The central legal point established in the judgment is the requirement to ascertain the facts and vacancy position before invoking Section 41(5) of the Co-operative Societies Act, and the authority of the Registrar of the Cooperative Societies to decide the issue after hearing all stakeholders.

JUDGMENT :

Ashutosh Kumar, J.

1. Heard Mr. Shravan Kumar, learned Senior Advocate for the appellant and Mr. S.K. Das, learned Advocate for the State. The Chairman of the PACS/respondent no. 8 is represented by Mr. Raja Ram Rai, Advocate.

2. Mr. Shravan Kumar, learned Senior Advocate has questioned the judgment and order passed by the learned Single Judge of this Court in C.W.J.C. No. 1181 of 2021 on 19.07.2021, as also the order passed in review on 06.07.2022 in Civil Review No. 134 of 2021, whereby the claim of the appellant that the situation had ripened for invocation of Section 41(5)(a)(d) of the Co-operative Societies Act, 1935 for the Managing Committee to be dissolved for fresh elections was rejected.

3. It is required but to be noted that the claim of the appellant, who had been an erstwhile member of the PACS but had resigned, rested on the premise that respondent no. 9/Dharmendra Kumar Singh was never inducted as the Manager of the PACS and by excluding him, the vacant position in the Co-operative Society with twelve members was reduced to seven and therefore, there was a need for the Registrar to have dissolved the Governing Body of the PACS and to have called for fresh elections.

4. The learned Single Judge did not agree to such proposition and holding that Dharmendra Kumar Singh was on the rolls, directed the Chairman of the PACS to intimate the vacancy position to the District Co-operative Officer, who would, in turn, liaise with the State Election Authority for filling-up the vacant position.

5. Shortly thereafter, a review petition was filed by the appellant, seeking modification in the order on the ground that a wrong statement had been made by the writ petitioner by counting the respondent no. 9 as the appointed office-bearer of the Managing Committee.

6. In the review application, the allegation against the writ petitioner having made a wrong statement, was rejected by the learned Single Judge. Thereafter the appellant challenged only the order passed in review and when confronted by the Court, made an additional prayer for granting permission to challenge the judgment passed in the writ petition also.

7. At this stage, it would be appropriate to refer to the objection raised by respondent no. 9 with respect to the maintainability of this Appeal. It has been submitted that in the absence of the appellant having challenged the original order and only the order in the review application being questioned, when such review has been dismissed, L.P.A. would not be maintainable even by pressing the doctrine of merger of the original order with the order in review.

8. We, for the time being, would not enter into the present dispute for the reason that we find from the counter affidavit of the State that, as on date, only six positions are vacant, which number has been arrived at after excluding respondent no. 9, who claims himself to be the Manager of the Co-operative Society. The Co-operative Society has twelve members, out of whom four have resigned and two posts remained vacant from before. The quorum of the Co-operative Society is seven.

9. Section 41(5) of the Co-operative Societies Act, 1935 beckons that a Registrar could dissolve the Managing Committee of a registered society in case where-

(a) majority of the members and elected office-bearers of the Managing Committee of a registered society have resigned from the respective membership or office; or

(b) half of the total number of seats of the Managing Committee of a Registered Society becomes vacant for any reason whatsoever;

and shall appoint Administrator for the better management of the Registered Society.

10. The bone of contention between the warring members of the Co-operative Society is whether respondent no. 9 was ever inducted as a Manager of the Co-operative Society.

11. Mr. Shravan Kumar contends that no resolution of the Co-operative Society has been brought on record to demonstrate that Dharmendra Kumar Singh (respondent no. 9) had ever participated in the