Rajasthan High Court - Jodhpur
Jog Singh vs State Of Rajasthan ... on 24 May, 2024
Bench: Dinesh Mehta, Rajendra Prakash Soni
[2024:RJ-JD:23829-DB]
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
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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
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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
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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
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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
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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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