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2016 Supreme(J&K) 665
JAMMU AND KASHMIR SPECIAL TRIBUNAL
Ramesh Kumar Wattal, Member (Judicial)
S.S. Sambyal [Brig. (Retd.)] - Appellant
Vs.
Amar Singh [Hav. (Retd.)] - Respondent
File No. STJ/349 of 2015
Decided On : 16-02-2016
For the Appellant :Mr. Vishal Sharma, Advocate
For the Respondents:Mr. A.K. Sawhney and Aseem Sawhney, Advocates
A Tribunal, as a statutory authority exercising judicial powers, has the inherent powers to convert an appeal into a revision petition, considering that the matter involves a substantial question of law of public importance.
Headnote:
COOPERATIVE SOCIETY - REMOVAL OF CHAIRMAN - NO CONFIDENCE MOTION - MAJORITY - INTERPRETATION - FRACTIONAL VOTES - CASTING VOTE - JURISDICTION - TRIBUNAL - REVISION - INHERENT POWERS - CONVERSION OF APPEAL INTO REVISION.
Fact of the Case:
The appellant, the Chairman of the Sainik Co-operative House Building Society, Jammu, challenged the order passed by the Registrar of Cooperative Societies, J&K, declaring the resolution passed by the respondents, four out of seven elected members of the Managing Committee, withdrawing their support to the appellant and electing respondent no. 1 as the new Chairman, as legally valid. The appellant contended that the respondents did not have the requisite majority to pass a no-confidence motion against him, as per the rule requiring a ?rd majority of the total number of committee members. The respondents resisted the appeal, arguing that the appeal was not maintainable, that the appellant had lost the majority support and that the Registrar had acted in accordance with the rules and bye-laws.
Finding of the Court:
The Tribunal held that the appeal was not maintainable as the Cooperative Tribunal, which had the jurisdiction to hear the appeal, had not been constituted yet. However, the Tribunal exercised its inherent powers to convert the appeal into a revision petition, considering that the matter involved a substantial question of law of public importance. On the merits of the case, the Tribunal found that the respondents did not have the requisite majority to pass a no-confidence motion against the appellant, as the ?rd majority of the total number of committee members, which was 7, was 4.66, and the fraction of .66 could not be ignored and had to be rounded off to a whole number. Thus, the number fell short by 1 and the resolution failed. The Tribunal also held that the Registrar had erred in holding that the appellant had lost the majority as chairman of the society. Therefore, the Tribunal accepted the revision petition and set aside the order under revision.
Issues: 1. Whether the appeal was maintainable before the Tribunal, considering that the Cooperative Tribunal, which had the jurisdiction to hear the appeal, had not been constituted yet? 2. Whether the Tribunal had the inherent powers to convert the appeal into a revision petition? 3. Whether the respondents had the requisite majority to pass a no-confidence motion against the appellant, as per the rule requiring a ?rd majority of the total number of committee members? 4. Whether the Registrar had acted in accordance with the rules and bye-laws in declaring the resolution passed by the respondents as legally valid?
Ratio Decidendi: 1. The Tribunal held that the appeal was not maintainable as the Cooperative Tribunal, which had the jurisdiction to hear the appeal, had not been constituted yet. However, the Tribunal exercised its inherent powers to convert the appeal into a revision petition, considering that the matter involved a substantial question of law of public importance. 2. The Tribunal held that it had the inherent powers to convert the appeal into a revision petition, as it was a statutory authority exercising judicial powers and had the trappings of a court. The Tribunal also noted that the development of administrative law and the trend of Tribunalization were aimed at checking the excesses of administrative authorities. 3. The Tribunal held that the respondents did not have the requisite majority to pass a no-confidence motion against the appellant, as the ?rd majority of the total number of committee members, which was 7, was 4.66, and the fraction of .66 could not be ignored and had to be rounded off to a whole number. Thus, the number fell short by 1 and the resolution failed. 4. The Tribunal held that the Registrar had erred in holding that the appellant had lost the majority as chairman of the society, as the respondents did not have the requisite majority to pass a no-confidence motion against him.
Final Decision: The Tribunal accepted the revision petition and set aside the order under revision, declaring the resolution passed by the respondents as legally valid.
Ramesh Kumar Wattal, Member (Judicial)
The instant appeal has been filed on the grounds:-
That the appellant is the chairman of the managing committee of The Sainik Co-operative House Jammu (hereinafter referred to as the Society") being duly elected as such unanimously by the members of the Managing Committee of the Society, consisting of seven elected members including the appellant.
2. That the respondents 1 to 4 are also elected members of the Managing Committee of the Society who were having differences of opinion on certain issues being of the view that transfer of plots and shops be allowed under Para 9(d) of the Society rules. This was discussed and it was viewed by the three Directors including the appellant that transfer of Plots/Shops to non-entitled persons is illegal since the plots can only be transferred to people covered under Para 5 of the rules of the Society. However this was not agreed to by the respondent 1 to 4. A legal view was taken from one advocate and a retired judge but both the views were contradictory, hence it was explained that the Managing Committee will not allow transfers to non-entitled persons. Also it was decided that the issue will be placed before the Annual General Body Meeting for final decision which was tentatively scheduled for October 2015.
3. That two enquiries were ordered by the Govt, through Registrar Cooperative Societies to investigate the violations in land use where land meant for parks, service utilities has been converted into residential purposes and commercial activities etc. In order to ensure that full co-operation is provided for effective conduct of enquires, it was decided that all transactions related to transfer of plots/shops will be stopped till the enquiries are over and this was agreed to by all directors and a resolution to this affect was passed on 3.08.2015. However the respondents 1 to 4 were not keen to have the information given to enquiry officer fearing their exposure, since certain illegal transaction of land transfer and their involvement might be revealed along with other previous management committee members.
4. That it is also pertinent to mention that respondents 1 to 3 have been issued Show Cause Notice for recovery of unauthorized sitting fees drawn by them during their previous tenure as directors. These Show' cause notices to directors have been issued by the Registrar Co-op., Deptt. J&K but the enquiry has not been concluded as yet.
5. That since the respondents 1 to 3 were not keen to have the enquiries completed and further to manage the records of the Society to save themselves from the enquiries into their misdeeds connived with respondent no. 4 by taking him into confidence to take over the management of the society.
6. That the respondents 1 to 4 on 10.09.2015 requested for holding a meeting of the Managing Committee on 12.09.2015 although a circular was already issued for a meeting scheduled to be held on 17.09.2015, which respondents 1 to 4 had refused to acknowledge but insisted on a meeting to be held on 12.09.2015 because they had already decided to remove the appellant in connivance with one staff member of the Registrar's office at Jammu.
7. That at the insistence of the respondents 1 to 4, a special meeting of the Managing Committee was held on 12.09.2015 from 11:00 AM onwards. The respondents 1 to 4 informed verbally that they do not support the appellant as chairman where upon the respondents 1 to 4 were explained that as per rules they must move a no confidence motion against the appellant as envisaged under rule 25(3) of Cooperative Societies Rule 2001 but the same was never done. Moreover, they were also explained the rule position i.e. for any" no confidence motion" against the Chairman or Director the same must be passed by ?rd majority, the motion, though never made, stood rejected and this information was passed on to the registrar Cooperative Societies J&K.
8. That the respondents 1 to 4 who had come with a specific
