IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2094 of 2010 (M/S) Kundan Singh … Petitioner Versus State of Uttarakhand and three others … Respondents Sri A.K. Joshi, Advocate for the petitioner. Mr. P.C. Bisht, Brief Holder for respondents 1 and 2. Mr. Yogesh Pandey, Advocate for respondent No.4. (Hon’ble B.S. Verma, J. ) Heard Mr. A.K. Joshi, Advocate for the petitioner, Mr. P.C. Bisht, Brief for State and Mr. Yogesh Pandey, Advocate for respondent No.4. By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 6-12- 2010 passed by respondent No.2, contained in Annexure no.10 to this writ petition. Further writ of mandamus has been sought directing the respondent No.2 not to interfere in the functioning of petitioner as Chairman of Managing Committee of Dugda Utpadak Sahkari Sangh Ltd. Champawat. Briefly stated the facts of the case giving rise to this writ petition are that the petitioner has challegned the validity and propriety of the impugned order dated 6.12.2010 passed by District Magistrate Champawat, whereby he has cancelled the motion of ‘no confidence’ against respondent No.3, which was passed in the meeting of Managing Committee. The Dugdh Utpadak Sahkari Sangh Ltd. Champawat is a Co-operative Society registered under the provisions of Uttarakhand Cooperative Societies Act, 2003 and is function under the provisions of Uttarakhand Cooperative Societies Act, 2003 and Rules framed therein. The aforesaid Cooperative Soceity is having eight members of Managing Committee , out of which Smt. Kavita Tiwari is the nominee of State Government, nominated by the State Government exercising the power of Section 34 of the Uttarakhand Cooperative Societies Act, 2003 (hereinafter referred as ‘Act’). 2 Section 30-A of the Act deals with motion of no- confidence against Chairman or Vice-Chairman of the Cooperative Society and procedure for carrying out the no-confidence motion has been prescribed under Rules 478 to 482 of the Uttarakhand Cooperative Societies Rules-2004 (hereinafter referred as ‘Rules’). As per Rule 488 the District Magistrate of the concerned District is Prescribed Authority for the purpose of ‘no-confidence motion’. Rules 479 and 480 provide procedure for ‘no-confidence motion’ and it has to be passed by 2/3rd members as per Rule 483, having voting right. It is contended by the petitioner that the prescribed authority has nominated Tehsildar Champawat to conduct the no- confidence meeting, which was held on 30-10-2010. Resolution of no- confidence motion was passed in the meeting and petitioner was elected new Chairman of Dugda Utpadak Sahkari Sangh Ltd. Champawat. Thereafter Sri Devi Dutt who was the then Chairman of the Managing Committee of Dugd Utpadak Sahkari Sangh Ltd. Champawat, made a representation before District Magistrate that the Tehsildar had wrongly calculated the votes of 2/3rd majority, as five members had voted in favour of no-confidence motion and three members had voted against no-confidence motion and the District Magistrate after considering the representation of the petitioner cancelled the resolution on the ground that for 2/3rd quorum six votes were needed in eight members electoral body, as 2/3rd of eight members electory body comes 5.33, but a person cannot be divided into fraction. Learned counsel appearing on behalf of petitioner has challenged the impugned order firstly on the ground that the nominated member has no right to vote and he voted against the no- confidence motion; secondly on the ground that the District Magistrate has no power to recall the resolution of no-confidence motion, passed in the meeting. So far as the first ground is concerned, learned counsel appearing on behalf of respondents has placed reliance on the judgment of Biraj Mistri vs. The District Panchayat Raj Officer, Pilibhit and others, rendered by Allahabad High court in C.M.W.P. No. 37929 of 1997 dated 24.3.1998, wherein it has been held that 3 “two-third majority” should be read strictly, the fraction should be rounded off to one and the intention of Legislature is that no confidence motion should be passed by atleast 2/3rd majority. This judgment has been rendered by Allahabad High Court on the basis of Full Bench decision of Allahabad High Court rendered in the case of Wahid Ullah Khan v. District Magistrate, Nainital and others. In the instant case the 2/3rd of eight members electoral body comes to 5.33 and it should be rounded to 6. So far as the second contention of learned counsel for the petitioner is concerned, the learned counsel appearing on behalf of respondents drew attention of this Court to Sub-Rule (2) of Rule 247 which reads as under- “247 (1) ………………………. (2) Where the dispute relates to the constitution of the Committee of Manaement or election or appointment of any office bearer or a delegate of a co-operative society, reference shall- (a) in the case of an apex co-operative society, be made to the Registrar appointed under sub-section (1) of section 3. (b) In the case of a co-operative society other than an Apex Society, be made to the District Magistrate of the district to which the society belongs.” The District Magistrate preferred to decide the matter himself and after considering this fact that six votes were needed in no confidence motion, set aside the no-confidence motion. The third contention of learned counsel for the petitioner is that nominated non-official member has no voting right. I have perused Section 34 of the Act and rule 456(3) of the Rules. Provisions of Section 34 and Rule 456(3) do not bar the non official to vote. In view of the provisions of law, as has been discussed above, it is quite clear that six votes were needed for atleast 2/3rd quorum to pass the resolution of no confidence motion, whereas only five members voted in favour of no-confidence motion. I do not find 4 any infirmity in the impugned order passed by the District Magistrate /respondent No.2. The writ petition is dismissed summarily, as being devoid of any merit. Dated: 24-12-2010 (B.S. Verma, J.) ISB