Jharkhand High Court
Braham Deo Singh vs The State Of Jharkhand Through The ... on 9 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4321 of 2020
Braham Deo Singh ..... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Department of Co-
operative, Near Gol Chakkar, Dhurwa, Ranchi.
2. The Assistant Registrar, Co-operative Societies, Chas Circle, Bokaro.
3. The Secretary, Udyami Awasiya Sahkari Lohanchal Complex Samiti Ltd.,
Lohanchal, Bokaro.
4. The Registrar, Co-operative Societies, Jharkhand, Pashupalan Bhawan,
Khunti Road, Hesag, Hatia, Ranchi.
5. The District Co-operative Officer, Bokaro. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Baibhaw Gahlaut, Advocate
For the Respondents : Mr. Varun Prabhakar, A.C. to G.P. III
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03/09.02.2021 The present writ petition is taken up today through Video
conferencing.
2. The present writ petition has been filed for issuance of direction upon
the respondents, particularly the Assistant Registrar, Co-operative Societies,
Chas Circle, Bokaro-respondent no.2 and the Secretary, Udyami Awasiya
Sahkari Lohanchal Complex Samiti Ltd., Lohanchal, Bokaro-respondent no.3
to implement the order dated 23rd November, 2017 passed by the Court of
the Registrar, Co-operative Societies, Jharkhand, Ranchi-respondent no.4 in
Election Dispute Case No. 12 of 2011 and 09 of 2011.
3. Learned counsel for the petitioner submits that the petitioner is a
member of Udyami Awasiya Sahkari Lohanchal Complex Samiti Ltd., Bokaro
Steel City (hereinafter to be referred as the 'said samiti') and in the year
2011 he filed a case before the respondent no.4 seeking correction of the
voter list/membership of the said samiti, pursuant to which a three
members committee was constituted comprising of Joint Registrar, Co-
operative Societies, North Chhotanagpur Division, Hazaribagh, District Co-
operative Officer, Bokaro and the Assistant Registrar, Co-operative Societies,
Chas Circle, Bokaro to inquire into the membership issue of the said Samiti.
The enquiry report was submitted by the respondent no.2, identifying 52
members, whose memberships were found doubtful keeping in view the
relevant provisions of the bye-laws of the said samiti. As per the enquiry
report, the said list of doubtful members was further forwarded to Bokaro
Industrial Area Development Authority (BIADA) for verification.
Subsequently, the respondent no.4 passed the order dated 23rd November,
2017 in amalgamated cases i.e., Election Dispute Case Nos. 12 of 2011 and
09 of 2011 and directed the respondent no.2 to take prompt corrective
measures in accordance with Act, rules and bye-laws regarding membership
of the society after getting the verification report from BIADA. The
respondent no.2 was further directed to peruse the registers and documents
which were not made available to the enquiry team earlier. The office
bearers of the society were ordered to extend their co-operation to the
respondent no.2. The respondent no.5 was also directed to monitor the
entire exercise and to get it concluded within a reasonable time frame so
that next election would be held on the basis of rectified voter list.
Thereafter, the petitioner wrote a letter to the respondent no.2 to
implement the order passed by the respondent no.4 and in pursuance of
which the respondent no.2 wrote a letter to the Secretary/Chairman of the
said Samiti, wherein he provided a list of 45 such members whose
memberships were in violation of Clause 4(2) Cha, Clause 5 and Clause 8 of
the bye-laws of the said Samiti. The respondent no.2 further requested the
Secretary to correct the membership list and provide a copy of the same for
implementation of the order dated 23rd November, 2017 passed by the
respondent no.4. However, till date the order of the respondent no.4 has
not been implemented in spite of repeated request of the petitioner made
to the respondent nos.2 and 4. It is further submitted that the Registrar of
the co-operative societies is a statutory authority which has also been
conferred quasi judicial power and such its decision has the binding force
for the concerned parties.
4. The learned counsel for the petitioner, in support of his argument
puts reliance on the judgment of the Hon'ble Supreme Court rendered in
the case of Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-
operative Bank Ltd. and Another reported in (1967) 3 SCR 163.
5. Heard the learned counsel for the parties and perused the materials
available on record. To appreciate the contention of the learned counsel for
the petitioner, it would be relevant to refer some of the provisions of the
Jharkhand Co-operative Societies Act, 1935 (hereinafter to be referred as
the Act, 1935);
"48. Disputes. - (1) If any dispute touching the
business of a registered society (other than a dispute
regarding disciplinary action taken by the society or its
managing committee against a paid servant of the society)
arises-
(a) amongst members, past members, persons claiming
through members, past members or deceased members,
and sureties of members, past members or deceased
members, whether such sureties are members or non-
members; or
(b) between a member, past member, persons claiming
through a member, past member or deceased member, or
sureties of members, past members or deceased member,
whether such sureties are members or non-members and
the society, its managing committee or any officer, agent or
servant of the society; or
(c) between the society or its managing committee and any
past or present officer, agent or servant of the society; or
(d) between the society and any other registered
society; [or]
(e) between a financing bank authorised under the
provisions of subsection (1) of section 16 and a person who
is not a member of a registered society;
such dispute shall be referred to the Registrar:
Provided that no claim against a past member or the estate
of a deceased member shall be treated as a dispute if the
liability of the past member or of the estate of the deceased
member has been extinguished by virtue of section 32 or
section 63.
Explanation. - (1) A claim by a registered society for any
debt or demand due to it from a member, non-member, past
member or the nominee, heir or legal representative of a
deceased member or non-member or from sureties or
members, past members or deceased members, whether
such sureties are members or non-members, shall be a
dispute touching the business of the society within the
meaning of this sub-section even in case such debt or
demand is admitted and the only point at issue is the ability
to pay or the manner of enforcement of payment.
Explanation. - (1) The question whether a person is or was a
member of a registered society or not shall be a dispute
within the meaning of this sub-section.
(2) The Registrar may on receipt of such reference. -
(a) decide the dispute himself; or ,
(b) transfer it for disposal to any person exercising the
powers of a Registrar in this behalf; or
(c) subject to any rules refer it for disposal to an arbitrator
or arbitrators.
(3) Subject to any rules, the Registrar may withdraw any
reference transferred under clause (b) of sub-section (2) or
referred under clause (c) of the said subsection and deal
with it in the manner provided in the said sub-section.
(4) The appointment of an arbitrator or arbitrators and the
procedure to be followed in proceedings before the
Registrar or such arbitrators shall be regulated by rule.
(5) In the case of dispute involving property which is given
as collateral security, it shall be competent to the person
deciding such dispute to issue mortgage award which shall
have the same force as a mortgage decree of a competent
Civil Court.
(6) Any person aggrieved by any decision given in dispute
transferred or referred under clause (b) or (c) of sub-section
(2) may, within three months from the date of such
decision, appeal to the Registrar.
(7) The Registrar, in the case of dispute under this section,
shall have the power of review vested in a Civil Court under
Section 144 and under Order XLVII, Rule 1 of the Code of
Civil Procedure, 1908, and shall also have the inherent
jurisdiction specified in section 151 of the said Code.
(8)The Registrar may where it appears to him advisable,
either on application or of his own motion, state a case and
refer it to the District Judge for decision, and the decision of
the District Judge shall be final.
(9) Save as expressly provided in this section, a decision of
the Registrar under this section, and subject to the orders of
the Registrar on appeal or review, a decision given in a
dispute transferred or referred under clause (b) or (c) of
subsection (2) shall be final.
49. Registrar, liquidators and arbitrators to have certain
powers of Civil Court. - Subject to any rules, the Registrar,
any person authorised to hold an inquiry under Section 35
or an inspection under Section 36, any liquidator, any
person exercising the powers of a Registrar, or any
arbitrator or arbitrators appointed under Section 48, shall in
so far as such powers are necessary for carrying out any of
the purposes of this Act, have power to summon and
enforce the attendance of witnesses and parties concerned
and to examine them upon oath and to compel the
production of any books, accounts, documents or property
by the same means and, so far as may be, in the same
manner as if provided in the case of a Civil Court under the
Code of Civil Procedure, 1908 (5 of 1908).
51. Enforcement of orders. - Orders passed under Sections
44, 48 and 50 shall in addition to any other method of
enforcement provided under this Act, on application be
enforced as follows:-
(a) when passed by the Registrar, a liquidator or by an
arbitrator or arbitrators, by any Civil Court having local
jurisdiction in the same manner as a decree of such Court:
(b) when passed by the District Judge, in the same manner
as a decree of the District Judge made in the suit pending
before him."
6. Thus, if any dispute with respect to the business of a registered
society arises, the same is to be referred to the Registrar, Co-operative
Societies and the question as to whether a person is or was a member of a
registered society or not, would be called a dispute within the meaning of
sub-section (1) of Section 48. The Registrar, on receipt of such reference
shall either decide the dispute himself; or transfer it for disposal to any
person exercising the powers of a Registrar in this behalf; or refer the
dispute for disposal to an arbitrator or arbitrators. Section 49 of the Act,
1935 empowers the Registrar or any person exercising the power of a
Registrar to summon and enforce the attendance of witnesses and parties
concerned and to compel the production of any books, accounts,
documents by them and while doing so he will exercise the power in the
same manner as provided in the case of a civil court under the Code of Civil
Procedure, 1908. Further, Section 51 of the Act, 1935 provides that the
order passed under Sections 44, 48 and 50 by the Registrar, a liquidator or
by an arbitrator or arbitrators will be enforced by any Civil Court having
local jurisdiction in the same manner as a decree of such court.
7. In the present case, an election dispute case was filed before the
respondent no.4 alleging that some ineligible persons were included as
members of the said samiti. The respondent no.4 called for a report from a
three members' committee and thereafter an enquiry report was submitted
by the respondent no.2 identifying 52 such members whose memberships
were doubtful in view of Clause 4(2) Cha., 5 and 8 of the bye-laws of the
said samiti. Subsequently vide order dated 23rd November, 2017, the
respondent no.4 directed the respondent no.2 to take prompt corrective
measures after getting the verification report from BIADA. The contention
of the petitioner is that the respondent no.2, vide letter no.339 dated 03rd
July, 2018 had provided the list of 45 voters to the respondent no.3 with a
direction to correct the membership list, however, the same has not yet
been corrected. If the said contention of the petitioner is taken as true, he
has the right to make an application to the concerned Civil Court for
execution of the order of the respondent no. 4 in view of Section 51 of the
Act, 1935. Since the alternative efficacious remedy for execution of the
order of the respondent no.4 has been provided under the Act itself, I do
not find any reason to entertain the present writ petition.
8. So far as the judgment of Thakur Jugal Kishore Sinha (supra) is
concerned, the same is not applicable in the facts and circumstances of the
present case since in the said case, the issue was as to whether the
Assistant Registrar of Cooperative Societies is a court within the meaning of
the Contempt of Courts Act, 1952. The petitioner, however, in the present
case, has not sought initiation of contempt proceeding for non-compliance
of the Registrar, Co-operative Societies, Jharkhand, rather he has sought
necessary directions for enforcement of the order of the Registrar.
Nonetheless, since specific procedure has been prescribed for enforcement
of the order passed by the Registrar, Co-operative Societies in the Act, 1935
itself, the petitioner should avail the said remedy.
9. In view of the aforesaid facts and circumstances, the present writ
petition is disposed of with a liberty to the petitioner to avail the remedy
available under the Act, 1935 for enforcement/execution of the order
passed by the respondent no.4.
(Rajesh Shankar, J.)
Rohit
