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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
AJAY BHANOT, J.
C/M Krishna Sahkari Awas Samiti Limited And Others - Petitioners
Versus
State of U.P. And Others - Respondents
Writ - C No. 17979 of 2021
Decided On : 28-01-2022
Jurisdiction - Uttar Pradesh Co-operative Societies Act, 1965 - Section 128 - The court held that the impugned order passed by the appellate authority was despite inherent lack of jurisdiction and is a nullity in the eyes of law. The impugned order was set aside.
Fact of the Case:
The petitioner-committee of management challenged the order entered by the appellate authority under Section 98(n) of the Uttar Pradesh Co-operative Societies Act, 1965. The dispute arose from the resignation of the respondent No.5 as the honorary Secretary of the Cooperative Society, which was disputed by the petitioner-committee.
Finding of the Court:
The court found that the impugned order passed by the appellate authority was without jurisdiction and hence set it aside. The court allowed the writ petition and left it open to the respondents to avail any other alternative remedy as advised in law.
Issues: The main issue was the jurisdiction of the appellate authority under Section 98(n) of the U.P. Cooperative Societies Act, 1965 and whether the impugned order was valid.
Ratio Decidendi: The court held that the appeal is a creature of the statute and the scope of the appellate jurisdiction is defined and circumscribed by statute. The appellate authority cannot go beyond the statutory mandate of Section 98(n) of the U.P. Cooperative Societies Act, 1965. The court also emphasized that consent of parties will not confer jurisdiction of appeal where none has been vested by law.
Final Decision: The impugned order dated 22.06.2021 passed by the appellate authority was set aside and the writ petition was allowed.
JUDGMENT :
1. Heard Sri Krishna Mohan Misra, learned counsel for the petitioners, learned Standing Counsel for the respondent No.1 and 4-State, Sri Sunil Kumar Misra, learned counsel for the respondent No.2 and 3 and Sri Rakesh Pande, learned Senior Counsel assisted by Sri Radhey Krishna Pandey, learned counsel for the respondent No.5.
2. The petitioner-committee of management has assailed the order dated 22.06.2021 entered by the learned appellate authority /Joint Secretary, Co-operative Department, U.P. Government, Lucknow passed in purported exercise of appellate powers conferred under Section 98(n) of the Uttar Pradesh Co-operative Societies Act, 1965.
3. Sri Krishna Mohan Misra, learned counsel for the petitioners contends that the learned appellate authority /Joint Secretary, Co-operative Department, U.P. Government, Lucknow has passed the impugned order dated 22.06.2021 despite inherent lack of jurisdiction. Failure to raise the issue of jurisdiction at the stage of the appeal, does not preclude the petitioners from canvassing the same before this Court. The issue of jurisdiction goes to the root of the matter.
4. Sri Krishna Mohan Misra, learned counsel for the petitioners has placed reliance on authorities in point which are discussed in the body of the judgement.
5. Per contra, Sri Rakesh Pande, learned Senior Counsel assisted by Sri Radhey Krishna Pandey, learned counsel for the respondent No.5 submits that the issue of jurisdiction has to be taken in the first instance before the concerned authority. Admittedly, the petitioner-committee of management failed to do so and he is raising the issue of jurisdiction for the first time before this Court. Sri Rakesh Pande, learned Senior Counsel places reliance on A.V.G.P. Chettiar and Sons & Ors. Vs. T. Palanisamy Gounder, 2002 (5) SCC 337.
6. The facts in brief giving rise to this writ petition are these. There exists a cooperative society running in the name and style of “Krishna Sahkari Awas Samiti Limited, Yashoda Nagar, Kanpur Nagar” (hereinafter referred to as the 'cooperative society'). A resolution was passed by the petitioner-committee of management on 13.11.2017 accepting the resignation of the respondent No.5, as the honorary Secretary of the Cooperative Society. On behalf of the respondent No.5, the fact of resignation was seriously disputed. It was contended that the resignation letter and other consequential proceedings are all forged. Subsequently, an order was passed by the Chairman of the Cooperative Society on 19.12.2017 directing the concerned authorities not to recognize and act upon the signatures of the respondent No.5 as an office bearer of the society.
7. Aggrieved by the aforesaid order dated 19.12.2017, the respondent No.5 took out the proceedings under Section 128 of the U.P. Co-operative Societies Act, 1965 before the competent authority/Additional Housing Commissioner/Additional Registrar, Co-operatives Department, U.P. Awas & Vikas Parishad, Lucknow.
8. Section 128 of the U.P. Co-operative Societies Act, 1965 being relevant to the controversy is extracted hereunder for ease of reference :
(i) annul any resolution passed by the committee of management, or the general body of any co-operative society; or
(ii) cancel any order passed by an officer or a co-operative society; if he is of the opinion that the resolution or the order, as the case may be is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the bye-laws of the society, where upon every such resolution or order shall become void and in-operative and be deleted from the records of the society.
[Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the co-operative society to reconsider the resolu
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The jurisdiction to hear cooperative disputes lies with the Cooperative Court when the matters directly impact the society's business and management.
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