IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.276 of 2009 MATASYA VIKAS SWABLAMBI SAHKARI SAMITI LTD. Kagzi Tolla, Kahalgaon through its Chief Executive Dashrath Sahni, S/O Lalo Sahni, R/O vill- Kagazi Tolla, Kahalgaon, P.S. Kahalgaon, District- Bhagalpur…. Aeppllant. Versus 1. The District Co-operative Officer, Bhagalpur 2. The Assistant Registrar, Co-operative Society, Bhagalpur Circle, Bhagalpur 3. Gokhul Mahaldar S/O Ishwar Mahaldar R/O vill- Uday Rampur Kodwar, P.S. Ghogha, District- Bhagalpur… Respondents ----------- For the petitioner: Mr. Pashupati Prasad Sinha, Advocate Mr. Deepak Kumar,Advocate For Respondent No.3: Mrs. M. Chatterjee,Advocate Mrs.Sanjana, Advocate 6. 18.1.2010 Heard learned counsel for the appellant, learned counsel for private respondent No.3 and learned counsel for respondent Nos. 1 and 2. Although the matter has come up under the heading for hearing under Order 41 Rule 11 C.P.C. but with the consent of the parties, it has been heard in detail and is being finally disposed of. The appeal has been filed against the order dated 17.4.2009/24.4.2009 passed by the Chairman, Bihar Co-operative Tribunal, Patna in Dispute Case No.11 of 2008, in which he has held that the appellant-society is fit to be dissolved under the provisions of Section 44 (1), ( c ), (d),(e) and (h) of the Bihar Self Supporting Co-operative Societies Act, - 2 - 1996 and issued directions to the District Co-operative Officer, Bhagalpur to pass an order for liquidation and dissolution of the concerned society under his supervision in the status as Registrar and further consequential orders. The short facts, shorn of unnecessary details, in the present case are that respondent No.3, Gokhul Mahaldar, filed Dispute Case No. 11 of 2008 before the Bihar Co-operative Tribunal for cancellation of the registration of the appellant- society under Section 40 of the Bihar Self Supporting Co- operative Societies Act, 1996. The case was, in fact, filed originally under Sections 40 and 44 of the Act, but on the objections of the office of the Tribunal the appellant while removing the defects confined his case only under Section 40 of the Act. In the course of the proceeding, the Tribunal directed the respondent No.1, District Co- operative Officer, Bhagalpur to make a detailed enquiry and inform whether the appellant society is functioning in accordance with the provisions of the 1996 - 3 - Act. The District Co-operative Officer after giving 90 days notice to the appellant sought explanation regarding the various illegalities and, on the basis of the answer received, by his letter dated 14.1.2009 sent a report to the Tribunal recommending that the Society was fit to be dissolved in terms of the provisions of Section 44 (1),( c ) ,(d, (e) and (f) of the Act. The Tribunal, thereafter, finding that no order of dissolution can be passed under Section 40 of the Act took cognizance of the case under Section 44 of the Act and passed the aforesaid impugned order for liquidation and dissolution of the appellant society. Learned counsel for the appellant submits that the proceeding having been filed exclusively under Section 40 of the Act, it was not open to the Tribunal to have converted the same into one under Section 44 of the Act for which a different procedure is prescribed. It is further contended that the District Co-operative Officer has not been conferred the power as Registrar under - 4 - Section 44 (1) of the Act and thus whatever report has been submitted or recommendation made could not be said as having been done by the Registrar and for that reason also the order of dissolution is bad. It is urged by learned counsel that the provisions of Section 44 of the Act have been violated by the Tribunal while passing the order of dissolution as a proceeding for dissolution can only be initiated on an application filed by the Registrar, Co- operative Societies or any interested person after giving 90 days notice to the Co- operative Society of the proposed application. It is further submitted that there was no application under section 44 of the Act pending before the Tribunal. Further no 90 days notice was given to the Co- operative Society before filing of the same. Further there was no notice to the Registrar of the proceeding by the applicant for filing the application. In addition, no opportunity was given by the Tribunal to the petitioner to state his case and only on the basis of the recommendation of the District Co- - 5 - operative Officer, he has passed the order. It is vehemently submitted by learned counsel for the appellant that there is no provision in Section 44 of the Act for taking suo motu cognizance of the matter by the Tribunal which can only act on the basis of an application filed either by the Registrar, Co-operative Society or an interested person. Learned counsel for the appellant in support of his stand refers to a notification No.1342 dated 7.4.1997 issued under the provisions of the Bihar Self Supporting Co- operative Societies Act, 1996, in which various powers of the Registrar of Co- operative Societies have been conferred upon other officers of the Co-operative Department, but no power under Section 44 (1) of the Act has been conferred therein upon the District Co-operative Officer. It is, thus, submitted that there has been a complete violation of the provisions of even Section 44 of the Act since the Tribunal has purported to act in the matter without any notice to the Registrar, Co-operative Society and only on the basis of the direction to the - 6 - District Co-operative Officer to enquire into the matter and the report submitted thereafter. According to learned counsel for the petitioner, the same can neither be considered as an application by the Registrar, Co-operative Society nor due notice to the society as required under the Act. Learned counsel for respondent No.3, on the other hand, submits that the appeal itself is not maintainable under sub section (3) of Section 40 of the Act, since the order in essence is one under Section 44 of the Act, which is not appealable. It is submitted that since from the very beginning the Tribunal has dealt with the dispute as a dissolution dispute and not a dispute under Section 40 of the Act, although the same was filed under Section 40 of the Act, hence, the order itself in essence must be treated as an order passed under Section 44 of the Act which is not amenable to appeal before this Court. It is, thus, contended that at the out set the appeal should be dismissed as not maintainable. - 7 - Learned counsel further contends that it is evident from the report of the District Co-operative Officer acting as Registrar that the illegalities committed by the Society comes within the purview of Section 44 of the Act and on the basis of a detailed enquiry after giving notice to the appellant the District Co-operative Officer was satisfied that the provisions of Section 44 of the Act apply to the case of the appellant-society and, accordingly, recommended its dissolution. It is submitted that even if the District Co-operative Officer is not treated as Registrar under Section 44 (1) of the Act, the fact remains that the Society has been acting in a manner which was rendered it fit for dissolution under Section 44 of the Act and thus, on a technical ground the order of the Tribunal ought not to be set aside. It is also urged by learned counsel for respondent No.3 that even if it is found that the order of the Tribunal is without jurisdiction, yet the matter should not be allowed to come to a close as that would enable the appellant-society to continue with - 8 - the illegality contrary to the provisions of the Act and therefore liberty ought to be granted to the respondents to proceed afresh under Section 44 of the Act. Learned counsel for the State, on the merit of the matter, is also unable to satisfy this Court that the Tribunal could have suo motu acted under Section 44 in a proceeding under Section 40 of the Act and passed the order of dissolution in the manner that it has done. On a consideration of the rival submissions of learned counsels for the parties and the materials on the record, it is evident that respondent No.3 had made it very clear from the very beginning that his application was under Section 40 and not under Section 44 of the Act. That being the position, the question of grant of any relief or otherwise ought to have been considered by the Tribunal exclusively in the context of Section 40 of the Act and if it was found that the prayer made by the respondent No.3 could not be granted under such provision, then the application ought to have been - 9 - dismissed. However, instead of doing so, the Tribunal seems to have flown at a tangent and on its own directed the District Co-operative Officer treating him to be a Registrar under Section 44 (1) of the Act to issue 90 days notice and make a detailed enquiry in the matter. From the provisions of Section 44 of the Act it does not appear that any such power has been conferred upon the Tribunal to initiate suo motu proceedings in the matter. The pre-condition for exercise of jurisdiction by the Tribunal is an application filed under Section 44 (1) of the Act either by the Registrar, Co-operative Societies or by any person after giving 90 days notice prior to the filing of the application to the concerned society. It is evident that there was no such application pending before the Tribunal filed either by the Registrar, Co-operative societies or by respondent No.3 under Section 44 of the Act. In that situation, the Tribunal did not have any authority to initiate a proceeding under Section 44 of the Act. - 10 - As a matter of fact, the District Co- operative Officer has not been authorized by any notification issued under the provisions of the 1996 Act to function and exercise of power of the Registrar under Section 44 (1) of the Act and he could not have been directed to act as the Registrar under the Act. So far as the question of maintainability of the appeal is concerned, it is not open to respondent No.3 to raise any such issue as the clear stand of respondent No.3 before the Tribunal was that he had filed the application under Section 40 of the Act. Once there is an application under Section 40 of the Act any order passed in the course of the said proceeding would be appealable under sub section (3) of Section 40 of the Act. Thus, the present appeal is definitely maintainable. The submission of leaned counsel for the appellant that since there is violation of different provisions of the Act and the Society has been found covered under various sub clauses of Section 44 (1) of the Act, - 11 - therefore, the order of dissolution should not be set aside is only to be noted to be rejected. It is evident that any finding under the Act has to be arrived at by the competent authority in accordance with the procedure prescribed under the law; the finding in the present case is not in accordance with what is provided under the Act and the same cannot be sustained. In any view of the matter no such order could have been passed by the Tribunal on an application filed under Section 40 of the Act and, therefore, anything stated in the impugned order dated 17.4.2009 of the Tribunal which is beyond the purview of a dispute under Section 40 of the Act has to be treated as illegal, non est and without any force of law. In the above circumstances, the appeal is allowed. The order dated 17.4.2009/24.4.2009 is set aside. It is, however, made clear that setting aside of the order of dissolution passed in a dispute under Section 40 of the Act will not preclude the respondents from taking fresh steps in the matter for - 12 - dissolution of the appellant’s society in accordance with the provisions of the 1996 Act. VPS ( Ramesh Kumar Datta, J. )