# C/M, Azad Cooperative Housing Society Ltd., Bareilly & Ors v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-16
- **Case number:** Writ C No. 3298 of 2022
- **Bench:** Siddhartha Varma, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-azad-cooperative-housing-society-ltd-bareilly-ors-v-state-of-u-p-ors-49129
- **Pages:** 5

## Headnote

A. Civil Law - U.P. Cooperative Societies
Act, 1965 - Sections 29 (4-B), 35 & 38 -
U.P. Co-operative Societies Rules, 1968 -
Rules 437 & 438 - Term of interim
committee appointed by Registrar - six
months - Under section 29 (4-D), the
interim Committee appointed under subsection 29(4-B) shall cease to exist after
the expiry of six months from the date of
its appointment or reconstitution of the
Management Committee after election
thereof
whichever
is
earlier
-
Reconstitution - mere change of any
member of the interim Committee of
Management, would not mean that the
term of the Committee of Management
would commence from that date (Para 11,
12)

B. Civil Law - U.P. Cooperative Societies
Act, 1965 - U.P. Co-operative Societies
Rules, 1968 - Removal of secretary - by
interim committee appointed by Registrar,
after expiry of its term - Effect - the
election of the C/m of the Society was
held on 15.10.2016, for a period of 5 yrs,
term was to expire on 14.10.2021 -
However, before the term expired, on
17.6.2021,
the
Additional
Housing
Commissioner
superseded
the elected
C/m & appointed a four member interim
Committee - on 13.8.2021, the A.C.M. -II
was
transferred
and
the
ACM,
was
substituted in his place - On 2.1.2022,
under the orders of the Chairman of the
interim C/m, the ACM-1, on the basis of
the resolution dated 20.12.2021, removed
the Secretary - Held - term of the interim
Committee of Management which was
constituted on
17.6.2021
expired
on
17.12.2021, on the expiry of the six
months,
from
the
date
from
its
appointment - On the date when the ACM
II was replaced by the ACM, there was no
fresh
reconstitution
of
the
interim
Committee of Management but it was only
a change which had been brought in to
make
the
interim
Committee
of
Management functional - therefore the
resolution dated 20.12.2021 and 1.1.2022,
passed by the interim committee, after
expiry
of
its
term,
were
without
jurisdiction & the order of removal of
secretary passed on 2.1.2022 was also
without any jurisdiction - resolutions
dated 20.12.2021 and 1.1.2022 and the
order dated 2.1.2022 quashed & set-aside
- Court directed to hold election forthwith
in accordance with law (12, 13, 15)

Allowed. (E-5)

## Text

1 All. C/M, Azad Cooperative Housing Society Ltd., Bareilly & Ors. Vs. State of U.P. & Ors.
157
party no. 3 who has chosen to remain
dormant against the State.

15. In the circumstances stated above,
we are not convinced that the writ petition
for the relief prayed herein can be
entertained and it is open to opposite party
no. 3 to lay his claim as may be permissible
under law. The writ petition is accordingly
dismissed with no order as to cost.
----------
(2023) 1 ILRA 157
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ C No. 3298 of 2022

C/M, Azad Cooperative Housing Society
Ltd., Bareilly & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prabhakar Awasthi, Sri Dhiresh Kumar,
Sri Hiresh Tiwari, Sri K.M. Mishra, Sri H.R.
Mishra (Senior Counsel)

Counsel for the Respondents:
C.S.C., Sri Lal Chandra Sahu, Sri Narendra
Kumar Giri, Sri Nirankar Singh, Sri Sunil
Kumar Misra

A. Civil Law - U.P. Cooperative Societies
Act, 1965 - Sections 29 (4-B), 35 & 38 -
U.P. Co-operative Societies Rules, 1968 -
Rules 437 & 438 - Term of interim
committee appointed by Registrar - six
months - Under section 29 (4-D), the
interim Committee appointed under subsection 29(4-B) shall cease to exist after
the expiry of six months from the date of
its appointment or reconstitution of the
Management Committee after election
thereof
whichever
is
earlier
-
Reconstitution - mere change of any
member of the interim Committee of
Management, would not mean that the
term of the Committee of Management
would commence from that date (Para 11,
12)

B. Civil Law - U.P. Cooperative Societies
Act, 1965 - U.P. Co-operative Societies
Rules, 1968 - Removal of secretary - by
interim committee appointed by Registrar,
after expiry of its term - Effect - the
election of the C/m of the Society was
held on 15.10.2016, for a period of 5 yrs,
term was to expire on 14.10.2021 -
However, before the term expired, on
17.6.2021,
the
Additional
Housing
Commissioner
superseded
the elected
C/m & appointed a four member interim
Committee - on 13.8.2021, the A.C.M. -II
was
transferred
and
the
ACM,
was
substituted in his place - On 2.1.2022,
under the orders of the Chairman of the
interim C/m, the ACM-1, on the basis of
the resolution dated 20.12.2021, removed
the Secretary - Held - term of the interim
Committee of Management which was
constituted on
17.6.2021
expired
on
17.12.2021, on the expiry of the six
months,
from
the
date
from
its
appointment - On the date when the ACM
II was replaced by the ACM, there was no
fresh
reconstitution
of
the
interim
Committee of Management but it was only
a change which had been brought in to
make
the
interim
Committee
of
Management functional - therefore the
resolution dated 20.12.2021 and 1.1.2022,
passed by the interim committee, after
expiry
of
its
term,
were
without
jurisdiction & the order of removal of
secretary passed on 2.1.2022 was also
without any jurisdiction - resolutions
dated 20.12.2021 and 1.1.2022 and the
order dated 2.1.2022 quashed & set-aside
- Court directed to hold election forthwith
in accordance with law (12, 13, 15)

Allowed. (E-5)

(Delivered by Hon'ble Siddhartha Varma, J.
158 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Ajit Singh, J.)

1.

The
petitioner
C/M
Azad
Cooperative
Housing
Society
Limited
(hereinafter referred to as the "Society") is
a duly registered cooperative society under
the U.P. Cooperative Societies Act, 1965
(hereinafter referred to as the "Act").

2. 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 U.P. Cooperative
Societies
Rules,
1968,
(hereinafter referred to as the "Rules"), he
further appointed a four member interim
Committee consisting of various State
officials.

3. On 2.1.2022, under the orders of
the Chairman of the interim Committee of
Management of the Society, Sri 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 Sri Prempal
Singh, son of Sri 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 instant writ petition.

4. Learned counsel for the petitioners
Sri H.R. Mishra assisted by Sri 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.

5. Learned counsel for the petitioners
has 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.

6. Thereafter, it has been argued by
the learned 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.
Since the learned counsel for the petitioners
relied upon Section 29 (4-D) of the Act, the
same is being reproduced here as under:-

"29(4-D). The interim Committee
appointed under sub-section (4-B) shall
cease to exist after the expiry of six months
from the date of its appointment or
reconstitution
of
the
Management
Committee after election thereof whichever
is earlier."
1 All. C/M, Azad Cooperative Housing Society Ltd., Bareilly & Ors. Vs. State of U.P. & Ors.
159

7. Learned counsel for the petitioners
submitted that a bare perusal of Section 29
(4-D) shows that the interim Committee of
Management had ceased to exit 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.

8. Sri Nirankar Singh learned 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.

9. Learned counsel has submitted that
the office bearers of the petitioners were
removed on 17.6.2021 after due notice. He
had 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 submits 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.

10. With regard to the argument of the
petitioner that the interim Management
Committee
which
was
appointed
on
17.6.2021 had outlived its life, learned
counsel
for
the
private
respondent
submitted that on 13.8.2021, the A.C.M. -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, submits 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 submits 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 still
further submitted that even for the removal
of the office bearers, specially, the
Secretary, the petitioner had an effective
alternative remedy by way of filing an
Appeal under Section 98 of the Act.

11. Having heard the learned counsel
for the petitioners; the counsel for the
private respondents Sri Nirankar Singh; Sri
Narendra Kumar Giri for the Election
Commission and Sri 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(4A), 29(4-B) and 29(4-C) of the Act, the
election ought to have been held after the
160 INDIAN LAW REPORTS ALLAHABAD SERIES
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. For ready reference, we
are reproducing Sections 29 (4) to 29(4-D)
of the Act here as under:-

"29(4). It shall be the duty of the
Secretary or the Managing Director of the
cooperative society as the case may be, to
send to the Election Commission four
months before the expiry of the term of the
Committee of Management, a requisition
for conducting the election and to furnish
all such information as may be required by
the election commission within such period
of as may be fixed by it.

(4-A)
Due
to
any
reason,
whatsoever, if members of the Management
Committee are not elected or could not get
elected before expiry of its tenure then the
Management Committee shall cease to
exist
after
expiry
of
its
term
notwithstanding anything to the contrary in
any other provision of this Act, or the rules
made thereunder or the bye-laws of the
society.

(4-B) After the Management
Committee ceases to exist under subsection (4-A) an interim Management
Committee shall as soon as possible be
appointed
by
the
Registrar
for
the
Management of the Cooperative society in
accordance with the provisions of this Act,
the rules and the bye-laws of the society.
The Registrar shall have power to change
the members of the interim Management
Committee or appoint a new interim
Management Committee in place thereof.

(4-C) The interim Management
Committee appointed under sub-section (4B) shall exercise the powers and perform
the
functions
of
the
Management
Committee under this Act subject to the
directions given by the Registrar from time
to time.

(4-D) The interim Committee
appointed under sub-section (4-B) shall cease
to exist after the expiry of six months from
the date of its appointment or reconstitution
of the Management Committee after election
thereof whichever is earlier.

12. Nowhere from the above
provisions which have been quoted above
can it be gleaned out that upon the change
of any member of the interim Committee of
Management would the term of the
Committee of Management commence
from that date. Under such circumstances,
the following facts become clear:

I. The term of the interim
Committee of Management which was
constituted
on
17.6.2021
expired
on
17.12.2021.

II. On the date when the ACM II
was replaced by the ACM, there was no
fresh
reconstitution
of
the
interim
Committee of Management but it was only
a change which had been brought in to
make
the
interim
Committee
of
Management functional.

13. Under such circumstances, we
hold that the resolutions dated 20.12.2021
1 All. Raj Mangal Gond Vs. State of U.P. & Ors.
161
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 the respondent no.6 was passed
without
any
authority
of
law.
The
resolutions dated 20.12.2021 and 1.1.2022
and the order dated 2.1.2022 are quashed
and are set-aside.

14. 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.

15. Under such circumstances, we
further direct that if the elections have till
date not taken place, they be held forthwith
in accordance with law.

16. For the reasons stated above, the
writ petition stands allowed.
----------
(2023) 1 ILRA 161
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ C No. 23865 of 2022
Connected With
Writ C No. 23942 of 2022
And
Writ C No. 26680 of 2022
And
Writ C No. 25749 of 2022
Raj Mangal Gond ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Mohan Misra, Sri Swatantra
Pratap Singh, Sri H.R. Misra, Sr. Advocate

Counsel for the Respondents:
C.S.C.

Constitution of India, 1950 - Article 342(2) -
Scheduled
Caste
and
Scheduled
Tribe
Orders (Amendment) Act, 2002 - Gond
Caste - Caste Certificate - Held - authority
i.e. the Tehsildar, which had earlier issued
the Caste Certificate had no jurisdiction to
cancel the same except when the Caste
Certificate had been obtained by playing
fraud or by concealing any relevant fact - In
the instant case the Tehsildar cancelled the
Caste Certificate issued by him, holding that
the petitioner was not of the Gond Caste but
was of the Kahar caste, but there was no
finding in the impugned order that the
earlier certificate was obtained by the
petitioner by playing fraud on any authority
- the impugned order quashed and set aside.
(Para 7)

Allowed. (E-5)

List of Cases cited:

1. Hizwana Bano Vs St.of U.P. & ors., 2011(1)
ADJ 440 (DB),

2. Praveen Kumar Vs St.of U.P. & ors. 2014(8)
ADJ 690 (DB),

3. Rajesh Kumar Gond Vs St.of U.P. & ors.
2015(8)ADJ 275 (DB),

(Delivered by Hon'ble Siddhartha Varma, J.)

1. Heard learned counsel for the
parties.

2. The petitioner who claimed himself
to be a Gond with a permanent domicile of