Jog Singh vs State Of Rajasthan ...

Rajasthan High Court - Jodhpur

Jog Singh vs State Of Rajasthan ... on 24 May, 2024

Bench: Dinesh Mehta, Rajendra Prakash Soni

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               D.B. Special Appeal (Writ) No. 586/2024

Jog Singh S/o Shri Jagat Singh, Aged About 65 Years, in the
Capacity of the Chairman of the Jalore-Sirohi District Dugdh
Utpadak Cooperative Union Limited, Raniwada, R/o Village And
Post Sedriya, Balotan, District Jalore, Rajasthan.
                                                                          ----Appellant
                                       Versus
1.       State Of Rajasthan, Through its Principal Secretary,
         Cooperative       Department,           Government          of     Rajasthan,
         Secretariat, Jaipur, Rajasthan.
2.       Rajasthan Cooperative Dairy Federation Limited, Through
         Its Managing Director, J.L.N. Marg, Jaipur, Rajasthan.
3.       Registrar, Cooperative Societies, Nehru Sahakar Bhawan,
         Jaipur, Rajasthan.
4.       Rajasthan        State        Cooperative            Election       Authority,
         Institutional Area Raisem Bhawan, Jhalana Dungri, Jaipur,
         Rajasthan.
                                                                    ----Respondents


For Appellant(s)             :     Mr. B.S.Sandhu
For Respondent(s)            :     Mr. Manish Patel, AAG
                                   Mr. Manish Shishodia, Senior
                                   Advocate assisted by
                                   Mr. Paramveer Singh Champawat



             HON'BLE MR. JUSTICE DINESH MEHTA

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 24/05/2024 Per Hon'ble Mehta, J (ORAL):

1. The instant appeal under Section 18 of the Rajasthan High Court Ordinance has been preferred against judgment and order dated 16.05.2024, passed by the learned Single Judge of this (Downloaded on 28/05/2024 at 08:52:20 PM) [2024:RJ-JD:23829-DB] (2 of 9) [SAW-586/2024] Court, whereby the writ petition filed by the petitioner was dismissed holding the same to be premature.

2. The facts in brief are that the petitioner preferred a writ petition and challenged the notice dated 30.04.2024 issued by the Registrar, Cooperative Societies (respondent No.3) under Section 30(1)(b) of the Rajasthan Cooperative Societies Act, 2001 (hereinafter referred to as 'the Act of 2001').

3. The petitioner, who is a Chairman of Jalore-Sirohi District Dugdh Utpadak Cooperative Union Limited, Raniwada (hereinafter referred to as 'the Society') challenged the notice so issued by the Registrar, Cooperative Societies on various grounds, out of which, the ground which was pressed before the learned Single Judge was that the action of the Registrar/respondents is affecting fundamental rights of the Society to carry on the trade.

4. A reply to the writ petition was filed by the respondents, inter-alia, with an assertion that the notice has rightly been issued as there is a stalement in the working of the Society because number of the members has reduced to less than 50%, which is minimum corum required for adopting any resolution. It was the respondent's stand that since number of the members has become less than the requisite number hence the functioning of the Society has become impossible and thus, proceedings under Section 30 (1)(b) of the Act of 2001 were necessary to initiate.

5. After hearing the rival parties, learned Single Judge dismissed the writ petition by observing that the same was premature and the petitioner (appellant herein) was first required to file his response in pursuance of the notice dated 30.04.2024 issued by the Registrar.

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6. Learned Single Judge observed that the facts and the assertions, which the petitioner was asserting before the High Court were required to be placed before the respondent No.3, including the contention that the Society is having requisite number of members forming the corum.

7. Mr Sandhu, learned counsel for the appellant while reiterating the submissions made before the learned Single Judge raised an additional ground that the Registrar of the Society - respondent No.3 does not have the power or jurisdiction to issue the subject notice, as the powers to invoke Section 30(1)(b) of the Act of 2001 have been conferred upon the Managing Director of the Rajasthan Cooperative Dairy Federation (hereinafter referred to as 'MDRCDF') by way of notification dated 30.06.2014 issued by the State Government in exercise of powers under Section 4(2) of the Act of 2001.

8. Since this issue was neither addressed before the learned Single Judge nor has been dealt with, Mr. Patel, learned Additional Advocate General appearing for the State opposed such submission of learned counsel for the appellant, but when the Court found that this contention has been raised as a ground in the memo of writ petition and observed that it was fundamental question of jurisdiction - a neat question of law, he readily advanced arguments on the issue.

9. We are in agreement with the observation of learned Single Judge that the writ petition is premature as number of members has reduced to less than half of the members or not, is a question of fact to be considered and determined by the authority competent under Section 30 (1)(b) of the Act of 2001 and we are (Downloaded on 28/05/2024 at 08:52:20 PM) [2024:RJ-JD:23829-DB] (4 of 9) [SAW-586/2024] in agreement on this issue. Hence, we are confining ourselves to dilate upon the question of jurisdiction of the Registrar.

10. Adverting to the submissions of Mr. Sandhu in relation to power of the Registrar, Cooperative Society to exercise powers under Section 30 (1)(b) of the Act of 2001, it was argued by Mr. Sandhu that notification dated 30.06.2014 (Annexure.7) issued by the State Government in exercise of powers under Section 4(2) of the Act of 2001 confers the power to the Registrar under all other provisions of the Act of 2001 except the powers exercisable under sections 6, 9, 10, 11, 12, 13, 14, 54, 57, 58, 61, 64, 66, 104 and 107 (hereinafter referred to as 'the excluded powers') to the MDRCDF.

11. He argued that as section 30 has not been referred to in the notification dated 30.06.2014, it is the MDRCDF only who can issue a notice and take action under section 30 of the Act of 2001. It was argued that conferment of powers upon MDRCDF has an effect of taking away powers from the Registrar, particularly because of the use of expression "प्रत्याहरित".

12. Reading the provision of section 4(2) of the Act of 2001 along with the notification dated 30.06.2014 (Annexure.7), learned counsel argued that there remains no room for ambiguity that action under section 30 (1)(b) of the Act of 2001 can be taken by the MDRCDF and not by the Registrar Cooperative Society.

13. Learned counsel argued that notification dated 30.06.2014 is a different kind of notification, whereby the State has conferred all powers of the Registrar under the Act of 2001 to MDRCDF, except those powers which were thought indispensable to be delegated or (Downloaded on 28/05/2024 at 08:52:20 PM) [2024:RJ-JD:23829-DB] (5 of 9) [SAW-586/2024] conferred. He argued that in order to deal with the practical difficulty of initiating and completing exercise under section 30 of the Act of 2001 against a large number of Societies, the State Government deemed it appropriate to confer all powers to the various authorities mentioned in the notification dated 30.06.2014 and if the text or substance of the notification and conferment/delegation of power to each of the authority is considered, it is apparent that the powers not only under section 30 of the Act of 2001, even under other provisions which are meant to be exercised by the Registrar have been conferred upon the Managing Director.

14. Mr. Manish Patel, learned counsel for the State submitted that section 30 of the Act of 2001 specifically provides that in case of primary society, it is the Zonal Registrar and in case of Central Cooperative Societies, it is the Registrar, Cooperative Society, who is the competent authority to take action and initiate proceedings as required under section 30 of the Act of 2001.

15. He submitted that when the Act has specified a particular authority - Registrar, Cooperative Society, without any reference of delegation, regardless of the language used in the notification dated 30.06.2014, the power of removal of Committee or Member given under section 30 of the Act of 2001 rests with the Registrar.

16. It was argued by Mr. Manish Patel that the expression "प्रत्यायोजित" used in the notification dated 30.06.2014 means "delegated" and not conferment. In this regard, learned counsel took the Court through the Hindi version of the Act of 2001 in juxtaposition with the English version of section 4 of the Act of 2001 to support his stand that the expression "प्रत्यायोजित" means (Downloaded on 28/05/2024 at 08:52:20 PM) [2024:RJ-JD:23829-DB] (6 of 9) [SAW-586/2024] delegation. He then argued that the expression "delegation" does not mean that the authority, who is delegating or the authority which has been prescribed in the Act of 2001 has been deprived of the powers so vested in him.

17. Mr. Manish Shishodia, learned Senior Counsel submitted that section 30 of the Act of 2001 in no ambiguous terms prescribes that where any action is to be taken against a Cooperative Society or the Central Society, it is the Registrar, who is the competent authority. He submitted that in the face of specific provision contained in the Act of 2001, the notification dated 30.06.2014 cannot be construed to mean that the powers under section 30 of the Act of 2001 can be exercised by the MDRCDF.

18. Mr. Champawat, learned counsel appearing for the private respondent submitted that if the argument of the appellant is accepted, then, not only the powers available under section 30 of the Act of 2001, even powers available to the Registrar under all other provisions would be exercised by the Managing Director which cannot be a purpose of the notification. It was argued that the substantial powers which are available under section 30 of the Act of 2001, namely, removal of the Committee or Member can by no stretch of imagination be treated to have been delegated to the Managing Director.

19. He further submitted that if the notification is interpreted in the manner attempted to by Mr. Sandhu, then, there would be three parallel authorities, namely, MDRCDF (serial No.3), Institutional Development Officer, RCDF (serial No.16) and Additional Registrar, Cooperative, RCDF (serial No.17) who have been authorized to exercise powers under section 30 of the Act of (Downloaded on 28/05/2024 at 08:52:20 PM) [2024:RJ-JD:23829-DB] (7 of 9) [SAW-586/2024] 2001, because all the three authorities have been delegated the powers with the same stipulation by way of the notification dated 30.06.2014.

20. Heard learned counsel for the parties.

21. The first question which comes up for consideration of this Court is, what is the meaning of the expression "प्रत्यायोजित" used in the notification dated 30.06.2014.

22. If the provision of section 4(2) of the Act of 2001 as enacted in English are read alongside the provision of section 4(2) of the Act as given in Hindi, there remains no doubt that the expression "प्रत्यायोजित" means "delegation", while the expression used for "confer" in Hindi is "प्रदत्त".

23. It is almost settled position of law that even after delegation of powers, the delegating authority retains the power so delegated. In other words, even after delegation of powers, the original authority is not denuded or stripped off the powers conferred by the legislation.

24. A gainful reference of the judgment of Hon'ble the Supreme Court in the case of Ishwar Singh Vs. State of Rajasthan, reported in 2005 1 SCC 68 can be made.

25. There is another facet of dealing with the situation which has cropped up for our consideration. A perusal of the notification dated 30.06.2014 reveals that three authorities, namely, MDRCDF (serial No.3), Institutional Development Officer, RCDF (serial No.16) and Additional Registrar, Cooperative, RCDF (serial No.17) have been entrusted with or delegated with the powers of Registrar except 'the excluded powers'.

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26. If the argument given by Mr. Sandhu is accepted, then for the very same purpose, these three authorities would be exercising the powers, including the power under section 30 of the Act of 2001.

27. In our view, such interpretation of the notification dated 30.06.2014 would be disastrous and would defeat the very purpose of delegation.

28. According to us, the powers under section 30 of the Act of 2001, namely the power to remove society or members is very sensitive and sacrosanct. Such powers in our opinion are inalienable and inviolable; they cannot be delegated to the authorities like MDRCDF (serial No.3), Institutional Development Officer, RCDF (serial No.16) and Additional Registrar, Cooperative, RCDF (serial No.17).

29. However large may be the number of societies, when it comes to removal of Committee or Member, the powers have to be retained with the Registrar. Any interpretation which clothes these subordinate authorities with the powers under section 30 of the Act of 2001, in light of the notification dated 30.06.2014 would be dangerous and antithesis to the very existence or transparency in the administration of the societies.

30. Section 30 of the Act of 2001 encompasses substantial powers to take action in cases where a society persistenly makes default, is negligent in the performance of its duties imposed on it by the Act or any member commits any act prejudicial to the interest of the society or its members or there is stalement in the constitution or functions of the Committee.

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31. Such important functions which are quasi-judicial in nature and pre-supposes opportunity of hearing, cannot be construed or held to have been delegated to the authorities mentioned in the notification dated 30.06.2014. If the same is read as proposed by the appellant, the notification would be contrary to the Act of 2001. Because, if 'the excluded provisions', prescribed in the notification are considered, all of them namely under sections 6, 9, 10, 11, 12, etc. are provisions which are inherently meant to be exercised by the Registrar only and in our view section 30 of the Act of 2001 is also one such provision, which in normal circumstances ought to have been included in 'the excluded provisions'.

32. Due to error in drafting or otherwise, if the same has not been done, we are unable to accept the contention of Mr. Sandhu that the powers have been delegated to the MDRCDF, even for the sake of initiating action under section 30 of the Act of 2001.

33. We find no merit and substance in the argument of learned counsel for the appellant. The appeal, therefore, fails.

34. The stay application also stands disposed of accordingly.

                                   (RAJENDRA PRAKASH SONI),J                                       (DINESH MEHTA),J

                                    79-Mak/akansha/-




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