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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Ajay Mohan Goel, J.
Uttam Singh Thakur - Petitioner
Vs.
The State of H.P. & others - Respondents
Civil Writ Petition No.8327 of 2022
Decided On : 04-05-2023
Himachal Pradesh Cooperative Societies Act, 1968 - Section 72, 93, 31, 2(11) - Himachal Pradesh Cooperative Societies Rules, 1971 - Rule 43, (3), 45, 38 (1) (a) - Removal of petitioner - No Confidence Motion - Whether petitioner who was nominated as Pradhan/President of Cooperative Society, could have been removed by way of a No Confidence Motion by Managing Committee of Society or not – Removal of petitioner from office of Pradhan/President in terms of a No Confidence Motion passed by Managing Committee unilaterally was bad in law - Para 15.
Finding of the Court:
Removal of petitioner from office was not by way of a resolution of general meeting specially convened for that purpose, but it was done by way of a No Confidence Motion passed by Managing Committee unilaterally, visavis which there was no statutory mandate with Managing Committee - In fact, Rule 44 of 1971 Rule further provides that no removal in terms of Rule 43 (1) can be done without following procedure prescribed therein, which also admittedly was not followed while passing impugned resolution against petitioner - No Confidence Motion passed by Managing Committee unilaterally was bad in law, but even adjudication upon petitioner filed under Section 72 of Cooperative Societies Act and appeal filed under Section 93 thereof, are bad in law - Order passed by learned Appellate Authority is quashed and set aside.
Result: Petition allowed.
JUDGMENT :
Ajay Mohan Goel, J.
Learned counsel for the petitioner has informed the Court that respondents No.2 to 7 stand served. Mr. Dev Raj, learned counsel has put in appearance on behalf of respondents No.5 to 7 and on his instructions, Mr. Ashwani Pathak, learned Senior Counsel has put in appearance on behalf of said respondents. Learned Deputy Advocate General submits that he has instructions to appear on behalf of respondents No.1 and 2. As none has put in appearance on behalf of respondents No.3 and 4 despite service, said respondents are ordered to be proceeded against ex parte.
Heard. There is a legal controversy involved in the present writ petition, for the adjudication thereof, this Court is of the considered view that response of respondents No.5 to 7 is not required and otherwise also, learned Senior Counsel appearing for said respondents has ably assisted the Court in the adjudication of the petition, without insisting to file response.
2. Facts necessary for the decision of the present petition are that the petitioner was elected as a member of the Koyla Bhagwati Gram Seva Sahkari Sabha Samiti, Rajgarh, Village Kehad, Tehsil Balh, District Mandi, H.P. on 24.04.2018. Thereafter, in terms of the averments made in the petition, on 27.04.2018, he was unanimously nominated as Pradhan/President of the Society and he assumed the office as such. It is the contention of the petitioner that as he noted certain irregularities and illegalities being committed in the Society, which is a Society registered under the provisions of Himachal Pradesh Cooperative Societies Act, 1968 (hereinafter referred to as ‘1968 Act’), he initiated action and result thereof was that he was removed from the office of Pradhan/President in terms of a No Confidence Motion, passed by the Managing Committee of the Society, dated 17.09.2018, copy whereof is appended alongwith Annexure P4.
3. Feeling aggrieved, the petitioner after issuance of legal notice etc., filed a petition under Section 72 of the Himachal Pradesh Cooperative Societies Act, 1968, which was decided against the petitioner in terms of order dated 28.10.2021, passed by Joint Registrar, Cooperative Societies, Himachal Pradesh, copy whereof is appended with the petition as Annexure P9. This order was challenged by way of an appeal filed under Section 93 of the Himachal Pradesh Cooperative Societies Act,1968 by the petitioner, which appeal was dismissed by learned Appellate Authority vide Annexure P10, dated 27.04.2022. This order was assailed by the petitioner by was of CWP No.3189 of 2022, before this Court in terms of judgment dated 23.05.2022, Hon’ble Division Bench of this Court was pleased to allow the petition and set aside the order passed by learned Appellate Authority, on the ground that the order was a nonspeaking order. Thereafter, again the appeal stands decided by learned Appellate Authority and the same has against been dismissed in terms of Annexure P12, dated 25.08.2022.
4. I have heard learned counsel for the petitioner as also learned Deputy Advocate General and learned Senior Counsel appearing for respondents No.5 to 7. I have also carefully gone through the documents which have been placed on record.
5. The moot issue involved in this petition is as to whether the petitioner who was nominated as Pradhan/President of the Cooperative Society, could have been removed by way of a No Confidence Motion by the Managing Committee of the Society or not?
6. At this stage, it is necessary to refer to necessary statutory provisions which are relevant for the purpose of adjudication of the present writ petition. ChapterIII of the 1968 Act provides for members of the Cooperative Societies and their rights and liabilities. This Chapter provides as to who all become members of the Cooperative Society and ChapterIV of the 1968 Act provides for management of the Cooperative Society. Section 31 thereof provides that the final authority in a Cooperative Society shall vest in
Rule 43 of 1971 Rules provides as removal, expulsion etc. of Chairman, Committee-members and other elected officers.
The enforcement of a no-confidence motion against a managing committee is valid under the Kerala Co-operative Societies Act, despite the absence of specific procedural rules, reinforcing the democrat....
A Motion of No Confidence against a Managing Committee member must be considered by the Committee itself, not the Electoral College, as per the Maharashtra Co-operative Societies Act.
The general body of a co-operative society possesses an inherent democratic right to remove a managing committee through a no-confidence motion. Such a procedure, when codified in statutory rules, is....
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The court establishes that the removal of a co-opted member from a cooperative society must adhere to Rule 43-A, failing which any subsequent actions are void.
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