r 402 1 5 IN THE HIGH COURT OF PUNJAB AND HARYANA AT 45 CHANDIGARH CeWePeNoe 11654 of2008 DATE OF DECISION January30 2009 JasbirSinghand Others 19ETITIONEROS VERSUS Financial Commissioner and Others 17ESPONDEN1 1 CORAM1HONBLE MR JUSTICE AJAI LAMBA 1 0 Present Mr CR DahiyaAdvocate C for thepetitioners Z C5 Mr Sunil Nehra AAG Haryana I Mr Gurinder Pal SinghAdvocate Z for no 4 tr Mr Naresh Kaushik Advocate for no 5 to 10 I ctj AJAI LAMBA Je 7 This civil writ petitionfiled under Article 226 of the Constitution Z of India prays for issuanceof a writ in the nature of certiorari for C order Annexure P4 dated 0904008 passedby no l i Financial Commissioner and Coperation Haryana e 0 1 Haryana Civil Secretariat 4 o s The facts as pleaded on behalf of thepetitioners and givingrise to t the controversyare that the petitionersare Members of Managing Committee of Khundan Coeoperative Credit and Service SocietyLtd Khundan which was in Hans Pur PrimaryAgricultureCoe operative SocietyLtd Secretary of theSociety no 49issuedan Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 403 0 t 1 1 CWPeNo11654of2008 agendanotice for the meetingof ManagingCommittee of the Society scheduledto be held on 20092005 at l l00 AM in the ofce of the society for of a Salesman There are eightelectedmembersof the Committee One memberhas beenappointed bythe Financial Institutionsand one is a governmentnominee It has been pleadedthat on 20092005 the petitioners came present in thepremises ofthe society as per the scheduleofmeeting but the L offlce of the societywas closed The was also not present The 0 meetlngwas not held at the scheduledtime and placeas 1S required under 0 I HaryanaCooperativeSocietiesRules 1989 in particular Rule 110 C5 It has been asserted that the petitioners came to know that Z nos 5 to 9 assembledat a placeother than the societyoffice C convened a meeting under the of no 6 namelySh I Lakha Singhand wrote down the in a new Registerand 05 Cn appointed rlOe 10 namelySh JagtarSingha Salesman Neither 7 the governmentnominee was presentnor the nominee of the Financial Z Institutionnor even the Secretary of theSociety Copyof the resolutionhas Dm beenplaced on record as Annexure P1 It has irther been pleaded that since thepurported resolution was 4 C41 1 in violation ofthe provisions containedin the Rules and contrary e5 003 77 to the interest of the the petitionersOled a petition underSection 27 ofthe HaryanaCooperative Societies Act 1984 or short The Act9for rescindingthe resolution no 3 ie the Deputy RegistrarCooperativeSocietiesconsideredall the facts and circumstances and vide order Annexure P2 dated27032006 rescindedthe resolution Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 404 0 0 Co 1 a CWP No 11654 of2008 3 holding it to becontraryto the lnterest ofthe Society Aggrievedbyorder Annexure P2 no 5 to 9 Sled an beforeRegistrar Societies HaryanaOn consideration of the matter the AppellateAuthorityvide order dated 22022007 P3l upheldthe orderpassedbyDeputyRegistrar Agitatedby the dismissal of the appeal no 5 to 9 filed a revision petitionunder Section 115 The revision has been allowed 1 1X videtheimpugned order Annexure P4 by no 1 0 Learnedcounsel for the petitioners hasessentially contendedthat C3 I no 1 has not dealt with any issuewhich formed the basis of C5 passing of ordersAnnexures I 3 None of the facts has been taken Z into account and considered Rather the Revisional Authorityhas relied on e Section36 ofthe SocietiesAct 1984to hold that since no act I of a CooperativeSocietyor any Committeeshall be deemed to be invalid c4j by reason onlyof the existenceof any defect in procedure of 1 em the orders passedby DeputyRegistrarand Registrarare set aside and Z resolutionpassedbythe ManagingCommitteeis upheld Learned counsel Om contendsthat in the facts and circumstancesof the case Section 36 of the Act could not havebeen invoked In thisregardreferencehas beenmadeto 0 1 1989 PLJ 133 Chander Datt and Others Vs The SonepatCentral Co 9 eJ OtlerativeBank Ltd 0 Learned counsel for the has arguedthat the Revisional Authorityhas for correct reasons relied on provisionof Section 36 of theAct It has also beencontendedthatthe matter was addressedbyCivil Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 405 C0 1a 6 CWP No 11654 0f2008 4 CourthavingcompetentjurisdictionOrder of Civil Court has been placed onrecord as Annexure Pe1014vide which the suit filed byKulbir Singhfor to the effect that the defendantsin collusion had appointed 110 6 as Salesman in the absence of other Members of the Committee The resolution was fictitious without any notice of information The suit had beendismissedon 23032008 The other contention of the learned counsel is that Assistant vide order Anneuxre I2 had filed a report dated 05 102005 1Lr wherein theresolution at issuehasbeen held to be legal 0 No otherargumenthas been addressedby either of the counsel C norreferencehasbeenmadeto any other document C5 I I haveconsideredthe contentionsof the learned counsel and have Z gone through the relevantdocumentsplacedbeforeme Before considering theissue referencemay be madeto the relevantportionof order passedby DeputyRegistrarCooperativeSocieties Pe29that has been 06 upheldbythe Registrar in appellate jurisdictionThe relevantportionwhen 7 extracted readsas under Z Afterhearingboth thepartiesafterconsidering the ne relevant record it has come on record that there was one vacant post of salesman in the Khundan CCSS Ltd for which Ol the societyhas takenpriorapprovalfromthe and 1 5 forfllling thepost of the secretaryof the societyhas issued an agenda for the meetingto be held on 20092005 Due to illness theSecretary ofthesocietywas admittedin hospitaland was not present Theproceedings book ofthesocietywas in his custodyTheplaceofmeeting was societs 08iceand timewas Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 406 0 0 CeWP Noe 11654of2008 5 at 11AM Nobodyhasproduced any evidenceto theeect thatthe membershave receivedprior informationbeforel l AM the absenceof the secretaryof thesocietyIt is clear thatthe memberswaitedfor the secretaryuptol I AM and afterthat both the partiesmighthae tried to pass resolution afterlakingnew books It is dicult to getstationaryrelated to societyat villagelevel andfor that lt 1 might have been j7omnear bycitywhich was time 0 From the above it is clear that meeting was not 0 I held at theflxedtime andplaceand the same is by C5 I thereportofARCSFatehabad dated 05IO2005 In para l of Z thereportit is clearlystatedthat in the absenceofthesecretary of the societythe could not be recorded in the I book ofthesocietyon 20092005 at thexed time cll Thus thepleaof thepetitioner is provedthat the meeting was 7 not heldal the proper placeand time The action of ARCS Z Fatehabad the decision of the members of the Committeewherein even the nominee of govt and Inspector were not presentlS ln violationofthe 4 1 HaryanaCoop Societies Act and Rules Under the systemthe Committee can take any decision regardingthe business of society outsidethearea ofoperationwhich could be damaging to theDepartment and thesocietyTherefore the ARCS should not have approvedthe action of the commlttee members new registerwhich is contraryto the rules and Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 407 0 1 1 P 0 CWP No 11654of2008 e This was not so importantmatter wherein the decisionshould have been taken on the same dayevenin the absenceofsecretary byFinancial institution There ls a provlSlOnfor calling the meetingof the Managing Comlnitteeagain and decision could be takenas thatmeeting The other point in this case is regardingthe of from the perusalof records and 1 t otherdocumentsit is no whereprovedthat proper 0 was In this case an eHorthas been made to appoint 0 I theperson of their choice byrespective groups It is correct C5 that in the Mini Bank theManagingCommitteeis competent to Z make but it doesnot mean that thesocietyshould r deprive theyoung personsfromtheir rightsin the area Tojlll up thispostthe societyshould have done Munadi 08 and Ishtiharin the area ofoperation so that youth 7 ofthe area could submit their on the basis of their Z In this case thereis no proofom the record and 0m documentsshowingthat proper was adoptedfor 1illingthe said post and JagtarSinghsIo Jarnail Singhwas 5 given letter byresolution dated2009205 with out 1 9 anyapplication and requestwhich has no sanctityin theeyesof law and rules and regulations The facts given out above were considered by the appellate authority and after consideringthe same in the context of the record of the case theappellate authorityvide order Annexure P3 hasupheldthe Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 408 0 P CWeP Noe 11654of2008 7 It has been observedthat no publicityhadbeen made in the area no otherapplication had been invited for fillingthe postof Salesmanand there mightbe a number of other candidatesfrom the area of operation of the SocietyNo to other potentialeligible candidateshad beengivenbefore making The was thereforecontraryto theprovisions of the Act and seems to havebeen 1 f madein a clandestinemanner 0 As againstthe detailed flndingsrecorded by DeputyRegistrar C r CoperativeSocietiesand Registrar Societiesthe C0 er no 1 i e the RevisionaI Authorityafter considering the argumentshas Z simplyheld that it was not disputed that societyis competent to appointa m Salesmanbypassing a resolution It has been held in the order I that resolution was passedon 20092005 by which JagtarSinghwas oll rn appointed as a Salesman Five Members were presentout of eightwho 7 the resolution It has however not been consideredas to whether Z at all such a meetinghad beenconvenedor not Om It was incumbent on the Revisional Authority to have considered the issue in relation o the findingsrecorded by DeputyRegistrarand Cooperative Societies in ordersAnnexure Pm28 P which has V 1 1 notbeendone Competlceof authority is one elementof decision making 4 12 5 The authorityis a1s0required to follow the procedure laid down for the exerciseofjurisdictionThe findingsrecordedby the DeputyRegistrar and as afflrmedby the Registrarindicate that in fact not onlythat no meeting took place rather for Olling the post of salesman even munadi or was not madeso as to invite otherswho could competefor the Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 409 0 P CWP No 11654of2008 e8e post The Revisional Authorityhas onlyrelied on the provisions of Section 36 to tide over the defect in procedure Provision ofSection 36 ofthe Act read as under 36Acts of Cooperate Societies not to be invalidated by certain dectsee No act of a cooperativesociety or anycommitteeor any oO7cer shall be deemedto be 0 invalid byreason onlyoftheexistenceofanydefectin 0 I procedure or lTl the constitution of the societyor of C5 I the committeeor any vacancy in the or Z offlcerthereof or in theappointment or electionof an m Lr ofJlceror on the groundthat such 08Icerwas I disqualifledfor or election Il 08 OO Referencein this regardmay be madeto the case of Chander Dutt 7 supral Para no 18 when extractedreadsas underl Z QW 18 Mr C B KaushikAdvocatewho appearedfor the Bank relyingupon Section 29 of the Act submittedthat the defectifany in theappointment oftheselectedcandidatesstood cured under Section 29 of the Act Section 29 envisagesthat the 041 1 acts of coeoperative societies cannot be invalidated byreason of 5 01 there beingdefects ln the constitution of the societyor the committee and it reads as under No act of a cooperativesociety OY 01 any comnuttee or ofanyojBcershall be deemedto be invulid by Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 410 0 P CWP No 11654of2008 reason onlyof the exlstence of any defectin procedure Or lll the constitution of the societyor of the committeeor in the or election of an ofcer or on the groundthat such ofcer was disqualifledfor his Theargumentthoughapparently plausiblebut on deeperprobeis foundto be without any substance The salutaryprovision pra has been brought on the statute book in order to prolect the a interests of the cooperativesocieties and of those who ha17e 0 0 dealingwith these The committeeof the societyconSlSts qf r offlcersof the State Cooperative of the C5 Apex Societyand the elected Diectors of the SocietyThe Z commitleetransacts business enters into contracts with outside e r agenaes makes and subsequentoitisfoundthat I a72yof the oolcebearer or Directors or any of the nomineesof 08 OO the State Governmentor the of theApexSociety Was a ineligible or the election ofthe electedDirectors is held invalid Z t1 the act or acts done bythe Socielywill be protected under lhis prOVlSlOnbut it does not validate the appointments of lhe staff which are in direct breach provisionsof the statute or the rulesframedthere under The carryingout of the dayoe 15 5 daybusinessof the coperative Societies stmzdson a diHerent 23 OS e40 footingthan the madebyan administrative commutee of the society The selection Of the respondenls QS discussed in thepreceding paragraphcannot be validated under Section 29 of the Act and it lS wholly inapplicahIeto an as arisen in the instant case Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 0 1 411 1 P CWPe No 11654of2008 e10 Section 29 of the PunjabCooperativeSocieties Act 1961 has similareffectas Section 36 ofthe Act and therefore is clearly applicable to the factsof this case Considering the facts and Clrcumstances of the case I am of the considered opinionthat no l could not have invoked the provision of Section 36 Selection of Salesmancannot be construed as carrying out dayto daybusinessof the societyand therefore stands on a 1 different footingThe defectspointed out in the processand procedure from 0 C the extractedportionof order Pm2are seriousin nature VlZe themeeting was I not held at the placeand time givenin the notice the issue of selection of C5 r Salesmancould have been taken up on anotherdayand should not have Z been taken up in the absenceof the of the society The society m should have publishedthe post by way of munadi etc in the area of I operation ofthe societyso that other youtheligiblecandidates 06 rn who mightbe more could competefor the post of salesman no W properprocedure was adopted for Ollingthe post The Revisional authority Z has not considered thesefacts and circumstances The defectin procedure C standsadmittedin so much as Section 36 has been invoked The approach of no l to the issue is clearly illegal injudiciousand unreasonableand order cannot be sustainedin law 5 1 I haveconsidered theOndings and I am of the considered e5 oplIllOIl 1 2 that the reasons assigned are sufficient to rescindthe resolution 0 The argumentof the leamed counsel for the that the selection of the private is legaland valid in view of the judgment and decree of the Civil Court cannot be acceptedAnnexure P 1014indicatesthat one Kulbir Singhbrought a suit for declarationto the Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 6 412 0 A 4P CWPe No 11654 of2008 1 effectthat defendantsno 1 to 5 namelyPal SinghLakha SinghPinder SinghSukhwinderSinghand Kashmir Singhin collusion with defendant no 6 JagtarSingh JagtarSinghas Salesmanin the Societyin the absence of other Members of the ManagingCommittee after passinga fictitiousresolution Perusal of the indicatesthat issues have not even been 1 in the judgmentThe record does not indicate whether they 0 were framedor not Be that as it may the petitioners were not partyto the C I The judgment hasbeen passed despite bar ofjurisdiction ofCivil C5 I Courtas provided under Section 128 of the Haryana Societies Z Act 1984 The judgment Annexure R1014 is not on merits and without considerationof the issues Under the circumstancesthejudgment and the I decreecannot be considered as a bindingprecedent on the issue raised in otj oo this petition 2 Sofar as the contentionofthe learnedcounsel in relation to order Z passedby Assistant Annexure R1012 dated 05 102005 is concemed it is a letter addressed by Assistant RegistrarCooperative Societies to Deputy Commissioner It seems that theDeputyCommissioner 1 ordered an inquiryinto the factumof of Salesmanin the Co 1 8 operatlvesoclety 1J e0 Deputy Registrar while exercisingjurisdiction under Section27 of theAct has consideredthe contents ofreportAnnexure R1012 and hashcld in thefollowingterms the action ofARCS Fatehabad the decision of the MembersoftheManagingCommitteewherein even Lhenominee f Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document e 413 0 Il 49 CeWePeNoe 11654of2008 2 Government an were not presentis in violation of theHaryana Cooperative SocietiesAct and Rules 73 I am of the consideredopinionthat no reliance can be placed Oll Annexure R1012 in so much as the do not relateto exerciseof by Assistant Registrar under the purviewof provisions of the Act As againstthis a petitionhad been filed before the DeputyRegistrar 1 under Section 27 of the Act The DeputyRegistrarexercising jurisdiction 0 under the provisions of the Act has considered the issue including the 0 I reportfiled by Assistant Registrar P In view of these C5 I circumstances credibilityis attachedto an order passedby an authority Z undertheprovisions ofthe Act In view of the factsand circumstancesof the case this petition 1S I allowed and accordingly order Annexure P4 is herebyquashed 05 Cn 4 t 1 7 30 Ol 2009 61AI LAMBAI Z shivani JUDGE Il P FA 1UeI 73 78443 r7969 e Pr 1 2 S4P Gupta Suruchi 2014.01.31 09: 26 True Scanned Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document