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IN THE HIGH COURT OF ALLAHABAD
MANOJ KUMAR GUPTA, ACJ., MANISH KUMAR NIGAM, JJ.
C/M The Meerut Sahkari Avas Samiti and Others - Petitioners
Versus
State of U.P. and Others - Respondents
Writ - C No. 18413 of 2023
Decided On : 16-12-2023
Registrar's Direction - Removal of Chairman and Secretary - Act 1965, Section 2(e), Section 2(f), Section 2(o), Section 9, Section 28, Section 29, Section 30, Section 31, Section 38, Section 98, Rule 454 - The court discussed the Registrar's power under Section 38(1) of the Act of 1965, the distinction between Section 38 and Rule 454, and the requirement of notice and principles of natural justice in the context of the Registrar's direction to remove the Chairman and Secretary of the Society.
Fact of the Case:
The writ petition was filed challenging the orders passed by the Additional Housing Commissioner/Additional Registrar directing the removal of the Chairman and Secretary of a Housing Society under the U.P. Cooperative Societies Act, 1965.
Finding of the Court:
The court found that the Registrar's direction to the Committee of Management to convene a meeting of the general body of the Society to consider the removal of the Chairman and Secretary was within the scope of Section 38(1) of the Act of 1965. The court also held that the Registrar was not required to afford a hearing to the officers at the stage of issuing the direction.
Issues: The jurisdictional issues raised included the lack of opportunity given to the petitioners to show cause before the orders were passed, and the contention that the Committee of Management had no power of removal under Section 38(1) of the Act of 1965.
Ratio Decidendi: The court clarified the Registrar's power under Section 38(1) and the distinction between Section 38 and Rule 454. It also addressed the requirement of notice and principles of natural justice in the context of the Registrar's direction.
Final Decision: The writ petition was dismissed, and the petitioners were reserved the liberty to challenge the final order passed under Section 38(2) of the Act of 1965 in appeal before the tribunal.
JUDGMENT :
Manish Kumar Nigam, J.
1. Heard Sri H.N. Singh, Senior Advocate assisted by Sri Ratnakar Upadhyay for the petitioners, Sri H.R. Mishra, Senior Advocate assisted by Sri Abhishek Mishra and Sri Sunil Kumar Mishra for the respondents and learned Standing Counsel for the State.
2. This writ petition has been filed for the following reliefs:-
(ii) Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned orders referred to above and stay its effect and operation and all further proceedings consequent thereupon during the pendency of the writ petition.
(iii) Issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
(iv) Award the cost of the writ petition.”
3. Brief facts of the case are that Meerut Sahkari Awasi Samiti Ltd, Saket, Meerut (hereinafter referred to as the ‘Society’) is a Housing Society registered under U.P. Cooperative Societies Act, 1965 (hereinafter referred to as ‘the Act of 1965’). Petitioner no. 1 is the Committee of Management of the Society, petitioner no. 2 is the elected Chairman of the Society and the petitioner no. 3 is the Secretary appointed under Section 31 of the Act of 1965 and as such is the Chief Executive Officer of the Society. The election of the Society was held on 16.02.2023 and the election of Chairman and Vice Chairman was held on 17.02.2023. The term of Committee of Management is five years and therefore, is entitled to continue till February, 2028. At present, the Society is governed by the current model bye-laws issued on 17.03.2021, applicable to all the Cooperative Housing Societies, registered in State of Uttar Pradesh. The Model Bye-Laws are annexed at page no. 41 of the paper book.
4. On 11.05.2023, two orders dated 11.05.2023 were passed by Additional Housing Commissioner/Additional Registrar/respondent no. 2 being patrank no. 516 and patrank no. 515. By order patrank no. 516 dated 11.05.2023, respondent no. 2 directed the Committee of Management of the Society, in exercise of power under Section 38(1) of the Act of 1965, to remove the Chairman of the Society within one month and inform accordingly to respondent no. 2. By the other order patrank no. 515 dated 11.05.2023, respondent no. 2 directed the Committee of Management of the Society to remove the Secretary of the Society within one month and inform him accordingly. Both the orders have been passed on the basis of an enquiry report dated 28.04.2023 submitted by one Hriday Ram, Cooperative Officer (Awas), Meerut (respondent no. 3). The said enquiry was got conducted by respondent no. 2 by order dated 11.04.2023 on a complaint made by a member Atul Kumar Singh (respondent no. 5). He has found the President and Secretary of the Society acting against the interest of the Society and guilty of violation of the provision of the Act, Rules and Bye-Laws of the Society. The orders dated 11.05.2023 are under challenge in the present writ petition.
5. During pendency of the writ petition, respondent no. 2 has passed an order directing for removal of the Chairman of the Society on 04.07.2023 in exercise of powers under Section 38(2) of the Act of 1965. Copy of the aforesaid order has been brought on record by the petitioners by means of supplementary affidavit filed on 06.07.2023.
6. It has been contended by learned counsel for the respondent that since the order dated 04.07.2023 passed by respondent no. 3 is not under challenge in the present
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