondent No.15, while passing order impugned in the instant proceedings, we do not find any illegality in the same and as such no interference is called for. Before ascertaining the correctness of the submissions and counter submissions made on behalf of the learned counsel for the parties, it would be apt to take note of the provisions contained under Sections 93 and 94 of the Act, which are reproduced hereinbelow:- “93. Before ascertaining the correctness of the submissions and counter submissions made on behalf of the learned counsel for the parties, it would be apt to take note of the provisions contained under Sections 93 and 94 of the Act, which are reproduced hereinbelow:- “93. Appeal.- (1) An appeal shall lie under this section against,- (a) an order of the Registrar made under subsection (4) of section 8 refusing to register a society; (b) an order of the Registrar made under subsection (4) of section 11 refusing to register an amendment of the bye-laws of a society; (c) a decision of a society refusing to admit any person as a member of the society who is otherwise duly qualified for membership under the bye-laws of the society; (d) a decision of a society expelling any of its members; (e) an order of the Registrar removing the committee of a co-operative society under section 37; (f) an order made by the Registrar under section 68 apportioning the cost of the enquiry held under section 67 or an inspection made under section 66; (g) any order of surcharge under section 69; (h) any decision or award made under section 73; (i) an order made by the Registrar under section 78 directing the winding up of co-operative society; (j) any order made by the liquidator of a society in exercise of the powers conferred on him by section 80; (k) any order made under section 74; (l) an order of the Registrar made under subsection (2) of section 11-A; or (m) an order of the Registrar made under subsection (1) of section 14-A. (2) An appeal against any decision or order under sub-section (1) shall be made within sixty days from the date of decision or order,- (a) if the decision or order was made by the Assistant Registrar or the Deputy Registrar, to the Registrar or such Additional Registrar or Joint Registrar as may be authorised by him in this behalf; or (b) if the decision or order was made by the Joint Registrar, the Additional Registrar or the Registrar, to the Government; or (c) if the decision or order was made by any other person, to Registrar or such Additional Registrar, Joint Registrar, Deputy Registrar or Assistant Registrar as may be authorized by him in this behalf; and (3) No appeal shall lie under this section from any decision or order made by any authority in appeal. No orders except those mentioned under this section, are appealable under this Act. The limitation period for preferring an appeal for all types of orders is 60 days from the date of issue.” 94. Review and revision.- (1) The State Government except in a case in which an appeal is preferred under section 93 may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit. (2) The Registrar may, at any time,- (a) review any order passed by himself; or (b) call for and examine the record of any inquiry or inspection held or made under this Act or the proceedings of any person subordinate to him or acting on his authority, and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit: Provided that, before any order is made under sub-sections (1) and (2), the State Government or the Registrar, as the case may be, shall afford to any person likely to be affected adversely by such order, an opportunity of being heard. “Provided further that every application under sub-sections (1) and (2) to the State Government or the Registrar, as the case may be, shall be made within ninety days from the date of communication of the order sought to be reviewed or revised. The section empowers the State Government and the Registrar to review and revise certain orders or proceedings made or held under this Act.” 14. Bare perusal of aforesaid provisions contained under Sections 93 and 94 of the Act leave no scope for this Court to agree with the contention of Mr.Bhardwaj, learned counsel appearing for the petitioner, that revision petition under Section 94 is maintainable after disposal of appeal, if any, filed under Section 93 of the Act. Bare perusal of aforesaid provisions contained under Sections 93 and 94 of the Act leave no scope for this Court to agree with the contention of Mr.Bhardwaj, learned counsel appearing for the petitioner, that revision petition under Section 94 is maintainable after disposal of appeal, if any, filed under Section 93 of the Act. Provisions contained under Section 94 of the Act clearly reveal that State Government except in a case in which an appeal is preferred under Section 93 may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings in which Registrar or any person subordinate to him or acting on his authority, may pass thereon such orders as he thinks fit. 15. Provisions contained under Section 94 of the Act ibid enable the State Government to take suo motu action to call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings before the Registrar or any person subordinate to him but except in those cases where appeal is preferred under Section 93 of the Act. 16. While inviting attention of this Court to the judgment rendered by Division Bench of this Court in CWP No.64 of 1993 and 271 of 1994, titled as: The Radiant Wood Workers Production-cum-Sale Cooperative Industrial Society Ltd., Kullu vs. The Kangra Central Cooperative Bank Ltd., Dharamshala & Others, Mr.Bhardwaj attempted to persuade this Court to agree with this contention that once appeal, if any, under Section 93 is decided, it would become proceedings of the Registrar and as such subsequently can be laid challenge by way of revision under Section 94 of the Act. However, we are not impressed with aforesaid submissions made by learned counsel for the petitioner for the reasons that power given to State Government under Section 94 of the Act otherwise can be exercised suo motu by Government for examination of record of any inquiry or inspection held or made under the Act or any proceedings under the Registrar, meaning thereby revision, if any, under Section 94 of the Act otherwise is not maintainable by any party other than State Government. State Government suo motu can take action and is not required to file any revision. State Government suo motu can take action and is not required to file any revision. Otherwise also, if the submission made by the petitioner is accepted that revision under Section 94 of the Act is maintainable after disposal of appeal under Section 93, provision contained under Section 94 nowhere enables private party to file revision, if any, against the order passed in appeal by Registrar, while exercising powers under Section 93 of the Act. 17. Provisions contained under Section 94(1) of the Act ibid only enables State Government and Registrar to call for and examine the record of inquiry or inspection to be held or any proceedings of the Registrar, but it nowhere provides for filing of revision, if any, by a private party that too after disposal of his/her having filed appeal under Section 93. 18. Section 94(2) of the Act empowers the Registrar to review any order passed by himself or call for and examine the record of any inquiry or inspection held or made under this Act or the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit. Though proviso to aforesaid provisions casts a duty upon State Government or the Registrar as the case may be to afford an opportunity of being heard to any person likely to be affected adversely by such orders, but definitely provision contained in this Section nowhere gives right to the private party to file revision against order, if any, passed in appeal under Section 93. 19. While placing reliance upon number of judgments as taken note here-in-above, Mr.Bhardwaj vehemently argued that since Division Bench of this Court while passing judgment dated 28.12.2020 in LPA No.67 of 2020, titled as Veerta Devi and Another vs. State of H.P. and Others failed to take note of its earlier judgments passed in The Radiant Wood Workers supra, same could not be taken into consideration by Deputy Secretary (Cooperation) while dismissing revision petition being per incuriam. However, having carefully gone through the judgment passed by Division Bench of this Court in Veerta Devi supra, this Court finds that reasoning given in the judgment passed by Division Bench of this Court in The Radiant Wood Workers supra has been duly taken note of. The Division Bench in Veerta Devi supra has held the same reasoning to be in teeth of the ratio of many judgments rendered by the different Division Benches. Otherwise also in light of judgments passed by Division Bench of this Court in Daulat Ram vs. State of H.P. & Others, ILR 2016 (2), 2122, Nikku Ram vs. State of H.P. and Others 2016 (3) ILR (HP) 2118 and The Tiara Cooperation Agriculture Service Society Ltd. vs. State of Himahal Pradesh and others, 2016 (6) ILR (HP) 644, we are unable to agree with Mr.Bhardwaj that judgment rendered by Division Bench in Veerta Devi supra is per incuriam. 20. In view of the ratio and reasoning given in Veerta Devi supra and other judgments taken note hereinabove, revision petition filed under Section 94 of the Act would not be maintainable under Section 94(1) of the Act against the order, if any, passed in appeal filed under Section 93. Otherwise also, we find from the judgment rendered by Division Bench in The Radiant Wood Workers supra that though Division Bench placed reliance upon judgment passed by Division Bench in V.D. Kalia vs. The Bilaspur District Co-operative Marketing and Consumer Federation Limited, Bilaspur and others, 1991 (2) Sim.L.C. 285 to arrive at a conclusion that there is no specific bar to file revision after decision of the appeal either under Section 93 or 94 or any other provision of the Act, but if the judgment passed in V.D. Kalia supra is perused, it is altogether in different context. In V.D. Kalia, learned Judges upheld the suo motu powers of revision of the Government to set aside the order of the Registrar which was passed in exercise of revisional jurisdiction holding that it was illegal and without affording an opportunity to the employee whose dismissal was sustained. In V.D. Kalia, learned Judges upheld the suo motu powers of revision of the Government to set aside the order of the Registrar which was passed in exercise of revisional jurisdiction holding that it was illegal and without affording an opportunity to the employee whose dismissal was sustained. While taking note of the aforesaid finding returned by Division Bench in V.D. Kalia supra, Division Bench in its subsequent judgments passed in The Radiant Wood Workers supra wrongly held that after decision of appeal under Section 94 of the Act, revision lies before the State Government or the Registrar Cooperative Societies as the case may be. True it is that revision is maintainable before the State Government or Registrar Cooperative Societies under Section 94 of the Act, but except in those cases where appeal is filed. Even if, for the sake of argument, it is presumed that under Section 94 of the Act revision is maintainable against the order passed in appeal under Section 93, but, no revision, if any, can be filed by a party other than State Government. Section 94 empowers State Government as well as Registrar to call for and examine the record of the authorities subordinate to them and there is no provision, if any, for filing revision by a party aggrieved of order, if any, passed by various authorities prescribed under the Act, especially, order passed in appeal under Section 93. 21. All the judgments relied upon by the learned counsel for the petitioner, as have been taken note hereinabove, lay down a law that judgments rendered by coordinate bench of the same strength would be binding on the coordinate bench of the same strength and if coordinate bench of same strength fails to take note of earlier judgment passed by coordinate bench of the same strength and passes order/judgment contrary to the view taken by coordinate bench of same strength in previous judgments, judgment rendered by it would be rendered per incuriam. There cannot be any quarrel with the aforesaid proposition of law pressed into service by learned counsel for the petitioner, however, for the reasons stated hereinabove, we do not find the judgment rendered by Division Bench of this Court in Veerta Devi supra to be in per incuriam because Division Bench in that case may not have specifically referred to judgment passed by coordinate Bench of same strength in The Radiant Wood Workers supra, but has specifically dealt with the reasoning given in that judgment and after having found reasoning given by Division Bench in The Radiant Wood Workers supra to be in teeth of the ratio of many judgments in issue rendered by different learned Division Benches specifically ruled that revision under Section 94 is not maintainable in those case where appeal is preferred under Section 93 of the Act. Leaving everything aside, bare reading of Section 94, as has been discussed at length hereinabove, leaves no room for further discussion on the issue. 22. Division Bench after having found aforesaid reasoning to be in teeth of the ratio of many judgments in issue rendered by different learned Division Benches, as have been taken note hereinabove, specifically ruled that revision under Section 94 is not maintainable in those cases where appeal is preferred under Section 93 of the Act. Leaving everything aside, bare perusal of Section 94 as has been discussed at length hereinabove leaves no room for further discussion on the issue. 23. Plain reading of the provision contained under Section 94 itself suggests that no revision is maintainable in those cases where appeal is filed under Section 93 and powers under Section 94 of revision is only available to State Government and Registrar to examine/review the orders passed by the authorities subordinate to them if they think fit. Though while exercising the powers under Section 94 authorities as detailed hereinabove are under obligation to afford opportunity of being heard to the respective parties but definitely aforesaid provision nowhere enables any party other than State Government and Registrar to exercise powers of revision under Section 94. 24. Hence, in view of detailed discussion made hereinabove, we do not find any illegality and infirmity in the order impugned in the instant proceedings to the effect that revision petition is not maintainable. 24. Hence, in view of detailed discussion made hereinabove, we do not find any illegality and infirmity in the order impugned in the instant proceedings to the effect that revision petition is not maintainable. However, having taken note of the provisions contained under Section 37(6) of the Act, which is reproduced hereinabelow, this Court finds force in the submission of counsel for the petitioner that a member who is removed under sub section (1) shall be disqualified for being elected to any Committee for such period not exceeding three years or as the Registrar may fix but such period would commence after the expiry of the term of that Committee from which he is removed. Section 37(6) reads as under:- “37(6) A member who is removed under sub-section (1) may be disqualified for being elected to any committee for such period not exceeding three years as the Registrar may fix and the said period shall commence after the expiry of the term of the committee from which he is removed.” 25. Though we find merit in the contention of learned counsel for the petitioner that in terms of provisions contained in Section 37(6) member who is removed under Sub Section (1) of Section 37 will be disqualified for being elected to any Committee for such period not exceeding three years or as a Registrar may fix but such period would commence after the expiry of the term of the Committee from which he is removed. But since order dated 29.12.2018, whereby members of Ex-Managing Committee i.e. respondents No.1 to 11 were ordered to be debarred from anterior date i.e. 28.04.2018, has been already set aside in appeal having been preferred by aforesaid respondents, the aforesaid submission made by the learned counsel for the petitioner with regard to violation of provisions of Section 37(6) has lost its relevance and is of no consequence as far as present proceedings are concerned. 26. Consequently, in view of above, we do not find any merit in the present petitions and the same are dismissed and the impugned order passed by Dy. Secretary, Cooperation to the Government of Himachal Pradesh is upheld. 27. Pending applications, if any, are also disposed of.