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High Court of Punjab and HaryanaCWP/6753/2016dismissed

Sukhminder Singh v. State Of Punjab & ORS

2017-12-06Mr. Justice R.P. Nagrath9 pages

Vinod Kumar 2017.12.08 14:59 I attest to the accuracy and integrity of this document [ 1 ]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision:06.12.2017 Sukhmindar Singh

...Petitioner

Versus

State of Punjab and others

...Respondents

Coram:

Hon'ble Mr. Justice Rakesh Kumar Jain

Present:

Mr. M.S.Kang, Advocate, for the petitioner.

Ms. Deepali Puri, Addl. A.G., Punjab.

Mr. H.S.Bedi, Advocate, for respondents no.4 and 5.

Rakesh Kumar Jain, J.

The petitioner has challenged the order dated 01.12.2015 passed by the Deputy Registrar, Cooperative Societies, Moga, by which he had restrained the petitioner from contesting the election to the post of President and for working as such till the next date of hearing and the order dated 22.12.2015, by which the Special Secretary, Cooperation, Punjab, has dismissed his revision petition filed under Section 69 of the Punjab Cooperative Societies Act, 1961 (hereinafter referred to as the "Act") on the ground that the revision is not maintainable against the impugned order which could have been challenged by way of an appeal under Section 68 of the Act.

[ 2 ] In brief, the election of the Managing Committee of the Jallalabad Shirki Multipurpose Cooperative Agriculture Service Society Limited (hereinafter referred to as the "Society") was held in the General Body meeting as per the approved election program on 16.11.2015. Out of the total 565 members, 168 members were present who elected 11 Committee Members including the petitioner and respondent no.3 and, thereafter, the meeting was called on 02.12.2015 for the election of the office bearers, i.e. President and Vice President etc.

Respondent no.3 filed the election petition on 01.12.2015 along with an application for stay to restrain the petitioner from contesting the election to the post of the President and from participating in the election process, which was to be held on 02.12.2015 till the final disposal of the election petition. Respondent no.2 passed the restraint order on 01.12.2015 against the petitioner and adjourned the case to 15.12.2015. The election could not be held on 02.12.2015 because of the restraint order dated 01.12.2015, which was extended from 15.12.2015 to 12.01.2016. The petitioner challenged the order dated 01.12.2015 by way of a revision petition, filed under Section 69 of the Act, on 22.12.2015. The petitioner also challenged the order dated 01.12.2015 by way of CWP No.

27442 of 2015 in which notice was issued and as an interim measure, it was ordered that the election, if any held, would be subject to the final decision in the writ petition. The said order was passed on 24.12.2015 but the election was held on 26.12.2015 and respondent no.5 was elected as the President. The revision petition filed by the petitioner was, however, dismissed on 22.12.2015 on the ground that the order dated 01.12.

[ 3 ] way of revision, which was held to be not maintainable. Though it is mentioned in para 17 of the writ petition that an application has been filed for withdrawal of CWP No.27442 of 2015 with permission to file it again on the same cause of action in which some order was passed but the said order is not mentioned in that paragraph.

This petition is contested by respondent no.4 who had averred in its reply that the remedy to challenge the order dated 01.12.2015 is by way of an appeal to be filed under Section 68 of the Act. Learned counsel for the petitioner has submitted that during the pendency of the election petition, no order could have been passed for staying the election of the officer bearers of the society. In this regard, he has relied upon various decisions of this Court rendered in the cases of Satish Mohindroo and ors. vs. Assistant Registrar, Co-operative Societies, Gurdaspur and ors., 1989 PLJ 239, Rajinder Singh vs. The Registrar, Cooperative Societies, Punjab, 2001(1) PLJ 81 and Ram Kishan vs. The Registrar, Co-operaive Societies, Haryana and others, 1989 PLJ 437. It is further submitted that the revision was maintainable against the impugned order dated 01.12.2015.

On the other hand, counsel for the respondents have submitted that the order passed under Section 56 of the Act could have been challenged only in terms of Section 68(h) of the Act by way of an appeal and the revision petition filed under Section 69 of the Act was not maintainable. In this regard, he has relied upon a Full Bench judgment of this Court rendered in the case of Jasbir Singh and others vs. Commissioner (Appeals), Jalandhar Divisioin and others, 2011(4) RCR (Civil) 1.

[ 4 ] I have heard learned counsel for the parties and perused the available record.

The issue involved in this case is as to whether the restraint order dated 01.12.2015, passed during the pendency of the election petition, could have been challenged by way of an appeal under Section 68(h) or a revision under Section 69 of the Act?

In order to answer this question, it would be relevant to refer to certain provisions of the Act, which are reproduced as under:- "55.

Disputes which may be referred to arbitration- (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises- (a) Among members, past members and persons claiming through members, past members and deceased members; or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present; or (c) between the society or its committee and past committee, any officer, agent or employee, or any past officer, agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society; or (d) between the society and any other co-operative society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society.

Such disputes shall be referred to the Registrar for the decision and no court shall have

[ 5 ] jurisdiction to entertain any suit or other proceeding in respect of such dispute.

(2) For the purposes of sub-section (1) , the following be deemed to be disputes touching the constitution, management or the business of cooperative society, namely- (a) a claim by the society for any debt or demand due to it form a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the election of any Officer of the society.

(3) if any question arises whether a dispute referred to the registrar under this section is or is not a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.

56.

Reference of disputes to arbitration:- (1) The registrar may, on receipt of the reference of dispute under section 55:- (a) decide the dispute himself; or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or (c) refer it for disposal to one arbitrator.

(2) The Registrar may withdraw any reference transferred under clause (b) of sub-section (1) or referred under clause (c) of that sub-section and decide it himself or refer the same to another arbitrator for decision.

(3) The Registrar or any other person to whom a dispute is referred for decision under this Section may, pending the decision of the dispute, make such interlocutory orders as he may deem necessary in the interest of justice."

[ 6 ] xxx xxx xxx xxx "68. Appeals - (1) An appeal shall lie under this section against- (a) an order of the registrar made under sub-section (2) of section 8 refusing to register a society;

(b) an order of the Registrar made under sub-section (4) of Section 10 refusing to register an amendment of the byelaws of a co-operative society; [bb] an order of the Registrar made under Section 10 - A directing amendment of bye-laws of a co-operative of a cooperative society; (c) a decision of a co-operative society, other than a producers 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 co-op. Society expelling any of its members; (e) an order made by the Registrar removing or suspending a committee or a member thereof under section 27; (f) an order made by the Registrar under section 52 apportioning the costs of an inquiry held under section 50 or an inspection made under section 51;

(g) any order of surcharge under section 54;

(h) any decision or award made under section 56;

(i) an order made by the Registrar under section 57 directing in the winding up of a co-operative society;

(j) any order made by the liquidator of a co-operative society in exercise of the powers conferred on him by section 59; (k) any order made under section 65;

(1) grant of a certificate under section 67-A for the recovery of the amount due from a member on account of loan and interest thereon.] (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 to the Deputy registrar;

[ 7 ] (b) if the decision or order was made by the deputy registrar to the registrar or such Additional Registrar or joint Registrar as may be authorised by the Registrar in this behalf; (c) if the decision or order was made by the joint registrar or Additional registrar, to the registrar;

(d) if the decision or order was made by the Registrar, to the Government;

(e) if the decision or order was made by any other person, to the Registrar or such Additional Registrar or joint Registrar or Deputy Registrar or Assistant registrar as may be authorised by the Registrar in this behalf.

(3) No appeal shall lie under this section for any decision or order made by any authority in appeal.

(4) Any appeal under sub-section (1) pending immediately before the commencement of the Punjab co-operative societies (Amendment) Act, 1969, before any authority shall stand transferred to the authority to whom such appeal lies on such commencement.

69.

Revision:- The State Government and the Registrar may, suo moto or on the application of a party to a reference, call for and examine the record of any proceedings in which no appeal under section 68 lies to the Government or the Registrar, as the case may be, for the purpose of satisfying itself or himself as to the legality or propriety of any decision or order passed and if in any case it appears to the Government or the Registrar that any such decision or order should be modified, annulled or revised, the Government or the Registrar, as the case may be, may, after giving persons affected thereby an opportunity of being heard, pass such order thereon as it or he may deem fit.

70. Interlocutory order:- Where an appeal is made under Section 68,or where the Government or the Registrar calls for the record of a case under Section 69, the appellate authority or the Government or Registrar as the case may be may, in order to prevent the ends of justice being defeated make such interlocutory orders, including an order of stay, pending the decision of the appeal or revision as such authority or the Government or the Registrar may deem fit."

[ 8 ] As per Section 55(2)(c) of the Act, the dispute arising in connection with the election of any officer of the society can be decided by the Registrar and as per Section 56(3) of the Act, pending decision of a dispute, the Registrar may make such interlocutory orders as he may deem fit in the interest of justice.

Section 68(1)(h) of the Act provides for statutory appeal against any decision or award made under Section 56 of the Act, whereas Section 69 of the Act deals with the suo moto powers of the State Government and the Registrar or on the application of a party to a reference, to call for and examine the record of any proceedings in which no appeal under Section 68 lies to the Government or the Registrar, as the case may be, for the purpose of satisfying itself or himself as to the legality or propriety of any decision or order passed. Section 70 of the Act provides that the Appellate Authority or the Revisional Authority shall have the jurisdiction to pass the interim orders also. In Section 68(h) of the Act, the Legislature has used the words "any decision or award".

The decision taken in the election petition to restrain the elected members of the Committee from participating in the process of election of the office bearers of the society is the decision which takes away the right of the elected members, therefore, the said order, in my considered opinion, is appealable in terms of Section 68(h) of the Act. Since the order was passed by the Deputy Registrar, therefore, the appeal could have been filed before the Registrar.

It has also been held by the Full Bench of this Court in Jasbir Singh's case (supra) that the remedy of revision is barred where appeal against the impugned order lies under Section 68 of the Act. Therefore, there is no error in the impugned order by which the

[ 9 ] revision filed by the petitioner was not found maintainable as the order dated 01.12.2015 has been found amenable to appeal. In view of the above, I do not find any merit in the present petition insofar as the challenge to the impugned order Annexure P-5 is concerned.

Dismissed.

December 06, 2017 (Rakesh Kumar Jain) vinod* Judge Whether speaking / reasoned :

Yes/No Whether reportable :

Yes/No