The Allahabad High Court has allowed the petition observing that upon the change of any member of the interim Committee of Management the term of the Committee of Management will not commence from that date.
The Division Bench of Justice Siddhartha Varma and Justice Ajit Singh passed this order while hearing a petition filed by C/M Azad Cooperative Housing Society Limited and 7 Others.
The petitioner, C/M Azad Cooperative Housing Society Limited (Society), is a duly registered cooperative society under the UP Cooperative Societies Act, 1965.
The last admitted election of the Committee of Management of the Society was held on 15.10.2016, as per its bye-laws for a period of five years. The term therefore was to expire on 14.10.2021. It appears that on 17.6.2021, the Additional Housing Commissioner exercising his powers under Section 35 read with Section 38 of the Act held that all the members of the Committee of Management had forfeited their rights to continue and, therefore, superseded the elected Committee of Management. Exercising his powers under Sections 29 (4-B) of the Act and under Rule 438 of the UP Co-operative Societies Rules, 1968, he further appointed a four member interim Committee consisting of various State officials.
On 2.1.2022, under the orders of the Chairman of the interim Committee of Management of the Society, Pradeep Kumar Raman, ACM-1, Bareilly, on the basis of the resolution dated 20.12.2021 (resolution no 2) removed the Secretary Smt Pushpa Singh, the petitioner no 2.
Also by the same order Prempal Singh, son of Mahendra Pal Singh (Sugarcane Observor, Godown Incharge), Cane Development Board, Chandpur was appointed as the Secretary of the Society. Aggrieved thereof, the petitioners have filed the writ petition.
Counsel for the petitioners H.R. Mishra, assisted by K.M. Mishra, submitted that the order dated 17.6.2021 passed under Section 38 of the Act was in breach of Rules 437 & 438 of the Rules read with Section 35 of the Act.
Counsel for the petitioners submitted that after the passage of five years from the last admitted election dated 15.10.2016, the term of the Committee of Management expired on 14.10.2021. In between, he submits that when the order dated 17.6.2021 was passed the same was passed without affording any opportunity of hearing and without adhering to the provisions of Section 38 of the Act.
Thereafter, it has been argued by the counsel for the petitioners that when the interim Committee of Management of the Society was appointed on 17.6.2021 then, thereafter, its term expired after the passage of six months from the date of the appointment and he, therefore, submitted that the order which was passed on 2.1.2022 basing on the resolution dated 20.12.2021 was against the provisions of Section 29(4-D) as the interim Committee of Management which was constituted on 17.6.2021 lived its term till 17.12.2021 i.e after the six months had expired from the date of the constitution of the interim Committee of Management.
Counsel for the petitioners submitted that a bare perusal of Section 29 (4-D) shows that the interim Committee of Management had ceased to exist after the expiry of six months from the date of its appointment and, therefore, even the resolution which was passed before the passing of the order dated 2.1.2022 on 20.12.2021 was without any jurisdiction.
Nirankar Singh, counsel for the respondent no 6, filed a counter-affidavit and questioned the authority of the petitioners to file the writ petition. He also submitted that if the resolution dated 20.12.2021 was being questioned then the petitioners had an alternative remedy of approaching the Registrar under Section 128 of the Act and under Section 128 the Registrar had power to annul any resolution of a cooperative society.
Counsel further submitted that the office bearers of the petitioners were removed on 17.6.2021 after due notice.
He also submitted that for quite some time in the month preceding 17.6.2021 the Managing Committee of the Society had not been able to convene any meeting and the office bearers were neck deep in various embezzlements.
He said that with regard to functioning of the Committee, videography and photography was also done on 5.11.2020, 6.2.2021 and 9.4.2021 and, he, therefore, submits that when the members of the Committee of Management were deliberately absenting themselves then resorting to the powers of under Section 38 of the Act, the order dated 17.6.2021 was passed.
With regard to the argument of the petitioner that the interim Management Committee which was appointed on 17.6.2021 had outlived its life, counsel for the private respondent submitted that on 13.8.2021, the ACM-II was transferred and the ACM, therefore, was substituted in his place and, therefore, it was a re-constituted Committee of Management and, therefore, the six months would be counted from the date of its reconstitution.
He, therefore, submitted that the resolution dated 20.12.2021 and the subsequent resolution dated 1.1.2022 were passed by a Committee of Management which had full authority to pass those resolutions.
He also submitted that the order dated 2.2.2022 which was passed by the Chairman of the interim Committee of Management on the basis of the resolution dated 20.12.2021 was absolutely in order and no interference was required.
He further submitted that even for the removal of office bearers, specially, the Secretary, the petitioner had an effective alternative remedy by way of filing an Appeal under Section 98 of the Act.
“Having heard the counsel for the petitioners; the counsel for the private respondents Nirankar Singh; Narendra Kumar Giri for the Election Commission and Sunil Kumar Mishra for the Additional Housing Commissioner/Additional Registrar, Uttar Pradesh Awas & Vikas Parishad (Cooperative Department), the Court is of the view that at this stage when the term of the Committee of Management had expired on 14.10.2021, no useful purpose would be served by adjudicating upon the fact as to whether the order dated 17.6.2021 was passed in accordance with law or not.
The Court is of view that even after the passing of the order dated 17.6.2021, six months had expired on 16.12.2021. Definitely as per the provisions of Sections 29(4), 29(4-A), 29(4-B) and 29(4-C) of the Act, the election ought to have been held after the expiry of the term of the Committee of Management. If, however, an interim Committee of Management had been appointed by the Registrar for the management of the Society then the term of the interim Committee of Management had also to come to an end on the expiry of the six months, from the date from such appointment.
The Court, therefore, is of the view that the resolution dated 20.12.2021 and 1.1.2022 were without jurisdiction. The Court is also of the view that the order which was passed on 2.1.2022 was absolutely without any jurisdiction as the resolution dated 20.12.2021 itself on the basis of which the order dated 2.1.2022 was passed was a resolution which could not have been passed.
Under such circumstances, we hold that the resolutions dated 20.12.2021 and 1.1.2022 passed by the respondent no 4 were passed without any jurisdiction. Since the Court holds that the resolutions were passed without any authority of law, we do not consider it appropriate to suggest that the petitioners ought to have approached the alternative forum. Since now, we have held that the resolutions were passed without any authority of law, we also hold that the order dated 2.1.2022 passed by respondent no 6 was passed without any authority of law, the Court observed while allowing the petition.
“The resolutions dated 20.12.2021 and 1.1.2022 and the order dated 2.1.2022 are quashed and are set-aside.
On the date, when the judgement was reserved there was a statement given by the Election Commission that no election till that date had taken place. Under such circumstances, we further direct that if the elections have till date not taken place, they be held forthwith in accordance with law,” the order reads.