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IN THE HIGH COURT OF ALLAHABAD
RAJAN ROY, RAVI NATH TILHARI, JJ.
Shiv Kumar Mishra - Petitioner
Versus
State of U.P. Thru. Secy. U.P. Cooperative Society Lko. & Ors. - Respondents
Misc. Bench No. 36348 of 2019
Decided On : 07-09-2021
Civil Procedure Code,1908 – Sections 151 and 152 - U.P.Co-operative Societies Act, 1965 - Sections 27,27(1),27(2),38,14(2),72(1),72(2),92,99,98,,99(2),98(2),94,125,128,129126,66,67,68,65,26(2) - U.P. Cooperative Societies Rules, 1968 - Rule 269 - Corruption/misuse of public money in contruction of cooperative bank building - Quashing of Order - Writ of mandamus, thereby commanding and directing the opposite parties to allow petitioner on post of deligate, as he was working earlier - Petitioner made a complaint to Joint Commissioner and Joint Registrar Cooperative Society opposite party No regarding corruption/misuse of public money in contruction of cooperative bank building - Matter was investigated in which finally opposite party No. vide order directed that at time of payment for construction work an amount of lakhs shall be deducted and if payment had already been made same amount shall be recovered - Whether Registrar Co-operative Societies has power of review under U.P. Cooperative Societies Act, 1965 to review an order passed by him under Section 128 of the Act, 1965 ?What is scope of Rule 269 of Rule 1968 ? Whether impugned order is without jurisdiction and deserves to be quashed?
Finding of the court: Section 99 of Act, 1965 does not, therefore, provide for review against the order passed by the Registrar under Section 128 - Any provision conferring power of review on Registrar against order passed by him under Section 128 of Act could not be brought to our notice by learned counsels appearing in case - Court have considered above, that Co-operative Societies Act, 1965 does not confer any power of review on Registrar with respect to order passed under Section 128 of Act, 1965. However, in cases where the appeal lies to the Registrar under Section 98 (2) (b) of Act Registrar as appellate authority may review its order passed in exercise of appellate jurisdiction under Section 99 of Act - Exercise of this power contemplates correction of mistakes by Court of its ministerial actions and does not contemplate of passing effective judicial orders after judgment decree or order - It Settled position of law is that after passing of judgment decree or order court or tribunal becomes functus officio and thus being not entitled to vary terms of judgments decrees and orders earlier passed - Correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by Court while passing the judgment decree or order - To be proper remedy as C.P.C. confers power of review on courts which power of review is not with Registrar to review an order passed under Section 128 of Act - Power under Section 152 of Code are neither to be equated with power of review nor can be said to be akin to review or even said to clothe the court concerned under guise of invoking result of judgment earlier rendered in its entirety or any portion or part of it
Result: Writ petition allowed
JUDGMENT :
Ravi Nath Tilhari, J.
1. Heard Sri Brijesh Kumar Singh, learned counsel for the petitioner, learned standing counsel for opposite party Nos. 1 and 2 and Sri S.G. Singh, learned counsel for opposite party No.3 and perused the material on record.
2. This petition has been filed for the following main reliefs :
(ii) issue a writ, order or direction in the nature of mandamus, thereby commanding and directing the opposite parties to allow the petitioner on the post of deligate, as he was working earlier.
3. No counter affidavit has been filed, filing of which is also dispensed with as only legal question is involved and the parties counsels are ad idem that there is no factual dispute.
4. Learned counsel for the petitioner submits that the petitioner made a complaint to the Joint Commissioner and Joint Registrar, Cooperative Society, Ayodhya Mandal, Ayodhya-opposite party No.2 regarding corruption/misuse of public money in the contruction of cooperative bank building. The matter was investigated in which finally the opposite party No.2 vide order dated 26.02.2019 directed that at the time of payment for construction work, an amount of Rs. 3.19 lakhs shall be deducted and if payment had already been made the same amount shall be recovered. The petitioner started receiving threats from the Contractor and the Chairman of the co-operative society due to which the petitioner submitted an application for withdrawal from the membership on the post of delegate on 18.04.2019, upon which the Committee of Management of the District Cooperative Bank Limited, Faizabad-opposite party No.3 vide resolution No. 23 dated 31.07.2019 accepted the petitioner’s application, but without following the due procedure. The Vice Chairman of the society and seven other delegates filed application dated 01.08.2019 before the Joint Commissioner and Joint Registrar of the co-operative society to annul the resolution dated 31.07.2019 upon which finally the Joint Commissioner and Joint Registrar passed order dated 01.11.2019 (Annexure 8) under Section 128 of the U.P. Co-operative Societies Act, 1965, and annuled the resolution No. 23, providing that the said resolution shall be void and inoperative and be deleted from the records of the co-operative society. Liberty was, however, granted to the Committee of Management to take fresh decision as per the majority. Later on, the opposite party No.3 filed an application dated 05.11.2019, upon which an ex parte order dated 11.11.2019 without any opportunity of hearing to the petitioner was passed and thereby the earlier order dated 01.11.2019 has been stayed. The writ petition has been filed challenging the order dated 11.11.2019.
5. Learned counsel for the petitioner has submitted that the Joint Commissioner and Joint Registrar has passed the order dated 11.11.2019 reviewing the order dated 01.11.2019 and in exercise of power under Rule 269 of the U.P. Cooperative Societies Rules, 1968, which is mentioned in the order itself. His submission is that there is no power of review with the Commissioner and Joint Registrar, Cooperative Societies and further as any clerical or arithmetical error or accidental slip or omission in the order dated 1.11.2019 has not been pointed out, Rule 269 of the Rules, 1968 is not attracted.
6. Learned counsel for opposite party No.3 has supported the order dated 11.11.2019 on the ground that the Committee of Management vide application dated 05.11.2019 assured the opposite party No.2 that the meeting of the Committee of Management shall be convened at the earliest pursuant to the earlier letter of the opposite party No.2 dated 02.08.2019, by which the Committee of Management/ Chief Executive Officer was directed to reconsider the resolution dated 31.07.2019.
7. We have heard the submissions advanced b
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